BUR.

MA LAW REPORTS

SUPREME COURT

1955

Contain{ng cases determfned by 'the Supreme

Court of the Union of Burma

MR. B. w. BA TUN, M.A., LL.B.,_

.
Bar.-q.t-Law,
.. .
. EDITOR.
U TUN
. ON, 13.A., B.L, (Advocate),
.
RE,PORTER .

Index prepar~~ by_:U TUN MAUNG, B.A., B.L., Bar:-at-Law.

.
...: .~ ;.~,. . .
.
DR; MAUN.GMAUNG, B.L., LL.D., Bar.at~Law
.
,~~bUshed under the autho'd ty of the ~reside~t ~f _th~ Un~n ot
0

I l(.r.ma .by
~-:<:
.
.

.the Superintendent, Government . Printing . and
..
. . . .
St~.~~ry, Bur-ma, Ra~goon.
.

~
. ?

[All r.ights.'resenledl
 I' AGE

A.I.R. (1951) (S.C.) 332 ... 47

Abinash Chandra Ghosh v. Narahari Mehtar. (1930)
I.L.R. 59 Cal. 889 ... .. , 92
Abdul Rahim Naskar v. Abdul Jabbar Naska and
others, 54 C. W. No. 445 64
Bal Krishna Hari v. Emperor. 57 Bom. 93 69'
Balthazar & Son v. E. X Abowath, I.L.R. Ran. V, l 40

Bimala Brosad Ray and another v. State of West
Benga,, A.I.R. (1951) Cal. 258 (S.B.) 64
Chatturam and others v. Commissiontr of
Income-tax, Bihar, (1947) F.C.R. 116 47
Cooper v. Wilson and others, (1937) 2 K.B. 309.340 ... 72
Cyong Ah Lin v. Daw Thike, (1949) B.L.R. (H.C.)
;. 168 23

Daw Ngwe Tin v. Controller of Rents. Rangoon

and two, B.L,R. (1951) (S.C.) 85 12:
:----- Thike v. Cyong Ah Lin, (1951) B.L.R. (S.C.)
. 123 ... 33:
or. R. C. .Das v. The Controller of Rents. Rangoon,
..
(1950 B.L.R. cs.c.) 225 33

Gobinda Chandra Dakna v. Dinesh Chandra Maitra,

Arl.R. (1952) . Cal. 100 .3 4.
Gobind Coomer Chowdhry v. Kisto Coom.ar
Chowdhry, 7 .W.R. 520 63
Gopal Singh v. The <:;ourt of Awards. (1867) 7 W.R.
. <G;R.) 430
. . ..
. Gqvind
. -
Vinayak v.' Additional
.. . .
. . ..

Deputy Commissioner,.
... (16.

. ..
.
.
. Nagp.urand
. .
.
another, A.I.R. (1953)
..
Nag. 250 ...
- . .. 34-.
 ,,
X LIST OF CASES CITED.

(' A(; E.
Greene v.,. Secretary of State for Home Affairs,
(1941) All England Law Reports, Vol. 3, 388
at 394 7
Gwan K:ee v. The Union of Burma, ( 1949) R.L.R.
(S.C.) 151 at 153 33

Hari Charan Kundu v. Kanshiki Charap Day~ 44

C.W.N. 530 77.
Hobhouse's Case, 106, English Reports, 716 at 718 7
Hwe Gye Hain and one v. The King, ( 1948) RL.R.
40 8z
Israil Khan v. The State.A.I.R. (1951)Assam 106.. 64:
~
...
Jadu~Nandar Singh v. Emperor. (1910) I.L.R. 37
Cal. 250
Jatindra Nath Gupta v. "The Province of Bihar.
(1949) F.C.R. i75=(1949) 2 M.L.J. 3S6 47.;
Joylal Agarwal~ v. The State. A.I.R. (1951) (S.C.) :.
484 .. . ..
. Joy Ran v. Bulwant Singh, 5 W.R. Misc. 3
Kishan Kishore v. Din Mohamed and others, A..I.R.
(1929) Lab. 684 90.

Lasa Din v. Gulab Kunwar and others (195:2) 59

I. A. ' 376-7 Luck-=44 A.I.R. (1932) (P.C.) 207
M. Masttiar and others v. S. A. Mudaliar, A.I.R.
... (1944).Mad. 172 . .. . 87
Ma Kyin Sein v. Maung Kyin Htaik, (1940) :a.L.R.
783 . . 26
Magalal Jivabhai Patel v. Government of .Bombay~
Q

;;~~ = ., A.I.R. (1953) Born. 59 34

tf""o:_:_!'jo

Mah~g1.,1 v. Nararan. I.L.R. (1950) Nag. 679 :: .- .. ~ -90'

,Manwatha v. Empero.r , 37 C.W.N. '20f 63
Manrnatba Nath Biswas v. Emperor, 60.Cal. 6i'8 :.. .' . 66
o;~aung :J'u y~ 1\j~ Ch~t . J..L.R. 10 Ran; 162 . . ... 30-
Megah'Nat~ a~d ~~otne~ v. 'Fbe CoU~ctor. Ca~ppore, .
~,.. . A.I.R .. (1947)'AJJ:
-~ .
7 . . p .
HON'BLE .JUDGES OF THE SUPREMZ COURT
OF THE UNION OF BURMA DURlNG THE
YEAR 1955
1. The Hon'ble Justice Thado Thiri Thudhamma
U THEIN MAUNG, M.A., LL.B., Barrister-at-
Law, Chief Justice of the Union.
2. The Hon~ble Justice Thado Maha Thray Sithu
U MYINT THEIN, M.A. , LL.B., Barrister-at-Law.
3. The Ho.I1?qle Justice Thado Maha Thray Sithu
U CHAN HTOON, LL.B., Barrister-at-Law.
4. The Hon'ble Justice A1aha Thiri Thudhamma
U Bo .GYI, B.A., B.L. (from f6th March 1955).
 LAW QFFICERS OF THE UNION OF BURMA
DURING THE Yi!:AR 1955

1. Thray Sithu U CHAN TuN AuNG, . B.A., B.L.,

Barrister-at-Law, Attorney-General (up to
16th March 1955). ..
2. Thray Sithu U CHOON FOUNG alias U OHN
KHIN, B.A., B.L., Attorney-General (from 16th
March 1955).
3. Thray Sithu U CHOON FOUNG alias U OHN
KHIN, B.A., B.L., Assistant Attorney-General
(up to ~6th March 1955). .
4. U MYA THEIN, B.A., Barrister-at-Law, Assistant
Attorney-General (from 16th March 1955).
5. U nN MAUNG, B.A., B.L., Government Advocate.
6. U MYA THEIN, B.A., Barrister-at-Law Govern-
~ '
ment Advocate (UP to 16th March 1955).
7. U BA SEIN, B.Sc., B.L., Government Advocate.
8. U KYAW THOUN.G, Barrister-at-l..r;zw, Government
AdVocate . .
9. U CHIT, B.A., B.L., Government Ad _vocate.
10. U HLA. MAUNG, Advocate, Government Advocate.
11. U BA KYAW, B.A., B.L., Government Advocate.
12. U ToE MAUNG, B.A., B.L., Government
Advocate.
13. U BA PE, B.A., B.L., Government Advocate.
14. U BA PE; B.Sc., B.L., Government Advocate.
15. U MAUNG MAUNG, B.A., B.L., Barrister-at-Law,
Assistant Government Advocate.
16. U NYUNT nN, B..A ., B.L., LL.M. (Yale), Assistant
Government Advocate.
. " .
17. U SoB, B.A., B.L., Assistant Government Advocate.
18. U CmT TUN, B.A., Barrister-at-Law, .L~gal
Draftsman. . .
.19. Thiri Pyai:Zchi U BA THAuNG, B.A :.. ~.L., Legal
Draftsman. .
:.20. U LUN:r~:. B.A., B.L., .Legal ..Draftsman.
.

 2
'.
21. U TuN SHEIN, B.A., B.L., Legal Drl!ftsman:
.,.~

22. U . HL,.A BAW, B.A., B.L., Assistant Legal

Draftsman.
23. U HNIT, B.A., B.L., Assistant Legal Draftsl'nan.
24. DAW AYE .KYI, B.A., B.L., Legal Research
Officer.
 LIST OF CASES REPORTED

SUPREME COURT
PAGE
Chan Choung San and one v. Union Of .Burma 43
Chandulal and one l;. The Chairman. Sp.ecial
In:vestigation A-dministrative Board and Bureau
of Spe?ial Investigation and one... 4
D . D. Grover v. A. C. Koonda and two others 54
d~~-:>8to1 ? I G)~ot~~~ ~[9~8~ 91:qS:~ ~:8Gq:o ~ ol9 9
Kough Whee Lee~ and another v. Ko Eu Taik and
another 80
Lim Kar Giro v. Mrs. Iris Maung Sein and one 15
Lilhniichand Sirinivas. v. The Financial <:;ommis~
sio~~r (Commerce) and one 32
Ma Thein Shin azid .i o.ur . v. Tan Keet Khang and
.. four 85
Messr$. Balthazar & Son v. Assistant Controller
of Rents and one ... 1
Rangoon Commercial House v. Shahje han
Musktikhan Trading Corporation ~5

~:meJ~ ~ .G!l::iJ&,q~6~[oGq: aa~Ew~ oJ J : 93

 J-IST OF CASES CITED
.X l
f'.-\GB
J
Mi Apruzan v. Mi Chumra, (1872- 92), S.J . ~
R.,L.B. 37 30
Milan Chand v .Dwarka Das. A.I.R. ( 1954) Rajas
t han 252 5:)
MiUer, Gibb & Co. v. Smith & Tyrer Ltd ., ( 1917)
2 K.B. 141 at 150-151 . 37
Mohamed Abdul Raoog and ot hers v. State of
Hydrabad, A.I.R. (1951) Hyd. 50 64
- --Kaka and others v. The District Judge of
Bassein. ~1937) R.L.R . 276 82
Mrs. D. M. Singer v. Con~roller of Rents and three
others, (1949) B.L.R . (S.C.) 14'3 75
Muhammed Suleman Khan and others v. Fatima, 9
All. 104 F.B.. .. . . 63

N. B. Natu and others v. Bharati and others, I.L.R .

54 Born. ~95-57 LA. 194 , 87
Nandala.I Ganguli v. Khetra Mohan Chose, 45 Cal.
585 . . 77
Narendra Nath Sashm~l v. Binode Behari Dey and
others, A.I.R. (1951) Cat f38 64

Pandyan_ Insurance Co. Ltd, v. K . J. Khanbatta and

others, ( 1950) 56 Cr .L.J. 1039 ... 64
Piare Lal v. Wazir Chand and others. A .I.R. (1951)
. Punj. 108 , .. 64
Pritan SitJ,gh v, The State~ 51 Cr.L.J. 1270 83
..
Puma Chandra Dutt v. Shaikh Dhalu, 34 C.W.N.
914 at 922 . ...- 83

R. v. Home Secretary ex parte Gre?ne, (1941) All
.England Law _R eports,_Vol. 3, i04 at 121 . ' 6
~ada . Kishanmal v. Mangalal Bros~. A .J ;R. (1943) .
cat ~06 - 41
Raghoo B.uns. Sa}?.ovs v. Kokil Singh. 17 CaL. 87.2 7'f'
..
. .R.aja Ram .~; Lehna and another. A.I.R. <i942) .
Lab: 87 "'-' ...
.
'
95."
\. .. . . c
 Xll LIST OF CASES CITED 1

PAGE

Rajaja Appaji Kote v. Emperor, A.I.R. (1946)

8om. 7 77
Rajit Narayan Singh and others v. Babu Ram
Bahadur Singh, 27 Cr.L.J. 641 83
Ram Prasad Kalwar v . Musernat Ajanasia, (1922)
I.L.R: 44 All. 577 92
Ratilal Fulbhai v. Chuni Lal M. Kyas, A.I.R. (1951)
Sau. 15 64
Re. Allen Brothers & Co. v. Bando & Co., 26 C.W.R.
845 6~
__Kalayam Veerbhaddrya, I.L.R. (1950) Mad.
243=(1949) 2 M.L.J. 663 46
__Nanchand Shivchand, 37 Born. 365 77
Rex v. Electricity Commisioners, ( 1924) 1 K.B. 171 6Z
- - v. Minister .o f Health, (1929) 1 K.B. ~19 62'
Ryots of Garabandho and other villages v. Zemidar
of Parlakimedi and another, 70 LA. 129 at
140 62
Sabitri Motor . Service Ltd. v. Asansol Bus
Association, A.I.R. (1951) Cal. 285 (S.B.) 64.
Sheonadan Prasad Singh v. Emperor, 3 Pat. L.!
(F.B.) 5'81 at 587 ... 69'
Sholapur Municipality v. Tuljaram Krishnan
Charan, A.I.R. (1931) Boni. 582 63:
Shridhar Atmaram Chadgay and another v. Collector
of Nagpur, A.I.R. (1951) Nag. 90 64.
Somabhai Vallavbhai v. Aditbha Parshottam and
Q
others, (1924) I.L.R. 48 Bom. 401 .. . 83.
Sri Ranga Thatachariar v. Srinwasa Ragh.:ivachatiar,
. :(1927) I.L.R. 50 Mad. 866 . 9~

Tan. tda Shwe . Zin v. Koo Soo Chong and o.thers,

(1939) R.L.R. 542 (P.C.) ... . 2.3
' vu Htwe (al~aslA. E. M~dari v. U TunOha and.:on:~;. :. ;,y
(1948) B: L.R. (S.C.) 541 .. ... . .12
_ S~in.: v. Ma Boke, I.L.R. 11 Rari~ 158 . -, .26
 BURMA L-Lt-\.W REPORTS. .

. SUPREME COURT
M ESSRS. BALTHAZAR & SON (APPLICANT) t S.C.
1954
v. Nov. 26.
ASSISTANT CONTROLLER OF RENTS AND ONE
. (RESPONDENTS).*

Urban Rent Control Act, ss. 12 (11, 19-Fi"ation oj standard retzi - Applica-
tion for, by wit om competent.
Held : Standard rent may be f.xed on applica-tion made by a bona fide
oc:upier ui.\ckr s. 12 (11 _of the Urban RenS Control Act. Or it ruay be
fixed under s. 19 o n applicaticn made either by a tenant or a landlord. An
application by a person who is neither an occupier n?r a ten:~nt is
misconcei ved~

Myint To,on for . the applicant.

Ba Sein (Government Advocate) for the respon-

. dent.

The j.udgment o_f the Court was delivered by

MR~ Ju:s ncE THE!N.-The applicants

MY!NT
Messrs. Balthazar. ~ & Son Ltd. accept goods for safe
~mtocly . and these ar.e stored in theii warehouse
utaated in Strand :Road: Th~ Superintendent of.
?-0ti'ee- s.upplie~, Rangoon deposited - 206 bales of
>OliGe clot.hingin ~his- warehouse some three yeajs
Lgq on- t,he ~.'agreed chaFges of -4 antias per bale per
vee~. --B:Y'' tile end -of 19$3: the -itumber was reduced
GJ;l6'1 :but. sdm.e -more bale's.. wer-e
. .. . .
e:x:pected to arrive
.
..
9i~il M.fsc. Applic.lt.ien N:o .71 of 1954.' .' . . . .._ . . ' - :
.f. P.resent .;:: ~liJ..'''tfi.EI~ MlAUNG, Chief Justice of. the Union, M-i.:.JtisT-ICE
. . >aod,...JYrr~
. . Tll'ElN'
.l7INT - . J,Ui'fiCE
~ :' .: -'
CHAN HTO.QN;
' ... . .
2 BURMA LAvV REPORTS. [1955

S.C. Apparently the Superintendent wondered if he was

1954
paying too muc~1. So he wrote to C1e Controller of
MESSRS.
BALTHAZ AR
Rerits to make a recommendation. The Assistant
& SON
v.
Controller of Rents who dealt with the matter called
ASSISTANT upon his Inspector to make enquiries and on the
CONTROLLER
oF RENTS basis of his report recommended the same rate that
AND ONE.
Messrs. Balthazars was charging i.e. Rs. 161 pei
month for the 161 bales still stored in the warehouse.
We would observe here that the procedure
adopted by the Superintendent and the Assistant
Controller was irregular. Rent control proceeding~
are quasi-judicial 'in nature and in the face of th(
procedure laid down in the Urban Rent Control Ac
it would have been more proper on the part of th(
Superintendent to have filed a regular applicatior
and for the Assistant Rent Controller to have mage
an open enquiry. However, to proceed with th4
recital of th-e events, the Superintenqent by anothe:
letter dated the 6th March 1954 asked.for a re-examina
tion. This time the Assistant .Rent Cop.troller prp
perly treated the letter as an application for fixatio1
of Standard Rent and issued notice to Mess.r~
Balthazar.s to furnish particulars abp~t measurenient
of the premises, names of tenants, rates of rent, et<
We note that Messrs. . Balthazars contended
. tha
.
'

there were.no tenants and that they .had no .desire J

rent out any part of the -premises. Nevertheles~ th
Assistant Rent Contr_oller . p~s.sed.... an order .fixin .
the Standard Rent at Rs. 161 per month for the floc
.~~ace used for storage.,..of 161 bales, which he calcul;
. ted to be a. ll35~h part of th~t,~ntire premise~~ .'
. .C learly th.e .order cannot 'be. allowed . to stan.4
. An .application for standard r.e nt can be made und4
section '12 (J) of .the Act by aperson who is not y
in
.a .ten.aJit H'ut who is occupation of premises . bor
fide for residential or business pur:p.oses.. Or it m~
: ~ I
i9SS] BURMA LAW REPORTS. 3
,
be made un:der section 19 l:5y a iandlord or by a S.C.
tenant but this section envisag~s the existence of a 1954

tenancy. In the case before us no tenancy exists nor MEssRs.

BALTHAZAR
can it be said th:a.t the Superintendent of Police & soN
Supplies is an occupier of any part of Messrs. Assr~~~NT
Balthazars' warehouse ' His bales of clothing are in CoNTROLLER
OF RENTS
the premises by way of safe deposit. In these circum- ANo oNE.
stances, .the.Iearned AsSi&tant Controller was wrong
in entertaining the Superintendent's application and
in opening proceedings for fixatjon of Standard Rent.
Therefore his order dated the 8th May 1954 in
Proceedings No. 65-E of 1954 is quashed with costs;
A.dvoc~te 's ~ee 85 ky~ts.
4 BURMA,,LAW REPQRTS. [l9S$

'
SUPREME COURT.
. .

ts.c. CHANDULAL AND ONE (APPLICANTS)

1.955
v.
lttly 4.
THE CHAIRMAN, SPECIAL INVESTIGATiON
ADMINISTRATIVE BOARD AN.D BUREAU OF
SPECIAL INVESTIGATION AND ONE
(RESPONDENTS). * ..
..
Writ of Habeas Corpus-S. 2 (2), (J) at;d (SJ, Public ProPerty h otection ACt
1947-S. 7 (2) as amended by Act No . 48 of 1951-S. 7 (5) of tit, Act .'f.l!
cJmendecl by the Public P~operly Prolecft"on (Second Amendment) AU
1951, Second P1oviso to
sub-s. 3-Tile Onus 9/ showing order of rleteuti~t
invalid.
vVhere the returns s:1ow a competent exercise of authority. the onus '_:o
showing that the orders of detention are invalid rests upon the Pditioners,,
Where all that the prisoner says in effect is," I do not know why I ~
1 nterned, and I de,-::y, that I have done anything wrong, that does not requ~r
any answer.
R v. Home Secretmy ex parte Greeue, 11941} All England Law Reports, Vol
3, 104 at 121; Greene v. Secretary of Statefo1' Home Affairs, (194lLA'
England Law Reports, Vol. 3, 38~ at 391. .
A party applying for the Writ m:1st lay a reasonable ground before {p
Court in order to induce them to grant it.
Hobhouse's case,:106 English Reports -716 at 7i8. . ...~';.

Kyaw Min and Dr. E i\1aung for .the applicants.

Ba Sein (Government Advocate) for the respondeny.~

..
The judgment of the Court was delivered by tb
Chief 1ustice of the Union.
.c U THEIN MAUNG.-The petitioners, w_ho ~1
father and son, have applied .for writs of habec
corpus
. .
stating.that their arrest and detention
.
. lJndt..
:
...
. *Criminal Misc. ApplicationNos . 3~and33 of _1 955:
. _. t Pfdettti:. U THEIN !)fAUNG, Chief Justice.of the Union; MR, JusTi
MYlNT,THEIN and zyiR. JcsncB Bo~YI. . . . '
. . . . . . D
 1955]

BURMA LAW R:EPO.RTS. 5

the Public . Prop~rty Protection Act~ 1.947, are . illegal S.C.
1955
'for the reasons which are set out in their respective
' aS f 0 lJ l)WS:
a ffid aVItS CHANDULAL
AND ONE

11. I say that since the 19th April 1955 the THE~~Am
B.S.I. has been investigating my case and I under- s:~A;:~L
stand the investigation is still proceeding and will INvEsTIGA TION
take some .time.
. ..
_-\oMzNzsTRA
'fiVE BOARD
12. I say that detentwn undet the Public Property ANo BuREAu
. rotec t'wn . A ct h as been resort e d t o L'll ega 11y wh'l
p 1st OF SPECIAL
l:-.-vesnGA-
the investigation is still proceeding. Tzo:-r ANo
ONE
0
13. I say that except for arrest for the immediate
purpose of putting me up before a Court of Law or
:at the instance of a Court of Law, my present arrest
and detention is not in conforn"Mty with the law.
U H~a Thaung, Deputy Director of the Bureau .
of Special Investigation has stated in his ,-eturns that
he arrest~d the petitioners urider section. 7 (2). of the
:Public Property Protectioti Act on the 21st May 1955
:as, after: investigation since the 19th April 1955, he
:suspected them of having committed a prejudicial act
.as defined in Section 2 (ii) (a) and (b) of the said Act.
.He has. further .. stated that the President of the Union
to whom he_had to report the fact of their arrest
under section 7 (3) of the Act has, by order under
section7 (3) and (5) directed that they be detained
for a period riot exceeding two months with effect .
from the 21st May 1955 for the purpose of making
:tn inve~tigation. He has also filed certified copies
Jf-the President's order in support of his returns.
Section.7 (2) of the Act, as amended by Act
~o ..43 of ._195i, provides:
"Any officer authorized in this behalf bY. general Oi:
. . . . fJ .

:pecialorder by the President of.the Union may aires.t yvithout .

vai-r-ant~riy. person v,iliom he suspe<::ts.of having committed or
,f ~ommittinJ~ :any prejudicial act. ":
8 BLfRIVIA 'LA\V REPORTS. [1955
S.C.
1955 their own affidavits that the offence is in r~pect .of
the goods which they themselves have stored in five
CHANDULAL
. AND O~E
-
godowns.
"'
.
v.
THF. CHAIR- . So there is nothing to show that the petitioners?.
. MAN,
SPECIAL
arrest and detention are not in accordance with la;i'
INnsTIGA . .an~l,. the applications must be dismissed.
TION ,. ' ~-
ADMINISTRA- '
TIVE BoARD
AND BUREAU
ot SPECIAL
lNVFSTIGA
'f!ON AND
ONE.
 : : : . . . . : . . nifud~.g:,:rej~:g~ .
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~10 BURMA LAW REPORTS. [1955

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1955] BURMA LAW REPORTS. 11
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-1955] BURMA LAW REPORTS. 13

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14 BURMA LAW REPORTS. [1955

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'1955] BUR IYI A LAW REPORTS . 15

SUPREME COURT
LIM KAR GIM (APPELLANT) t S.C.
1955
v. <
Aug. zz.
MRS. IRIS MAUNG SEIN AND O:NE (RESPONDENTS) . *

S tuo-Burntt se Buddhist - Law n pp.'iCtlble - Post humC'ns advjlt iott-Revocation

uf c1doptiou- Positio1~of ell/ .woPftd svn and tllat of a nat 11 ral $On not
iclrnt rcal - Riftl. t of i11Jt~rita11ce in grandparent s' estate by the children
of a dog so1t" and by t .':e c:i ldr.;lt vf an ado-Pt ed son w -~,, has lOJ., t his
dat us-Divtston of tile t stat c of a deceased Person am ong tltc' survi:ing
brother s and sist ers- Fulldamentalsof Burmese Bud dhist L aw of Succcs.
sion- Kinwmt Ming ;/i's Digest , Vot . II J Inheritance, s. 310-The Atta-
sank!tepa DTtammathat , s. 211.
T he Law vf S ucc~ssion :~pp l kabl e to the e state:' of a Sino-Burmese
Buddhist is Burme:>e B uddhist Law.
Tan .MaSitw e Zin v. Koo SJ(/ Ch m ga ,td o~ .'ters. (1939) R.L.R. 542 (P .C,) ;
tCyoug A ll .L'in v. Daw Tlt ikc, ( 1 9 ~9) H.L H. (H. C.) 16S; Daw 1'/t ike v. Cy.Jtig
Ak L i n , (1951) l:S.L .R. (S.C.) 123, followed.
The re can _be no posth u:no;JS adoption under Burm::se {.Juddhist Law.
T h e adoption of an ad ult is made by the m utual conseqt of the ad op~or
~$,he ad~p.tee - and a revocation_ ca:l simi ~arly .be mad e by such couse 11 t.
The pos1t10 n of :~ n adopte j cl-uld 1S not 1denh cal for all purpose with that
Of a n atural child.
Ma Kyin_ 'Seit~ v. Maung Kyi t Htaik, (19 o> R.L . K 783, re ferred to.
I n r eJaUou to the g randparents and the right of inht:ritance in their esta te ,
the position of the children of a n adovt ed chiU w ho had lost hi:> s tatus as
!Such is d ifferent fr om that of t he ch ild ~en of a natural c hild who had lost his
t ight of i-n~eritance as being a" clogs m " . In the l::itter case although the
ll'ighf of i~~critance as a son is lost, the rc:lationship of himself and his
childr en to -the grandparents continues, and thus the rig ht of his childre n fr1
the estate of their grandp.lrents remains unaffected. But in t11e former case
ihe adopted child loses his r elationship and becomes completely cut off
1togethet;~ith-his ?Wn descendants from the adop~ive parents. '
. U Sei ;i v. M4 Bo~c, I .L.R. 11 Ran .lS8, r eferred to.
T~e fundam~ilt~s of the Buddhist L :1w of Succession are firstly, th~
mear.e r e xcludes the more r emote, and secondly, inheritance shall not ascend.
On the death of_a brotht:r or sist er without leaving a !>pouse or issue, t.he
decea sed's younger brotl~era and' sisters inherit to the exclusion of t he elders . .
_Kinwun Mingyi'::; Digest, Vol. 1, I nher itance, s . 310; AttasanJchepa
Dbammathat, s. 21_1.
.Civil Appeal Nos. 6. 7, 8, 9, 10 of 19 54 _ag ainst the decr ee of the Hig h
<Cour t, Ran~oon in Civiflst Appeal N_o s. _68,- 6Y, 71 , 7.\ and 75 of 19?1.
t Presellt: U THEIN MAUNG, chief J.ustice of the Vnion, MR. J usTICE
-YINT THEIN and MR JUSTICE CHAN HTOON .
 16 BURMA LAW REPORTS. [1955
S.C. The fact tha t a parent mo.y be alive a t the timu of a ch ild's death, makes no.
1955 exceptio n to th is rule.
LIM KAR
The main condition on which the rule e xclud ing elder brothers and
GIM si ster~ depel).dS is n ot t he fa ct o f parents being a li ve. The emphasis is on
v. s epara te Ji ving a fter division of the pa rental esta te which would give n se to
MRS. I RIS the form ation of a dis tin~ t a nd separate estate, only to which this rule would
MAUNGSEI N
AND ONE.
apply.
M i A Pr ttzan v. Mi Chumr a , (1872-92) S.J. and R., L.il. 37; Maung Tu v~
M a Chit, I.L.H. Ran . 162, a ffirmed. .

Kyaw Myint for the appellant Chan Eu Ghee.

0. S . Woon for the appellant Lim Kar Gim.

Hoke Sein for the respondent No. 1.

Daw A ye Kyi for the respondent No. 2.

The judgment of the Court was delivered by

MR. J US'JICE MYi~T. The five . appe.als:
TH.E IN.'_.
before us, viz. Nos. 6 to
10 of 1954, hav~ arisen o:tlt
or' four separate applic~tions for letter : of ' adminis'r~;;;
tion to the estate of Margaret Chor Pine who . died:)fi
1943. The four applicants w~re :_ . ;
( a ) Lim ~ar Gim, :ari ..~.~qe.i.: brother of . .the:
deceased, in ( >,"M; No~ 140" of.l947 pf th~J~igh Court;~
. ( b) .Mrs. Iiis Maung Sein, Y()~nger sister, a in
. C.M. No. z of 1947; :. . . ,:
-~. ( t) Mrs .. Bell~ 9ri,~noth~r younger sister, ..in
C.M. 30i of 19.47 ;-and. ..:
(.d) . Chan Ett:Ghee, ~ grandson of ChatrChor.
K~ine, who cl~ime.Q: .to be. the Gl:dopted grands.o n At
. ;
the ; deceased, in; c.M.: .N o:: '488 of '.1947:. It . } s.
, . claimed; byhini'tha(:M:a rgaret Chor Pine ~C;iopted t~~.
.i
second son of Chan . Chor Khine, namely, Georgi~
'.:
Chor K:Qine (who p~.~.deceased . M'a rgaret rCh@r Pine.):..
, as the son .of.
her decea.s ed husband and that:Georgi~t .
.: thor Khine i.n t-lJij{'hdopted._ hilri. . "'
. . . . . .
1955] .BUR~v1A LAW REPORTS. 17

In the cours~ of the preliminary proceedings, s.c.

1955
seven nephews and nieces, children of a d.eceased
brother, residing~ in Penang ._.
sought their share in the Lnr KAR
GI!If
inheritance, and so did the deceased 's mother Mrs. v.
.
L 1m chm T song. T wo neph ews, ch.ld 1 ren o f a MRs. IRIS
MAUNG sEr:-:

deceased sister, residing in Burma, namely Ronnie AND oNE.

and Eric Kyi Lwin, claimed to be the adopted

children of the deceased. The Penang nephews and
nieces dropped out of the proceedings and Mrs. Lim
Chin Tsong did likewise.
The petitions were converted into Civil Regular
Suits and respectively became Civil Regular Suits 296,
294 and 295 of 1947 and Civil Regular Suit No. 49
of 1948. The last Suit with Chan Eu Ghee as
plaintiff was directed against Iris Maung Sein, Lim
Kar Gim and Bella Orr. In the other three suits
the two brothers Kyi Lwin were made pal_lties.
The suits were tried together and the learned
Judgeon the Original 'Side of the High Court rejected
the claims of the two brothers Kyi Lwin and that of
Chan Eu Ghee. He held that the estate of Margaret
Chor Pine was divisible equally among her elder
brother Lim Kar Gim and her younger sisters Iris
and Bella. Letters of administration was granted
jointly to Mrs. Iris Maung Sein and Lim Kar Gim.
Mrs . .Bella Orr was left out because of her residence
outside Burma.
. This ordej- was taken up on appeal and thus
from Civil .Regular Suit No. 296 of 1947 arose Civil
First Appeal.No. 73 of 1954 and from Civil Regul'ar
Suit No. '294..of 1947 arose Civil First Appeal No. 75
of 1951. .Irr both these appeals Mrs. Iris Maung
Se.i.n -sought to .setaside the portion of the judgment
in which Lim Ka,r Ghn was declared a joint heir.
Chan Eu G hee appealed against the orders in Civil
Regular Suit .Nos. 295 and 296 of 194( and No. 49 of

2 ..
18 BURMA LAW REPORTS. [195S
'

S.C. 1948 and also in. resoect

" of the orders in Suit No. 294
.
1955 \

of 1947, his appeals bejiJ.g Civil First Appeal Nos. -68,

LI M KAR
GIM 69, 70 and 71 of 1951. The Kyi Lwin brothers did
'V.
MRS. IRIS
not appeal.
!VIAUNG SEIN The appellate Court found that only the t'll(o
AND ONE.
younger sisters were the heirs and thus the portiQn:of
the trial Court's order granting letters to Lim l(ar'
Gim was set aside and it was directed that Letters
was to issue to Mrs. Iris Maung Sein alone: .
The parties have now come to this Court and
Appeal Nos. 6, 7 a nd 8 are those by Chan Eu Ghee
against the orders in Civil First Appeal Nos. 68, q9
and 71 of 1951 a nd Nos. 9 and 10 are by Lini Kar
Gin1 against Civil First Appeals NOS. 73 and 7? of
1951. The responde'nts in all the appeals are tne:
sisters Mrs. Iris Maung Sein and Mts. Bella Oir.
The sisters .h ave filed . cross..:objections in the appeal~
of Chan Eu Gp.ee. . . ... :. .:.-
.At the beginning of this century two outsta.nqi1Jg
Chinese, Chan Ma Phee and Litn Chin Tsong h~d
emerged as rich . men in Rangoon. Chan Ma J>4y,e"
was pure Chinese while Lim Chin Tsong .. was ~inc
Burmese, (his mother being one DawPo U) andboth '
of them n1arried Burmese ladies. Chan Ma:Phee.
-had three sons : Chor Lye, Chor Khin. and chor ;p~~-:
The last named married Margaret, a daughter 9f..4i m .
Chin Tsong in 1919. . ,;~;' .
. When Chan Chor Pine died on9th.. July'<l9S3
Chan Chor Khine remained the only suryiving -&xi:
and it is asserted py Mrs. Iris .Maung. Sein:that .-at
lilS.
instance; Margaret Chor Pine adopte4 Chan. C~oi
Khine's younger son. Chan Cheng.: Le.olig~ . rno~~-
. familiarly k~own as oeo~gi~ Cho:(~hin~, - ~S- '' th~ sd:h .
.of Chari Chor Pine deceased." Thi-s,washy meap{of. .
::~registered deed whic~ lpp~ars to qave:been los~ ~.n.~ ..
no copy is available
. \'.
due
.
to circumstances.
. . . . .
arising.
.
out ..
..
 BURl\LL\ LAvV REPORTS. 19
..
of the war. On the same day by another registered S.C.
19S5
deed, Georgie Chor Khine , who was an adult without
Lnr l(AR
issue then, adopted Chan Eu Ghee who was then a GBr
boy of two the younger son of his .elder brother Chan 1
MRS. IRIS
Chen.g Taik,. also known as Willie Chor Khine. This l\1AU:-<c> SEI N
AND ONE.
deed dated the 20th July 1933 was produced as
E:xhibit I. 0:1 the same day a third deed was made
(Exhibit 0) with a one rupee stamp and duly regis-
tered,. The deed is an agreement between Margaret
and Georgie and the recital contains the fo11owing :
"Whereas the said Char: Cheng Leong has bten adopted
by tbe said Margaret Chor Pine as the son, successor and heir
of the deceased Chan Chor Pine."
The Glauses relating to the actual agree1nent run :
" ( 1.) The said Chan Cheng Leong is the sole heir to the
late Chan Ch6r Pine.
. (2) In lieu of maintenance. the said Margaet Chor Pine
shan have ~l life inter~st in the whole estate of lh~ said Chan
C.h~r Piri.e ~m:i ~]lall~ during the peroid of lier life receive the
n:ett : rents and profits therefrom. provided always that such
intere's t shall terminate upon the remarriage of the said
M~rgaret Chor Pine.
. (3) Subject to the said life interest of Margaret Chor
Pine . all right title and claim ih and to the e~tate of -the late
Chan Chor Pine is vested in Chan Cheop T mg."
No\v there is no clear evid~ ~1~c as to how these
three 'de.eds.:caine to be exe~uted. Iris Maung Sein
says that.Chati Char Khine ,/ ~~ed Margaret Char Pine
to agree to their executi.b-n. but the evidence is not
conclusive. Judging ~'i"'v-m the evidence of Mr.
:Foucar,._ wlio :prepared these documents, it would
appear that. not only was there u~seemly haste so
sqon after the death of Char Pine but' there was
something that was not quite ~a~isfactory, for Mr.
Fo'qc~(1il his evidence said :
'~ .If.J:.,rr{ay ex~lain. Mr. Ni cholas " .h~'ho by th~ way
was a la~,Yer friend of the f~ipily) " ~nd Chor Khine caijle to
20 BURMA LAW REPORTS. [1955
S .C. me <!nd gave me instructions to draw up two deeds of adoption,
1955
and I was told that I was not required to consider the legal
L l:'-t KAR posi tion at all. And on these instr uctions I drew up tw,o
GIM
v. deeds of adoption. one by Margaret C hor Pine and the other
M RS. IRIS by Chan Cheng Leong."
JVI A UN G SEJN
AND ONE,
Mr. Foucar was shown Exhibit 0 which is not a
certified copy. Mr. Foucar's evidence was hazy .on
the point but the parties do not dispute that such. . .a
deed was executed even if they dispute its effect.
The lower Courts have found and we consider it esta-
blished that two adoption deeds and on~ agreeme:nt
under which Margaret Chor Pine purported to ta]<e
only a life interest in her husband' s properties w~te
executed and registered on the 20th J uly 1933.
The evidence does not reveal withany certairity
the motive underlying the emergence of these deeds
but a fair cunjecture would be that the parties, even if
they were Sino-Burmese Buddhists, considered the1).1-
selves bound to follow the. Chinese custoin~ 7:/of
perpetuating the family line and to carry on ancestor
worship . . And with the adoption of a . son, ev:e n
posthumously) the parties... .may, have felt that mal~ .
.succession was ensured and thus the . conseqnentJ.al'
attempt even to vest Chan Chor Pine's estate ~n
the adopted son Georgie with the mother retaini#,,g
merely a life interest by means of Exhibit 0 ., was mai}.e ..:
. It is.obvious howeve~ that no effect was given.1to ' .
the terms embodied
.
in Exhibit b for- Margaref. . Cho.r:
. ..,
, .Pinedid not part with ChanChor Pine's estate wbi1J>
,she continued to enjoy and to admini~ter withthe help :
of her agent Chan Cyin Leong. . She even di~po$ed:
of son1e landed property. . Sonie three years later. . .
Margaret discovered that. Georgie had <;Iisposed :of
. ~ .some 2 lakh rupees wotth Of BurinaOil Comp~n:Y
.,shares. A disput,e arose and two dQ,cutnents .Exhihi~s .
. .B.'and c came to be:executed: - . ...
 '195.5 J BURl\IA LAW REPORTS.
21

Since the case turns really. on Bxhibit B, tht! con- S.C.

1955
tents aregiven b~low in some detail. It is des ignated L IM KAR
as a "Deed of Release . . made qy C.han GrM
'11.
Cheng Leong "and in its recital it stated that by an MRS. IRIS
Indenture dated the 20th July 1933 Margaret Char MAUNGSEIN
AND ONE,
Pine had " Purported to adopt the said Chan Cheng
Leong
. to be a son to her husband Chan Chor Pine,
then deceased." Then it went on to say that by
another indenture of the same date it was agreed that
Chan Cheng Leong was the sole heir to the estate of
Chan Chor Pine subject to a life estate in favour of
Margaret Chor Pine.
The fourth, fifth and sixth paragraphs of the
recital are given in their entirety below :
" Whereas doubts and d~spute.s have subsequently arisen
between the abovesaid Margaret Chor Pine and Chan Cheng
Leong whethe.r posthumous adoptions recognized in ancient
Chinese law is permissible under the Law ir" the Province
of Burma, whether if such custom is legally enforce-
able, the requisites of a valid posthumous adoption were present
in the tian~action evidenced by the indenture above described
of the .20th July 1933, whether the alleged adoptee, being
sui juris .un~er the general law in force in the Province of
Burma,. it was not necessary that in addition to or in lieu of
an adoption, the alleged adoptee should have arrogated himself,
with all the formalities prescribed by the Chinese Law fd,r an
arrogati~n, whether if the adoption was valid, the indenture of
the 20th July 193.3 is in law sufficient to divest the estate from
Marga~et Chor Pine and whether notwithstanding the indentures
of the 20th July 1933 and. 20th July 1933, Margaret Chor
Pine is not the sole heir .to the estate of the late Chan Chor
Pine, decease~, a?J.d
W,aER~AS the alleged adoptee Chan Cheng Leong ~eing
a nephew by :blood of the late Chan Chor Pine and the parties
a~e desir~us :of ayoiding disputes ill Courts of Law between
clo~e .rel~tives and therepy safeguarding the family honour of
oomp_r9mising all doubtfui c~aims and rights as against. each.
. other' ai:i.d se,tiing at rest . all the di~putes in regard ~0 the
. estat~ . 9f -the ~ate Cpan . C~or: ~ine,
22 BURMA LAW REPORTS. [195S
S.C. WITNESSETH tliU in consideration of settlii1g .:.ni compro-
1955
mising all claims, doubts and disputes between the parties in
Lor KAR respect of the estate left by the late Chan Chor Pi ne and in
GIM
v. pursuance thereto by an indenture of 24th June 1936 made.by
MHs. IRIS Margaret Chor Pine whereby she grants and conveys absolute-
iVIAUNG SEIN
ANDO:.iE. ly to the Releasor herein of certain properties set out in the
Schedule annexed to the said indenture, that notwithstanding
anything to the contrary in the inden1ures of 20th July 1933
aboverecited. the Releasor releases aU clai:i:ns to the estate .o f
Chan Chor Pine. deceased, as an adopted son of the said Ch'~n
Chor Pine in favour of the Releasee herein (to wit, Margal:et
Chor Pine) convenanting with her that notwithstanding
anything to the contrary in the indentures of the 20th July 19~~3.
the said Releasor is and was not the adopted son of Chan Chpr
Pine and/or Margaret Chor Pine and that save and excep~ ~-;to
the extent provided by the indenture of 26th June 1936 ex~u
ted by Margaret Chor Pine in favour of the Releasor herein, p.e
waives all claims to the.- assets, moveables and immoveables
forming the. estate of Chan Chor Pine ni. favour of the
Releasee." , .

It will be seen that reference is made to .i n

indenture dated the 24th June 1939 and th1s is Exhibit
C. Both deeds were registered on the 26th 'June.
Under Exhibitc Marga~et conveyed outright lan.,q~d
property valued at 2 Iakhs qf rupees, and it does'.seein
that as fro in the .26th June M~rgaret Chor Pine a,n d
Ge~rgie . Cho:r Khine had very little to cto with. e:a()h
. other, not that they were very clbse even prior Jo
that d~te. 'They.did not even .live together. . {:'t
. Georgie, who had been ailing for a long ti1;11~< .Cii~d
on the 25th .May 1938 (vide Exhibit .3 photograph <qt
~ his tombstone). . Iris Maung Sein's evidnce : thf}t J&e,
.died abo1;1t 1936 is incorrect. He had been 1iving with
a .lady . Ma H la Shwe, who was Inuch older th~n
..himself, ' ~n~by his .Win, Exhibit. Y:~ which is. dat:e9 .
llth<April 1937 .he left his .entire estate . to Ma ala.
). S~we . whom h~. described as ".my deftr wife:~'~ : thus
bringing t o . rest ~ll - conjectures. ~.s: to h~r .s.tatus.
 1955] BURMA LAW REPORTS. 23

No reference was .made to.. Char~ Eu Ghee in the S.C.

1955
will, in which Georgie described himself as the son Lm K ..\l~
of Chan Chor Khine and the adopted son of Chan GBI
v.
Chor Pine. On the tombstone erected on tlie grave :\IRS. {l~I.S
(the photograph is Exhibit 3) the inscription " erected M AUN<; S1:-..!
ANDO:-<L
:by his mourning son Eu Ghee " appears.
Nothing happened in regard to the estate held
by Margaret Chor Pine after Georgie's death and
Jor that matter nobody disturbed Daw Hla Shwe's
-enjoyment. of Georgie's own estate which devolved
-on her,. and it is not suggested that she has been
-disturbed at all, even to this day.
W.a r came to Burma _a nd Margaret evacuated to
Dedaye where she died on 23rd July 1943. With
the ~ermination of the war-actually in 1947-appli-
catioi~S for. Letters in respect of her estate valued at
nearly 13 lakhs were filed .
. At one. stage there was some consid~ration given
to th~ question whether the adoptions were under
Chinese Cus.tomary Law or whether . they were under
'Bur.mse Buddhist Law but it is common ground now,
,on the authority of Tan 1\1.a Shwe Zin v. Koo Soo
_C hong attd others (1) , Cyong Ah Lfn v. Daw Thike
-{~) and. Daw Thike v. Cyong Ah Lin (3) that it
.is . the . Burmese
. . .
Buddhist . Law which must be
applie.d in regard to succession to this estate since
:all theparties involved are Sino-Burmese Buddhists .
.And it ts not suggested by the parties before us or at
;~nY: time during these proceedings that the case
.involves any .special custom or usage which is at
variance with the Buddhist Law prevailing in BuJma.
The case has been fought diligently and ably by
learned .counsel appearing for the parties and every
:availa,ble
.. . . ~ttick. and d~fence was. put \lP at one stage
.ti ) {1939j R.L.:R. 5~2 (P.d). :.: (2) U949,B.1,-J<. f~ .C ..). 16S.
' .. (3) (1<)51) B.L.R. {S.C.} .123 .
 '
26 Bl'R~1A LAW REPORTS. [ 1955
S.C. n1ade by the mu'tual consent of the adopter and
1955
adoptee and a revocation can similarly be made by
L l M KA~
G lM such consent. In consideration of receiving certain
v.
MRS . IRIS properties outright Georgie made this specific ~s;ieclara
..M A UNG SEIN
AND ONE.
tion. On Margaret's part, to revoke the adoption
she parted with a substantial portion of her esta~e.
Takinc:- the two documents together we can see no
reason to doubt that the intention of both Georgie
and Margaret was to sever any adoptive tie which
n1ay have subsisted once and that such severance was
effected by these two documents. We hold therefqre
that as from the date of these deeds, Geokgie
definitely _lost his status as an adopted son. _See
Ma Kyin Sein v. Maung Kyin Htaik (1).
In regard to the question whether Chan Eu Gh~e
:still retains the status of a grandson (assuming Jiis
adoption by Georgie in Kittima form is proved) . we
m ust bear in- mind the well-known rule in Buddhist
Law that the position of an adopted child, as point_ecf
out i n Ma Kyin Sein v. Maung Kyin Htaik .(1),-is ~ot
identical for all purposes to that of a natural child.
In relation to the . grandparents and the right~-:or
"inheritan<;e _in their estate; the position of the children
of an adopted child who. has lost his status as such
-is different frotn that of the children of a nattl.ral
child who has lost his right of inheritance as being a
. '." dog son". In the latter case although the right of
-inheritatice . as a son is".-lost, . the . relationship:. of
hin1self and his childJ;"en to the grandparents continues,
~and thus the right of. hi~ - children in .the estate<of
their .grandparents rertiains unaffected~ . See U Sein
v. Ma Boke and others (2). But in .the former G'ase
t~e- .adopted chilci"loses his-relationship and becomes
completely cu.t off together with b.l.s own ..de~cendants
*from the ad6ptive .
parent_ .
s. A Burmese
. . .
adage ~,ays
(1) (1940) R.L.R. 783 :_ :, : . , 1Z) I.t.R.. 1 ~ rxan: IS.8.
 1955] BUR!V1A LAW REPORTS .. 27

that when a tree faHs the topmost l'arts become faggots. S .C.
1955
What Georgie is cut off from, Chan Eu Chee cannot
r emain attached to. We therefore hold tQ.at Chan Lor J{A,,
GIM

Eu Ghee, as an adopted child of Georgie Chor Khine v.

1\oms. li\Is
does not retain the status of a grandson of Chan MAu!ITG SElN
AND ONE.
Chor Pine and/or Margaret Chor Pine.
We now come to the final question whether the
estate is divisible among the surviving brother and
sisters of the deceased.
Now, the fundatnentals of the Buddhist Law
of Succession are firstly, the neu.rer excludes the more
remote, and secondly, inheritance shall not ascend.
'The three claimants are a brother and sisters of the
deceased and each was equally near to her and the
:sole question to decide is whether the rule of non-
.ascent. would exclude the elder brother.
There is ;a wealth of authorities to be found in
Kinwun Mingyi's Digest Vol. I, Inheritance, section
J 10 and we give below extracts from various Bunnese
Codes which have found a .Place in this compilation.
They are from D hama, M~nugye, Rajabala, Manu,
.Panam and Amwebon. We quote also from another
work of ~he sa.m e learned author, the Attasankhepa
Dhamn1athat, section 211 of which may well be taken
as. a summary of the legal .position in regard to the
issue before us.
G~ll IIS'aG~OO~E>p GOO~spG:D') 006p!O')')gJ :).)':>!OJBg~mG8~1
GOJ~9~0JBg~~G:).)~I G:).)~ 00J':>~OJB~~G8'0':>cf~GI ~cJ3G<nb~
:~lt)')gG~II S'a~GD'O~.~~G~OJ':>ll ~()')')~8()G2gro~6pG:).)') OObpW)t:n.
G~~l s-a~~ 001 qbG ( oo) II nS~~~o1gGOJgG~':>ci :).)'J:

:).)Bg 8'0 ~:o3~G~SIJ06bl naG~G00~6pG:::D':>006p~~:).)tm':>: I ~GO1cf)
Gt9T~OJt s-ao3:s-a':>::G~bpGo.J@t rnG~~::n-:>:OJB: rotGu: ')gg~ cg;5t

m~~D'O~G~~ 8'aG~GOO~G~~t~0)~ 0 G8'0')c~1 ~Gq~.OJ')~~?~G~~

. ::o:>~~~l ~G~~g~~G~~~~OJ~~gu . .
28 BURMA. LAW REPORTS. [1955
S.C. ~e'~CDII 11 ~ : ~gcsiJJ.~G8J') ~G~sl'Jm')~ l s~~~GOJ')(~j'J~I
1955
L P.I KAR mf~m'J:~~~:cJ,)tl o_3g')~G.p:-rr~::o~~r 8J')g8JB~ - ~~s~Y.>t
8amoS~GG::>O{~~~~ ar ~:J~J,)') 83G~2~') SiP8JOOt:u SJ.> mt~:
GJM
v.
Mns IRis
i\ 1AVNG SF.I ~ 8'd~~~J,)tr ~ 61 ~oSG~" ~00')'):18,)~~~~ 83Gz8Je~~~sroot~ 11
AND O :"E.

---
~~~~ 118'dGz~ g'J:Go:x>~g~r ~So3g~G'Jg~o)r 8'dmoS~
G8J8.:>t@~~~ ~8CG~~I ~coS ~GcoS c::o'JcgjCI 0'JW?~bf>-~11
. .

8'd~~~g1 8'd~G@g8<10~0?~GOJ') ~~::otr 61::0~::0ttJ?G~8J')G~

0?~11
U1mr 8'd~~:: Cf I qb:J ( O?) (~)II IIOOGCJ2GlQ]')CgCSJ')g I GUlo):
GJ)~~')~~I o3g~')~G<j)G@-:>c1 OOGo:>:>oSGw-:>oS::0-:>1 G::OO1o?s')gl
G~0')g~~l @~~dj~ l G::0~ 0G80-:>rCJ.l]l ~~~GCD~I O)')g~GJOO'J~II .

8'dG~~II 118'd830:nG8JG~Ocfl ::o-:>:8JB:8'dd5: G06pD2f ~i:?~'

Goo~-;G::o-:. OJPWjpJtm-::Yo'l d?Go1d3Gl9T~o.:>t rno3:0'J:~ ~@'J:
G<j)S[)GOJ~I rnG~~O)')go.:>B:I m5~m-:>m~C\jj8t rn~~rn~G qS:c~t.
89G~GQG~~I GJ:i~0 G8'a-:>ct1 tG(OJ') Q0')gG0l o:>f6)t ~f~ .
GOO~G0~~~::ooot:u '. ;,:
8'd~o.)G~UI j 0 0 II 1189G~000J9 G~~OJ9roe;p:u ~~m@-:>:r
.. ~ .

rn_G~0-:>g{gr OJ'JiGc.D'JgQ0 1 ~G::D~ml 89~GGcj5-:>C~gJ ~g~g rn~:1 ~~~

SGcggr ~~G~gS:nrG610~m-:>S:, G~')fgtmc(.t, ~~cc~-:>l{;pGp~c;~,,
G~Gro~19r ~~~Q:>~:r G_na')OSG~oo S:Qo80':>:r 02~~oS1 mG~
ro~::nGoo~::n~cri&p::~-:> I 89G~~Go bj(\(@::r . ~')g~f:~89~d) I . 6.?')~
GOJ'JgmG~~G~~ o::>~:~:Go:i03J~ I- .st:G~~o.2f1 ~coS~GcoS~-~ J:
GOJOjl 0 89G~ rnooo5:GooG~~9~.~~'3>:!~~~:3<3G~:~I G~.?@1 .
rnG~~ Grn~oS-~ O?~G06)Qt ~~~8;,~5:; -~coS!~GcuS~mti)G~~~~
.~C~GO:)~~f, ~cO:~GcoSG~m .. Grn-:>d3~~cg8 1 .rncoOS~cu~~o)
~61o;p:1 rn~~gl rnG~:I s~-~~~.)g~ofr qt:G::n.~ornG~~_)QQ)
oon . . . . :.:__
The rule that is laid down in these passag~s (is
that on:>.the dea~h of!i:l a :brother or sister withq~ut" .
'leaving; a spouse q,r issue the deceased's . yojirig~r
brothers and . sisters Inherit to the . exclusion: of the
::; : t,. ; ~.
 19.)5] BURMA LAW .REPORTS. 29
..
elders. Learned counsel for Lim Kar Gim however S.C.
1955
_points to the passage in Manugye where ref~rence is
made to the death of the parents i.e. " S::Y:>~~ul~G::D~~ LI~r~AR
G~-:>oSu" A similar reference appears in Amwebon as MRS.71 RIS
T 1
well and learned counsel contends therefore that for l\1.tuNG SElN
AND ONE
the rule of non-ascent to apply among collaterals one
of the requisites is that the parents must be dead.
He points out Mrs. Liin Chin Tsong the mother
:survived Margaret Chor Pine and advanced the
argument that under archaic Iaw of inheritance the
~elder children re~eived larger shares in relation to the
younger children and thus the exclusion of the elders
jn respect to a collateral's estate was a fair rule.
Now that all children normally inherit equally in a
-parental e~tate, learned couns~l suggests, exclusion at
the present day would be meaningless and unfair.
We are however of the opinion that in the
:authorities above mentioned, when reference . was
made to .the death of parents, such reference was
made to emphasise the fact that the estate to which
the rule of division is to apply, is the estate of a
,deceased brother or sister as distinct from an
undivided estate of a parent in regard to which all
tehildren are entitled to their shares. We are of
opinion also that the phrases "saG~~ Goo-.>~@g~" i.e.
"' after division of the parental estate " appearing in
Manu was n1eant for similar emphasis. It will be
noted that all the texts laid special empha,sis on
"' living apart" i.e. soo3:::)3gGcf>6f>02Cll o3::'J::Gf>'!?~ll ~S~;
r86'J::~o5u c8::G)'J::G;;G@'Jcfu sco3~G)'J:: so@'J:GfWII
Living apart may be caused by various reasons
but. whatever may be the ~~,. cause, separate . living
jndicates the creation of a separate estate a~d it is in
-respect .
. of s~ch an .estate - that the rule of non-ascent
; even. among brothers and sisters must
: - prevail.
..
The
30 B U Rl\I A LA \tV REPORTS. [19SS.
- I
S.C. fact that a parent may be alive at the time of a child's
1955
death, in our judgment, would not make an exception
LI M KAR
GrM to this nile. .
MRs~IRis The passage i::1 Attasankhepa mentions that if'
MAUNG SElN
AND ONE'
there are none junior to the deceased then the
inheritance will have to ascpnd to .the" elder brothers
or elder sisters and even to parents and grandpar-
ents." ~~~~gu 8d~~~gu S::rxf~g82:nu5u qtgG::D:)[l 0 83G~~ Qd)
6G0u" This suggests that the n1ain condition on which
the rule excluding elder brothers and sisters depends
is not the fact of parents being alive. The emphasis
is on separate living after dlvision of the parental
estate which would give rise to the fqrmation of a
distinct and separate estate, only to which this rule.
would apply.
Margaret Chor Pine had left the fan1ily in 1919
when she tnl{.rried and when she died in 1943,.n.~r
estate was a separate estate unconnected wit]J...)he
estate of her parents ; and on the weight of ;'t he
authorities we have n1entioned we must endorse.'.the :

view of the appellate Court that her estate c~nnot

ascend to her .elder brother. . Our conclusiot}' is in
line with the views expressed in Mi Apruzan :v. Mi
Chumra .(1) wh~re reliance was placed on section.lS.
of Manugye, despite the fact that a parent was afive,.
as in this case. .The same dictum was followed in
ldaung Tu v. !via Chit (2)." . .
In the result, We dismiss the appeals of Chan :Eu.
Ghee in Civ1l Appeals Nos. 6, 7 and 8 together with
. the 9ross-objections filed by the respondents: Siinil-
. arly we dis.miss the appeals of :Lim Kar Gim in Civil . .
Appeals N9s. 9 and 10: .;
. . In regard to costs. we feel that . none ..of the
.'applications were frivolo11:s and in fact 3:ll the parties
, had justifiab.le reasons to : seek grant
. .
Lett~rs .of
-
_ot _... - - -
. (ll (1872~92) S.J. & R.,L.B .. 37. (2) I.L.R. lO R~tn-. 162:
[1955 . BURMA LAW KEPORTS. 31
,
Administration and in these circumstances we consider S.C.
1955
that the costs incurred by them throughout the
LIM KA!~
proceedings should come out of the esta'te. We Gm
v.
therefore order that this should be so, with the MRS. I IHS
limitation that each party will be entitled to only one MAUNGSE!N
AND ONE.
set of advocates' costs. Such costs- for appearance
before this Court is fixed at K 510 for each party.
 \.

32 BURMA LAW REPORTS. [1955

SUPREME COURT.
t S.C. LILHMICHAND SIRINIVAS (APP~ICANT)
1955
:'Sept. 21.
v.
1. THE FINANCIAL COMMISSIONER
(CO~MERCE).
2. THE COLLECTOR OF CUSTOMS
(RESPONDENTS)*.

Writ of certiorart-S. 167 (81, Sea Customs Act-A q~testion of jurisdiction-

SitPreme Cotu'l Practice- New gr()und of fact taken up .neither in the
lower Courts nor even in t!ze application before the Supreme Court, but
taken only in the course .? f argument before the Supreme co'urt-
Enterlainability.
The Wdt of certiorari deals with the question Of want of . juris.diction ur
. excess Of jurisdictign. If the authority whose order is imp:Ugned by n1eans
of the Writ of certiorari had jurisdi<;tion to deal with a certain matter and
dealt with it, the Supreme Court. would not interfere even though it might
not agree with the said authority on question either Of law or fact or of
both.
Gwan Kee v, The Union of Burma, {1949) B. L.R (S.C:) 151 at 153,
followed.
Dr. R. C. Das v.The.. Controller of Rents, Rangoon,. (1951) B.L.R.
. !S.C.)
225;referred to, .
The Supreme court will not entertain and go into a new questions of
\fact not raised before the lower Courts, nor even in the. application made to
the Supreme Court, but taken only in the course of the argument before the
Supreme Court.
' Gooinda Chandra Dakna.v. Dinesh Chandra J.llaitra, A.I.R. (1952) .Cal.
100; Govind Vinayak v. Additicnal Deputy .CfJmmissioner, Nagpur and
lOnother, A.I.R. (1953) Nag. 250; Magalal hvaohai Patel v. Gover.nment of
.Bombay, A.l.R. (1953) Bom. 59, followed.
Q ~

.V. S... . Venkatram

. for the
. applicant.

Ba Sezn (Government for th~

.: respondents.

* Civil Mis.c . Application No. 11 of 1955. .,

+Present: U THEIN MAUNG, Chief Jnstice Of thi: Union,. MR. JusTICE
MYI~n' THEIN an,d
:
MR. JUSTICE
c::r
CHAN HTOON. .
.
. .. .
 1955] BURMA LA\tV REPORTS. 33

Judgment of the Court was delivered by the S.C.

195:\
Ci1ief Justice of the Union.
. L tUl 'll -
CI:-IANI!
U THEIN MAuNG.-This is an application for a SIRI~I\"AS
'V .
writ of certiorari to quash the order of the second l.THE l "ll'<Al'\-
respondent by which seven bales of Cotton Dyed CIAL
Co~orrs
Crepe imported by the applicant has been SIONER
(COMMERCE).
confiscated under section 167 (8) of the Sea Customs 2.1HE
COLLECTOII
Act and the order ofthe first respondent dismissing OF
his appeal from the said order. Cvs-roMs.

The applicant's case is that cotton dyed crepe is

shirting and is covered as such by the Open General
License No. XI.
However, both the respondents have held
~that it i.s not shirting. They have jurisdiction
to decide the question ; we see no reason to differ
from them; and this Court has already observed in
Gwan Kee v. The Union of Burma (1"} :
"As has. been pointed out by this Court on several
occasions, the wiit of certiorari deals with the question of want
of jurisdiction or excess of jurisdiction. If the authority
whose order is impugned by means of the writ of certiorari
had jurisdiction to deal with a certain matter and dealt with it,
this Court would not interfere even though it might not agree
with the said authority on questions either of law or fact or of
both."
Besides, the order~ of the. respondents are not
" speaking orders " in the sense that they are
obviously wrong~ to justify interference witb then1 as
such in accordance with the ruling of this Court iu
Dr. R . C. Das v. The Controller of Rents, Rangoon
(2).
The-. learned Advoca~e for the applicant has
further contended that. if cotton dyed crepe be not
shirting it must be cottOn coatings arid . trouserings
which are .cove:t;ed by -Op~n General License .No. xry.
--
{1) (1949) ~.L.R. (S.C.) lSi at 1~3 ..
.. .
- ----
(Z) U95l). B .L.~. (S.C :) 2~5.

 >

34 BURMA LAW REPORTS. [1955

S.C. However, this is a 11ew ground which has been
1955
L ILHi\11-
taken only in the course of argun1ent in this Court.
CHAND The question has not been raised before the
smx~~vAs respondents although it is one of fact and the ground
LTHE FINAN- has not been taken even in the application in this
.CIAL COMMIS-
SIONER Court. So we cannot entertain this plea and go into
(COMMEI~CE). h.
2. THE
.
t IS new question of f act. [c p. G o b.znd a c handra
cor.~~Tor< Dakna v. Dinesh Chandra Maitra (l) ; Govind
cusToMs. Vinayak v. Additional Deputy Commissioner,
Nagpur, and another (2); and lvlagalal Jivabhai
Patel v. Goverrunent of Bombay (3)].
The application is distnissed but the parties mus~
bear their own costs as the applicant appears to have
been n1isled by the way in which the respondents~~wt:'~
referred to Custon1s House Notice No. 2 in their
respective orders. .
This notice was issued in connection with Open
General Liceri'se No. XI on the 18th December 1-QSO
i.e. six days after the License itself was issued and
about three years before the applicant indented.for
the goods in , question. It merely shows that 'the <:.
applicant must have ordered the goods . with full ~.
knowledge of the fact that the Collector of Customs
would .not treat them as shirting. .~.
Inciqentally, however, this notice' is of. Spepial
importance as the Ministry of Cotn.merce and Supply
has issued a Press Con1muniquc re. Open Get~eral
License .Nos. XI . and XII on the 15th December
}~50, i.e. on the same date as the Open General
License No. X1,. in which it has stated:. :
v

" To. avoid mistakes, Importers .

are advised to ascertain
I .
from the Cqllector. of Customs that the goods intended to be.
imported fall. withi~ the. Tariff Items mentioned in the Open
.Deneral Lic~J?.Ces before. ;indenting for the .g oods.''

(1) A.I.R.-. (t:9$2) Cal.lOO. {2) A.Ll~. {i9~3) :Nag: 250.

., ' .(3~ (19'53) A.LRi Born, '59 .

.. . . . .
. .. . . .. . : .
) . ... .
.. .....
 1955] BURMA LAW REPORtS. Js

SUPREME COURT.

RANGOON COMMERCIAL HOUSE (APPELLANT) t S. C.

1935

v. Se pt . s.

SHAHJEHAN MUSICTIKHAN TRADING

CORPORATION (RESPONDENT).*

Coutract fo r Sale of goorls-Ss. 222, 230, 233, Conlmct Act-Local agclll for
foreign prin~iPal-PersoJLally liable a1~d caJt be sued in his own name.
The Appellant as "Buyer " entered into a contr,\ct tor Sale of goods with
the Respondents as "The Sellers. '
Upon failure to del iver the goods, the appellants liled a suit for breach of
contrac t agains~ the Hesponclents .
The I~espon dents' defence is that they acted as agen'ts of certain firms in
Japan a nd therefore they are not personally liable, nor can they be s ued
personally and in their own name.
Held: Unless a contrary intention appears from the Contract or from
surroaJnding circ umstances, the very {act that t he Respondents entered into
this contract, according to their own defence, as an agent for the firms in
Japan raises a presumption that they agreed to hind themselves personally
under s. 230, Contract Act.
T herefore a suit against them and in their own name would lie.
Miller, Gibb & Co. v. Smith and Tyrer Ltd., (1917) 2 K.B. 141 at 150-.151
referred to.
Where a person elects t o hold the agent, who acts {or a foreign principal,
personally liable and sues him to judgment, as authorized by the provisions of
s. 23Jread with s. 230, the agent has a right to.be indemnified against all tile
consequences of that suit by !lis foreign principal.
Pollock and Mullas' Indian Contract Act and Specific Relief Act (7th Ediw
tion) p. 59t, referred to.
Mere mention of commission in the Contract is not in any way incoilllistent
with the relation between principal and principal.
Balthazar & Son v. E. X. Abowath, I.L.R. Ran. Vol. 5, 1, referr-ed to.
Rada Kisltamna_l v. Ma11galal Bros., A.I.R. (19~3) Cal. 206, discussed.
.
*Civil Appeal , N:o. l of 1955 against the decree of the High lCourtof
.
Rangoon in Civillst.Appeal No. 5 of 1952.'
.. : . t Present : u THEIN ?vlAUNG, Chief Justice of the unio~; MR; JUSTICE .
.MYlNT THiiN and ~R:'jusrxcE CHAN HTooN.

. ..
36 BU.RMA"LAW REPORtS. [1955

s.c.
1955
Kyaw Din for the appelfant.
RAN GOON Dr. Ba Maw for the respondent.
CoMME f'<: IAL
HOVSE
'V . Judgment delivered by
SHAIU EHAN
IvfUSKTIK HA N
TRADING
Coi~ POl~A-
MR. JusTICE CHAN HTOON._. .This appeal from
Tl oN. the High Court, Rangoon, raises the question wheth~r
the respondents, Shahjehan Musktikhan Trading
Corporation, are personally liable and can be sued in
their own name on a contract for sale of goods . .
By this contract, which was expressed to be
between the plainti:ff-appeUants, " Messrs. Rangoon
Cotnmercial House, No .. 79 Maung . Khine Street,
Rangoon, hereinafter called the buye:r;s ;, . and the
defendant-respondents'~ Shahjehan Musktikhan TFad-
ing Corporation, Rangoon, hereinafter called the
Sellers " it w~lls agreed that 30,000 yards of ce~tain
kind of cloth to be manufactured in Japan were to
be delivered to the plaintiff-appellants before the
end of December 1950 at the price of 29 cents per
yard CIF Rangoon. Upon failure to deliver the
goods the plaintiff--a ppellants filed a suit for brea~h
of contract against the defendant-respondents. 'Jhe
. suit was tried by the City Civil Court of Rangoon
which gave . judgment for the plaintiff-appellants.
On appeal, .the High Court re versed the judgment of .
the trial Court and dismissed the plaintiff-appellants'
suit.
, The main defence of the respon9-ents ~s that tl_i:~y
.

acted as agent of certain firms in J~pan,. namely,

Messrs. Chugai Tradi~g co. Ltd., .Osa~a, J apa:n~/in
the first instance, and later Me.ssrs. Asano Buss~n
...Co., Osaka, Japan, and therefore, they are . .pq~.
.]Serson.a~ly liable u~der th.i, contra~t. . .: T~e~ furt~er
.~ contend that the suit as framed does.npt he.since t~~y- '
.
. cannot .be. sued personally
., .
and. in their 6\Vri nae.. . .
. . ..

 :>.c;J
1(),. BURMA LAW REPORTS. 37

Even on their own defence, there must be a S.C.
1955
t; judgment for the appellants, in view of the provi-
RANGOON
; .sions in section 230 of the Contract Act, which
l Cor.rMERCIAL
rprovides: HousE
v.
~ " In the absence of any contract to that effect, an agent SHAHJEHAN
MUSK'fiKHAN
~. cannot personally enforce contracts entered :. into by him on TRADI~G
CoRPORA
; behalf of his principal, nor is he personally bound by them.
I TION,
. Such a contract shall be presumed to exist in the
;following cases :-
(1) Where the contractis made by an agent for the
sale or purchase of goods for a merchant
resident abroad ;.
(2)
(3) "

The very fact that the respondents entered into

this contract, according to their own defence, as an
agent for the. firms in Japan raises a presufnption that
they agreed to bind themselves personally, unless of
course a contrary intention appears from the contract
or from the surrounding circun1stances to be discussed
later.
Therefore a suit against them and in their own
name would lie. This becomes quite clear when we
look at the re'!.son of the law in this section. It
see1ns to stem from a rule of law in England based
upon a custom, whic4 n1ay be stated in the following
words of Lord Swinfen Eady, in Miller, Gibb & Co.
v. Smith qnd Tyrer L td. 0) :-
" The . custom to which the plaintiffs refer is a custq.m
whereby the agent alone is liable to the exclusion of his
principal,. The . foundation of the custom is the presumption
that the agent h:as not power to pledge the credit of his fQr~ign
principal. and therefore that the .foreign principal is not under
any liab'ility to the person with ~:P,om the commission agentjs
Gontracting. In thi~ ca~e the only :liability of the ~oreign
(1) (1917> 2 K.B. 14l. at iso-151 .
38 BtJRM'A LAW REPORTS. [195 .
S.C. principal is to his own agent and the agent is alone liable t<
1955
the person with whom he makes the contract."
c:=~~~~AL Thus in England the agent alone is liable to th(
HousE
v. exclusion of his foreign principal, and the agent anc
SHAHJEHAN not the principal must be sued .for the breach o:
MusKTIKHAN
TRADING contract. Th e Iaw 1n. Burma IS . t I1e sa1ne so f ar a:
co:~~~~A- the personal liability of the agent is concyrned
provided that the other party to the contract elect~
to hold him liable and sues him as such. . Section
233 of the Contract Act gives the right to a person
dealing with an agent in a case of this kind. to hold
hi1n or his principal or both of then1liable . . It reads
as follows:
" In cases where the agent is personally liable, a : person
dealing with him may hold either him or his principal/ or both
of them. liable.,
There is no foundation whatsoever in the conten-
tion of the respondents as set out in paragraph 6 of
their Concise Statement of Facts that section
. 230
. of
the Contract Act does not entitle the appella:qts to
sue the respondents personally in their O\Yn n:ame
because that section " is plainly intended to. protect
. also the agent himself whose defence in the
suit would be gravely prejudiced and his consecjuen-
. tial claim against his foreign principal jeopardi$ed if
he were to be sued as such an ag~nt." The fallacy
of this plea becomes plain when we refer tq the
following provisions in section 222 of the Contract
Act:_ .
c " The employer of an . agent is bound to indemn~y . him
against the consequences of all lawful acts done by such :agent
in exercise of t~e authority conferred upon him,." . . . . .
Where a. person elects to hold the agent;~ .who
) acts for a foreign principal, per~onally .liable and, sues
ll.im to judgtnent, as authorised bx the .pr.ovisions :of :
. section . 233 read
...
with section 230. ' then
.
the agent
.
'ha.s .
: .
 955] BURMA LAW REPORTS. 3<)

right. to be ind~mnified agaii1St all .the consequences ~ . c.

1955
,f that suit by his foreign principal. lliustration (b)
o section 222, with the words " at Singapore " c~~?r~~~~:r.
ubstituted for the word " there'', as suggested by HousE
'II.
Vhit1ey Stokes, (1) will make this point clear, and SHAJ-JIEHAN
MUSKTJKHAN
vill also go to support the view that in a case of this TRADING
:ind the local agent can be sued personally and in CoRPORA- noN.
tis own name.
" Illustration (b)- B. a broker at Calcutta. by the orders
1f A a merchant at Singa pore. contracts with C for the purchase
>f 10 casks of oil for A. Afterwards A refuses to receive the
1il, and C sues B . B informs A who repudiates the contract
tltogether. B defends but unsuccessfully, and has to pay
iamages and costs, and incurs expenses. A is liable to B for
:uch damages, costs and expenses."

But the presumption that the agent of a foreign

~rincipal binds himself personally may be.. rebutted if
:t contrary intention appears from the contract itself
or from the. surrounding circumstances. In the
present case .the contract (Exhibit A) itself contains
nothing to displace this pres~mption in any way.
The respondents are described as the sellers in the
body of the .document and they also signed at the
foot of the contract under the word '' sellers." There
is nothing in the contract to_ suggest that the
respondents are to be excluded from liability. The
respondents however contend that the mention of
"3% indenting commission to be paid at the time of
opening let_ter of credit " to them by the appellants
takes the case out of the rule. But this arrangement
to pay 3 per cent indenting com.mission to the
respondents cannot be taken as amounting to an
agreement to exclude them f~om liability a:ltqgether.
It cannot . even be taken as establishing . theiD: as
(1) . Pollock and MuUa's Indian Contract and Specific ReJief_Act':_(7th
; ~it~on) l' 592',
e
'
40 B URMA LAW REPORTS. [195:
S.C. agents. In Balthazar & Son V. E. X. Abowath Oi
1955
it was held that the mere mention of commission ir
RANGOON
COMMERCIAL the contract is not in any way inconsistent with th<
HousE
v. relation between principal and principal.
SHAHJEHAN
M USKTIKHAN
In the correspondence that passed between th(
TRADING parties, there is nothing to support the. respondents
CORPORA-
TION . contention that they did not agree to bind themselve1
personally. On the contrary there is a definit~
assertion of personal responsibility in Exhibit,G_c:
letter dated 18th December 1950 from the af',p.ellant~
to the respondents-where it is specifically men.tionec
that any failure on the part of the respondents 01
their manufacturers in Japan to fulfill the c ontrac
will be deemed as a breach of the contract for .whict
the respondents " are solely responsible for ~ny losse~
incurred''.. In fact, there is ample evidence tc
justify the finding : of the learned trial Judge that th~
respondents acted as principals and not as agents a1
all.
We therefore hold that the defendant-respondent~
are personally liable and can be sued in their owr
name for the breach of contract, under section 23(
'and 23.3 of the Contra.c t Act.
There is another defence put forward .PY tht
respon~ents to the effect that they are fully protectec
aga inst any suit for damages for non..;delivery" ~of the
goods .by the terms in Clause 9 of the Contrac1
(Exhibit A), which reads as follows:
. " 9 . Force majeure, strikes, lock-outs, disputes, .c91lision
aacidents of any kind, war. lightning, storm, f-ro$.t/ . flood,
.drought, riot,. civil commotio~. faih~re of supplies- .:.and/or
manufacturers, . . which ~ay i:riterfe:fe with. th~ execu-
tion of orders, shall exempt Sellers from all responsibility .in
regard to "late delivery andjor. "shipment and/or . n<>zi:-:d,~l.iver)
" . . . ..
. .
<S .
. (1) I.~.R. RaP". voi. 5 1 1,
( .
1955] BURMA LAW REPORTS 41

The respondetits claini that' the failure on the S.C.

1955
part of their principals in Japan to send the goods to
R..\~GOOX
Burma for the purpose of delivering the same under CO)I:\IERCIAI.
HotsE
the contract, cotnes within the purview of this clause v.
and that no suit lies for such non-delivery. In SHAIIJEHAN
Mt 'SKTIKHAN
support of this contention learned counsel for the THADING
CO HPORA
respondents cites the case of Rada Kishanmal v. TION.
!vlangalal Bros. {1), where it was held that non-
supply of the goods did not give rise to a cause of
action for breach of contract, in view of the fact
that a clause in the contract, which, after setting
out a large number of causes beyond human control,
provides that "it is also understC'od that this indent
is null and void in case goods are not shipped or
you do not supply for causes whatsoever without
asking any reason", was very wide and covered
every possible reason for non-sup~ly or non-
shipment. But in the present case, clause 9 does
not go so far as to exclude the sellers viz. the
respondents and his principals~ from liability for
non-delivery or non-shipment for any cause
whatsoever. On the contrary, it exempts from
liability only where non-delivery or non-shipment
were due to causes "which may interfere with the
execution of orders". There is nothing in the
evidence to prove that non-shipment or. non-delivery
on the part of Chugai Trading Co. Ltd. or Asano
Buss an Co. was due to any of the causes set out in
clause 9 which in any way interfered with th~
manufacture o r shipment of the goods. The
defendants; statement, in re-examination, that Cliugai
Trading Co. had to -assign the work of manufacturing
the goods to Asano Jlussan Co. as the goods were
damaged by typ~oon, stands completely un<?orrobora ..
ted. On the contrary, the evidence on record goes
W A.I~R. (1943) Cal. 206.
42 BURMA LAW REPORTS. . [1955
S.C. to support the finding of.the learned trial Judg~ that
1955
RA NG OON
this transfer was due to a revision of price by Chugai
co:-nmRcrAL Trading Co. On the 29th September 1950' the
H OUSE
v. respon ents contracted to supply these goo d ~ at 29
d
;.~ ~:~;~~~:! cents per yard C.I.F . . Rangoon. By a letter dated
T RA DI NG the 12th October 1950 (:xhibit 4) Chugai Trading
CORP ORA-
TioN .
C o. as k e d f or revision
. o f th e pnce
. f rom 29 cents
. to
315 cents per yard. Only then it appears the
respondents transferred the work to Asano Bussan
Co., which accepted the same by telegram (Exhibit 6)
dated the 24th November 1950 and confirmed by
letter (Exhibit 2) dated the 28th November 1950 at
the price of 29 cents per yard C.I.F. Rangoon.
We therefore agree with the learned trial Judge
in holding that the breach of c.ontrac.t was not due
to any of the cau~es mentioned in Clause 9 but due
to the transfer . of the work o{ manufacturing. the
goods from one company to another on account of
the rise in the price of the goods.
The appeal is allowed and the judgment and
decree of the High Court are set aside, and . the
judg1nent and .decree of the trial Court are -r.estored
with costs throughout.
 1 95 _)..
-' J BURMA LAW REPORTS. -1-3

SUPREME COURT
CHAN CHOUNG SAN AN D ONE (APPELLANTS) ts.c.
1955
V.
Sept, 22.
UNION OF BURMA (R ESPONDENT) .*

Comtifutl:on ofTJunna, s. 90- S. 1 liit), Foreign E.1:c/;auge Rcp,ulalion Act ,

1947-llct c:o:pil'i1~g by effilux of time-Further extcttsionof fi1l1c by t/1c
President - Su-ch extension, whether ultra vires of s. 90 of the Conslitfltion-
Delcgated or fA)Il(iitional legislation.
S. 1 {iii) of the Foreign Exchange Regulation Act, 1947 which came into
force on 1st Aug ust 1947, as subsequently amcnde;d 1eads : -
''It shall remain in force for fi\e years only hut the President of the
Union may, by notification direct thatit shall remain in fon:e for a further
period not e-xceeding five year~."
The Pr esident directed that it would continue in force for five years beJ.{in-
ning {rom 1st August 1952.
Held: The President in exercising his powers unde r s. 1 (iii) was not
brin~ing into operation any new law, nor was he making any modifications or
restrictions to the Act but was merely pr olonging !he liCe of the Act for a
period within the a llotted span. No delegated or concJ.itja)nallegisJation was
involved, and in effect he was merely bringing into operation the second
instalment of the life of the Act.
Re, Kalayam VeerbhaddrYa, I.L.R. (1950) Mad, 243 - (1949) 2 M.L.J. 663;
Cltatlttram and oth~d v. Commissioner of Income-Tax. Bihar, (1947) F.C. R.
116;.JatindraNa~hGuPiav. The Province of Biltar, 11949) F.C.R 175=
(1949), 2 M.L.J. 356; A.I.R (1951) (S.C.) 332, referred to.
Joylal Agarwala v. The Sl ate, A .I.R . !1951 ) (S.C.) 484; Milan Chaud v.
Dwarka Das, A.LR. (1954) Rajasthan 252, approved.

K yaw M yint for the appellants:

Tin M aung (Government Advocate) for the
respondent.
Judgment of the Court was delivered by
JusTICE MYINT THEIN._ The firm of Chen
MR.
Khiun HiD. of Hongkong, Dealers in Foreign
Exchange,. _h as a branch In 103 Crisp Street,
.. * Cr iminalAppeal No.6 of 1935 . Appeal {rom the order . of t he H igh
C.o'urt Judge of Rangoon , dated the 17th day of September 1954, passed in.
Crirninal Appeal No. 244 of 1954.
. t PresetJt : U THEIN MAUNG, Chief Justice ot the U nion, MR, J usTICE
MYINT' THEIN and M.R~ J USTI CE CHAN HTOON.
4-t BTJRMA LAW REPORTS. [1955

S.C. Rangoon, \Nhich was run by the two appellants Chan

1955
Choung San and Nyan Yan. The other member was
CH;\N
CHOUNG
one Ah Moy, a domestic servant. Though the two
SAN A N D
ONE
appellants enjoyed meagre salaries of Kyats 120 a
v. month, they seemed to have carried on extensiv~
l'NION OF
I~ URMA. business by way of imports, dealing in foreign ex-
change and trading in gold bars. According to the
books seized it would appear that for .the period
January to May 1952 the amount of Kyats paid out
for cheques, drafts and currency in United States,
Hongkong and Straits dollars amounted to over 18
lakhs. The correspondence seized also show that
1,521 bars of gold, each worth K 2,000, had got into
their hands, out of which they had disposed of 250
bars prior to being found out.
Their operations came to light by a cha,nce
discovery of 20 bars of gold on the person of one
Wong Choung Yaung who was stopped on suspicion
by a. s'Nrveillance police patrol on the 4th June :1952.
He had been hawking these gold bars in Mogul
Street. Iii consequence of his statements .I 03 .Crisp
Stre~t was raided w.here the two appellant!) ~nd Ah
Moy were found. 1,251 gold bars were seized albng
with documents and account books. . A sum of
K 1,46,003 was also found, but only some currency
notes to the value of K 345 were seized by the Police
officer U Maung Maung Gyi with a view to test if .they
were counterfeit. .The rest of the cash was put into a
.. sealed suit caseand left with. a neighbour. The
. three men were arrested and the gold deposited in
the Union Bank the same day . . The neighbour was.
fearful that .the money l~ft with him might be robbed
and so he interviewed the Comtnissioner of. Police
) who accepted: th suit case and._had it deposited in
the :Union Bank . ($.e i Exhibit B)~ . .This .. was. on the
next day" . ., .:
 l<JSS] BURMA LAW REPORTS. 45

The case was handed to the Special Bureau of S.C.

l<JSS
Investigation on 16th June 1952 and on 2nd Septem-
ber 1952 five cases relating to unauthorised' deals in CH ,\N
CHOUNG
foreign exchange and one case for importing 1,251 SAN ANU

gold bars (found in the shop) and 20 bars (found on v.

U~J O N OF
Wang Chaung Yaung) a total of 1,271 bars. The . B UIIMA.
appellants as well as the domestic servant Ah Moy
and Wang Chaung Yaung were sent up but the latter
two were discharged at an early stage and gave
evidence for the prosecution.
They were found guilty in all the six cases and
sentences aggregating 4} years rigorous imprison-
ment were meted out to the1n in respect of a total of
12 charges for unauthorised deals in exchange and on
one charge of imrorting gold. The gold and the cash
were ordered to be confiscated. We take the
opportunity to observe that a great deal of time and
energy could have bee.n saved. by amalgamating these
six cases into two cases at the most. Multiplicity of
proceediHgs could have been avoided and the same
measure of punishtnent could have been awarded
without recourse to six cases, a procedure which
led to t~e confusion of evidence arid the necessity
of examining busy public servants and other
witnesses more than once in each of the six cases
and culminating with award. of punishment by
way of sentences which had to be mostly concurrent.
While it is legaJly permissible to prosecute a person
for every single offence, ~he Criminal Procedure Code
. itself provides measures to avoid multiplicity of pro-
. ceedings, which can only 1ead to congestion in the
: Courts Calendar and .delay in their disposal. The
six cases were tried together and took two year~ in the
trial Court alone, a periqd .which could have. been"
,.s.hortened if the prosecution . had co.llcentnited its
~- attention on thegold bar c&se &nd one other. case in
~
46 BURMALAW REPORTS. r1:JS5
S.C. which three charges could have been framed. The
1955
nett result would have been the same.
CHt\N
CHOUNG
The High Court bas con[irmed' the sentences and
SAN' AND the order of confiscation of the gold but in regard to
ONE'
1'. the cash it was ordered that K 38,180.85, . being the
UNION OF
'BURMA, proceeds of sale of cotton yarn and not of gold, was to
be returned to the firm of Chen Khiun Hin. .
We have no reason to disturb the finding of facts
in this case but special leave was granted in. regard to
two points , these being (i) whether section 1 (iii) of
the Foreign Exchange Regulation Act, 1947 is ultra
vires of section 90 of the constitution and (ii) whether
the order of confiscation in respect of the cash was
correct.
In regard to the first point the Act impugned
came into force for five years from 1947 but its
operation ~. ~s extended by notifi~ation by the :Presi-
dent for another period of five years. It was con-
tended by the defence that the Act ceased t,o have
effect by efflux of time and that the action of the
President in making the extension amounted to
legislation and therefore ultra vires because . of
sec tion 90 which runs:
u Subject to the provisions of the constitution the sole
and e!(clusive power of making laws in the Union shall be
vested in the Parliament. "

Suppo~t is lent to this. view by the ruling in Re.

Kalayam Veerbhaddrya (1) w~ere the en~ctment
involved was the Maintenance ofPublicOrder Act, 1947
and the point under review was whether tl).e extensiq'!t of
the Act for another year (as provided for by th~ Act '
1tself) was invalid. Satyanaraya, C.J. and Ba~heer
Ahmed Sayeed, J~ held that it was, .. the .power; of ex-
tension>. bt?ing in their ~iew, a 'legislative..power' w;ic4
. : ,(1) i~.R. (1950) Mad. ~43-(1949} Z 'ivi.I....J.' 663.
. . . . ..
 955] BUR.MA LAW REPORTS. 47

ould not be delegated. Reliance ~as placed by the S.C.

1955
;arned Judges upon tlie cases of Chatturam and
CHAN
~thers v. The Commissioner of Income-Tax; Bihar CHOUNG
SAN AND
1) and Jatindra Nath Gupta v. The Province of PNE
Uhar (2). In the first case Spens, C.J ., Zafrulla v.
UNION OF
Chan and Kania JJ. held that the extension of the BURMA.
'
ndian Income Tax Amendment Act, 1939 by an
)rder in Council to an excluded area, under section
12 (1) of the Government of India Act, 1935 was in
he exercise of the Governor's legislative powers.
n the second case Kania, C.J., Fazl Ali, Patanjali
iastri, Mahajan and Murkerjee, JJ. dealt with the
~ihar Maintenance of Public Order Act, 1947, the
>peration of which was limited by one year by sub-
:ection (3) of section (1). There was however a
~roviso which could keep the Act in force for one
~ore. year by notification of the Provincial Govern-
ment. The majority view was that the proviso
1mounted to ~elegation of legislative ..power and
;herefore ultra vires. The dissenting opinion of Fazl
~li, J. was that the proviso was merely a piece of
. ;.onditionallegislation.
;-, ..In 1951 a reference was made by the President of
~dia to the Indian Supreme Court (3). Three enact-
ifients were chosen to fit in with the three main stages
~
U1 the .
constitutional development of India,.
these
peing :.
.~~.. . (a) Section 7 of the Delhi Laws Act' 1912
phich. .runs:
t
"t~ r.: .~' The Provincial Government may, by notification in
t. the official gazette. extend with such restrictions .
~ and modifications as it thinks fit. to the Province
!."

~ of Delhi andany part thereof, any .enaCtnJent

, ., which is in force in any part of .BritishIndia
t at the date of such notification. n
[. . . . . (1)){1947) F.C.R. 116. . :. .
f l (19~9). l<.c.~. 17S-{'i9~9) 2 M:L.J. 356, {3) A.tR: (1951) {RC.) 3~2 .
t
~;.
. 3. --;:c .
. - .
. .
~
 .B'URMA LAW REPORTS. [ 195 ~

s:c. Section 2 of the Ajmer-Merwara'(Extensior

(b)
1955
of LaWSJ Act, 01947, which runs:
CHAN
CHOUNG "The Central Government may by notification in th
SAN AND official. gazette, extend to the Province qf Ajmer
ONE
.v. Merwara with such restrictions and .modifica
UNION oF tions as it thinks fit, any enactment which is ll
,,SURMA.
force in any other province at the date of sucl
notification."
(c) Section 2 of the Part C States (Laws), Act
1950 which runs : . .
"The Central Government may, by notification in the
official Gazette, extend to any .Part C State
(other than Coorg and the Andaman an<
. Nicobar Islands or to any part. o,f such state
with such restrictions
. . and modifications. as . i
thinks fit, any enactment which is in force in <
Part
. A state at the date. of .the. notification
. : an<
provision may be .inade in any. enactment s<
extended for the repeal or. amendment .'<:){ an:
6orn~sponding la~ (other than a 'C~entr~l Act
. whiCh: is .for the tiilie being applicabl~;. to tha
. }?art C State ,, : . . .. . . .
'; .. :..The opinion.of'the SupremeCourt was sqlight i:
any of these provisions or any part thereof wen
.'ultra vires:.. . :Kani'a, . C.J.- and Mahajan, J. reiteratec
their . stand in . Jiuind,ra Nath Gupta's case ''0)'. anc
:held :. th;~t . in ena'Cting .these sections .the legislatur<
:had virtiiaUy abdicated :its legislativepower in Jiivon:
of the executive inasmuch as it permits the e~ecutiv1
:to apply to these states (i.e.'., D~lhi, Ajmer..;Merwan
and Part C States) laws enacted by oth~r: legislature
::Wbich- c~ld not make laws :for . these -states, anc
:~hich these. states .themselye~s wer~ copipe.t ent t<
:.;

make. .The . majority . composed ~ of FaiL Ali

patanjali :Sastri~ Mab:ajan, . Mukerjee; Das aJ:].d Bose
:JJ. held :otherwise::. M.u.kerjee and.Bose, JJ. made <
reserv~tion fh~t . the. la~i port}~# . Of SectiOIL i ::O.f tht
:Part. .C .States, . i.:ii., the
. . ' .. .
-~hiuse.' :.'efl:ablingtep:~3).
. . . .. . .. . ~...
..01
' .. .
. (i) (1949) F.C.R. 1.75 .. {1949) 2 M~L.J. 356.
955] BURMA LAW RBPORTS. 49
. S.C.
.mendment of any corresp'onding law already 1955
:pplicable to Part C States was ultra vires. Bose, J.
CHA:\"
nade a further reservation that the power to restrict Cr-rocNG
)r modify could only relate to minor matters. SAN ANil
O l\E
The minority view has no application to the v.
U N IUN OF
natter we are dealing with, for the Foreign Ex~ BUI~MA.

hange Act, 1947 was a live Act whose life was

nade longer by the notification of the President.
:;-urther, no question of modification or restriction
vas authorised or attempted.
The case that is closest is that of Joylal Agarwala
' The State (1), a unanimous and later decision
,r. Kania ' C.J., Patanjali Sastri, Mukerjee and
:handasekhara Aiyar, JJ. The Act involved there
vas The Essential Supplies (Temporary Powers)
\cf, section I (3) of which provides that it shall
:ease to have effect on the expiry of the period
nentioned in section 4 of the Indian (Central
]overnment and Legislature) Act, 1946. This section
l provides: .
'' . . the period mentioned . is the period of
me year beginning with the date on which the proclamation
>f Emergency in force at the passing of this Act ceases to
?perate, or, if the Governor-General by public notification so
l'irects. the period of two years beginning with the date_
)rovided that if and so often as a resolution passed by the
Dominion Legislature, the said period shall be extended for a
rurther period of twelve months from the date on which it
~ould otherwise expire so, however, that it does not in any
~se continue for more than five years from the date on which
~e proclamation of Emergency cea_ses to operate ".

):he Proclan1ation of Emergency ceased to operate

{>n Thirty-first March 1946,. and the Governor_.
.General acting under the second part of the section
prolonged the life of the_ : Act by two year~, up to
(r) A.i.R. (l951} .!S.C.") 48'4 .
..
4
50 BURMA LAW REPORTS. [195~

S.C. Thirty-n rst March 1948. Later the Constituen1

1955
Assembly acted twice under the proviso, each time
CHAN
CHoUNG prolonging it by twelve months.
SAN AND
ONE Dealing with the validity of these extension~
'V. the Court said :
UNION OF
B URM A. "The case of Jatindra Nath Gupta v. The Province o;
Bihar (I) has no application here. In the case before us the
legislative has itself applied its mind and has fixed the duratior
of the Act, but has left the machinery to reach the maxim mr
passed by instalments to be worked out in a particular manner
There is no question of delegation at all, much less delegatior
of any legislative power."
A later decision which followed Joylal Agar:wala'~
case is 1'dilan Chand v. Dwarka Das (2) in whict
Wanchoo, C.J. and Ranawat, J. doubted the
correctness of the decision in Re. Kala yam .Veer-
bhaddrya (3). The Act under question was the
Rajasthan ?remises (Control of Rent and Eviction:
Act ' 1950 which has as its section (1) ' .
the
following:_
~- (1) This Act shall remain in force for a period. of twc
years in the first instance :
Provided that the Rajpramukh may, if he considers i
ex.p edient to do so, from time to time extend, by order in th<
Rajasthan Gajatte, the duration of the Act by a f1,1rther; perioc
not exceeding five years in the aggregate ".
The extension was held to be valid.
The Foreign Exchange Regulation Act, )94~
which is being considered by us came into force
on the 1st August 1947. Section 1 (iii) of. the Ac1
-~' . runs:
"It shall remain in force for five years only but th(
Governor may, by notification; dire~t .that it sh,all. remain ir
: .force for a further period not exceeding five years".
~ ~~ - . . . . . ..

. (1) (1948).F.C:R.l75-(1949) 2 M.L.J. 356.

(2) A.LR. (1954) R~jasthan 252. ~
(3). I.L.R. {1950) Mad. -243-(1949) 2 M.L.J. 663.
 ,955] BURMA LAW REPORTS. 51
With the transfer of Power i11 1948, and under the S.C.
1955
Union of Burma (Adaptation of Laws) Order, 1948,
CHAN
t:he words "'President of the Union '' were sub:stituted CH oUNG
for the word " Governor". SAN AND
ONE
With the expiry of five years the President v.
U NION OF
exercises the power vested in him under the latter HURMA.
part of section 1 (iii) and by Notification No. 276
of the Ministry of Finance and Revenue the life of
the Act was extended by another period of five years.
In doing so, the President was not bringing into
operation any new law as was done by the Provincial
and Central Governments of India in exercising their
powers under the Delhi Laws A ct or the Ajmer-
Merwara Extension of Laws Act. Nor was he
modifying or making restrictions to the Act, but he
was merely prolonging the life of the Act for another
five years, a period within the allotted span. The
:wording of section 1 (iii) s.hows that the Act was
~ meant to last for ten years altogether at the most.
)twas visualised that it may be needless to prolong
l) t after the first five years, but if the necessity to
~ prolong it should still exist, a machinery was provided
~.to lengthen its life for a further period not to exceed
r, five years. Thus there is no question of delegated
~-or even conditional legislation. The President in
t e.ffect was merely bringing into operation the second
i,instalment of the life of the Act, which was deter.
mined and embodied in the Act itself.
We respectfully agree with the observations in
I oylal Agarwala's case (1) and we hold that the
Foreign Exchange Regulation did not cease to have
.:effect after the expiry of five years counting from
1st August 1947 but continued to be of full effe.ct
~PY virtue of Notification No. 276. .
. .
.. ll)' AJ.R. (195l) (S;C.) 484.
52 BURMA LAW REPORTS. [1955
S.C. The second point relates to the order of confisca-
1955
tion of the cash found at 103 Crisp Street. The
CHAN
CHOU~G prosecution case is that more than 1,271 bars had
SAN AND
ONE been in1ported. U Hari Thein and U Kyin Maung
v. stated the correspondence revealed 250 bars worth
UNION OF
BuR?>tA. K 5 lakhs had already been disposed of prior to the
raid. The trial Judge therefore presun1ed that the
K 1,46,003 found formed part of the proceeds of this
earlier disposal and confiscation was ordered. The
Appellate Judge also concluded that the cash was
part of the proceeds but took into consideration the
evidence relating to a legitimate deal in cotton for
which the firm had received K 38,18075. This ~u1n
was ordered to be restored to the firm and the rest
confiscated.
Now, the power of con.fiscation is given -qnder
section 24 o.f the Foreign Exchange Regulatioti' Act
but such confiscation can only be in respe~t of
" currency, securities, gold or silver, or goods or other
property in respect of which the contravention has
taken place ". The charge in this case relates only
to i,271 go]d bars and these were rightly confiscated.
But since the appellants were not charged in respect
of the 250 bars already disposed of, section 24is of
~o help. If confiscation of the cash is to b.e ordered,
then it can only be under section 517 of the Crilninal
Procedure Code which runs:
"517 (1). When an inquiryor a trial in any criminal
Court is concluded. the Court may make such order as it
thiaks fit for the disposal by destruction. confiscation. or
delivery to any person claiming to . be entitled to P.oss~.ssion .
thereof~ or otherwise. of any property or dqcument prqduced
before it and in its custody. or regarding which any .offence
:; appears to have been committed~ o r which has been use~ for
the commission of a.ny offence.
 1955] BUR-iviA. .iLA\V.
. , :. ; ~

REPORTS .
';. ':. I J .~ I r : { ' .; '
53
Explanation. _In this sectien the term 'Property'
includes in the case of property regarding \vh ich an offence
appears to have been committed, not only such property as has CliA:\
been originally in the possession or under the control of any C E <K :\Ci
SA!\ A!\1>
party, but also any property into or for which the same may O:>;E"
have been converted or exchanged, and anything acquired by t'-
l::-;wx oF
such conversion or exchange, whether immediately or Bt;R:'.TA.
otherwise. "
The cash in this case.may well be the proceeds
of the sale of illegally imported gold bars in which
case it will be "property" converted into money.
But it does not appear to us that the .matter was fully
considered _by the lower Courts nor was any
opportunity given to the appellants or to the firm to
explain about the cash. On the scanty materials on
the record we
are not prepared to come to a decision
and we consider . that the trial Court shouid go into
the matter fully by opening procee<jings under
section 517 of the Criminal ' Procedure Code ' and
..calimg~ upon th~ ~pp.ellants and the firin t o show
: cause in C.R. No. 60 ,of 1952 why the sum of
:. ~ 1,46,003 should not be. confiscated or. otherwise
~- disposed qf. Opportunity .should be given :to the
'-prosecution as well to Iilake its .submissions. To
t,enable the,.. trial Court to make . a . totally fresh
[ approach .. we "set . aside the . orders .of : both the
f1ower .<;ourts relat~ng . to the disposal o.~ }~.e _ c~s4
,or any part .,thereqf. . Apart from quashing . these

l .. orders, we confirm the conviction and: sentences

:passed. in C.R. :NOS. ss.to 60 of . 1952 of the .trial
Courtand upheld: : by -the High ..Court in Criminal

I '
Appea~ ~9S< ~39_t? 244 of 1954. .:: .we confir~ ai~-~
the order:confiscating .the 1,271 bars of gold.
.
.
.
54 BURMA LAW REPORTS. [1955

SUPREME COURT.
t S.C. D. D. GROVER (APPLICAN;[)
1955
Sept. 22. v.
A. C. KOONDA
. . .
.. l
CONTROLLER OF RENT, ~(RESPONDENTS).*
. .
MANDALAY. j .
Writ of Certiorari-Ss. 1-1-A and 22, U1'ban Rwt Control Act-Ss. 2.~. 2$ afl(l
153, Comtittttion of Bt~rma-Fundameuta/ 1igttts, infl'ingement-Ss. -1,
5, 6, 21, 23 and 27, Unio!l Judiciary Act-ludiatt fliglt Court Act, 18o1
(24 and 25 Vic. C. 1041 ss. 101, 107, Govcmmcnt of India Act, 1915-
Government of India Act, 1935-S. ,(>5, Government of Burma 4ct! 1935-
S .. 227 (1) Constitution of India-Whether Co1tt1oller of Rents acting
under s. 14-A and the Judge acting under s. 22 of the Urban Rent
Co1zfrol Act a ''Court ''-Defittitiolt of "Court "-lnterPrdation of
::i?.'iiJo rds in Statutes.
..::-~ Permission t~ file a suit for ejectment does not affect aqy .of the
fundamental rights guaranteed in the Constitution anc;i therefore no writ or
directions in the nature of Certiorari. can i<>Sue under s. 2S of the Constitlltion.
There is no other provision in the Constitution which confers.. upon the
Sapreme Court any power to issue such writs or directions. .
. B.v s. J 53 of the Constitution, the powers and functions of the Supreme
Court and tire High Court, e~tablished by the Constitution, are ri1ore fully
provided in the Union Judicfary Act, and the provisions relevant to.ihe S tpreme
Court are ss. 4, 5 and 6.
Bv s.
4, the Supreme Conrt is given very wide and unlimited:.p.ower of
supervision over all Courts throughout the Union, and this power of supervision
in s. 4 means very much the c;ame thing as the power of superintendence in
s. 27 of the Act. The only difference between the two sections is Whilst the
power of superintendence of the High Court is restricted, the SupremeCourt is
not restricted or limited in any way whatsoever. . .
The supervisory or superiotendin~ jurisdiction as provided in the Cnio~1
Jul;liciary Act may be said to have its oi-igin, so far as the concept is
concerne~, in the superintending
~ . jurisdiction of. the superior Cour:ts
.
in England
'

which~ especiJlly the Court of the Kin~'s Bench, used . to exercise or do

exercise even no\'v over all inferior. Courts in the realm. It is well s.etUed law
that the power of superinten~ence includes not ouly superfn(endence <)Jl
administrative math:r.s but also superintendence on the judicial $ide.: This
i> point will be
brought out more clearly by a brief survey of the historiyal back
* civil Misc. Application No. 36.of 1955. . . . ~ . . . .
+:Present :
U THEIN MAUNG, Chief Justice ot., the Union, 1\~R. . }csncE
MYINT THEniT an~ )\tR. JusncE CHAN HTOON.
 1955] BTJRMA LAW REPORTS. 55
: .ground . In ~n~Jancl the Co~rt of King's Bench. i~ exe rcise or this power of S.C.
~'Su perintend t-nce, interfer~s with the proceedin:,!s of inferior C(IUrts by t h e 1955
,.issue or writs of certiorar i or prohibition. The writ of certiorari is intended to
D. D.
i bring into the superior Court the deci::'ion of an inf<-rior Court il'l orde r that G!WVE}<
the forn.er may be satisfied wheth~r the dechion o f lhe latter is within its v.
.Jurisdiction or not. Tile writ of prohibition is is-ued to pre,ent an inferior A. C.
KOONDA ;
;. Court from exercising a jurifdiction which it dofs nrt posse~s~
C ONTROLLER
, Rex v. Electricity Commissioners, (192 ; ) l 1\.B. li'l ; Re.,; \'. Miuister Of OF REN'l',
H ealt lz, (J 929) 1 K .B. 619,.r"eferred to. MANDALAY.
The remedy under the \Vrit of Certiorari "is deri<~cl from th<:- superinte n-
d ing authority which the so\ereigns superior Court!', an d in parti<:l1iar the
<Court uf King's Bench, p ossess and exercise O\er inferior .i urhdictious. This
. princiP,le has been transplantEd to oth er parts of the King's dominions, and
operates, within certain limits, in Britt.sh I ndia".
Ryot s of Garabandlro and ot lter V illagcs v. Zemidar of Parlakimedi and
.another, 70 I.A. 129 at 140, quoted.
The power of superintendence included the r ower o f j udicial interferen ce in
matters of jurisdiction exercisable by them in ver y m uch the same way as the
Court of Kin~'s Bench in England exercises it:; power C\f Sl;p erintendence.
Muhammed Sulematz Khan and others\'. Fatin:a, 9. All. JO~ F.B; Gobind
Coomer Cltowdlzry v. Kisto Coo mar Clto-.cdh ry, i W.R. 520 ; Joy Ran v.
Bulwaut Sing/;, 5. W.R. Misc. 3; Manwallta v. EnPeror, 37 C.W.N. 201;
Sltclapur Mtmicipalit y v . Tuljaram Krislmasa Cltaran, A.I. R. (1931) Rom
09
582, referred to.
Under s. 227 (1) of fhe Constitution of India, it has been held hy all the
'High Courts in I ndia that the High Courts have now judictal power of
superintendence. .
Abdttl Rahim N,1sk.ar v. A.bdul Jabbat Naska 4nd others, 54 C.W.N.
445; Narmdra Nath Sasftmal v. Bi11ode Beiral'i Dey and otlren, A.I.R. (1951)
Cal. 138 ; Sabitri Motor Service Ltd. v. Asa11sol Bus Association., A.I.R. (1951)
.Cal. 285; Bimala Brosad Ray a1td auotlter v. State of We st Beugal, A.I.R
'(1951) C~l. 258 (S. H.): S hridhar Atmafam Cltadgay atrd au other v. Collector of
Nagpur, A.I.R. 09511 Nag. 90; l srail Khan v. The Stat e, A.l.R. {l93l t As!am
106; Raltlal Fulbhai v. C!tuni Lal M. Kytr.<, A.I .R (1951I Sau. I S ; ilfoltamed
Abdul Raoog and others v. State of H~l'drabad, A.l.R. (1951) Hyd. SO ; Fiare
Lalv. Wazir Clzandandotlr.e rs, A.I.R. (1951) Punj. 108; Pand),rn l nsmance
Cc. Ltd . v. K. J. Khattbat ta and others, (1955) 56 Cr. L .J. 1039, referred to.
( ; ' 4 of tht: Union J udiciary .1\ ct confers upon th~: Supreme Court gent-r at
power of supc-rvision Of the widest amplitude, unfettered ""d unl imited by a ny
restriction wh:~taqe.,er. T h is power of supervision or superintendence is
con fint"d n ot <?rily to ~dminis trative matters.
The purpose or the: provisions in s. 4 of the l'nion Juc!iciary Act is to in~ ke
the Supreme Court, having reg ard to the objtct of the constitution in regard to
th~ role oi the j !tdiciary in a truly dc:mocr~tic Hepublic as established ther~ by ,
responsible fOr t he entire admi 1 istration of justice and to ve-st ~he Court with
an unlimited reservoir of judiciHl powers wl~ich can he prought'into play . at~
an y time it cory.siders necess~ry. .
The use of this unlfmited power should be more cautibus an d must
be. exe. rci~ed rnthe sanf~ .manner a~d to the !.'a me e~tent as h-i 't he e~ercise of.
56 ~lJ~MA LAW REPORTS. [1955
S.C. superi ntende nce by issue of direGtions or w rits in t he nature <'lf. c~rtio ra r.i,
195$ prohibition or mandamus.
D. D. Mah.tilatha Ktltlz Biswas v ..Emperor, 60 Cal. 618, referred to.
G"ROVER This<po)ver of supervision or superintendence should not be exercised
v. unless then! has been an unwarranted assm'nption of jurisdiction not possessed
A. C.
KooNDA; by the Courts concerned, or a gross abu~e of j arisdiction possessed by them, or
CoNTROLLER an unjustii1able refusal to exercis~ juiisdiction ve:;-ted in.tl~em by law. Apart
OF RENT, from matters relating to jurisdiction, this Court would also.exere.ise this power
MANOA LAY. when there has .been a flagran't violation Of the natural or. elemenbny
principles Of justice, or a manifest err~r patent on the face or' the record, or
an ou-trageous miscarriage of justice which calls for redress. This power
should not however be exercised when there is any other remedy open to the
parties. It will not be justified for this Conrt under this power of s uperinten-
dence to convert itself into a Court of Appe~tJ .
"This power of superintendence is entirely distinct from the jurisdiction
to hear appeals. If the inferior Court, after hearing the partjes,, comes to an
erroneou~ decision, either in law or in fact, on a matter within its juris diction,
the Court having p0v er of superintendence never interferes. The oi1ly mode
fJ{ questioning the propriety of such a dedsion is by appeal". .
GoPal Sing[~ v. The Court of Awards, (1867) 7 W.R. (C.R.) 430, 432, quoted
and referred to. . .. . '
, Neither the .Controller of Rent.-; acting under s. 14-A: of the T;rba~ :Reri't
.Control 'Act nor any Judge a~ting under s. 22 \)f the Act is t~ncler th'e Appeliate
Jurisdiction of the High Court and subj~ct to the po\ver of superl11tende:nce
.of.the High Court.
Bal Krishna Hari v. Emperor,' 57 Born. 93 ; S!teo~adan P;a.,;wd S,inglt v_.
EmPeror, 3 Pat. L.J. (F.B.J S81 at . 587 ; Re. Allen . Brotht.rs .' {;;- C~. v.
Bando lit Co., 26 G. W.R., referred to. . .
, .B.ro~c:li:Y. speaking. a .'.'Court ." may be defined as an . authority. "Yhi~?h
exercises judiqjal as distinguished from 'executive or administlativdl,ll1,c;fioris.. ,
. Haispu.ry's.La.ws of England <?nd. Edn.-), .Vol. (viii), p . .s~S,refe:n:ed'to. . .
The )-V.ord ".Court'' occurring In s. 9 of the Unio1i Judiciaqr Act d~notes
q~{y Courts .in the stri.c t serise of the term. .. ~ . . : ..
Foi 9e6nitions of tb,e words, .,, Judiciai ''. and "'quasi-j1;1diCiaf": se-e-_: .. . .
. C..ooper v. Wils.ou.aud others; (1937) 2 K.B. ~09, 340 and ..
Fpr. definition
. .
of .the
.. . . . . word " Gon~t:;, ~ee-
. . ~
.
. U HtW.e (aJias),Jf,_e, Madari .v. U T.un Oh1~ and pne, (194$) B~L.R. (s.q.)
. 54,1
. , ;.Rex
. . v, Electricity. Commissioners,
~ .. . . . L.R. (1924).K.B.' i7.f.. . '
.
The exercise of the power of judicial control under s. 25of the. Constitu-
tion would apply mutatis mutand,is to tbe ~xercise by the Supreme court of its
pqwer of judici~l supenrision under s: 4 of.the Union Judiciary A~~~ ,
. ; The function 9ischarged by the Co~tr.oller ofRents s. 14-A of the. Urban
R.ent ContrqlA,ct.ar~ quasi-judicial functions. .. . .
Mrs. D. M: Singer v. Controller of Rents and three o~h~r$, (1;949) ~~L.~.
(S.C.) 143, reaffirmed. . .
0
Th~ function~ dischar~ed ~Y, a
Judge ~nder s: 22 of .the Urba.n .~ent Control
Act. are judicial functions. . . . .. .:
All tribunals that di~char.ge .-judiciaior qu~si~jugicial fqnctio~ fall ~ithin
' the meaning
. . . word~
of the .. Court . . 4. and 27 of th:t .UriionJu4~c~ry.Act.
. ".in:ss. ... . ... . .
 1955] BURMA~ LAw REPORTS. 57
For the purpose of appea't under s. 6 o'ftbe Union Judi.:iary Ad , tlie word :-;.c.
' Co:trt" denotes courts in the strid sense of the term. whilst for the purpo.;c 1955
oi exerci :: ing j!.ldi.::ial superintendence t:nder ss. 4 and 27 of the Act the word 0 D.
"Court" incl:.~dts tuthoritics or trib!.lnals exercisi11g judicial or q'tasi-j.td icial G!W\'ER
functions. ( .

A. C .
It is a general rule of interpretation that the s:tme mean in~ is imp! ted in the KoO:-<DA;
use r,f t :,e same expr~ssion in every part of an Act. But this general rule Co~TRor.tER
is not 1>f such weight. The same word may be used in different senses in the QF HENT,
1\lANDALAY.
same Statute and even in the same Section .
Jvlaxt~ell's 01L Interpretatio1l of Statutes, 9tll Edn. 323; Craies' On Statute
Law (5th Edn.) at p. 159.
Words without their context have no meaning. It is the context which is
all important it1 the interpretation of a word.
The meaning of .a word is to be determined with reference to its context
and also 2CCOrding to the subject or occasion of its liSe Or the purpose for
which it is used. The meaning of :1. word may va~y ac~ording to the Context,
subject, occasion or the purpo~e.
Tlle expr ession" Court'.' used in s. 195 of the Code of Criminal Procedure
has b{'en held to ha,e a wider meaning than" Court of J udice" in s. 20 of the
Pen:al Code or even the expression " Civil revenue Criminal Court" used in
s. 476 of the Code o( Crim~nal Procedure.
Raghoo Btms Saltovs v. Kokil Singh, 17 Cal. 872 ; Nandalal Ganguli v.
Khet ra Mohan Chose, 45 Cal. 585 ; Re. Nanclraud Shivclu:1td, 37 Born. 365 :
Rajaja Appaji Kote "Emperor, A.I.R. 11946) Born. 7; Hari Cltaran Kundu v
Kanshiki Charap Day, 44 C.W.N. 530, referred to:
The word ''Court'' in s. 4 and s. 6 of the Union Judiciary Act does not
mean ~xactly tlle same thing, otherwise the power of superintendence
conferred upon the'Supr~me Co.ur.t by s. 4 w.ould be a mere s uperfluity.
'It is a cardinal principle of construction that the provision in a statute
must be c:onstl"ued to .avoid tautology or superfluity and that they spoud be
, interr.reted in St:ch a way that they are con~istenl wit~1 one another and make
r a complete picture taken as a whole. . . . .
~ .Fodhe pt;rpos~ ot exercising judicial supervision or superintendence by 't11e
~ Sup~eme Court, under s. 4 of the Union Judiciary Act, the Controll~::r of Renf;;
~ 1tctin~ under s. 14-A of the U~-ba.n Rent C)ntrol Act andllhe Judge actin~ u~~er
t .s. '22 bf the Act fat~ within, the meaning of the word "Court" in s. 4 of
~ the f6rmer Ad." . .

J.Kyaw Myint.for the applicant.

,..l!a Sein (G9vernp1ep.t. Advocate) for th~ respondents

. ~OS. 2 a~d 3.>: . . . ..
58 BURMA LAW REPORTS. [1955
S.C.
1955 Choong Foung (Attorney-General) as amicus cune.
D. D.
GROVER The judgment of the Court was delivered by
v.
A. C.
KOONUA;
CONTf<OLLER
U CHAN HTOON, J._This is an application
OF RENT, for the issue of a writ or directions in the nature
MANDALAY.
9f certiorari to quash the order of the Sub-
divisional Judge, Mandalay, in his Civil Miscellaneous
Case No. 29 of 1954 under section 22 of the Urban
Rent Control Act, which confirms the order of the
Controll~r of Rents, Mandalay, in Revenue Proceed-
ings No. 155/XIII of 1951-52 granting permission to
the first respondent (landlord) to file a suit for eje.ct-
ment against the applicant (tenant). :
A preliminary objection has been raised by the
learned counsel . for the first respondent that this
.C ourt has no Jurisdiction to issue a writ or d1rec-
tions in the ''nature of certiorari except under section
25 of the Constitution where fundamental rights
guaranteed by Chapter II thereof are invblved,'. and
t~at a mere permission g~anted under sec.t ion) 4i-A of
the Urban Rent Control Act to file a .suit' for eject-
ment does not in any way infringe any or the
fundamental rights. As this objection involves a
very ilnportant question having regard to the
jurisdiction of this Court, the . Attorney-Geji~ral
hi~sel.f appears, at the request of . the Cou~t, in
addition to. the Government
. .
Advocate
. ' for. the second
.. .
respondent. . . .
Section 25 of the Constitution .empowers. the
in
Supreme Court "to issue directions- the natureof
habeas corpus~ mandamus, prohibition, quo w3;rranto
and certiorari appropriate to . the rights guaran,:teed
~ in this . Chapter "; the rights guaninteed ther~in refer
t o the fundamental rights. We are-in entire~gree~
. ment
. .
with... the
. contention .of the lear-ned
' . . .
counsef
. . that
. .
 ] 955] BURMA LAW REPORTS. 59
'
the order of the Subdivislonal Judge, Mandalay, S.C.
1955
or the order of the Controller of Rents, Mandalay,
granting permission to file a suit for ejectment does G~o~R
not affect any of the fundamental rights guaranteed v.
A. C.
in the Constitution and therefore no writ or direc- c I<:ooNnA;
tions in the nature of certiorari can issue under ~~r~~~~~
section 25 of the Constitution. It may also be MAI"oAr.Av.
mentioned that there is no other provision in the
Constitution which confers upon this Court any
power to issue such writs or directions.
The matter, however, does not end here.
Section 153 of the Constitution empowers the
.Parliament to " make provision by an Act for
-conferring upon the Supereme Court such supple-
n1ental powers not inconsistent with any of the provi-
.sions of this Constitution as may appear to be
necessary or desirable for the purpose of1 enabling the
Court more effectively to exercise the jurisdiction con-
ferred upon it by or under this Constitution ". The
powers and functions of the Supreme Court and the
High Court established by the Constitution are
' . '
more fully provided in the Union Judiciary Act.
The provlsi<;ms relevant to the Supreme Court for
the present purpose are found in sections 4, 5 and 6,
which are as foilows :

. " 4. The Supreme Court shall be a Court of Record

: and shall have supervision over all Courts
.Seat of the Su pre me in the Union. It shall sit in the capital
Court. city of the Union and at such other place
\or places as the President may. after ~onsultation with the
:<Chief Justice of the Union from time to time, appoint.
[~ .

5. Save where an appeal lies to the High Court itself

under the provisions of sectiq~ 20. an appeal.
; Ap.peal from the
shall lie to the Supreme Court . from the
~.igh Court in cer-
j~dgment. decree. or final order of the High
r ..
.tain cases.
<:oort (whether passed before or. after. the
60 [ 1955
S.C . commencement of th~ Cons"titution) i'n any civil, criminal, or
. 1955
other cases. if the High Court certifies_
D. D.
GROVER
.v.
~(a) that the case involves a question as to the validity
A. C. of any law having regard to the provisions of
KOONDA; the Constitution, or
CoNTROLLER
OF. .RENT, (b) that the amount or value of the subject-matter of
MANDALAY. the dispute in the Court of first instance and
still in dispute on appe.al was and is not less
than ten thousand rupees, or
(c) that the judgment, decree, or final order involves
directly or indirectly some claini or question
respecting property of the like amount 0 r value
and where the judgment, decree, or final order
appealed from affirms the decision of the Court
immediately below in any caSe other than the
one referred in clause ' (a), if the High Court
further certifies that the appeal involves some
substantial question of law.

6.. Notwithstanding anything contained in section 5, the

Supreme Court may, in its disc~etjon; : grant
Appeal by speCial special 'Jeave to appeal from any judgment,
.leave . f.rom any dec~ee, or final order of any Court (wi}ether
Court in any case.
passed before or after the . comJ:i:lencement
of the Constitution) in any civil. criminal or other ca~e.'~
. Sec.tiqn.. 5.. deals. vyith appeals. from the . High
Court and se ction 6 with appeals _fron1 aD.y-coilrt by
special leave. The most important provi$id.n in
respect of. the question under discussion is . contained
.in section 4 where the Supreme Court is.giyen. very
wide and . unlimited power of supervision over all
Courts .throughout the Union. ..The High Co~rf is
.als6 .given . a power . " of superintendence over all
Courtsin the Union for the.time being-subJect to . its:
appe=ilate: juti~diction .".. ro our mind, the power of
o supervision as provi4ed. in section 4 means very m uch
the same thing as' ~he _;p:o wer .of superintenQ.ence as .
provided . ilj : section ..2T.: ..<~f. ~h~ . ~.ct' The \vord
 1955~ BURMA LAW REPORTS. 61
. .
S.C.
' supervise " means '' to supe-rintend the execution or 1955
performance of a thing or work of a person ",
D. D.
whilst the word "superintend " means 't to supervise GHOVER
v.
the working or n1anagement of an institution or to A. C.
exercise supervision over a person". (See The Shorter KOONDA;
Col\TROLLER
Oxford English Dictionary). The only difference OF HENT,
l\IANDALAY.
between these two sections lies in that whilst the
power of . superintendence of the High Court is
restricted and related only to the Courts which are for
the time being under its appellate jurisdiction, the
power of supervision of the Supreme Court is not
restricted or limited in any way whatsoever.
We shall now proceed to examine what this
general power of supervision or superintendence
means. The supervisory or superintending jurisdic-
tion as provided in the Union Judiciary Act may be
said to have its origin, so far as the concept is
concerned ' in
.
the superintending jurisdiction of the
superior Co.urts in England which, especially the
Court of the King's Bench used to exercise or do
exercise even now over all' inferior Courts in the
realm. It is well settled law that the. power of
sup.erintendence .. includes not only superintendence
:on administrative matters but also superintendence
:on the judicial. side. This point will be brought out
~ more clearly .by a brief survey of the historical back
~ground. In England the Court of King's Bench,
tin exercise of this power of superintendence, inter-
;teres with the proceedings of inferior Courts by the
iissue of writs of certiorari or prohibition. The writ
:of certiorari is intended to bring into the superior
rcourt the decision of an inferior Court in order that
~the former may
~ .
be . satisfied
.
whether the decision
jof the latter is vyithin its jutisdicti_on or not. The
bit of ptohibi~ion . is issued . to prevent' an infe:rior
r-ourt -~rom . e~~tcisirig a jur.isdiGtion whi~h it does
62 BURMA LAW REPORTS. [llJS5

S.C. not possess. See Re-t v. Electricity Com1niss!oners

1955
(1; and Rex v. lVlinister of Health (2). The remedy
D. D. under the writ of certiorari, in the words of Viscount
GROVER

A. C.
v. Simon L.C. in Ryots of Garabandlio and other
Koo:-:oA; Villages v. Zemidar of Parlakimedi and another (3).
CoNTROLLER
OF RENT, "is derived from the superintending authority which the
MANDALAY.
Sovereign's superior courts, and in particu1ar the court of King's
Bench, possess and exercise over inferior jurisdictions. This
principle has been transplanted to other parts of the King's
dominions, and operates. within certain limits, in British
India".

Thus when the Supre1ne Courts were established

by the British Parliament in the three presidency
towns in India, viz., Calcutta, Madras and. Bombay~
they were invested with the same p<;>wer of superin-
tendence. There was however no such power of
superintendence conferred upon the superior C.o urts
established by the East India Company, viz~, Sadar
Dewany Adalats and Sadar Nizamat Ada.lats. By the
Indian High Courts Act of 1861 (24 .& 25 Vic. c.l04),
the Supreme Courts at Calcutta, Madras and Boinbay
and the aboye-mentioned Sadar Dewany A:dalats
~nd Sadar. Nizamat Adalats were to be replaced or
superseded by the High Courts to be established tinder
L'etters Patent. Section 9 of the Act trans{erred
to the new High courts the power already ex~rdsed
by sueD. superior Courts. In addition to this~
section 15. expressly enacted that " each of the High
Courts established under this Act shall have supe.rin-
._, tendence over. an : Courts which may be subject to
its appeilate jurisdiction"~ Whilt? this Act .was in
. force the question as to the nature and extent of the
. . jurisdiction . conferred upon the . High . Courts . under
.: (\the power of supeiin~enderice came for. decision
(1) (1924) ~ K.B. 171.

(2) (1929) 1 K~B. '6'19~
!,) . :

. (3) 70 I.A. 129 at 140!. ..

 1955] BURMA LAW REPORTS. 63
before various High Courts in India. The views of S.C.
19SS
the High Courts were to the effe ct that the power of
superintendence included the power of judicial d~?(Je~f(
interference in matters of jurisdiction exercisable by v.
them in very much the same way as the court of K-~~;~A;
King's Bench in England exercises its power of c~~T;~~~~R
. superintendence. See Muhammed Suleman !(han iVIA~oALA"i.
and others v. Fatima (1), Gobind Coomer Chowdhry
v. Kisto Coomar Chov.:dhry (2), Joy Ran v. Bulwant
Singh d), j\1.anwatha v. Emperor (4) and Sholapur
Municipality v. Tuljaram [(rishnasa Charan (5).
The High Courts Act of 1861 was repealed by
the Government of India Act, 1915. Section 107 of
the Act was, however, similar in terms to section 15
of the Act of 1861. Thus the High Court of
Judicature El:t Rangoon, when established by Letters
Patent as provided for under section 10! of the Act,
also came to have this power of superintendence
under section 107 of the Act.
. The Government of India Act, 1935, repealed
: the Government of India Act, 1915 and section 224
; of the former "Act replaced section ' 107 of the latter
'

~ Act. But so far as Burma was concerned, it was

h
1 section .85 o f the Government of Burma Act 1935~
t which. replaced the said section 107. Sub-~ection
[ (2) of section 224 of the Government of India Act,
~ 1935, and sub-section (2J of section 85 of the
EGovernment of Burma Act, 1935: expressly took
..away the judicial powers of superintendence of the
:H igh Courts in India and the High Court of
Judicature at Rangoon. Sub-section (2) of section
.'85 of the Government of Burma Act, 1935, provi~ed
that "nothing in this section shall be construed as
~~ving . to the fligh Court any jurisdiction to question
(1) 9 All. 10:4 F.B. . (3) 5 W.R. Mi~c. 3. .'
(2.) 7 W.R..SZO. (4). 37 C.W.N. 201.
(5) A.I.R. (1931) Born . .582 .
()4 BURMA LAW REPORTS. [19S5

S.C.
1955
any judgment of any inferior c~urt which 1s not
otherwise subject to appeal or revision."
D. D.
GnovER In the Constitution of India, section 22 7 ( l)
A~c. provides that "every High Court shall have
t d
Co:-~TRoLLER supenn en ence
KOONDA;
over a11 court s an d t n"b una l s
oF RENT,
MANDALAY.
throughout the territories in relation to which it
exercises jurisdiction.'' There is nothing in that
section which corresponds in any way to sub-section
(2) of section 224 of the Government of India Act,
1935. It has been held by all the High Courts in
India before which this question has arisen that
the High Courts have now judicial powers of
superintendence. See Abdul Rahim Naskar v.
Abdul Jabbar Naska and others 0), Narendra Nath
Sashmar v. Binode Behari Dey and others . (2),
Sabitri Nlotor Service Ltd. v. Asansol Bus Associa-
tion (3), Bimala Brosad Ray and another v. State
of West Bengal (4), Shridhar Atmaram Chadgay
and another v. Collector of . Nagpur (5)~ Israil
Khan v. The State (6), . Ratilal. Fulbhai v. . Chun:i
La! M. Kyas (7), Mohamed Abdul . Raoog and
.others v .. State of Hydrabad (8), Piare La! v.
W azir chimd and others (9)., Pandyan Insurance
Co.. Ltd~ v. K. J. Khanbatta
. and others (10) .
The provisions in section 4 of the Union
.Judiciary Act, . conferring upon this Court general
power to supervise over all the courts in the Union,
. are couched in a language which is of widest
amplitude and. which would vest the Court witli a
power that is not fettered with any restrictions, and
must consequently etnbrace .all aspects or furic.tions .
. ..
(1) 54 C.W .N. 445. . .(6). A.I.R~ (19$1) Assam 106,.
(2) A I.R. .(l951) Cal, 138. . : (7) A.I.R.(l951)Sa:u.15.
(3) A.I.R. (1951) Cal; 28.5 (S.B.l . (81 A.I.R.. (1951) H.yd. SO.
(4) A.I.R. (19511 Caf.' 258 tS.B.) . . . (9) . A.I.R. (195l)i?unJ. 108.
(5) A.I.R: (1951) Nag. 90. (10) (1955) 56 Cr. L~J. .l039. ..
 1955 ] BURMA LAW REPORTS. 65

.exercised by every court throughout the Union. It S.C.

1955
would therefore be absurd to suggest that the power
D. D.
of supervision or superintendence is confined 'Only to GROVE!~

administrative matters. There are no limits or v.

A. C.
fetters or restrictions placed on the power of 1\:00 N DA;
C ONTROLLER
supervision conferred upon this Court. The frame- OF RENT,
M ANDALAY.
work of the judiciary as contemplated by the
. Constitution and the purpose of the Union Judiciary
Act seem to make the Supreme Court the custodian
.of justice throughout the Union, and thus the
provisions in this section 4 of-the Act appear to arm
. this Court with a weapon that can be wielded for
' the purpose of ensuring that justice is meted out
fairly and properly by all the courts within the
Union. To fu)fil this function the power of
supervision or superintendence of this Court over
~ judicial matters is necessary, if noi: mor~ important
t. than over ad~inistrative matters. In fact the
~ judicial function of a Court is more important than
V, its administrative function. It would therefore be
~ more important to rectify mistakes in judicial
[~a~t~rs than .. def~cts in administr~tive m.atters. A
%~udtctal error . mtght affect the rtghts, liberty and
~reedom of. a citizen, whereas an administrative error
~of a Court might not do so. It is quite clear that
~.supervision over". judicial functions is a complement
"Of superintend~nce over adrp.inistrative functions.
f the Supreme Court_ot the High Court for that
. atter_is to discharg~ .its duties and perform its
unctions as : the custodian of. justice efficiently and
'ffectively, it must . exercise both the powers .
.. therwise .the very power of superintendence will be
"- ippled . ~nd what has been achieved .on the
dministrative. side might. be lost on the judicial side.
. e have no :doubt therefore in holding that . the
J urpose of "tqe .p rovisions in. s~ction4 of the Union
* . . .

.., .
66 BURMA LAW REPORTS. [1955
s.c. Judiciary Act is to make this Court, having regard
195?
to the object of the Constitution in regard to the
D. D.
GROVER role of the judiciary in a truly democratic Republic
v.
A. C. as established thereby responsible for the entire
KOONDA;
CoNTROLLER
administration of justic~ and to vest this Court with
OF RENT, an unlimited reservoir of judicial powers which can be
MANDALAY.
brought into play at any time it considers necessary.
The fact that these unlimited powers are vested
in the Supreme Court should make it more cautious
in their exercise. This power is to be exercised in
the satne manner and to the same extent as in the
exercise of superintendence by issue of directions or
writs in the nature of certiorari, prohibition or
mandamus. See Manmatha Nath Biswas v .
Emperor ( 1). It is clear to us that (this power of
supervtston or superintendence should not be
exercised unless there has been an unwarranted
~ .
assumption of jurisdiction not possessed by the
courts concerned, or a gross abuse of jurisdiction
possessed by them, or an unjustifiable refusal to
exercise jurisdiction vested in them by law~ Apart
from matters relating to jurisdiction, this Court
would also exercise this power .when there ha$ been
a flagrant violation of the natural or elementary
principles of justice, or a manifest error patent on
the face of the record,. or an outrageous misc~rriage
of justice. which calls for redress. This . power
should not ha.wever be exercised .when there is. any
other remedy open to the parties. It will not be
justified for this Court under. this pow~r of
superintendence to convert itself into a Court of
Appeal). As observed by Norman, J~ in Gopai
Sing~ v. The Court of Awards (2)_
. : ~~ This p.o wer ~ . superintendence is entite'Iy . di~tinc1 .
from : the jurisdiction. to hea:r appeals. If the. infe'fior c6ur(
ll) 60 Cal. 618. (2) (1867) 7 w.R.. (C .~.) 430; 432.. '
~
 i9 55] BURMA LAW REPORTS. 67
.lfter hearing the partie~. comes to an erroneo us decis ion, S.C.
1955
:ither in law or in fact, on a matter within its jurisdiction ,
:he court hav ing power of superintendence never in$erferes. D. D.
GROVE R
The only mode of questio ning the propriety of such a decision V>.
is by a ppeal ". A. C.
KOONDA;
CoNTRo LLER
O F RENT,
The learned counsel for the first respondent M AN DALAY.

further argues that firstly, if the power of

superintendence is exercisable by issue of writs or
directions in the nature of certiorari, it should be
done in the firs t instance by the High Court under
section 27 of the Union Judiciary Act, and secondly,
that even if the High Court were unable to exercise
this power in view of the limited nature of its
powers, this Court should not have recourse to
section 4 of the Act as it has an unlimited power to
entertain appeals by special leave under section 6 of
the Act. As already pointed out, the .. difference
between the power of superintendence exercisable by
this Court unde~ section 4 of the Act and the power
~xercisable by the High Court under section 27 lies
in the fact that the powers of the latter relates only
i.o courts which are for the time being under its
;ppellat~ jurisdiction. Let us now see whether the
f_ontroller of Rents acting ~nder section 1_4-A of the
prb~n Rent Control Act, IS a court subJect to the
" pellate jurisdiction of the High Court. . The
estion whether either of these two authorities is a
,Court" will be considered later. Let us assume,
.erefore, for the moment that both of them are
urts for the purpose of sections 4 and 27 of the
nion Judiciary Ac~. The learned counsel for the
st respondent contends that if either of them is a
urt it must be either a civil court or a crimitial
. :
urt and then they would come und:er the appellate
sdiction of tke -Higp. Court . as provided in
68 BURMA LAvV REPORTS . [1955

f9~5 sections 21 and 23 of the Act. These sections read

as follows:
D. D.
GR~~ER "21. The High Court shall be a Court of Appeal
A. c. from all the civil Courts of the Union
KooNDA ; Appeal_s _ from other other than the Supreme Court.
CONTROLLER ClVl} Courts.
OF RENT,
ltaANDALAY. 23. The High Court shall be a Court of Criminal Appeal
from the criminal Courts subordinate
Appeals from criminal thereto and from all other Courts for
cases. which the High Court shall be declared to
be a Court of appeal by any law for the time being in force."

When he argues that a court must be either a

civil court or a criminal court, he seems to forget
that there may be courts which are neither civil nor
criminal, e.g. ecclesiastical, . military or Revenue
Courts. We also have under section 6 of the Act
the expression " of any Court . . . in civil ~
criminal o;' other case". Again in section 476 of the
Code of Crilninal Procedure the expression " any
civil~ ;revenue or criminal court " occurs. It seem~
therefore quite clear that the courts which are no1
civil or criminal courts do not fall unqer the
appellant jurisdiction of the High Court by virtue o1
sections '21 and .23 of the Union Judiciary Act.
We cannot .agree with the contention of th~:
' learned counsel that .if both these two authoritie~
are courts they must be held to be civil courts anc
as such are, in view of the provisions in section 2]
of the Union Judiciary Act, under the app~llat(
jurisdiction of the High Court. What' section 2:
provides for. is that the High Court shall be th<
Court of appeal from all civil courts (<;>ther .tha_n: th
~upreme .Col;trt), . for which the High Court i
declared to be: .a Court . of A-ppeal by law. _,Thi.
becomes quite: dear when vve refer to the differericj
. -in the language us_edoin section 21 cand 'section: '27 0
1955] BURMA LAW REPORTS. 69
l

the Act. In section '21 the High Court is to be a S.C.

1955
Court of Appeal "from all civil courts in the Union
D. D.
other than the Supreme Court '', whereas in ~ection GROVER
27 the High Court is to have superintendence over v.
"'c.
;. all Courts in the Union for the time being subject KOONDA;
CONTROLLER
to its appellate jurisdiction ''. If the intention of OF RENT,
MANDALAY.
the Act is to place all the civil courts (othr than
the Supreme Court) in the Union under the
appellate jurisdiction of the High Court, nothing
would be easier for the Parliament than to use the
)arne words as in section 21. It must be examined in
each case whether' the court concerned is placed by
!aw under the appellate jurisdiction of the High Court.
Two classes of cases may arise in considering the
:J.Uestion whether a court is subordinate to the
~ppellate jurisdiction of the High Court. If the
Court is one from which an appeal lies t9 the High
Court, though in certain specific cases only; then the
Court is subject to. the appellate jurisdiction of the
High Court See Bal Krishna H ari v. Emperor (1).
fhe power of superintendence would also be exercised
;, 'in cases which are not subject to appeal but the
superintendence is over the courts ~nd its exercise is
o.ot confined to cases where the fight of appeal lies to
the High Court", per Dawson Miller, C.J. in
)heonadan Prq.sad Singh v. Enlperor . (2). The
[>osition wo'uld be the same if the link between the
~ubordinate court and the High Court was established
~hrough any, court. from whose decision an appeal
~es to th~ High Court in sorne. cases.. _See Re. Allen
~rotlzers & o. v. Bando & Co. (3).
I There. is nothing in the Urban Rent Control Act
~hich would.- bring either the Controller of Rents or
Jny Judge' '(~cting under section 2?> . u~der any of the
. . .
(1) Si B'Oif} . .93.. ~ . (2) 3 Pat. L.J. (I<. B.) 581 at 587.
.. (3) 26 c.w.R. 845: .
70 BURMA LAW REPORTS.
S.C. categories mentioned above. Nor is there any ques-
1955
tion of appeal directly fron1 the Controller J of Rents
D. D.
G or indirectly through the Judge. In the same way
'1),
A. C.
there is no. appeal in any case fron1 the Judge to the
KooNnA; High Cou.r t. We therefore hold that neither the
CONTROLLER
OF RENT, Controller of Rents acting under section 14-A of the
MANDALAY.
Urban Rent Control Act nor any Judge acting under
section 22 of the Act is under the appellate jurisdic-
tion of the High Court, and consequently .subject to
the power of superintendence of the High Court.
The next question for consideration is whether
the Controller of Rents acting under section 14-A. of
the Urban Rent Control Act, or the Judge .acting
under se.c tion 22 of the Act comes within the m.e aning
of the term "Court" occurring in sections 4, 6'or 27'
of the Union Judiciary Act. The a11swer . this. to
problem would lie in the interpretation of .th~. wprd
" Court". ' " Does the word " Court " occurrhig in
these sections. mean only Courts in the strict se~se of
the term or include such authorities as eiercise:
judicial or quasi-judicial functions? ..
. The meaning of the word " Court .''-. has been
explained in Halsbury's Laws of Englcind.-(ind Edn;}
Vol. VIII, p. 525 as follows: . . .

" TI:ie term ' court has (inter a-lia) the original .meaning
of the King's Palaceand bas acquired tbe, meanjng of theplace
where j\}Stice is ad~inistered; and ~hence again t)le meaning of
the pe~sons . who exercise judicial functions . under a)ithority
derived either - immediately or mediately . from . the. King
. . .' . . . . ~ . A tribunal may be a Court iri the
strict sense of the term although the chief part of its :duties is
tiot ju<;I.icial!'

B roadiy speaking, a Court n1ay. be defineci.. a s an

authority whiCh . :exerds~s judicial, as .
distinguished
from .e~~cutive or administrative; f1lnctions. .
 1955] BURMA LAW REPORTS. 71
In the Evidence 'Act, section 3' defines "Court ,, S.C.
1955
as follows:
D. D.
" Court' includes all 1 udges and Magistrates, and all
1
GROVER
persons. except arbitrators. legally authorised to take evidence." A~C.
KooNDA;
(Arbitrators are excluded from the term as they corsTROLLER
. JUriS
exerctse . . d'1ction
. over persons, not by re.~son of OF RENT,
MANDALAY.

the sanction of law, but merely by reason of voluntary

submission to such jurisdiction). The definition in the
Eviden~e Act is by no means exhaustive as it has
been frame4 only for the purposes of the Act. The
Code of Criminal Procedure contains no definition
: of the word " Court "but it is provided in section 4 (2)
that "all words and expressions used herein and
. defined in the Penal Code, and not hereinbefore
defined, shall be deemed to have the tneanings
. ~espectiveiy a.t tributed to them by that Code". The
::only " Court " which is defined in the Penal Code is
ta"
~-
Court .of Justice " in section 20 in the following
'
~1erms :_ .
~.

~. "Th~
words ' Court of Justice' denote a Judge who is
~empowered by law tQ act judicially alone, or a body of Judges
~hich is empowered by law to act as a body, when such Judge
t?r body of Judges is acting judiciaJly."
! .
t should be borne in mind that definitions are of
limited scope being framed only for the purposes of
e Act in which they occur unless specifically
.xtended. ...
It may at on.ce be said that the word "Court"
,.cut-ring in . section 6 of the UJ#on Judiciary Act
~notes only courts in the strict sense of the term, as.
e section r~lates only to appeals to this Court by
ecialleave.
.. The me.aning of the word " Court " has been .
tended t.o. .~r~clude .an. authori~ies exercisi~1g, .as
....ent~911:ed . ~}?.Q.v~,
' . ..
~
jJ.ldicial,
. '
~s:
.
~js~ing~i.~he~l: : fro~
72 BURMA LAW REPORTS. [1955

S.C. administrative, functions. The definition . of the

1955
words "judicial ~' and " quasi-judicial," as contained
D. D.
GROVER in The Report of the Ministers' Powers Committee
v. (Command Paper 4060 of 1932) page 73 (Section III,
A. C.
KooNoA; paragraph 3) which are cited with approval by
.CONTROLLER
oF RENr, Scott, L.J. in Cooper v. Wilson and others (1) are
MANDALAY.
as follows :
"A true judicial decision presupposes an existing dispute
between two or more parties. and then- involves four requisites :
(1) the presentati<:m (not necessarily orally) of their
case by the parties to the dispute ; (2) if the
dispute between them is a question of fact, the
ascertainment of the fact by means of evidence
adduced by the parties to the d.i spute and often
with the assistance of argument . by or on
behalf of the parties on the evidence; (3) if the
dispute between is a question of law, . the
submission of legal argument by the parties ;
and (4) a decision which disposes of the whole
matter by a finding upon the facts in dispute
and an application of the law of the land to the
facts so found. including wher~ required a
ruling upon any disputed question Of. law.
A quasi-judicial decision equally presupposes. ~:i1 exjsting
dispute between two or more parties and involves (1) and (2)~
but does not necessarily involve (3), and never iiwolves (4).
The place of (4) is in fact take.n by administrative actio~. the
character of which is determined by the Minister's free. choice/"
For the purpose of exercising :lts power of judicial
control over the subordinate authorities by issue of
writs or prohibition or certiorari, this Court . has
already defined the term " Cou~t " -in lJ H twe ,(alias)
A. E~ Madan v . .U Tuf! Ohn and one (2)' as follows:
' Now, wh~tis meant by a Court? Havin~ regard to a
lqng se ries of English cases, there can. hardly .:oe any. .doubt
o .that-:originally a CoUit. as used. was ~arit to 'iiie.ana tribunal
.legaily: appointed to determine. civil o:r;: ciiminal causes
(1) (1937)' 2 K.B. 309, 340.
 1955] BUR~1A LA\V REPORTS. i3
judicially. Subsequently, the meaning of the word ' Court ' S.C.
1955
was expanded so as to include not only civil or criminal Courts.
but also ecclesiastical. maritime or military Conrts ; see D. D.
GROVER
Halsbury's Laws of England (2nd Edition), Volume IX. page v.
830, and the cases quoted therein Since then, the term A. C.
KOONDA;
'Court' has again been expanded so as to include not only CoNTROLLER
the above-mentioned tribunals, but also other public bodies OF REN'f,
MANDALAY.
entrusted with quasi-judicial functions. What tribunal or
body is to be deemed a Court so as 1o make it amenable to a
writ of prohibition or a writ of certiorari is clearly and
succinctly explained by Atkin. L.J ., as he then was, in the case
-<>f Rex v. Electricity Commissioners (1) as follows:
' It is to be noted that both writs (writ of prohibition
and writ of certiorari) deal with questions of
excessive jurisdiction, and doubtless in their
ongm dealt almost exclusively with the
jurisdiction of what is described in ordinary
parlance as Courts of Justice. But the opera-
tion of writs has extended to control the
proceedings of bodies which do 1lot claim to b.e.
and would not be recqgnised as, Courts of
Justice. Wherever any body of persons having
legal authority to determine questions affecting
the rights of subjects, and having the duty to
act . judicially, acts. in excess of their legal
authority, they are subject to the controlling
.jurisdiction of the King's Bench Division exer~
cised in these writs.' "

In the same case this Court further observed, at

page 550 that_
" Undet section 133 of the Constitution, justice
throughout the union shall be administered in Courts establi-
shed by the Constituti.o n or by law and by Judges appointed in
. accordance therewith. The proviso to this section is section
;..150 of the Constitution.
. Under section 150, any person or a body .of persons,
~hough not a; Judge o~ a Court in the strict sense of the t~rni,
lean be invested with power to exercise limited functions of a,
~..~dicial Dature. . When so invested, that person or body Or
I (1) L.R. (1924) 'K.B. 171. .
74 BURMA I;AW REPORTS. [1955

s.c. persons, when determining questions affecting the rights of the

1955
citizens of the Union, must do so, as provided by section 16,
D. D. according to law. If it did not, it would at once render itself
GROVE[~
v. amenable to the jurisdiction of this Court. as provided in
A. c. section 25. Therefore, when Atkin, L.J. used the phrase
Go~~~~~~~R ' having the duty to act judicially' we must in relation to the
oF RENT, Constitution construe it as ' having the duty to act according
,MANDALAY. to laW.' ,

The above observations in relation to the exercise of

the power of judicial control under section 25 of the
Constitution would apply 1nutatis nzutandis to the
exercise by this Court of its power of judicial supervi~
sio.n under section 4 of the Union Judiciary Act.
In the light of the observations cited above, we
shall now proceed to examine the extent of the
judicial power exercised by the Controller of Rents,
acting under section 14-A of the Urban Rent Control
Act, and theludge, acting under section 22 of the Act ..
Under section 14-A (3) the Controller is required
to m.a ke an enquiry upon receipt of an applica-
tion for permission under clause (d), (e) or '(f) of
section 11 and clause (c) of section 13 of the Act..
It may, however, be observed that ther~ is no,
particular procedure laid down by the Act 'for him:
to follow, but he has to conduct .the enquiry l.n such~
a way .as may be deemed proper or necessary by
him. . Under section 21, the Controller has the power .
for the purpose of an ~nquiry, to summq.n and.
enforce the attendance of any witness and to compel.
the production of ahy document" by the same means
and; so far as may be, in the same way as provided
in the case of a Court by the Code of Civil Prpcedure"_
Ile has also the p~wer to require any ~person to
furnish him with any information or to produce for his:
0
inspection any C\octinients or. boo](s of accounts; etc.
He. also .has the power to examine witnesses onoath.
In all . these cases . the party : :against whom . an .
 1955] BURMA LAW R"EPORTS.

application is made is given notice to appear and S.C.

1955
answer, if he so desires. In fact the proceedings are
D. D.
conducted in very much the same way a~ in an GkOVER
ordinary civil 1natter ; and after hearing both the v.
A. C.
parties, the Controller makes an order in writing KootWA;
CONTROLLER
as required by section 14-A (3). In making his OF RENT,
MANDAtAY'l.
decision, he is guided not by any extra-judicial
discretion or by any matter of policy but he is
required to decide judicially-not judiciously_, that
is to say, he has to apply the law as laid down in
section 11 or 13 as the case may be. The Controller
of Rents, therefore, while acting under section 14-A of
the Act, discharges quasi-judicial functions as defined
according to the observations cited above. This is
the view that has been taken by this Court in Mrs.
D. 1\1.. Siry;er v. Controller of Rents and three others
(1) where ~t was observed that" having regard to the
provisions of sections 19-A, 20 and 21 of the Urban
Rent Control Act, there is no do~bt that the func-
tions which the Controller has to discharge under
the Act are of a quasi-judicial nature". We again
reaffirm the view taken therein.
The case of a Judge, acting under section 22 of
the Act, is ml,lch stronger. He is given all the
powers and fu11ctions of a Judge of a civil Court,
!. following the procedure laid down for the regular
i~ trial of civil sqits. Section 23 provides that "when
~ disposing by reference any decision of the Controller,
~ the Judge may in his discretion follow as nearly as
g possible either the procedure laid down for the trial
~ of suits by the City Civil Court, Rangoon, or the
~ . procedure laid down for the regular trial of suits".
",.We have therefore no hesitation to hold that
:the functis>ns . 'Yhich the Judge has to discharge ..
~,up.qer section 22 of the Act .are of a judicial
_(1) (1949) B~L.I~. (S .~. ) 14.3.
76 BURMA LAW REPORTS. r-'1 9 ~-
:).)

'
S.C.
19S~
nature. To our mind there is both logic and
necessity for the doctrine that the power of
G~~v~~ superintendence extends not only over the Courts
v.
A . C.
in the strict sense of the term but also over the
KooNnA; authorities exerctsmg judicial -o r quasi-judicial
tCONTROLLER f . Th ere~f ore, a11 tn'b una1s t hat d'1sch arge
oF. RENT, unctions.
.MANDALAY. judicial or quasi-judicial functions fall within the

meaning of the word " Court;, in sections 4 and 27

of the Union Judiciary Act.
The learned counsel for the first respondent alsc
contends that if the word " Court " occurring ir
section 4 of the Union Judiciary . Act include~
authorities or tribunals of judicial or quasi-judicia
nature the same construction should be extendec
1

to the word '' Court" occurring in section 6, and

consequently this Court should +nterfe.r e with the
orders in qUGstion by way of appeal and not by wa)
.of judicial superintendence. After a careful anc
anxious consideration we have come to the conclu
sion that for the purposes of appeal under section f
.the word " Court " denotes in the strict sense of tht
. term, whilst for the purpose of exercising judicia
superintendence under section 4 or27 of the Act fh,
word " Court " includes authorities or tribunal
.exercising judicial or quasi-judicial functions.
No doubt it is a general rule of interpretatiot
that the same meaning is implied in the use of tht
.:same expre~sion in every part -of an Act. :But, a
pointed out in Maxwell On Interpretation of Statute
(9th Edition) at page 323, "The presumption is nc
of much weight. The same word may be used i1
.different senses in the same statute and even in th
same _.section''. Again, in Craies ..o'n Siatute La1
' {5t~ Edition) at page 159 lt is .o bserved :
"The presumption that the sam e.w:ords are. used i~ tb
.same meaning is ~()wever _very slight and . it .is. proper . .
1955] BURMA LAW REPORTS. 77
sufficient reason can be assignecf. to construe a word in S.C.
one part of an Act in a different sense from that which 1955
it bears in another part of the Act." D . D.
G ROV E R
v. .
These observations are based on many authorities A. C.
KooNoA ;
cited therein. It is almost elementary to say that CONTROLLEI~
words without their context have no meaning. It is OF RENT,
MAN DALAY.
the context which is all importation in the interpreta-
tion of a word. The meaning of a word is therefore
to be determined with reference to its context, and
also according to the subject, occasion of its use
and the purpose for which .it is_used.
It may perhaps be apposite to state here that
the expression " Court" used in section 195 of the
Code of Criminal Proc.e dure has been held to have
a wider n1eaning than " ,Court of Justice " in sec-
tion 20 of the Penal Code, or even the expression
" civil, revenue or criminal court " useti in section
476 of the Code of Criminal Procedure. See
R.aghoo Buns Sahovs v. Kokil Singh (l) ; Nandalal
Gai1guli v~ Klzetra A1ohan Chose (2) ; In Re.
Nanchcind Shivchand (3) ; Rajaja Appaji Kote
v. Emperor (4) ; and Hari Charan Kundu v.
Kanshiki . Charap Day (5). The reason for the.
view held!n the above-mentioned rulings arises from
the-expression used in sub-section (2) of section 195
to the effect that "the term 'Court' includes a civil,
revenue or criminal court but does not include the
Registrar or Sub-Registrar under the Registration
Act.'' This, however, does not detract from the
validity of t he statement as mentioned above that
the mean.i ng of a word may vary according to the
context, subject, occasion or the purpose for which .
it is used.
{1) 17 . Cal. g7~. (3~ _37 Born. 365.
(2) 45 q.J. 585. . (4) A.I.R. (1940) Bom. 7.
. (5)44 (:.W.:N. 530 ..
"78 BURMA LAW REPORTS. [1955

S.C.
1955
If the contention of the leari1ed counsel for the
first respondent that the word '' Court'' in section
G~.v~R. 4 and s'ection 6 of the Union Judiciary Act means
v.
A. C.
exactly the same thing and consequently this
KooNoA; Court should interfere with the proceedings of
CONTROLLER
oF RENT, the inferior Court by way of appeal only, were
MANDALAY. COrrect, then the pOWer Of SUperintendence
_r:onferred upon this Court by section 4 would be
a mere superfluity. It is a cardinal principle of
construction that the provisions in a statute must
be construed, as far as possible, to .'!' avoid
tautology or superfluity, and that they should be
interpreted as far as possible, in such a way :that
they are consistent with each other and make a
complete picture when taken as a whole.
In tb.e result the preliminary objections are
ove~r.uled. -:We hold that for the purpose of
exercising judicial supervision or superintendence
. by this Court under section 4 of the Unipn
Judiciary Act, the Controller .of Rents, acting
under section.
14-A of the Urban Rent Control Act'
and the Judge, acting under section 22 of the
Act, fall within the me~J;J.ing of the word" Court ,;
in section 4 of the former Act.
. As regards the merits of the .case, the or-ders of
the Judge and of the eontroller of Rents cannot ~tand.
. . It was under section 11 (1) (f) of the Urban : Rent
Control Act that the first respondent soug~.t for
permission .to file a suit for ejectment against the
applicant. Under the provisions of section 1l (1)
(f) 'no decree for .ejectn1ent of a tenant can :. ''be
made or given unless the building or. the. part .
ther.~ofto which the A.ct applies is reasonably and .
o boru1 fi.d:t~ requir~d by the owner 'for occlip'atio.r tby

. hiln:~~l(. .excl~siyely for residential . purpqses'\ .: But

Dawood . Ismail "who was :the . agent of the. first .
1955] BURMA LAW REPORTS. 79
.
respqndent, definite-ly stated ' in his deposition before S.C.
1955
the Controller that the premises in question were
D. D.
required for the storage of chemicals. There is GROVER
thus a manifest error patent on the face of the v.
A. C.
records. KOONDA;
CoNTRO LLER
We accordingly quash the orders of the Sub- OF RENT,
MA~DALAY.
divisional 1udge and the Controller of Rents
Mandalay. The first respondent will pay the'
.applicant's costs of these proceedings. Advocates'
fees K 170.
 80 BURMA bAW REPORTS. [1955-

SUPREME COURT.
t S.C. KOUGH WHEE LEEK 1
1955
KOUGH WHEE IZEEK I (APPLICANT)
It~-ne 24.
v.
KOEUTAIK ..~. l(R )*
SARI<ARAM CHETTYAR J ESPONDENTS .
Special Leave-S. u, ( nion Judiciai'Y Act, 194,Q-S. 193, Penal Code-Com--
Plaint unde1' s. 476, Crimi11al P1'0cedure Cddc-Rcaso1xable probability of
C01tdction-luordinate delay-Iwml'ia/Jly ct malta of discretio1~-To be
made only i I tile interests of Justice.
The Respondents were prosecution Witnesses in Criminal Regul(,lr Trial;
No. 910 of 1949 of the Court of the 7th Additional ::\12gist:ate, !~angoon, in
which the petitioner and another were prosecutecl and charged under ss. 406
.and 411, Penal Code, respectively.
The charges were quashed by th~ High Court on 2~th Nov~mber 1950.
On 21st March 1951, the Petitioner moved the Magistrate under s. 476
Crimina1 Procedure Code to lay a complaint against the Responden:ts unde;
s. 193, Penal Code. The appli,.;ation was dismissed by the Magistrate ~nd on
appeal .under s. 476-B Criminal Pro~dure Code, the High Court confirmed:
the order of dismissal, both the Courts following;-
Ilwe Gye Hain and one v. The King, (1948) B.L.R. 40; Jadu Nandar
Singh v. Emperor, (1910) I.L.R. 37 Cal. 250; Mohamed Kaka: a1ul others v.
The District Judge of Bassein, (1937) R.L.R 276.
The Petitioner applied to the Supreme Court under s. 6 of Union Judi-
ciary Act for speCial leave to appeal.
Ht,ld: Under s. 476, (;riminal Procedure Code the responsibility for
prosec~tion rests entirely upon the Court and this section must be exercised
with great care and caution and only when necessary in the interests of justice ..
The matter under s.476is not a pice~ of litigation be tween priv<!.te parties,.
but as a matter ot" public duty . undertaken for' vindicating and etlsuring the
purity of the administration of ptblic ]usti ~e.
Purna Cha11dra Dutt v. Shaikh Dhalu, 34 C.W:N. 914 at 92i,'approved ..
It is : invariably in the discretion: of the C.>urt to make a .complaint
under s. 476 and High Court, e,;cept in extraordinary cases, are loath to
interfere with the exercise of such discretion.
Somabhai Va:ZZavbhai v. Adit bha Parshottam and other-s, {l924l I.L.R_
48 Bom. 401; Rtijit Narayan Singit and others v. Babu Ram Baltadur
. . ~ Sit~gh_, 27 Cr.L.J. 641, referred _to. . .. . ..
Criq~inal. Mi'sc; Application No~. 10 artd it:of 1955. . .
t Present: U TJI&IN MAUNG, Chief JJJ8tic;e of the:J,Jnion, MR. JusTICE.
. MYINT THEIN and Mt." J.ifsTI<:E Bo GYI;
:._ .
1955] BURMA LAW REPORTS. 81
The S:l~"~re ,n: C,::rt will i:ot grant special leave to ~rre:tl unh:~s <:xn:p - S.C.
ional a -1 .! :;p.::::t ; circumst:mces exist, or . when suhs:a11tial and grave 1955
injustice ~\:l :> ;) :t:n don e or when the case presents features of S\: fticicnt
K ocG H
gra\ity. WI-lEE
Prit au Sl11 :; h :. The Stut e, 51 Cr. L.J. 1270, reierred tc. LEEK
The dday in making the application, and a reasonable probability o C()nvic- AND
:ion shoJld b e bken into consideration i n deciding whether o r not it is in KouGH
W.HEE
:he interest of justice to make a complaint under s . 47o, Criminal Proctdure LEEK
Code. v.
T here was four months delay and both the L uwer Coa:-ts are of opinion Ko Eu TALK
that there is no reasonable probability of conviction. AND

.The Supreme C-ourt does not ordinarily constit~:~te itself int,J a thi rtl Court SARKARAM
CHETTYAR.
:>Ver coricurrent findings of fact.
spe;;ial leave to appeal refused.

Dr. E Maung for. the applicant.

Ko Eu Taik, N. R . Burjorjee for the respondents.

The judgment of the Court was delivered by the

Chief Justice of the Union.
U ~IN MAUNG, C.J._ These are applications for
special-leave under section 6 of the Union Judiciary
Act, 1948, to . appeal from the judgments of the High
Court in Criminal Appeals Nos. 535 and 536 of 1953,
which are appeals under section 476B of the Code of
Criminal Procedure. .
. By those judgments the High Court dismissed the
petitioner's _appeals against the order of the learned
7th Additional Spe cial Power Magistrate, Rangoon,
. to lay complaints against the respondents
Eu Taik and Sarkaram Chettyar under section
3 of the Penal Code.
The petitioner moved the learned Magistrate on
21st March, 1951, to lay complaints against them
they gave evidence for the prosecution in Criminal
Trial No. 910 of 1949 in his Court.
In that case K.o Eu T~ik;s wife Ma Pauk Sa pro-
ted the petitioner and orie C. Su Biri and the
Magistr~te fr~med . a charge un.d er section 406
82 BURMA LAW REPORTS . [1955
S.C.
1955
of the Penal Code against the petitioner and a charge
under section 4 11 thereof against C. Su Bin. How-
K ouGH
WHE E ever, these charges were quashed by the High Court
L EEK
AND
by order dated the 28th November 1950 in Criminal
K oUGH Revision Nos. 97 -B and 98-B of 1950.
WHEE
LEEK . The learned Magistrate refused to lay complaints
v.
Ko E u TAIK against the respondents as he was not satisfied that the
A::-!D evidence given by the respondents was false ; there was
SARKA RAM
C HETTYAR. no reasonable probability of a conviction and there
was an inordinate delay in tnaking the appliCation
under section 476 of the Criminal Procedure Code.
The learned Judge of the High Court, who, by the
way, is the judge who quashed the charges agaipst the
petitioner in the. said revision cases, dismissed his
appeals under seCtion 476-B -of the Criminal.Ptoc~dure
Code as he agreed with the learned Magistrate that
there had been inordinate delay in making the applica-
tion and as"he was by no means certain that there is
any reasonable probability of the respondents being
convkted if sent up for trial.
Both the learned Magistrate and the learned
Judge have followed the ruling of the Higp. Court in
Hwe Gye Hain and one v. The King(l}\vhich may
be compared withthe ruUngs in Jadu Na.ndar Stngh
v. Emperor (2) and Mohanzed Kak'a and. oth(;.rs v.
The District Judge of Basse in (3): .
Now the. responsibility Jor prosecution rests
ep.tirely upon .the Court which riiakes a complaint
under section 476 of . the Criminal 'Procedure:: Code,
whether it acts on its own motion. or on the,a pplica-
tion. of a party. . So the power given by that.' se ction
must be exercised with great care and cautihn.aiid the
Court should make a complaint only if t4e prosecu-
is
tion :. 1?-ecessaryl (in the interests of . justice. As
. . (1) {1948) B.L , R 4o.. (2) {1910) I.L.. R. 3t ;ea( 25o:"
(3) (1937) R .L.R. 27fJ. . ; .
1955} BURMA LAW REPORTS. 83
Costello,J., has right!y pointed out in Purna Chandra s.c.
1955
D utt v. Shaikh Dhalu ( l) the Court should
KOVGII
consider the matter under section 476 not as a piece wuEE
LEEK
of litigation between private parties but as a matter AND
of public duty undertaken for the purpose of vindica- KoUGH
"WHEE
ting and ensuring the purity of the administration of LEEK
v.
public justice. Ko Eu TAIK
The question whether a complaint should be AND
SARKARAM
111ade under section 476 is almost invariably a matter <.. HETTYAR.

of discretion and even High Courts are loath to

interfere with the decision of lower Courts except in
extraordinary cases. [See the observation of Macleod,
C.J. in Somabhai Vallavbhai v. Aditbha Parshottam
and others (2), which has been cited with approval
by Bucknill, J. in Rajit Narayan Singh and others
v. Babu Ram Bahadur Singh (3).]
As regards this Court, it will not g~ant spec~al
leave to app.eal even in ordinary criminal cases unless
it is shown that exceptional and special circumstances
exist, that substantial and grave injustice has been
done and that the case in question presents features
of sufficient gravity to warrant a review of the deci-
sion appealed against. [Cp. Pritan Singh v. The
:State (4)]. . In the present case there are no excep-
tional or sp.ecial circumstances and no substantial or
~ grave injustice appears to have been done.
r The application under section 476 of the Criminal
tProcedure Code was filed four mon.ths after the
~barges ;,were quashed by the High Court and three
~onths after the record was received in the trial
~ outt; and delay in making the application must be
ken into consideration in deciding whether it is in
e interests of the administration of public justice or
~st for the. purp~se of satisfyfng a private grudge ..
. -
: (I) 34 :c .W .l\'. 91~ at 922. . (3l 27 Cr.L.J. 641 al 046.
'. (2) (1944) I.L.lt. 48 Born. 401 at 40+. (4) 51 Cr.L.J. 1270.
84 BURT\t1A. LAW REPORTS. [1955
S.C.
1955
Besides, making a complaint under the said sec-
tion cannot be in the interests of the administration
KouGH
WHEE of public justice unless there is a reasonable
LEEK
AN>P
probability of conviction; and in the present case both
KouGH the lower Courts are of opinion that there is no
. WHEE
LERK reasonable probability of the respondents being
~
Ko Eu TAIK convicted. This Court does not ordinarily constitute
AND
SARKA RAM
itself into a third Court of fact; and in the present
CHETTYAR, case the concurrent findings of fact are of special
weight as the learned Judge of the High Court was
conversant with all the relevant facts inasmuch as it
was he who quashed the said charges, passed. orders
on the application of the respondent Sar~aram
Chettyar's principal S.S.S. Chockalingam Ghettyar
in the connected suit viz.. Civil Regular No. 51 of'
1948 in the High Court and passed the consent.decree
therein. :
. Special leave to appeal is refused and'the applica-
tions are dismissed.
 1955J BURMA LAW REPORTS. 85

SUPREME COURT.

MA THEIN SHIN AND FOuR (APPELLANTS) s.c.

11155
v. Nov. J.l.
TAN KEET KHANG AND FOUR (RESPONDENTS).*

Limitalio1~ Act, Schedule (1), A rlicle 132-No SPecific t zmc fv:ed f or reP?.)'mcnt
of loan in a wort gu&e decd-Ss. 19 and 20, Limitation Act-01det -/1,
Rule 22 (1), Ci'llil Procedure Code-Res1xmde1tt i11 an appeal e1ttilled to
SIJ.PPort the dec1ee 011 grounds decided for a11d against !lim- Wilen
cross-objectums 11ccessary.
\Vhere no specif.<: time is fixed for the paymentpt>f a debt on a mortgage,
the money does not become due and the cause Of action does not arise unti l
demand fOr payment is made by the mortgagee and reful(ed by the
mortgagor.
N. B: !Vatu and others v. Bltarati aud others, I.L.R. 54 Bom. 495-57 I.A.
194, d istinguished. M. lt/asltiar and others v. S. A . Mudaliar, A.I.R. (1944)
Mad 172; Megah Na th atul auot ltcr \'.The Collector, CaumP,re, A.I.R. (194/)
All. 7. r derred to.
A mortgage debt becomes " payable'' withi.n the meani.,.ng of Sch. l, Art.
132 of the L imitation Act, 1~08 when a default 011 the part of the mortg.1gor
has occur red and the mortgagee exercises his option t o enforce U1e mortgage.
Or, it becomes "payable" at the expiry of the stipulated period.
Lasn Ditt v. Gulab K:mwar & So ns, (1952) 59 I.A . 376-7 Luck. 44 A.I.R.
(1932) (P. C.) 207, fOll<>wed.
Under Order 41, Rule 22 (1), Code of Civil Procedure, a Respondent in
an appeal is e1ititlcd to .support the decree on grounds decided in his favour
and also on gr ounds decided against him, and even.on g rounds other than
those taken by the tnal C'ourt.
A cross-objection is competent only if the matter c :>uld have b een taken
by way of an appeal.
Raja Ram v. Leima aud amlher. A.l R. (lv42) Lab. 87 ; Kishat Kishore
: v. Din !Jfo!tamed 'a11d otlrers, A.I.R. (l'J2)) L;th. 684 ; M,rhaR.U v. Na raran,
~ I.L.R. (1950) Nag. 679 ; Sri Ratz.f!a Ti1atac!Eariar v. Srinwasa Raghavachariar,
~ ~1927} I.L. R. 50 Mad. 866, dissented from. Ram Prasad Kalwar v. Musemat
' Ajanasza, (J 9Z2) I.:L .R. 44 All. 577.; Abinash Chandra Ghosl v. Naraltari
lfehtar, (1930}. I.L. R. 59 Cal. 88<l, followed. .

Wa Gyan. for the appellants.

I.
. .
oke Sein for the respondents.
Civil Appeal. No. 11 Of 1954 aga~nst the decree .of the High Court of
ngoon ~n Civil 1st Appeal No. 17 of 1952..
~ t Prcs~i1t: U THEIN' MAtiNG, Chl~f Jusfice of the Union, Mr. J usTicE
YINT THEIN and Mr. JUSTiCE CHAN HTOpN.
86 BURMA LAW REPORTS. [195S.
S.C.
1955 The judgment of the Court was delivered by
MA THEIN
SHIN AND
MR . JusTICE MYINT THEIN.-In Civil Regular
FOUR
v.
Suit No. 3 of 1951 of the Distrtct Court of Pyapon
TAN KEET Tan Keet Khang and Tan Chong Awant .sought to
KHANG
AND FOUR. recover monies due on a mortgage of an electric genera-
ting plant against the heirs and representatives of
their brother Tan Shu Yon who died on 24th Decem-
ber 1946. The mortgage deed was executed on 11th
March 1931 and in regard to repayment it was set
out in the deed that interest due together,. with Rs.
1,000 tow ads the principal sun1 of Rs. 65,000 were to
be paid once every English Calendar n1onth~
In paragraph 6 of the plaint, the contention was
made that there were several payments towards the
debt and that various acknowledgments of indebted-
ness were -p1ade by the deceased in his letters. In
paragraph 8, the plaintiffs said:
"The cause of .action arose on 15th January 1949 at
Pyapon within the jurisdiction qf this Hon'ble Court when the
<;).efendants failed to pay the amount due on the mortgage on
demapd from the plainti1-s "
The defendants in their written statement denied
each and every allegation of the plaintiffs and also
pleaded various legal defences. Several issues were
fra1ned, of which two Wyre disposed ofasprelimin.a ry
issues in favour of the plaintiffs. Evidence was ~ed
and at its conclusion the defendants filed art addi-
. tional written statement plead~ng limitation. This
was objected to by the plaintiffs but the learned
trial Judge pointed.to s.ection 3 of the 'Limitation Act
and rightly held that the question . should be gone
into.
To come to a decision on this particular point he
.had to . come to a finding on the initial question
.whether the de<;:eased had in fact executed the. deed.;
 1955 ] BURMA LAW REPORTS. 87
This the learned Judge answered i:l the affirmative.
He then held that since the mortgage deed made no
1\{A TH Eil\
n1ention as to when the debt was payable, it was S H J:'\ AX O
FO t:i~
payable forthwith and that therefore the 12 years :t.
limit prescribed by Schedule I, Article 132 of the Limi- TAN KEET
KHAKG
tation Act counted from the date of its execution AND FOUR.

i.e., as from l-I th March 1951. He concluded there-

fore that the suit which was filed only in 1950 was
prima facie time barred. Next, the learned Judge
considered the evidence relating to the alleged
acknowledg1nents of liability for the debt by the
deceased which if established, would entitle the
'
plaintiffs to compute the period of limitation from
the date of such acknowlegments under section 19
and 20 of the Limitation Act. He found that there
were none and consequently he dismissed the suit
on the point of limitation, without going into the
other legal defences pleaded.
The plain tift's . appealed and a Bench of the
High Court held that the suit was within time as
in their view the period of limitation commenced
only with non-compliance of an actual demand for
payment The learned Judges relied upon a passage
in the ~rivy council case 9f N. B. Natu and others
v. Bhp.rati and others _(1) which runs :
" In the se~ond place there was no specific time fixed for
the payment of the debt, and their Lordships are of opinion
on ~he facts of this case that the money did not become due
and the cause of action did not arise until demand for the
payment of the mortgage debt was mad~ by the mortgagee
~nd it was refused by the mortgagor.,.
. . .
. In further support M. Masttiar and others y. S .
.A. =MudaUar (2) and Megah Nath and another v.
'[he .. Col(ector, Cawnpore, (3) . were cited but both
(1) I.L.R. 54 Born. 495-57 I.A. 194.
' (?) A.I. R (19H) Mad. 172. (3) ~.I.R. (1947) All. 1
88 BURMA -LAW REPORTS. [1955
S.C. these cases relate to a n1ortgagee's option to sue in
1955
MA THEIN
case of default in payment of instahnents, and the
SHIN AND decisions were to the effect that such default and the
FOvR
v. mortgagee's failure to exercise his option did not
TAN KEET
KHANG
start the period . of limitation.
AND FOUR \Vith r-espect we accept the principle laid down
in N atu 's case but it will be observed that it can
only apply where there is no specific time fixed for
the payment of the debt. In the case befor~ us, the
Courts below have held, erroneously in our view,
that there was no such fixation of date for payment.
For a clearer understanding of the terms of the deed,
which is in Burmese, we set out the .relevant passage
below:
'' G~'Jrho1 0'JE;Jtm1 o~tgqO"l] Jg~')g~m~, myo~~~Go15
Gmog5goo'Jgo'1CJEl Gg oo8 ~ ~~WJro~5 8 ( a:>CY.Jlb) ~g
~~g~~~ Ggq5:: . (3~,oo8 (GB'XbGOYJ5::c1Gco'J501]0). G~::o11
c;5::q5g~gGg~G@B ~rroGo15o 5o~tg~pg~ ~@-::>go.?cx) oo?~Go15~
G~::<1JGO::~S@E:: GGC\(Oo1' c;5g~rro~::Gg~ ~6C8'8ro6)rh@~06~
ro0@cnroooffi~~ow1~t1 ~~gG&.~rotg ro0~o:>9Jm~S . G~~E::
. ~,oo8 ( OOGoo-J501]8) 011 ~o5Gog~Sqp::o1~e, . qS:o:d3oY?gx~
no~S:: QqjoS~~rhw ~~m~~-::>GogroOog~w1~t1 mcB~cnt~oS02r
~0315 CDlP~8C~8~0.(5~sp~ 0~oSo1~Qo 1~tn''
The p~ssage may be translated thus:
'~ The properties enuru~rated in the statement below are
placed unde.r . first mortgage. The . principal $uni lent is
Rs. 65,000 with interest at 1 per cent per mensem. It is under-
taken that while the mortgage subsists there will be . no' further
. mortgage or sale to any other person . . The interest ~ will be
paid every English Calendar month. The principal also will
o be paid by monthly payments, <?f. Rs. 1.000~ Without default,
regular payme11ts will b~ :i:nade, asp.romised. If this promise
. is not kept liability under the law as . well as .COStS lS
accepted ." . . . . . . .":
 1955] BURMA LAW REPORTS. 89

Now, while 1t is true that a date for payment s.c

JIJ.5:'
is not specifically mentioned, the clear arra ngement
~l.\ TH El:\
tha.t is deducible from the clause quoted is that the s~,,~ A:-.:u
FOUH
entire debt, principal as well as interest, was to be v.
TA~
liquidated in 65 months. This being the position, it h:HA~G
KF.ET

Cannot be said that no time for payment was fixed, A~D FOl'H.

and the principle laid down in Natu's case can have

no application.
The princjple that would apply to the case
before is to be found in Lasa Din v. Gulab Kunwar
.and others 0), another ruling of the Privy Council.
This principle is summarised in the headnote which
reads as follows:
"Under the Limitation Act, 1908, Sch. I. Art. 132, a
suit to enforce a mortgage for a stipulated period, although a
default by the mortgagor has occurred during the period and
by the terms of the mortgage the mortgagee t}lereupon had
an immediate right to enforce the mortgage' the money becomes
payable' within the meaning of the above article when, either
the stipulated period bas expired, or a default having occurred.
the mortgagee has exercised his option to enforce the
mortgage.~'

In point of fact the case before us is similar to a

certain degree to Megah 1Vath's case (2) where a
mortgage loan for Rs. 800 was contracted on the
agreement tl~at it would be liquidated in 32 annual
instalments. A suit to recover the entire debt,.which
. wa~ instituted within 12 years, counting from the end
of the st!p:ulated period of 32 years, was held to be
within time. But the difference between Megah
N ath 's case and the present one is .that the plaintiffs
not institute their case in the District Court of
on . within 1! years of the expiry of the
peri9d.
u ................ .
Tan . Shu Yon executed. the mortgage deed on
lth Marcb- 1931 a~d. _the stipu~~ted perio~ ~as 65
(l9S2) 5~ J.A. 376-7 Luck. 44-A.I:R. (1932)~P.C.)207. (2)A.I.R.(l947J All. 7.
90 BURMA LAW REPORTS. [1955
~.c.
1955
months, which would make total payment due on
11th August 1936. The period of limitation of 12
MA THEIN
SHIN AND years would commence from 11th August 1936 and
FOUR
v. expire on lOth August 1948. The suit was filed on
'fAN K E ET
KHANG
20th January 1950 and prima facie it was filed out
AND FO Uf~. of tin1e.
The appellate Court, on the surmise that the
period of limitation commenced only with the actual
demand for payment, did not consider the correct-
ness or otherwise of the specific finding of the trial
Court that there was no acknowledgment in writing
of liability, which would give rise to fresh computa-
tions of limitation under sections 19 and 20 of the
Limitation Act. We note also that counsel for res-
pondents in the High Court was not permitted to attack
the findings of the trial Court because no cross-objec-
tions were,_ file'tl. The authority relied upon was.
Raja Ram v. Lehna and another (1) which enuncia-
tes that a respondent, under Order 41, Rule 22 (1) of
the Code of Civil Procedure, can only support the:
decision of a lower Court and not to attack it. The
earlier case of Kishan Kishore v. Din 1Viohamed and
others (2) which was quoted and followed; said that
what was not permissible for a respondent to attack
without cross-objections, was the decree itself. In
Mahagu v. 1Vararan (3) it was held that a respondent
could not attack an adverse finding . All . these
restrictive interpretations of Rule 22 seem to.. have
emanated from Sri Ranga Thatachariar v. Srinwasa
Raghavachariar (4) in wh1ch a , Bench of the.
.Madras High Court had observed :
~ Though the word ' decree' has been used in Rule 22,
" it 1s clear that what the rule contemplates really i~ the .
.
.decision
' . by the Court
.
below. and merely enables.
. . the deCision
.

(I) A.I.R. (1942) Lah. 87. (.'} I.L.R. ( L950} N?.g 679. .
"(2) A.I.R. (1929) Lah. 684. {4) (192i) I.L,R. 5'0 . Ma d . g66._..
 1955] BURMA LAW REPORTS. 91.

arrived :..~t by the lower Court to be supporteu on grounds S.C.

1955
other tht1n those on which the lower Court proceeded."
MATHE!:-;
sm~ ,\1'\D
R u1e 22 (1) reads as follows: FOUR
,.
''Any respondent, though he may not have appealed TAN l{F.ET
from ~ny part of the decree, may not only support the decree KllA::>:G
AND FOUR,
on any of the grounds decided against him in the Court
below, but take any cross-objection to the decree which he
could have taken by way of appeaL provided he has filed such
objection in the appellate Court within one month from the
date of servic~ on him or his pleader of notice of the day
fixed for hearing the: appeal, or within such further time as
the appellate Court may see fit to allow."

and as we read it, the first part enables a respondent

to support the decree even on grounds decided
against him. Naturally he would be able to rely
upon grounds ._decided in his favour. But under the
second part, if he wishes to attack , the decree
itself, then it. could only be done by way of cross-
objections. We can see no reason why the scope of
the rule should be restricted nor can we s~e any
justification why the word " decree " should be taken
to mean either a " decision " or a "finding ". To-
take the simplest example, in a suit for K 1,000, if a
decree is passed for K 500 only, the respondent in
appeal would be entitled to support the decree on
grounds 4ecided in his favour and also on grounds.
decided against him; but he will not be p~rmitted to
say that he really owed only K 250 or nothing at all.
That would need cross-objections as the decree itself
would be attacked.
Rule 22 pe.rmits a cross-objection only if it could
. have been taken by way of an appeal, and in a case
'
like the o~e before us., when the decree .was in ~

: favour of the respondents and the appellants' suit

:,~ was totally dismissed, what necessity would there be
[ for :the. successfui party to appeal and upon what
!lr,
 92 BURMA LAW REPOl~TS. 11955
L

s.c. could such an appeal be based ? In such c~ses

1955
surely the respondent must be entitled to support the
J\IA THEIN
SHIN AND
decree on any ground, even on grounds other than
FOUR those taken by the trial. Court. This vie"vv finds
v.
TAN KEET support in Ram Prasad Kalwar v. Nlusemat A.janasia
KHANG (1) and Abinash Chandra Ghosh v. Narahari
AND FOUR.
Mehtar (2).
We feel therefore that the respondents in the
High Court were wrongly denied the opportunity of
making full subn1issions in support of the decree
in their favour, and this being the position, the
appropriate order will be to set aside the judgment
and the preliminary n1ortgage decree passed in Civil
First Appeal No. 17 of 1952 and remand the case to
the .fligh Court for fresh hearing and disposal. W,e
direct this to be done.
Costs in this Court will follow the final result.

(1) (1922) I.L.R. 44 All. 577. (2) (1?30) I:L.R. 59 .Cal. 889 ,
..
 1955] BURMA LAW REPORTS. 93

oo ~g~CGoo~ ~ 1 s

ego)~~ ( GOjpoSoo'J~~)

~
G8::D8, 6) ~028go~ o 1 J ~g ( GC\jj'Jo5co'Jg~~
8.j( '=IP g) *
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G<Y.(oSG4jll g)'io)~Go::l')ToG~g~~cf) GpoS6\t9'J crD~~OtG;~~~<fl
~oS@~ootI g))~~Go::>')8'CG~w~rot~ O@~P ~~~~ . ~~mGb}~.G~
0.)&6J8ii8cm8G 61~craceoG8~9 .p~geoG8~~~G6lgco:i~. ~')CID'J
~E~pg~t .Geoot~tg~~~ ~m')g6GeGotcoot~'=> ~CDCl')g~~
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1955] BURMA LAW REPORTS. 99
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tJtUj(COX~!To~t: ~n2S~~o<,~cf.i~cf.ixtu
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 INDEX
PAGE
ACTS;

ATTASANKUEPA DHA~f:\IATHAT.

CIVIL PROCEDURE CODE.

CONSTITUTION OF BURMA,
CoNTRAC'r AcT.
CRIMINAL PROCEDURE CODE.

FOREIGN ExcHA~GE RJ::GULA'flONs AcT.

GOVERNMENT OF BURMA ACT, 1935.

INDIA ACT, 1915.
,1935 .
IN:QIAN HIGH COURT ACT, 1861.

KINWUNMINGYl'S DIGEST.

LIM ITATION ACT,

PENAL CoDE.
PUBLIC PROPE'RTY PROTECTION AcT.

SEA CUSTOMS ACT.

SPECIFIC RELIEF ACT.
SuCCESSJO~ ACT.

UNION JUDICIARY ACT.

URBAN RENT CONTROL ACT .

.ACT EXPIRING BY EFFLUX OF TIME-FURTHER BXTF.NSJON BY THE

PRESIDENT-WHETHER ultra vires ... 43
BURMESE BUDDHIST LAW-FUNDAMENTALS OF SUCCESSION 15
CIVIL PROCEDURE CoDE, ORDER 41, RULE 22 {1) 85
CoNSTITUTION, ss. 22; 25, 153 54
- - - - s.90 ... <13

~>a:st8~t8~~"B~eoGD <(f3g lie(?) 93

1 CON.STITUTION OF INDI A, s , 227 (1) ... 54
CONSTITUTION OJ.o' BURMA, s. 90-S. 1 (iii), Foreign . Exchange
RtgulatiotJ Act, 1917 -Act e."piring by efflux of time-Further
extension of lime by the Presidet1t-Sucn extensiatz, whether
ultra vires of s. 90 of the Con~titution-Dclegaterl or conditional
Jegislatio". S. 1 (iii) of the Foreign Exchange Reg11lation Act,
1947 which came into force on 1st August 1947, as subsequently
amended' TC!lidS : "It shall remain in force for five ytars 0:1Jy but .
.the Pre_sldent of the Uniqn may by notification d~rect that it shall
XlV GENERAL INDEX

PAGE
remain in force fC>r a fcrlher reriocl ne:t exceeding five years."
The President directed that it would continue in force for five
years b~ginning from 1st August 1952. Held: The President in
exercising hi~ powers under s. 1 (iii) was not bringing into
operation any new law. nor w;ts be making any modifications or
restrictior.s to the Act, but was merely prolonging th~ life of
the Act ior a period within the allotted spc:n. No delegated or
conditional legislation vvas involved. and .in efh ct he was merely
bringir:g into c.peration the seconcl instalment cf the lift cftlte
Act. Re. ](alayam Vee1' b!raddrya, I.L.R. (1950) Mad. 243 = (1949)
2 M.L.J. 663 ; Chaltut'am and others v. Commissioner of Income-
tax, Bihar, (1947) I<'.C.R.116; latiudra Natlt (;upta v. The Pn>tince
of Bilwr, (1949\ .l<'.C R 17.5 =(1949) 2 .M.L J. 356; A.I.R. (1951) (S.C.)
332, ref. rred to. Joylal Agarwala. v. Tlte State, A.I:R (1951)
(S.C) 484; MilanCftaud \'. Dwmka Das, A.I.H. (1954) Rajasth<Jn
252, approved.
CHAN CHOUNG SAN AND ONE V. UNION OF BURMA 43
CONTRACT ACT, ss. 222,230,233 35
CoNTRACT FOR SALE oF Gooos-Ss. 222, 230, 233. C011frC1d Act-Local
age11t for foreign Pri11CiP.J/-Personollyliatle atzd can be sued in.
his own name. The Appellant as ' Buyer " entered into a
contract .for Sale of goods with the Respondents as "The
S.;-Ilers. '' Upon iailurc to deliver the goods, the appellants filed
a suit for breach of contract against the Respondents. Tl;e
Respondents' defence is that they acted as ctgents of certain firms
in Japan and therefore they are not pt rsonally li::..blt, nor ran
they be sued pi:rsonally and in their own name. Held: Unles!;
a contrary intention appears from the Cont.ract or from surround-
itig circumstances, the very fact that the ReSpondents entered
into this contrac.t. according to their own detence, as agent for
the firms in Jap:m raists a presumption that they agreed to bind
therr.seJves rersonally under s, 230 Contract Act. Therefore a
suit against them and in thdr own name wodd lie. Miller, Gibb
& Co. v. Smith .& Tyrcr Ltd., 11917) 2 K.B. 141 at 150-151,
referrced to. Where a person elects to hold the agent-; who acts
for a foreign principal, personally liable and sues him to
judg~ment, as authorized by th~ provisi.ons of s. 233 rea'd
with:::. 230, the .agent has a riJ:!:ht fo be indemnified ~gainst all the
cons'et)_uencts of that suit by his foreign principal. Pollock and
Mullas' Indian Contract Act and Spe~ific Relid !\,ct (7th Edition)
p. 592, referred to. Mere mention of ccmmission in the Contract
is noUn any wa inconsistent with .the re-lation between principal
and principal. Balthazar & Son v. E. X. Abowath, I.L.R. Ran.
Vol..!), 1, referrecl to ; Rada Kisltamnal v. Mangalal.Bfos;; ~ . I.R.
(1943) Cal. 206, discussed.
RANGOON COMMERCIAL HOUS.E 2:1. SHAl~JEHAN !\lUSKTIKHAN
TRADING CORPORATION 35
CRIMINAL .PROCEDURE CODE, s. 476 ... ' gO
~
yROSS-OBJECTIONS IN APPEAL~WHEN COMPET~NT 85
54
. J>ELEGATED OR CONDITIONAL L'EGISLATION 43
. .
B~m~!"}~G~o:>~b}~O~lO~~g oomeoG~ ~EgG I ;.t:eoGs.' J G {m)'l
. 09' ~Gr ~'2' ~ .... . .. : . ... 93
 11 (!!!) l 'S '.t::>V NOI~V'l1104ll 3NVHOX3 KD13!i0!{

:c.~~gcc.o~~JS:IW~-:gpc.~e:t~
..6
Sl 3~V~S3 ,S~N:irnVdONV~W t\:1 :dON"V.LlHSHNI .!10 .LH~IH-,. .NOS ~O:J 11

6 :~ r L'> !o:goow :begl!egro bWcco~ ~s~cp:~ ' .

. usccc
p~plk>po gc.~ccc~gA:osce c.~:c.lSgoo g~o~oa:chco pee
sseo~ (c) nlee~ftp!e:!c.3~ ~sa~enscftb<b9:gge <:epl
gc.ce~e> ~.:c.!h:chffiosocco~gg gaccggc.co~c.l:~e :~soo
rocco:f,cc:cce~:!ftc.~~SC~ be:g~~&:> S2ccgecsug:~ no~sofe
fPe> g;o~oa:chco ~cc:~cJ~eoc.cc~~ro~cc~g~p~gcce~ft
?fgc.~~~ g3ccggepcc ~:sc@~ pggc.coec~:ltoe sccc~c.~
fu:c.cc:~:l~g:> gc~c.cce~~ft:gpc~egco Soc.coe:~e ~eo
sceobe:g :~fuscccgeo~ soooeoeeco~gcco~c.l:!toe goo~
pccoe:ledsg'ge:c.!hggccoedgg!toe (f) uscccroe~ggcwc.eo
3ggbg ~"b~pc.oeo beo ( r) eJ(; c:eoagsc~ pee(co~cc scoe
?3~) 4c.o:0~o :begl!egro~~C'CG$ gb~cos~ (c) Iropcfue
~b@~:o~ 3soeo~geo s~!~c@l e~~eo copfu:c.0pfp
c.cc~~ple:leg~eo5fficflggc.co~c.lgltoe ~g~l!::oe5~3geo~
u:gp~plk-lpo ~~: oe~:5C0roggc.coep~~ c.cceg oft~chco
:propcc:oeeo:sc@eo g~eoftoo ggc.coe:p~~:c~eo ecce
30~o:c.lhpfu:c@p~c.ccep~~ro eggc.coec.ld:.oec.cceg o:ch
co (c) ugc.e~ftgggg~le:le:clhpfu~c@pfp ~558 COfPG
13ffic sccc:CeeG:~@&> ~g:.coeso~l CCCe~gCf,O:C!hg>ro!C.@
Cffp cccep~pc.~egco ~le:le 1pro~g~~fl:g~fe:leg:
~ ( r) l:cce~~~:gTie:le ~:&:>pfu:c0~gJ sbpchepco
g:~g.:we:p:k~~3ffi8 ~fP88 :c.~goggcco~d:R:.oe~ pooeo
g3cc:cc~bpc :.ce;@eft ~eo~Beotse:g :0Lu 3oggc.coe goo
:clhgg:coa c.l&.o3 (c) wls:~eoscoe?g~ t (c) e-1:; p,gn G~oa
~eeo Qgllegro:sc0~ n3ccbsuregc.o ~bc.cc!toe gee~~ sec
~3coro ~:gp!e:~eTeo:c0g>~ 3bg;chesvco g:~3Gwe
g~e <?=>COftccscoe93~ beo eJ GGeo2;524 u3ccroecCDg cLo~eo
5ffi2 sccc:gcop<l-eo:g c cccepg.:,p&J~lg~e~gcwec~:itoero~
goo:g 6 :gb :r:g~c.~egc.o:g 6 snro:c.op~~bpch~pco
g:ggc.wep~~ eggcwec.N:'to~ pbpchepc.o ! 6
~0fu Lo:fB&: ~o:gh>: oeeo~30eo ~_jfBe.GftOo Is eo 6 G Gen2
:sa~ r :g~c.C2ltoe beo (W) S r G~o2:34> ~1.9eg1hgemgo r:~~
c.~s:g C &:b~:~eeo -:gp~~CC Wb!3eG sco~93~ rose~
bgo~o~~g G-pfurobe~0cvS2t'lbgcL0:~zg:ec::63cwe c,'g
~!toe-s p,gn
Geocpeo :besJiegec:S~XGe g~ew~g ~~~e cGeJc
:>0\'.f

i \X X3'<L.'ll '1V1!3:N3:D
 xvi GENERAL INDEX

PAGE

GOVERNMENT OF BURMA ACT, s. 85 54

- - - - INDIA ACT, SS. 101, 107 54
INTERPRETATION OF WORDS IN STATUTES ... S4
LIMITATION AcT, SCHEDULE (1), ARTICLE 132 -No Specific time fised
for repayment of loan in a mort gage dced-Ss . 19 ami 20,
Limitation Act-Order 41, Rule 22 (1), Civrl Procedure Code-
Respondwt in. an appeal e1ztitl.:ci to support the decree on grouttds
decided jor and against him- Wizen crossobiectio11s necessary.
Where no specific time is fixed for the payment of a debt on a
mortgage, the money does not become due and the cause of
action does not anse until demand for payment is made by the
mortgagee and refused by the mortgagor. N. B. Natu and
others v. Bharati and offws, I.L.R. 54 Hom. 49557 I.A. 194,
distinguished; 111. Masltiar and othets v. S. A.llff,tdaliar, A.I.R.
(1944) Mad, 172, Megah Nath and at1other v. Tltd !Collector,
Cawnpo1e, A.I.R. (1947) All. 7, referred to. A mortgage debt
becomes" pa)able" within the meaning of Sch. I, Art. 132 of the
Limitation Act, 1908 when a default on the part of the mortgagor
has occurred, and the mortgagee exercises his option to enforce
the mortgage or, it becomes " payable" at the expiry of the
stipulated period. La sa Din v. Gulab Kunwar & Sons, (19.'i2) 59
l.A. 376~7 L 1ck.-44 A.I.R (1932) {P.C.) 207, followed. Under
Order 41, Rule 22 (1), Code of Civil Procedure, a Respond<!nt in
an appeal is entitled to support the decree on grounds decided in
his favour and also on grounds decided against him, and even on
groundg other.. than those taken by the trial Court. A cross
objection is competent only if the matter could have been t:lken
by way of an appeal. Raja Ram v. Lehua and another, A.I.R.
(1942) L :th. 87; Kisltan Kislzore v. Din Mohamed and others,
A.I.R (1929) Lah. 684; Mahag11. v. Narara11, I.L.R. (1950) Nag.
679 ; Sri Ranga Thatachariar v. Srinwa.~a Raghavachariar,
11927} I .L.R. 50 Mad. 866, dissented from. Ram Prasad Kalwar
v. Musemat Ajanasia, (1922) I.L.R. 44 All. 577; Abinash
Chand1a Ghosh v. Narahari Melttar, (1930) I.L.R. 59 Cal. 889, .
fo.llowed.
MA 'THEIN SHIN AND. F~UR '0. TAN ~f.'F:.T KHANG AND FOUR.. , 85
...
LOCAL AGENT FOR FO~EIGN PR-INCIPAL-PERSONAI.LY LIABLE AND
CAN BE SUED IN HIS NAME 35
MORTGAGF.:-NO SPECIFIC TERM FIXED FOR PAYMENT....;..CAUSE OF
ACTION ARISES WHEN DEMAND MADE AND REFUSED ... 85
NEW GROUNDS OF FACT NOT RAISED BEFORE LOWER COURTS NOR
EVEN BEFORE. T.HE SUPUEME COURT lN APPLICATION-CANNOT
BE ENTERTAINED IN ARGUMENT 32
ONUS OF . SHOWING ORDER OF DETENTION IS INVALID-'ON PETI-
TIONERS 4
PENAL ConE, ss.193, 406, 411 80
POLLOCK AND MULLA's INDIAN CONTRACT ACT 35
POSTHUMOUS ~DOP'l'ION IN SINO.BURMESE BUDDHIST LAW SUBSEQUENT
o REVOCATION 15
PUBLIC ~Rot>E.R'!-'Y PROTECTION ACT, 1947; s. 7 (2) 4
sEA CusTmrs AcT, ~. 167 (8) ..... ' 32
 GENERAL INDEX xvu
PA.GE
SINO-Bt.:R~!ESE BVDDH !ST -Ltnu aNtic,~ ole- Posthumous adoptiu11-
R~voc,ztiotzofaci,1P/i:Jtl-Posit io~t 11f wll adopt,d so.-1 aud that of a
natural son not idclllic,zl-Rir;ht of inherita11ce in graudpartllls'
estate by the children of a dog so1t and by the childrct: of tw
adoPted son who has lost Ids stat us - Diti~zon of the estate of a
deceased person among the surt'iving brothers and sisters-
Fmzda lie1dals of Burmese Buddhist Law of Succession.-Kimvun
Mi1tgyi's Dige!>t l'ol. 111 ln!;erit atzce, s. 310-The At tasa,z-
khefa Dhammatllat, s. 211. The Law of Succession applil.;able to
the estate of a Sino Burmest B :.1ddh!s is Burmese liudclh:st Law.
Tall Ma Slncc Ziu v. Koo Soo Ci1ong and otlrers, 11939) R.L.!~.
542 (P.C.l; Cyon~ AhLitz v. Daw Thikc, (19~9) B.L.R (.W.C.i 168;
Daw Thike v. Cyong AhLin, (1951) B L.l~. (S.C.) 1Z3, followed.
There can be no pusthumous adoptio:1 under Burmese Buddhist
Law. The adnptiof' of an adult is made by the m:1tual conseut of
the adc,ptor and the advpke a'ld a revocat;on can similarly be
made b) such coasent. The position of an a:lopted child is not
id~ntical for ail purpose with th<:t of a natural child. J'ia Kym
Seilz v. Mmmg Kyin Htaik, (19~0) R.L.R. 7tl3, referred to. In
relation to the gwndp,lrents and tile right of inheritance in their
estate, the position of the children of an adopted child who h.ts
lost his status as sach is different from that of the children of a
n~tural chlld who had lo~t his right of inheritance as being a
"dog son''._ In the latter case although the right of inheritan~e
as a son is IO$!, the relationship of himself and his children to the
grandparents continues, and thus the right of his children in the
estate of their grandparents remains unaffected. But i:l the
former case the adopted child loses hi:; relationship an+J becc.mes
completely cut off together with his own descendants from the
adoptive parents. U Seitt v. Ma Boke, I.L R. 1l Ran. 158,
referred to. The fundamentals of the Buddhist Law of Succes-
sion are .firstly, the nearer excludes the more remote, and
secoadly, i:lheritance shall not ascend. On the death of a
brother or si-;ter without leaving a spouse or i~sue, the deceased's
yo~mg~r brothers and sisters inherit to the exclusion of the elders.
Kinwun Mingyi's Dige6t, Vol. 1, Inheritance s. 310. Attasan-
khepa Dhammathat, s. 211. The fact that a parent may be alhe
at the time' of a child's death, makes no exception to this rule.
The m~i 1 condition on which the rule excluding elder brothers
and sisters depends is not the fact of parents being alive. The
emphasis h; on separate living after division of the parental
estate which would give rise to the formation Of a distinct and
separate estate, only to which this role would apply. . Mi
Apruzan v. Mi Chumra, (1872-92) S.J. and R., LB. 37; Maung
Tu v. Ma Citit, I.L.R. Ran. 16:.', affinned.
LIM KAR GIM 'IJ. MRS. IRIS MAUNG SEIN AND ONE 15
SPECIAL LEAVE-S. 6, Union Judiciary Act-Penal Code, s, 193-
CompJaint unde,. Crimin,tl Ptocedure Code, s. 476-Reasonable
Probability of . couvictiotl-lttordinate delay-Invariably a
matter of discretion-To be made only in the interests of justice.
Respondents were p:-osecution witnesses in criminal regular
trial No. 910 . of 1949 of the Court Of the 7th Ad.jitional
Magistrate, Rangoon, in which the 'petitioner and another were
prosecuted and charged under ss. 408 and- 411, Penal C~de;
respectively. . The charges were quasled by the High' Court, on ..
28th November, 1950. On 21st March 1951, the petitioner moved
. the Magi$.trate under s. 476, Criminal Procedure Coae to .lay a .
complaint against the.-Responden1s under s. 193, Penal Coje. ,
The appl!cation was dlstn:ssed by the Magistrate an:i on
 XVlll GENERAL INDEX

PAGE
appeal under s. 476 -B, Criminal Procedu:e Cu.:!e, the High
Court confirmed the order d dismissill, both the Courts followin~
Hwe Gye Hail and one .-. r lte Ki1;g, -194(:!) B.L.R 40; laa"U
Nandar Singh v. EmPeror, (1910) I.L.R 37 C:d. 250; Mohamed
Kaka and others v.. Tile Di trict Judge of Basscin, (1937) R L.R
276. The petitioner apphed to the Supr~me Cot1rt tnder s. 6,
Union Judiciary Act for special leave to apreal. Held :Under s.
476, Criminal Procedurt: C.>de the responsibility for prcsecution
rests entirely upon the Court and this section must be e--xercised
with great care and caution and only wheu nece~sary in the
interests of justice. The matttr under s 476 is not a piece of
litigation between the ptivate partie, but l!S a matter of public
-duty undertaken for vindicatil'g and t n-.uring the p urity d the
adtPinistration of puhlic j ustict. Pu; na Ch.;ndra Dut t \._ Sfwil:h
Dhalu, 34 C. W.N. 914 at 922 . approved. It is invariably in the
discretion ol the Court to mnke a .:omrhint und<!r s. 476 and
High Court, r-xcept in extraordinary case:; are loath to int<:rfere
with the exerci$<: of such discretion. Son. b 'wi Val.'a'l>b/r(l i v.
Aditbha.Patsltottam and ollters, (1924) I.L.H. 48 Bom. 421 ; Rajit
NarayateSingh a11d olltcrs v. Babu Ram Baltodur Singh, 17 Cr.
L .J. 641, rtferrcd to. The Supreme Court will not grant specia l
leave to app::-al unless exceptional and special circemstances exist,
or when substantial and grave injustice has been done or when the
casepresents features of snffkitnt gravity. PritattSi11eTt v. The
Slate, 51 Cr.L J. 1270, re-ferred to. The delay in making the
application and a reasonable probability of conviction should be
taken into consideration in deciding whether or not it is in !he
interest of jus..tice to make a ccmp'aint u11der s. 476, crminal
Prt;'cedure Code. There ''as 4 months d::-lav and both the Lower
Courts are of opinion th:1t the.re is no reasonable probability of
-conviction. The Supreme Court does not ordinarily constitute
itself into a third Court over concurrent findings of fact. Special
leave to appeal refused.
.KO'(J~H \VHEE LEEK AND ONE 'IJ. Ko Eu T A.IK AND ONE 80
ACT, ss. 4, 5, 6, 21, 2J, 27
UNION J \:!DIC!AHY ... 54
--------~----~--, s.6 80
URBAN RENT CONTROL ACT, S. 11 {1) (b) AND 14-A 6
URBAN RE~T Co:>~:x"ROL AcT, ss. 12 (1), 19-Fixation of standard
reut-:Applzcationfot, by whom competent~Method of app!ic.a~
tion-:-fro.cedure i l .di>posa.l. Held: Standard rent may te fixed
on appl i~;t_tion qt~de by a bond fide oc.cupier under s. 12 (1) of
the Urban Rent Control Act. Or it may be fi~~d under s. 19 on
application made either by a tenant or a landlord. An applica-
tion..\:>y a perso!l . W~lO is neither an occupier n0r a tenant . is
misconcehed.. . . ! '

MESSRS. BAr.THAZAR & SON 'IJ. ASSISTANT CONTROLLER QF

.RENTSANOONE ... 1

URBAN RENT CONTROL ACT, SS,l4-A, 22 54

WRIT oF CER"I:lORARI-Ss. U-A and 22, Urban Rent.Control-Acl-$s.
22, ZS and 153, Constitution o-f Burma-Fu.ndati,Iental r.igllts,
infringeme1tt~s. t,t, 5, 6, 21, 23 and 27, U.tr-ion Judiciary Act..;.:,:
Indian High Court A~t, 1861. (24 and 25 'Vf~. C.1{)1) s~. 101, 107_," .
Government of India Act, 1915-Government.oflndia Act, 1935~
S. 85, Govemment of Burma Act, 1935-S.. 227. (1). Constitutiatz
o-f 1-ndia~Whethcr COt/troller . of Rents actzti:g. urzder s. 1-1-A . .. .
 GENERAL INl:>BX XlX

PAGE

and tlte Judge 1teling ttnder s. 22 of the L'rba1~ Re11t

Control Act a Court "-Definition of "Coul'l "-luiuPrela-
tion of words ;, Statutes. Pcrm is~ion to f-1..: a suit for
ejectment does no t affect any of the fundan~enl:!l rights
guaranteed in the Comtit .tion and th<::reforc 110 writ
Or directions in t h <: nature d C~rtior:tri C<ln i~sue under
s. 25 of the Constituticn. There is no other pro,ision in the
Constitution which co::ters upon the S .trreme Court any power
to issue such writs or directions. By s. 153 of tho: Constitution,
the powers and fui'Ctions of the Supreme Court and the High
Court, est:\bli:>hed by the Constitution, are more f ully provided
in the Union Judiciary Act, ani the provisions rei<::\; nt to the
Supreme Court ;ness. 4, 5 and 6. By s. 4, the Supren e Court is
given n?ry wide and unlimited power of supervision O\"er all
Courts throughout the Union, and this power of :>t:pcrvision in s.
4 means very ml ch the same thing as the power of superinten-
dence in s. 27 of the Act The only difference betwten the two
sections is whilst the power cf superintendem:e cf the High
Court is restricted, the Supren:e Court is not restrided o~ limited
in any way whatsoever. The s.tpervisory or S'lperin tending
jurisdiction ;,s pro' ided in the Union Ju(liciary Act may be said
to h:tre its o~igi1\ :::o far as the concept is concerned. in the
superintencling jurisdiction of the superior Courts in Engla1' d
Which, espec1aUy the Court of the King's Heach, used to exercise
or do exercise even now over all in{erior Courts in the re:llm.
It is well settled law that the power Of superintendence
incl.1des not onl} superintendence on t\dministrative matters but
also superin:eadence on the ju<lidal si:le. This point w:JJ be
brought out mote clearly by a brief s .trvey cf the historical
b.lckg:ouncl. Tn England U1e Court of King's Bench, ia exercise
of this power of sup.:rintend ence. interferes with the proceedings
of inferior Cou: ts hy the issue of wri~s of certiorari or
prohibition. The writ of certiorari is intended to bring into the
superior Court the decision of an inferior Court in order th:~t the
former may be satisfied whether the deci:;ion of the latter is
within its jurisdiction or not. The writ C?f prollibitio:t is issued
top event an ideior Court from exercisin.!! a jurisdiction which
it d-:es not p: ss~ss. Rex v. Electr icity Conmtissiotzers, .( 1924)
1 K.B lil; Re...: v. Minister of !Jealth,(t929} 1 K.B. 619, ref~rred
to. The r~merJy under t:1e Wri< of Certiorari "is derived from
the superinten.ding authority which the sovereign's superior
Courts, and in par.licular th-.: Gourt of Ki ng's Bench, P.:JSsess and
exercise over inferirr ju:isdiction!t. This principle has been
t:-anspJa 1ted to other p~r: s vfthe King's dominions, and op( rates
with1n certa'n l i~i:s, in B :i t~sh In.di:.t ". Ryots '!f Garaba11dho
and other Vil/ap,es v. Zewitlar of Parlaki111edi aud anotfter, 70
I.A. 129 ;;.t HO, quoted. The power of superintendence inclu:les
the po ,ver of ju:tidal interference in matters of juris.dictio
exer~isable b., them itl very much the s:upe way as th; C~urt
of Kjng's.Bench in England exercises its power t'J{ supe-;inten-
dence. Muhanmzed Suleman Khan and others v. Fatima, 9
All. 10-l F:B.; Goliitzd Coom<r CILoudlzry ' v. Kisto Coomar
Chowd.'try, 7 W. R. 520; Joy 'Ran v. Bulwant Singh, 5 'w.R.
Misc. 3; Manwatlla v. Etn#ror, 37 t:.,V.N. 201: Slzolapur
M unicipality v. Tttliaram Krishnasa Clta_ran, A .I.R . .( 1931) Bom.
582, referrc.;d to. S. 227 {I 1 of the Constitution of .I~dia, it
has b~en jleld by all the ~~~~l Coutts in Indi'a that ~ne High
Courts h:t,e now judicial power of s:~pe~intenrl.n::e. Abdul
Ralzi~" N ;,skq.r .~. {i,brJt~l Jal'ba_r Nas"ka and others, .54 c: W.
N. 445. : N~rp!4r~ ,'!'fqt,h SashmaL v. !Jinp4e f3.e~~ri .pe~ ~-jrd
others, ,A:I .R,. (1.95l) ,C'al. qs ; . ~an~tro otor Ser. ~ice UP, . v.
XX GENERAL INDEX

PAGE
AsansQl 13us Association, A.l.R. (1951) Cal. 285; Bimala. Rrosad
Ray and ar1other v. State of West . Bengal, A.I.R (195l i Cal.
258 (S.D.); Shridl1ar Alnzaram Clzadgay and anollzcr v.
Collector of NagPU1', A I.R (1951\ Nag. <JO; Israil Kha1~
v. The State, A.I.R (lv51l Assam 1U6; Ratilal Fulbllai
v. Clzuni Lal M. Kyas, A.l R (1951) Sau. 15; Mohamed AhdttZ
Esoof Mzd others v. State of Hydrabad, A.I.R. (19Sli Hyd. 50;
Piare Lal v. Wazi1' C!tuntl and others, A.I.R. (1951) Punj. 108;
Pandyanlt~surance Co. Ltd. v K. J. Khaubatta andothe1'S, (1955)
56 Cr.L J. W39, referred to. S. 4 of the Union Judiciary ACt
confers upon the S:tpreme Court general power of supervision of
the widest amplitu<'e, unfettered and unlimited by ;:my r estrict 4

ion whatsoever. This power Of supervision or superintendence

is confined not only to administrative matters. The purpose of
the provisions in s. 4 uf the Union )Ltdiciary Act is to make the
Supreme Court, ha\ ing regard to the object of the constitution in
regan\ to the role ol the judicinry in a truly democratic H.epublic
as established th.reby, responsible for the entire adtr.inistration
of justice and to vest the Court with an unlimited reserYoir of
judicial powers which can be brought into play at any time it
considers necessary. Tlie use of this unlimited power should be
more .cautious and mt:s t be exercised in the san;e manner and to
the s~me extent as in the exercise of superintendence by issue of
directions or writs in t he nature of Certiorari, prohibition or
mandamus. Manmatlra Natlt Biswas v. Emperor, 60 Cal. 618,
referred to. This power of supervision or superintendence should
not be exere;'secl unless there h:;~s been an unwarranted
assumption of jurisdiction not posse$sed by the Conrts concerned,
or a gross abuse of jurisdiction possessed by them, or an
unjustifiable refusal to exercise jurisdiction vested in them by
law. Apart from .matters relating to jurisdiction, this Court
would also exercise this p"ower when there has been a flagrant
violation of the natural or elementary principles of justice, or a
manifest error patent on the face of the record, or an outrageous
miscarriage of justice which calls for redress. This power
should not however be exercised when there is any other remedy
open to the parties; It ~ill not be justified for this Court under
this power of superintendence to convert itself into a Court of
Appeal. "This power of superintendence is entirely distinct
from the jurisdiction to hear appeals. If the.inferior Court, after
hearing the: parties, comes to an erroneous decision, either in
law o.r in fact, on a matter within its jurisdiction, the Cou~t
having power of superi~tendence never interferes. The orily
mode of. questioning the propriety of such a decision is by arpeal."
Go pal Singh, v. The Court of . Awar4s, (1867) 7 W .R. (C.R.) 430,
432, qu.otea and referred to. Neither the Controller of Rents
acting under s. 1/l-A of the Urban Rent Control Act nor any
Judge acting under s. 22 of the Act is underthe Appellate Jurisdic-
tion Of . the High Court and subject . to the power Of .
superintendence of the High Court. Bal Krishna Ha-ri v -EmPeror,
57 Born. 93; Sheonadan Prasad Singh v. J?,mperot, 3 Pat:L.J.
(F'.B.). 581 .at 587; Re. Allctf Brothers & Co. v. Bando & Co., 26
C.W.R. referred to. Broadly speaking, a "Court" may be
defined as an authodty which exercises -ju<;licial as disting1Jished
from.executi~e or administrative {unctions. Hiz.lsbury's Laws of
Engla1t4 (2nd. Edn.l. Vol. (viii}, .p. ~25, referred to. The word
''Court ~:: occurring ins. 6 of tl?.epnion Judiciary ,Act denotes only
Courts.i.i dhe strict sense of the . term. For definitions of the
words,: "Judicial" and "qt1as i-judicial'' see. Cooper v. Wilson
. and others,.U9~7.) 'l.K.B. _3 09, ~40 an4 for definition of the word
"Court", .sec U Htwe (alias) A~ E. Madt;~ri v. U Tun Ohn and one,
 GENERAL INDEX XXl

PAGE
(1948) B.L.R. (S.C.) 5H; Rex \'. Electricity Commissio1zcrs,
L.R. (1924) K.B. 171. The exercise of the power of the Judicial
control under s. 25 of the Constitution would a~'ply mutatis
mutandis to the exercise by the Snpreme Court of its power of
j]ldicial supervision under s. 4 of the Union Judiciary Act. The
function discharged by the C0ntroller of Rents s. 14-A of the
Urban Rent Control Act ;~re quasi-judicial functions.
Mrs. D. M. Singer v. Controller of Rents and tl.ree other-:<, (lY-!9)
B.L.R (S.C.) 143, re.1ffinned. The functions discharged by a
Judge under s . 22 of the Urban I~ent C>ntrol Act ;~re judicial
functions . All tribunals discharge judicial or quasi-judicial
functions fall within the meaning of the word "Court . in ss. 4
and 27 d lhe Union Judiciary Act. l''or the purpose Of arpeal
undtr s. 6 ot the Union Judici:uy Act, the word" Court" denotes
courts in the strict sense of th<:: tern,, whiht fo1 the purpcse of
exercising judicial superintendence under ~s. 4 and 27 of the A<." t
the word ' Court" inchcles authoritits or tribunals exercising
j ~1dicial or quasi-judicialfnoctions. It is a general rt:le of inter-
pretation thatthe same meaning is implied in the us.- or ttle same
,expnssion in every part of au Act. But this geueral rule is not of
much weight. The same word rna} be used in different sens\ s
in the same Statute and even in the s 1me s~ction. Ma1well's on
Interprelatiott of Statutes, 9th Edn. 323; Craies' On Statute Law
(Sth. Edn) at p. 159. Words without their . ccntext have no
meaning . It i:S the context which is all important in the interpre-
tation of a word. The meaning of a word is to be determined
with reference to its context and also according lo the subject or
o' casion of its use or the purpose for which it is u>ed. The
meaning of a word may var.y according to the Contdxt, subject,
occashn or the purpose. The expression" Court used in s.195
of the Code of Criminal Procedure has been held to have a wider
meaning than 'Court of Jusice" h s. 20 of the Penal Code or
even the expres~ion ''Civil, revenue or Criminal Court'' csed in
s. 476 of the Code cf Criminal Procedure . Ragl:oo Buns Sahovs
v. Kokil-Singlz, 17 Cal. 8i2 ; Nandal,Jl Ga11guli v. Kliet1-a Mohan
Cllose. 45 Cal. 'l8'l; Re. Nanclzand Shi'llcltand, 37 B(im. 365;
RajaJa App.lji Kate v. Emperor, A.I R. .(1946) Born. 7; Hari
Charan Kundu v.l(anshiki Charap Day, 44 C.W.N. 5~0, referred
to. The word ''Court'' in s. 4 and s. 6 of the Union Judiciary Act
does not mean c:>xactly the same thing, otherwise the power of
superintendence conferred upon the Supreme Court by s. 4
would he a~ere s~1perfluity. It is a cardinal principle of
constr~ction .1at the provisions in a statute mnst be construed
to avoid tau to ogy or superfluity and that they should be interpre-
ted in S~1ch a way that they are consistent with one another and
make a complete pidure taken a'l a whole. For the pllrpo~e of
exercising judicial Sllpervision or superinte.n dence by the
Suprerre Court, under s. 4 of the Union Judiciarv Act. the
Controller of Rents acting under s 14-A of the Urban R~nt Con-
trol Act and the Judge acting under s. 22 of the Act fall within
the meaning of the word ''Court" ins. 4 of the former Act.
D. D. GROVER t' A. C. KooNDA. AND TWO OTHERS ... 54

WRIT OF CERTIORARI-S. 167 (8), Sra Customs Act--A question of

jurisdiction-Supreme Court Practice-New ground of fact
. .taken uP .neither in the lower Courts no1evenin the aPPlication .
befcre -th~Supr.emeCottrt, bu.t only in tire course of arglfment .
before. the Suj>reme Co11rt-Entertainability. The Writ of .
certiorari deals with the question of want of jurisdiction or excess
of jurisdiction: If .the authority whose order is impugned by
XXll GENERAL INDEX

PAGE

means cf the Writ of certior:tri had jl\risdiction to deal with a

certain n:attcr an<l d<-alt with it, the Supreme Court would not
interfcn:: e"<en though it might not agree with the ~aid aurhority
on a question either of law or fad or of both. Gu:an Kee v. Tire
Union of Burma, (194l.>J H.L.R. (S .C .) 1.51 at b.\, fOllowed;
Dr. R. C. D.1s v. The Controller of Rents, Raugcon, ( 19:>1) H.L.R.
(S.C.) 225, n Ierre:l to. The Supreme C .urt will nvt eutertain
and go into a new, question~ of fact not nii:'ed bdore the lower
Court~. nor even in the application u.aclc to the Su;1rernc Cot:rt.
but taken only in the C')une of the ;1fume t before the St:pren:e
Court. Gel itzda Lhandra Dakna ~- .Di1zesh Chandra Maifra,
A.I.R (19:">2). Cal. 100; Co ind Vinajak v. Additional DeP,rity
Commissioner, Nagpur and anot!Jer, A.I.R. (1953) Nag Z50;
Ma-Jalfll liv.abltm Patel v. Goternmcnt of Bo111l:ay, A.I..R. (1053)
Born. 59, allowed.
LILH-IJCHAND SJRINIVAS v. THE FIN.\NCIAL COli!MISSIONER
(CO.\fMERCE) A~D 'fHE COLLECTOR OF CUSTOMS 32
WRIT OF HARF.AS . CORPVS-S. 2 (2), (3) a11d (5), Public Pro.ferty
Protection Act, 19-17-S. 7 (Z) as amemled by Act No. 48. of 1951
-S. 7 (? ; of tl:e A,ct as amended by theOl'ullic Property Protec-
t ion (Setbttd Am. nd_m ent) Act, N51, Second Proviso to sub-s. 3-
Tl:e Onits of sl:ouii1ig order of detent ion invalid. Where the
retums show . a cot'n petent exercise of aut he rity ; tl1e onus of
sh-.wink.that the orders of <ietenti' n art: invd!icl rest:. upcn the
Petitioners. ':'~here all that the prisoner ~ays in effect is, " I do
not kn_,w why J am interned, and I deny, t!1at I have done
anythiQ~ _w ..ong ", -that does not rcq ire any answer.
R. v. l{ome Secretary, ex parte Greene; t( 41) Ali EmJand Law
Reports. ~'C>f. 3, i 04 at 121; Greene y. Secretar_y of State fo,.
Home Affairs, (19H). All EtJgland Law Rtprts, \'cl. 3, 388 at
394. A rarty ap[.Jying for th~ Writ -~".>1 la:v a reasonable
)lround before the. Cotirt . in order to inc~uce tlrew to grant it.
Hoblzouse's case, "106 English I~epo:-ts 716 at 718.
CHANDULAL AND ONE v. THE CHAIRMAN, SPECIAL INVR$TI 0ke
TION ADMINISTRATIVE HOAim AN.D BuREAU oF SPECIAL
IN'I.'ESTIGAT-ION AND ONE 44
 GENERAL INbEX XX Ill

PAGE

~OiJoSt'SGOl:>: ~:eo5q~:<=>t~~Gf~-:>t:n o ~<=>C:SGOl:>:

~S: 91 o5 ~?G~G:ooG~~ ~:~1~~m~f3C:':jjo:>? ~SG0-:>c:
o.lcf3~qc;o<:>~u c;~Tc;~ooC~GJ~Of~~~ ~~tE>p 91=GJS:~~:
(oc;q:o~ o1 J I B.L.R. 1951 (S.C.) 85 ~~Od"d~Cl&')B'):o:>tu
~o:>-:>8co1? ~~ 'l~Of~~~ ~g~ct;p 91~GJs=~~@oGq:o~
o1 9
 BURMA LAW REPORTS

HIGH COURT

1955

Containing cases determined by the .High Court,

Rangoon

MR. B. W. B A TT_TN, M.A., LL.D., Bar.-at-Law, EDI1'0R.

U TUN ON, B.A. , B.L. (Advocate ), REPORTER.

Index prepared by- U TUN MAUNG, B. A., BL., Bar.-at-Law.

DR. MAUNG MAUNG, H.L., LL.D., Bar.-at-Law.

Published under the authority of the President of the Union of

Burma . by the . s._.perintendent, Government Prlnti~g.. and
Sta.tlonery, Burma, Rangoon .

[All rights reserzedJ

HON'BLE JUDGES OF THE HIGH COURT OF
THE UNION OF BURMA DURING THE
YEAR 1955
1. The Hon'ble Justice Thray Sithu U CHAN TuN
AUNG, B.A., B.L. Barrister-at-Law, Chief
. '
Justice (from 16th March 1955).
2. The Hon'ble Justice U SAN MAUNG, B.Sc., I.C.S.
(Retd.).
3. The Hon'ble Justice U AUNG THA GYAW,
B.A.,B.L.
4. The Hon'ble Justice Maha Thiri Thudhamma
U THAUNG SEIN, B.Sc.~ I.C.S. (Retd.).
5. The Hon'ble Justice Maha Thiri Thudhamma
U Bo GYI, B.A., B.L. (from 1st January 1955
to 15th March 1955).
6. Theillon'ble Justice U AUNG KHINE," M.A.
(Cantab.), Barrister-at-Law.
7. The Hon'ble Justice U BA THOUNG, Barrister-at-
Law.
8. The Hon'ble Justice Wunna Kyaw Htin U Po
ON, B.A., B.L. (frotn 16th March 1955).
9. The Hon'ble Justice U THEIN MAUNG, Advocate
(from 18th March 1955).
 MEMBERS OF THE LAW REPORTING
COUNCIL DURING THE YEAR 1955
1. The Hon'ble Justice Thray Sithu U CHAN TUN
AUNG, Chief Justice of the High Court
(Chairman).

Members.
2. The Hon'ble Justice U SAN MAUNG.
3. The Hon'ble Justice U AUNG THA GYAW.
4. The Attorney-General, Burma.
5. DR. BA HAN, Barrister-at-Law.
6. Rai Bahadur P. K. BASU, Advocate.
7. U BA TUN, Barrister-at-Law (Editor).
8. U TuN ON, B.A., B.L. (Reporter).
9. U MAUNG MAUNG, Barrister-at-Law (from 1st
August 1955).
10. U TIN. MAUNG, B:A., B.L. (Secretary).
 LIST OF CASES REPORTED

HIGH COURT
PAGE
A. Muthia Chettiar v. M. R . Arumugan Chettiar ... 251
Abdul Salam v. The Union of Burma ' i
Ah Tang v. Shar Kya ung Hoe and two others 260
Annamal v. V.K.L. Chettyar Firm 143
Badru Duja v. Munshi Nesar Ahmed 269
Benjamin Xavier (alias) Maung Tin Win v. The
Union of Burma 146
Bo Oo Sein and four others v. The Union of Burma 7
Chandrabhan Singh v. Kishore Chand Minhas.. 14
Daw Chit Ngwe v. Maung Thein Aing and others ... 157
__ Pu v. Ahmed Ismail Serna and fifteen others 21
_ _ Pu v. Ko Don 33
_ _ Sar Yi v . .Ma Than Yin 44
_ _ Sa ung and four others v. Ma Than and nine
~~ 1@
__ Saw v. L. Ramanathan Chettiar . . . 49
---Thein Khin v. Abdul J abber and one 53
Haji Abdui. Shakoor Khan v. The Burma Publishers
Ltd.; Rangoon ~
. _.... _
.
Habib Pirmohamed v.. Sein Moh Co. . 273
Jagaroup v. Jeet Singh and another ... 1p~

K. Luchanna v. Babooram by ag~nt Chakrapan

.. 0
... 66
Kapurcha~d. (Bur~~) Ltd. v: The Bur~ese National
Ref<?~.ming Co. an~ others . .... ..
278
.Kawli
. Janna v. . The Union
}, . of Burma
. . : 63
~im Soon and one by agen~ Chin Kan v. Chin iiwet ..
(d) Maung Sefn . .. . . : 75
 viii LIST OF CASES REPORTED

PAGE

Korban Ali v. Zora Bibi... 168

Ko Saw Maung v. Ayin Ku and ihree others 70
Lal Bihari Jado v. Rabidutt Panday 81
M. C. T. Chidambaram Chettyar by agent K.R.M.
Muthiah Achari and six v. V.L.S. Chockalingam
Chettyar and five 116
M. Muthiah Servai v. The Union of Burma 175
Ma Kyin Tin v. Banu Nanigram Jaq.r~iadass Firm
and one 110
__ Mya Tin v. The Union of Burma ... 178
--- Ngwe Shin and one v. Gaung Boke (a) Maung
Laung Kyamar and one 283
__ Than May (alias) Ma Yin May v. The Union of
Burma 181
Maung Ba Choke (alias) Boh Than.ma-ni v. The
Union Qf Burma... 184
___ Ba Htu (alias) Nga Htu and one v. The
Union of Burma . . . 189
___ Ba Zan and one v. The Union of Burma 195
--~- Chaw v. Ma Aye Ma and three others 89
___C hitMaungand one v. Daw Saw !' 94
___ Chit Pe v. U Kyaw Shein and: another 199
- - - Pu and one v. Maung Kyi Maung and
another 203
_ _Tin wa v. S. E. I. Dawoodjee and one 120
Mrs. D. Raeburn v. Mrs. M. Johnston and one 103
- - M. Truictwein (a) Ma Aye Thwe v. Mr. D ..
Truictwein . 287
N. K. Vaidyo v. Ma Than Khin and another 206 .
P. A.M. Abdul Kader and ten . others v. S.M.M.
. . .Mohideen Firm by proprietor .s. M. Nagoo r
~ . . ~eera and six ~thers 123
S'.: SabirHussain v; R. M .. l..,. Ramanathan Chettirir . zit
Sw~~ 'Cbwan Be~ Rice Mill Co .. ;, Sukr~ Nahag .' .._. ~91
 LIST OF CASES REPORTED IX

PAGE

Thakin Lwin and two others v. The Union of

Burma 299
The Union of Burma v. Kalu 128
U Aung Dwe v. U Chan Aye 360
_ Jone Bin v. N. B. Sen Gupta 218
_ Lwin v. Maung Tin Aung 227
_ Lu Maw v. S. Puran Singh and another 232
_ Min Sein v. Mohamed Shaft and one 130
- Nyi Maung v. Union of Burma 364
_ San Hlaing and another v. The Bank of
Chetinad 238
_San Pe v. Ma Thin Kyi and one 137
_ Taw v. The Bank of Chettinad Ltd., by its
Manager 368
__ Tha Pe v. U Thein -Nwe 376
_ Tha Zan and two others v. U Tun Zan and one 243
Union of Burma v. Ah Shin and two others 317
_ _ _ _ _ _ v. Maung Khwe Gyi 306
________ v. Maung Kya Nyo 248
-------V. Maung Nyun J . 312
- - - - - - v. Rashin 304
Union of Burma G. M. Mehta
S. J. Trivedi v. Union of Burma .. .; 320
 LIST OF CASES CITED

PAGE

A. P. Joseph v. E. H; Joseph. A.I.R. (1926) Ran. 186 214

A.S.P.S.K.R. Karuppan Chettyar v. A. Chokalingam
Chettyar. (1949) B.L.R. 46, referred to 39.373
A.R.K.N. Ramanathan Chettyar v. Baldan Singh,
A.I.R. (1933) Ran. 110, referred to 51
Abdul Hossein Zanail Abadi v. Charles Agnew
Turner, 11 Bom. 20 (P .C.). referred to 118
_____ Rahman v. Emperor, 5 Ran. 53 (P.C.) 187
Achhailall v. King-Emperor. 25 Pat. 347 356
A~.u Shikdar v. Queen-Empress. (1885) I.L.R. 11
:/' Cal. 635 192
I'
Ah Foong v. King-Emperor. I.L.R. 46 Cal. 411 ... 341
Ameen Sharif v. Emperor, I.L.R. 61 Cal. 607 341
Azam Ali v . Emperor, A.I.R. (1929) AU. 710 at 717 192
B. Narotam Das v. B. Bhagwan Dass. A.I.R,. (1934)
AU. 314. referred to 51
Ba Pe and one v. The Union of Burma. (1950)
B.L.R. 178 344
B abamiya Mohidin Shakkar and others v. Jehangir
Dinshaw Begaum Wallah, r\..IR (1941) Born.
339. followed ... 134
Baban v.. Champabai, I.L.R. (i949) Nag. 432, referred
to 112
~
Babula! Choukhani v. King-Emperor, I .L .R. (1938)
Cal. (P.C.) 295 187
.Babu Safarmal TiQrewala. v. G. M. Latimour. (1948)

B.L. R. 113. referred to . ... . 113,122
Bachoo Kandere v. Emp.er~r . A.I.R. (1938) Sindh
(F.B.) 1 .~ .. :l4
xu LIST OF CASES CITED

P AOE

Bacha Sharp Sunder Kuer v. Balgobind Singh, I.L.R.

10 Pat. 90. followed 115
Balaji Valad Raoji Colhe v. Gangadhar Ramkrishna
Kulkarni, 32 Born. 255, referred to 118
BaP.u v. Vajir, I.L.R. 21 Born. 543, referred to 98
Basangouda Yamanappa v . Emperor, A.I.R. (1941)
Born. 139 152,155
Basanta Kumar Adak v. Radha :t~:ani Dasi and
another, A.I.R. (1922) Cal. 329, referred to ... 100
Bata Shoe Co. Ltd . v. Member, Board of Revenue,
West Bengal. 53 C.W.N. p. 278 ... 366
Bhandhu a~~ another v. King-Emperor, (1924) A.I.R.
11 All. 662 192
. : .
Bharat Dhamra Syndicate v. Harish Chandra, A.I.R.
(1937)'(P.C.) 14'6, referred to 118.
J.3hpgee Ram v. JJ Ba So and one, (1949) B.L.R. 565,
.... folloWed 18
1' ' ~ ,.

-Brrola Nath Bhuttarcharjee v.. Kanti Chundra

Bhuttarcharjee, LL.R. 25 Cal. 311, referred to 100
.Bilas Kunwar v. Desraj Raj it Singh and others. I.L.R.
37 All. 557 29.&
.Biswanath Prasad v. <;?; (ctra Narayan C.howdhury.
48 Cal. 509-48 Indilan Appeals 127 . ... 245
"

Brij Indar Singh v. Kanshi Ram and another, 44 I.A.

218. followed 72.
C~ Ah Foung (a) Chow Fung Mee v. K. Mohamat
Kaka and two others, (1950) B.L.R. 346,
followed 51
c.y.N.C.T. Chedambiuain Chettyar v. Ma Nyein Me
and 'others, (1928) I.L.R. 6 Ran. 243. followed 2S.
.Calcutta Laridirig and Shipping Co. v. Victor Oil Co.
Ltd., (1944) A.I.R. Cal 84. followed 107
Ch<\nshyaih.'Lal v, RaniNarain. (1909) I.L.R. Voi. 3.1
'.An. 379 .. .221

.. referred to .'... 85
 LIST OF CASES CITED
...
Xlll

PAGE
Chelloor Mankkal Narayan Ittiravi Nambudiri v.
State of Travancore-Cochin. A.I.R . (1953) 478
(S.C.) ... . 358
Chokalingapeshana Naicker v. Achivar and others.
I.L.R. 1 Mad. 40 ... 374
Chot&lal Malthuradas, 22 Born. 936/939 379
Chuni Lal Dutt and others v. Gopiram Bhotica,
(1927) A.I.R. Cal. 275, followed 106,107
Dattatraya Vithal Garwara v. Wasudeo Anant
Gargate and others, I.L.R. 47 Born. 956,
referred to 98,102
. Darubhai Mithabhai v. Bechar Desai. ( 1925) Bom. 270 223
Daulat and J agjivan v; Bhukandas Manekchand.
I.L.R. 11 Born. 172, referred to 96
Devi Das v. Bushahr Sangh. A.I.R. (1953) Himachal
Pradesh, 110, followed 72
Dip Narian Singh v. Nageshar Prasad and another.
52 I.L.R. All. 338 ... 216
Dondoo Singh v. Sheo Narain Singh, A.I.R. (1946)
Oudh 155 276
Durga Choudrain v. Jawahir Singh Choudhri, I.L,R.
17 I.A. 122, followed 141
E Yar and one v. Teh Lu Pe, (1950) B.L.R. (S.C.)
239. referred to 87
Emperor v. Kashi Shukul and another. I.L.R. 38 AU.
695, followed ... 3
- - - v. Munnoo, A.I.R. (1933) Oudh 470 198
.- -- v. Nga Mya Maung. A.I.R. (1936) Ran. 90 ... 358
v.
Varadarajula Naidu, 33 C.L.J. 274 319
. Fakier Chan v. Kewal Ram and another. (1912), 16
I.C., followed 79
.... Gam Mallu Dora (a) Mallayya v ; King-Emperor,49
Mad. 74. .followed ... ... . J2
.
Ganesh Sahu v. Empetor, I.L.R. Vol: 50 Cat. 594 .:. . 183
XIV LIST OF OASES CITED

PAGE

Ghanshyam Lal v. Ram Narian, I.L.R. 31 All. 379,

referred to 101
Gbulam Ali v. Emperor, (1945) A.I.R. (32) Lab. 47 264
Gopal Das v. Mst. Sakina Bibi, 16 Lab. 177 246

Haji Bibi v. Mohamed Jawad Kborasamy and six

others, Civ. 1st Appeal 91 / 1952 ... 259
Hamida Bibi v. Ahmed Husain, 31 All. 335 161
Har Prasad Tewari v. Sheo Gobind Tewari, A.I.R.
(1922) All. 134 214
Hari Charan v. Kansbiki. 44 C.W.N. 530 (537) 379
Hok ~ Gwan v. Aung Wun Tan. (1949) B.L.R. 647 237,
Hook v. AdministratorGeneral of Bengal and others,
48 I.A. 187 258
Hurro Prasad v. Gopal Das. 9 Cal. 255 276
Hwe Eye Hain v. ::l'he King, (1948) B.L.R. 40. followed 6

In re. South American and Mexican Co., (1895) 1 Ch.

D. 37, distinguished 19
Ishan Chunder Sarkar and one v. Beni Madhub.,...,...
Sirkar,. I.L.R . 24 Cal. 62, followed ..,.. 122
Jaffri Begam v. Amir Muhammad Khan," I.L .R. 7
All. 822, followed . ; . 30
1ag~nnatha Sastri v. Sarathambal Ammal and two
others, I.L.R. 46 Mad. 574, referred to 125
Jago Mabton v. Khirodhar Ram, 2 Pat. 759 258
Jaj Singh and other.> v. Emperor, A.I.R. (1918) Lab.
148 188
Jarbandhan " -Badri Narain and Musarnmat Ram
Rati. 45 I.L.R. All .. 621 214
Jatindra Mohan nas v . . Khitpatinath Mitra and
u another, 84 C.L~J.
-~6~. distinguished
. ....
115
1ethalal Vitajlal v. The : St~te of M~dhya:.Prad~sh,
.; A~I.R! (1953) Nag.:.194 :. . .... . .,.. 365
 LIST OF CASES . CITED XV

PAGE

Jinilal Mandai v. Chandardeo Prasad and others,

A.J.R.. (1941) Pat. 420, followed... .. . 4
John Wallingford v. Mutual Society, 5 A.C. 697,
referred to 117
K. M . Modi v. Mohammed Siddique and one, (1947)
R.L.R. 423, followed 36,37.41
K. Ramaraju Tevan and another v. Emperor, A I.R.
( 1930) Mad. 857 187
Kailash Missir v. Emperor,A.I.R . (1931) Pat. 105 334
Kalidas Chaudhuri v. Prasanna Kumar Das, 47
Cal. 446 . . . 258
Kali Prasad Tewari v. Parmeshwar Prasad Marwari,
A.I.R. (.1929) All. 127, referred to 51
Kasarabada Venkatachalapathi Rap v. Gadiraju
Venkatappayya and another, 55 Mad. 495 258
Kessarbai v. Jethabhai Jivan, A.I.R. (1928) (P.C.)
277, referred to 68
King-Emperor v. Ba Pe, 4 L.B.R. 143 180
v. Tha Byaw, 4 L .B.R. 315 180
______ v. Tun Gaung, 3 L.B.R. 2 180
- - -- -- v. Bishun Singh, I.L.R. Vol. 3, Pat. 503 183
Ko Aye and one v.Rasul Bibi and three others, (1951)
B.L.R. 288. followed :- :.~~~ 23
__ Wah Nah v. Ko Tun Sein and two others.-(1951)
B.L.R.. 188, followed 56
Krishna Prasad Singh and one v. Ma Aye and
others, I .L.R. 14 Ran. 383, referred to 84
Lala Go bind Prasad v. -Lala Jugdap Saban, I.L.R. 4
Pat. 345, referred to 100
v. Lala Jugdip Sahay, (1924)
I.L.R. 4 Pat. 378 223
Lakshmana Doria and others v. Arunagira Cbetty,
A.I.R. (1932) M_ad. 495 237
___Sahli v. M: Simachala Patra, A.I.R. (1941)
Pat. 211 ... . . . 174
 XVl LIST OF' CASES CITED

PAGE

M. Palaniappa Chettiar v. Narayanan Chettiar, A.I.R.

(1946) Mad. 331, referred to 125
Ma Aye Tin v. Daw Thant, A.I.R. (1941) Ran. 99 ... ;, 171
-~ E Mya and another v. U Pe Lay and others, 3
Ran. 281 230
--Maw v. Maung Yan Han, I.L.R . ,.;1 t __ Ran. 68 288
-~ Pyu v. K. C. Mitra, I.L.R. 6 Ran. 586 297
_ .Naw Naw and one v. V.E.S.S.M. Somasundran
Chetty. I.L.R. 2 Ran. 655, referred to 50
-~ Than Yin v. Tan Khat Kheng (a) Tan Keit Sein,
(1951) B.L.R. 161. distinguished 51,126
Madan Mohan Singh v. State of Utta Pradesh,
A.I.R. (1954), 637 (S.C.) 358
Mahabaleswarappa v. Gopalswami, 36 Cr. L .J. 895 379
Mahammad Sultan Mohiden Ahmed Ansari v.
Amthul J~llal, A.I.R. (1927) Mad. 1102 174
Mahomed Chootoo and others v. Abdul , Hamid
Khan and others, 11 Ran. 36, followed . 119
Makhan Lal Kala and. another v. Girdhari Lal and
another, A.I.R. (1952) All. 421. referred to . ... 112
Mangi Lall? Emperor.A.I.R. (32) (194~)AlL .98 ..... 315
:M aung <;,}}.it Maung ~nd one v. Daw Saw, Civ. Rev.
No. 56 of .1952 '(H.C.) . 224
___ Chit and another v. Roshan N.M.A. Kareem
Oomer & Co., I.L.R. 12 Ran. 500. referred
to 87
_ _ Han and others v. The King, (1947) R.L.R.
371 . 194
___ Han Thein v. The Commissioner of Police,
R~ngoon, (1950) B.L.R. 45 ... 236
---. Han Thein v. The Commissioner of Police,
Rangoon and two others, (1950) B.L.R:.
. (S.C.) 45 ... . ... . . 265
. ..
:
. --Khin Maung v. Daw Hla Yin and <;me, (1948) ,

B.L.R. 481, discussed ._...

 LIST OF CASES GITED xvu
PAGE

Maung Maung Gyi v. The Union of Burma, Criminal

Appeal No. 452 of 1954 152
- - - Po Chit and one v. The Union of Burma,
(1948) B.L.R. 175 197
___ Po Kin and one v. Maung Tun Yin and two,
4 Ran. 207 230
___ Po Kin and two v. Maung Shwe Bya, 1 Ran.
405 228
...,___ Po Tu v. The King, (1938} R.L.R. 143 265
___ Po Thit v. Maung Pyu. I.L.R. 8 Ran . 654 380
___ San Myin v. King-Emperor, I.L.R. 7 R an. 771 340
___ Seik Kaung v. Maung Po Nycin, 1 L.B.R. 23
at 28 229
_ _ Sein Ba v. Maung Kywe and others, 12
Ran. 55 230
___ Shin and two others v. The Union of Burma,
( 1948) B.L.R. 425 II 356
___ Shwe Ywet and others v. Maung Tun Shein,
11 L.B.R. 199 ... 229
_ _ Shwe Phoo and eight others v. Maung Tun
Shin and three others, 5 Ran. 644, referred
to ... 46
.- - Shwe Myat v. Maung Po Sin and one, I.L.R.
3 R an. L83, referred to 84
_ _ Tun Gyaw v. Maung Po Shwe, 11 L.B.R.
351 173
Messrs. Importers and Manufacturers Ltd. v. Pheroze
Framroze Taraporewala and others, A.I.R.
(1953) (S.C.) India 73; followed 113
Mi Thi Hla v. Mi Kin, (1914-16). 2 U.B.R. 55 ... 308
Midnapur Zamindary Co. v. U-ma Charan Mandai,
23 C .W.N~ 131 followed 142
- Mitar Sen Singh v. Maqbul Hasan Khan and others.
. .57 I.A. 313; A.I.R. (P.C.) (1930) 251, followed 28
Mohammad 'Khalilur Rahmap. Khan v. Mohammad.
. Muzammililullah .Khan, 33 A.I.R. All. 466 -... ~15
 XV Ill LIST OF CASES CITED

PAGE

Mohammad Muzaffar Husain v. Madad Ali, A.I.R.

(1931) Oudh 309 214
- - - - - Shakur v. Gopi. 35 Indian Cases 202 21,.5
Morali and six others v. King-Emperor, (1907-08).
4 L.RR. 277 308
Mrs .. Lall v. Rajkishore Narain Singh, 13 Pat. 86 ... 259
Mt. Sarja and another v. Mt. Julsi and another,
, A.I.R. (1926) Nag. 93 245
Muhammad Aliyar Muhammed v. Shamsul Hao Pi
Zialdin Shah and others, A.I.R. (1940) Sindh 33 362
Mulchand and another v. Madho Ram, 10 All. 421 112
Mulraj Virji v. Nainmal Pratapmal and others, A.I.R
(1942) Born. 46, followed 135
Mungul Pershad Dichit v. Grija Kant Lahiri, I.L.R.
8 Cal. 51 (P.C.) 258
Muthu Erulappa Pillai and another v. Vunuku Tha-
thayya M~istry, A.I.R. (1917) L.B. 179 (2) 375
N~ A. Subramania Iyer v. Emperor. (1902) 25
Mad. 61 187
N-A-V-R. Chettyar Firm v. Maung Than Daing, 9
Ran. 524. referred to - . 47
Nadesan Chettii.ar v. Shankaran Chettiar. 5 Ran. 600 276
Nafar Chandra Pal v. Shukur and others. 45 I.A.
18-3, followed 140,l41
Nam Narain Singh v. Lala Roghunath Sahari, I.L.R.
28 Cal. 257, referred to 100
Nanoo Sheikh Ahmed and another v. Emperor,
I.t...R. 51 Born. (F.B.) .78 34f
Nasu Meah v. King-Emperor. 2 Ran. 360 180
Neale v. Gordon Lennox, (1902) A.C. 465, disting- .
uished ;. . 19
Nga Po Yin v. King-Emperor, (1904--06), l U.B.R. 3 356
Noor Ali Cbowdhuri v. Koni Meah and others. 99,100.
. (1886) I.L.R.l3 Ca~ ...13 . . .. 101.223
Nom Narain Sing~ v. Lal~ R oghunath Sah.a i. (1.895j
I~L.R 22 Cal. 467 . . . . 224
 LIST OF CASES C!TED XlX

PAGR

P. C. Thevar v. Samban and others, I.L.R. Ran.

Vol. 6, 188 373
P. D. Patel and one v. Messrs. The Central Bank of
India Ltd., Civ. Revision No. 73 of 1948 (H.C.) 240
P.K.A.C.T. Chockalii1gam Chetty v. Yaung Ni and
others, 6 L.B.R. 170 228
Palani Goundan and another v. Emperor, A.I.R.
(1925) Mad. 711 198
Pancbu Sahu v. Muhammed Yakub and others,
A.I.R. (1927) Pat. 345, referred to 100.223
Pavana Reena Saminathan and another v.Pana Lana
Palaniappa, (1913) I.A. 142 87
Pir Hasan Din v. Emperor, A.I.R . (1943) Lab. 56 152
Po Mya v. King-Emperor, 7 L.B.R. 272 180
Pulukuri Kottaya v. King-Emperor, I.L.R. (1948)
Mad. (P.C.) 1 188
Puran v. The State of Punjab. A.I.R. (1953) 459 (S.C.) 358

Raj Kishore Tewari and others v. Emperor, A.I.R.

(1949) All. 139 187
Raja of Ramnad v. Velusami Tevar, I.L.R. 48
LA.~ ~8
Rajagopalu Pillai v. Kasivisvanathan Chettiar. I.L.R.
(1933) Mad. 705, followed 126
Rajani Kanto Das v. Daval Chand De and others,
A.I.,R. (1950) Cal. 244, distinguished 115
Ram Charan v. Lakhi Kant, (187.1) 7 B.L.R. 704 ... 220
__ Kala v. Emperor, A.I.R. (1946) All. 191 152
__ Kirpal v. Rup Kuari, 6 All. (P.C.) 269-11
A.I. 37 257
__ Kumar Das v. J agdish Chandra Deo and others,
(1952)'A.I.R. Vol. 39 (S.C.) 23, followed 108
__Raj Dassundhi v. Mt. Umraji and another,
A.J.R. (1926) AU .. 345. referred to 51
Rama Mudali v; Marapp~ Goundan. .A .r.R. (1934)
Mad . 638 .. . 256
 XX LIST OF C'ASES CITED

PAGE

Ramaswami Kone v. Sundara Kone, (1907) I.L.R.

Vol. 31. Mad. 28 221
- - - - Kona v. Sundara Kona, (1907) I.L.R. 31
Mad. p. 28 ... 96,100,22 1
Ramkissendas and another v. Binjraj Chowdhury and
another, I.L.R. 50 Cal. 419, referred to 112
Ramkrishna Chettiar v. Javarama lyer, A.LR.
(1933) Mad. 778 27E
Ramnarain v. Basudeo, 25 Pat. 595 ... 259
Ramswami Goundan v. Emperor, I.L.R. 27 Mad. 271 333
Ranendramohan Tagore v. Kashebchandra Chanda,
I.L.R. 61 Cal. 433, referred to ... 8~
Rangoon Telephone Co. Ltd. v. Union of Burma,
(1948) B.L.R. 527, followed 4(
Re~ Someshwar H. Shelat, A.I.R. (1946) Mad. 430 341
Rev. Chit Pe v. Ma Khin Sein and one, (1951)
B.L.R. !31 ... 29(
Rex v. Daya Shanker Jaitly, I.L.R. (1950) All. 1256
at 1274- 18~

Richards v. Swansea Improvement & Tramways Co :,

( 1878) 9 C.D. 425, followed 5!
Robert Stuart Wallchope v. Emperor, (1934) I.L.R.
VoL 61. cal. 169 ... lT
Rudragouda Venkangouda Patil v. Rasangouda
Danappagouda Patil, A I.R. (1938) Born. 257,
refefred to 6:
Rup Chand and others v. Shamsh,.ul-Jahan, (1889)
I.L.R. 11 All. 467 . ..
S,. M. Hashim v._J. A. Martin. 4 Ran. 562
S. Periayya v. Kyaw Leong Tong Society, (1947)
B.L.R. 190, dissented from 11
-s. Raja Ch~tty and another v. Jaganriathadas
Govindas and others, A.I.R. (37) (1950) Mad.
284 . . . :.. 20
. . '

.. S.P-.K.N. Subramanian Finn v. M. Cb,i~;ambr~ri

.Servai, A.I.R. (1940) Mad. 527 . . .. 28
 LIST OF CASES CITED xxi
PAGE

S. Venkatasubbaiver v. S. Krishnamurthy, 38
Mad. 442 145
Sahu Anand Sarup v. S. Taiyab Hasan, A.I.R. (1943)
All. 279, referred to 41
Saiyid Jowal Hussain v. Gendan Singh and others.
A.J..R. (1926) (P.C.) 93 220
Saleh Ebrahim v. Cowasjee, A-I.R. (1924) Cal. 57 208
Satish Chandra Ray Chaudhury v. Bimalendu Sen
and another, A.I.R. (38) (1951) Assam 27 209
Satwaji Balajiray Deshamukb v. Sakharlal Atmaram-
shet, (1914) I.L.R. Vol. 39 Born. 175 97,98.100
101.222
Sei Cheng v. U Thein,. (1948) B.L.R. 600, referred
to 61
Sein Hla v. The Union of Burma, (1951) B.L.R. 289 155,187
Shamsh-ul-jahan Begam and another v. Ahmed Wali
Khan. 25 All. 337 . .. " 172
Shankar Sahai v. Emperor, A.I.R. (1930) Oudh 404,
followed 3
Sheo Narain Singh v. Emperor, (1920) 58 Indian
Cases 457 151
_ Swarup and others v. King-Emperor, 56 All.
645 (P.C.) 357
Sher Mohamed v. Emperor, A.I.R. (1945) Lab. 27 152
Shwe Po v. Maung Bein, (1914) 8 L.B.R. 115 . .. 230
"'

Sin Tek v. Lakhany Brothers, Civil 1st Appeal _19

of _1951. (H.C.J, referred to 55
.-siva Dass Dey v. Ashabi and one, I.L.R. 3 Ran. 471,
followed 51
Sufal Gola~ v. Emperor. A.I.R . .(1938) .Cal. ~05 ... 314
T. H. Khan v. Dawood Yusoof Abowath and others,
( 1947) R.L.R. 354. referre<;l to ... 42
T4_i Chuan . & Co. v.. Chan Seng_ Cheong, (1949)
B.L.R. 89 200 .
---- Chuan & Co. v. Chan Seng Cheong. (19~9)
B.L.R . .86 (S.C.) 372
 XXll LIST oF CASES CITED

PAGE
The King v. Ba Ba Sein, rt938) R.L.R. 227 305
_ Public Prosecutor v. ~i~.: 1aipati Gurappa Naidu.
I.L.R. 57 Mad. 85 . . . 308
_ Secretary of State v. Fahamidannissa Begum
and others, I.L.R. 17 Cal. 590, followed 91
Thillai Chetti v. Ramanatha Avvan, 20 Mad. 295 162
U Ba Hlaing v. Ballabux Sodani. (1936_47) 14
Ran. I.L.R. 633 264
- E Mauilg v. P.A.R.P. Chettyar Firm. 6 Ran. 494 145
_ Ko Yin v. Daw Hla May, Special Civil Appeal
No. 1 of 1949 200
_ Paw Tun Aung & Co. v. Abdul Razak, (1948)
B.L.R. 182 240
_ Po Thein and others v. O.A.O.K.R .M. Firm.
I.L. R. 5 Ran. 699 .. . 374
__ Pyin Nya and another v. Maung Tun and another.
P.J.L.B. 6'15 . 72
_Saw and nine pthers v. The Union of Burma,
(1948) B.L.R. 217 .. . 344
_ Soe Lin v. The Union of Burma. Cr. Rev. No.
45-B of 1953 340
V. K. Vaivapuri Chetti v. Sinniah Chetty, A.J.R.
(1931) Mad. 17 237
\

Vaidyaunatha lyer and others v. Suppalu Aurmal

~nd others, 15 Cr. L.J. 669 . 362
Veerayya v. Sreesailam, A.I.R. (1928) Mad. 556 .
referred to .. . 51
Walter Mitchell v. A. K. Tennent, 52 CaJ. 677, .
;;;.;., _!eferred to 84

-
. Wali Mohammad and others v. Mohammad Bakhsh ',
.
and others, 57 I.A. 91, followed 141
. z 'a far ; Ahsim v. Zuba:ida Khatum, A.I.R~ (1929)
All. 604 . . .. . ....
. . :'
 BURMA LAW REPORTS ..

APPELLATE CRil\tliNAL.
J:Jt:forc U F>a 1'ilomg, J.

ABDUL SALAM (APPELLANT) H.C.

1955
v.
Feb. 2.
T HE UNION OF BURMA (RESPONDENT).*

Colllpiaillt drafted by /a;,ycr laid before Courf -..J'roccss rmdcr s . ."07, l'cnal
Code isSIIt!ti - _-lccttscd c/t ,~rg,cci. 11nder ss. 352, 448 and .')O.'i, l'cnal Code.
ultimately acquitted- Criminal Proccrl11re Code, s. 250-ComP/ain<tnl
ct~lled 11-pon by Conrl to show c,wse a.gains! payment of compensalio11-
Cri111i1tal 1'1'0Ct'drm: Code, s. -176- Prosccutiott of cowplainanf under
Pe11al Code, s. 211, pet it ion bY acq!rit/t'd a cwsed -Complaint by Court,
requirements.
p '

Held: When complaints under s. 476 are made, the officer making them
mus t state the evidtm:e on which he relies, otherwise the Magistrate to whom
lh<.: case is referred has no mea:1s of asc.!rtaining wh:tt the evidence is on
\\'hit:h the ptose ~u til) is based. Similarly a Civil Court is bound to set forth
the specific assignm<nt cf perjury.; failure to do so is a materi::l irregularily
within the mer-_ning of s. 115, Civil Procedure Code.
SllankarSal!ai ,-,Emperor, A.I.R. i1930J Oudh 404; Emperorv. Kaslli
Shttkul and a11other, I.L. R 38 All. 695, followed,
Held also: Failwe cf a complainan-t to prO\e his case may result in lhe
acquittal of the aCCl:sed, but it will not by itself warrant his prosecution for
bringing a fa.lse case.
Ji1tilal M,mdal v. Cllm1dardeo P1asad a.11d ot !zers, A.I.R. (19111) Pat. 420,
followed .
Held fttrllrer: Inordintite de'ay in making r.pplication for action under
s. 476, Ctiminal Pr. ce:dure Code, as well as where there is no reasonable
probability of a conviction, and where the application i~ made not in the
inter.ests of justice bttt to satisfy a pri\'ate grudge, are grounds for the Court
to reject s~;ch an al plication.
Hwe Eye Hain v. Tlte Killg, (1948) B.L.R. 40.

Aung Min (1) for the app~llant.

* Crimi~al Appeal No. 394 of

1954 being an appeal from the order of the .
5th Adell. M:agistrate, Rangoon, in Criminal Misc. No. 36 of 1954.
2 BURMA-- LAW REPORTS. [1955

H.C. Ba Gyaw (Government Advocate) for the

1955
respondent.
ABDUL
. SALAM
--
J

t. U BA TROUNG, J.-The appellant filed a

T HE UNION
oF BuRMA. complaint against one U Shwe Hpaung under section
307, Penal Code in the Court of the 5th Additional
Magistrate, Rangoon, in Criminal Regula( Trial No.
225 of 1952. The learned Magistrate after issuing
process under section 307, Penal Code was succeeded
in his place by another Magistrate u Kan. U I<an
in trying the case, charged the accused U Shwe
Hpaung under sections 506, 448 and 352 of the Penal
Code, and after trial acquitted the accused, classified
the cage as false, and called upo11 the appellant to
show cause under section 250 of the Criminal
Procedure Code why he should not pay compensation
to the accused. After passing that order uKan was
transferred and another Magistrate U Saw Lwin
succeeded U Kan as the 5th Additional Magistrate~
Rangoon. While the matter under section 250 of
the Criminal Procedure Code was pending, the
accused U Shwe Hpaung applied under section 476 of
the Criminal Procedure Code in Criminal Miscella-
neous Trial No. -~6 of 1954 of the san1e Court,
asking for prosecution of the appellant under section .
211 of the Penal Code. Then on the 3rd July 1954
the learned. .5th Adtiitional Magistrate called upon
the appellant to show cause why he should not pay
compensation to the accused, and on the same day
he passed an order, in Criminal Miscellaneous Trial
No. 36 of 1954, that an action should be taken
against the appellant under section 211, Penai 'Code;
and accordingly on the 8th July 1954 th~ Sth
Additional Magistrate, Rangoon, .filed .a complaint
..before the District Magistrate, Rangoon, charging
. . . the appellant u nder se~tjon . 211 , Penal Code. .The
1955] BC R ~IA LA\V REPORTS. .3

complaint was forwarded to the Court of the 2nd H.C.

1955
Additional Magistrate, Rangoon, for disposal, and it
ABOU!.
is now pending there as Criminal R egular Trial No. SALA~I
-414 of 1954 as the appellant has come up on appeal 11.
THE UNION
against the order dated the 3rd July 1954, passed by OF BU!~MA.

the 5th Additional Magistrate, Rangoon, in Criminal U BA

~Miscellaneou.s Trial No. 36 of 1954, for an action to 'l'HOUNG, J
.be taken under section 211, Penal Code against the
appellant.
It is to be n1entioned here that neither the
a pplication filed by U Shwe Hpaung in Criminal
Miscellaneous Trial No. 36 of 1954 nor the order
.dated the 3rd July 1954 passed in it by the learned
.M agistrate has specified or pointed out which of
the statements of the appellant in Criminal Regular
'Trial No. 225 of 1952 were fa.lse and for which the
app~llant was to be prosecuted; and c.onsequently
the 2nd Additional Magistrate, R angoon, before
wholn the case is now pending, has no tneans to
ascertain on what evidence .the prosecution has based
i t's case . .) :n tp.e" cas:e of Shankar Sahai v. Emperor
-( 1), it .haS"."been held that :
.. .
~ Whe~ .complaints 'llnder section 476 are made, the officer
making them must state the evidence on which he relies ;
otherwise... ..the Magistrate to whom the case is referred for
.decision haS"'no means . of ascertaining what the evidence is on
which t4.e' ptos~cution case is ba~ed. ,, . .
. : . .

It has :t'~ held . also .i~ the case of Emperor v.

Kashi s~.id,ul P,nt;i an_otJ:er (2). that:
+' When a. Civil . Court makes an. order under . secti.on 476.
Criminat;=P~ocedu.ie CQ~e : directing that a person should qe
.prQsecut~d for perjury, such co.u rt is bound to set forth in its
order th~-' :specific assignment o f perjury alleged agajrist. the
accused:.:;: .~ailure to :do ...so. is a material irregularity withj~ th~
meanint\of. . section us .of the . Co4e. of Civil P~;ocedu~e/' .
(1)' : A!.R
. . .(1930) .Oudh 404. . (2) I.L.R. 38 All . p ."695.
4 BURMA.. LAW REPORTS. [195$

H.C. It ~ppears from the order dated the 3rd July 1954 of
1955
the 5th Additional Magjstrate, that he came to the
ABD U L
SA tAM
conclusion that action under section 211, Penal Code
v. should be taken against Abdul Salam (appellant)
TIIE UNIO N
OF B UH~iA, because none of the offences -t:~e-~.ged against U Shwe
u BA Hpaung was found to have been committed by the
THout\c, J. lattes who was acquitted. This ~itself is not a
sufficient ground to take action under section 211 ,.
Penal Code against the appellant, and I am fortified
in this view by the case of Jinilal Manda! v. Chandar-
deo Prasad and others {1) where it has b-een held.
that:
. . .
" The failure of a co.m plainant . to _prove his case may
result in the dismissal of his complaint: or at later' ste:iges' in
the discharge or acquit'tai of. the accused ;. but' it ' will . not by
itself warrant his prosecution for brin'ging a false case~ "

In the epresent case it is true that u: Shwe:

Hpaun_g was acquitted of the charges under section
506 (2), _448 and 352, Penal Code but it must be-
remetn bered that he was charged under those :sections
because there was a prima -facie cas:e "'m ade out
again-s t him: ._ . _ .. _'
The next thing to be considered: is whether the:
lear~ed -~~h Additional Magistrate (U Sa~ 1 :L~i.n),. in _
passmg ~~~ order dated the 3rd July 1954 n\'Cnm1nar
Miscellaneous Trial No. 36 of . 1954, has exercised
his discretion properly to file a complaint : under
seciion 476~ Criminal Procedure Code to tak.e.-action.
und~r section 2.1t'i>enal Code against the appellant:
. Abdul Salam=; a11q in this I am . of the opini.on_ that
_he has not an d:could not have _exercised his , discn~--
. tion properly, , because he W3;S Cle~rl)r__' Under
. mi~GJ.pprehension . that . the. a ppellant . Abdul--Salam
laid..- the con1plaint : ag~inst .u Shwe Hpau~g . Qnder
.
.. . . . . ~-- . . . . __.:.____ .
' (1.: A:I.~~ (l Q4'1}Pat. 419 at 420.
 1955] BURMA LAvV REPORTS. 5
section 307~ Penal Code with an mala fide intention that H.C.
11)55
in the event of the Court taking cognizance against
the accused under that section, the latter could not ABOUT,SAI.A~t
be enlarged on bail or at least that he would have v.
THE U N!ON
little chance of being enlarged on bail. The learned oF Bui~MA.
Magistrate was not justified in surmising like that,
be.cause when the complaint was filed by the
appellant against U Shwe Hpaung in Criminal
Regular Trial No . 225 of 1952, the complaint was
drawn up by his lawyer, and an ignorant person like
the appellant could not have such intention, nor
Could he have named section 307, Penal Code unde:r
which the charge should be made against U Shwe
Hpaung. In fact it will be seen from the facts stated
in the written compl~int that U Shwe Hpaung could
only be tried under sections 506 and 352 of the Penal
Code and the learned 5th Additional .Magistrate
(U Kan) should have i$sued process under t~ose
.sections only and not under section 307, Penal Code.
It was.the tnistake of both the appellant's lawyer and
the Magistrate .for issuing process under section 307,
.Penal Code, and the learned 5th Additional
Magistrat~ U Saw Lwin who succeeded U Kan should
:not ha:ve been so bjased against the appellant because
in the)ir.st instance process was issued for an alleged
offence under section 307, Penal Code.
U Sh:we Hpaung stated in his evidence that he
possessd a revolver or pistol and it also appears
from the evidence of the defence witness Ko Than
.N we (DW 3) that U Shwe Hpaung abused the
.appellaJ;J.t and c.a ught hold of the appellanCs
neck and pushed him and so what had been stated in
the appellant's c01nplaint that U Shwe Hpaung abused
hini, caught .l iold of the neck and pushed him is ~1o.t
wi,~hou~ :folind~tion and . the appellant's complaint
was .not'- false as ~as been tried to be made out.
6 BURMA LAW. REPORTS. [1955
H.C .
1<)55
Therefore judging from the facts of the c~1se also, it
is not probable that the prosecution would be.
AHDt:L
SAJ..AM successful, and as such the compl ai nt should not.
v.
THE ~NI0N
have been filed. In the case of fJ~;ve Eye Hain v. The'
OF BuRMA. King 0), it has been hel-d that:
u
B.~
"Where there has been inordinate delay in. making
THOUNG,J.
application for action under section 476, Criminal Procedure
Code the court should not entertain such an application.
Complaint should not be filed unless there is a reasonable
probability of conviction ."

It can also be made out from U Shwe Hpaung's

evidence that there has been an enmity and feeling
of hatred between hin1 and the appellant artd ~o it
will not be unreasonable to take it that U Shwe
Hpaung moved the Court to prosecute the appellant,
not in the interests of justice but in order to satisfy
his grudget against the appellant as the latter had
instituted criminal proceedi'ngs against him.
For the above reasons I set aside the order of
the 5th Additional Magistrate, Rangoon, dated the-
3rd July 1954 passed in Criminal . Miscellaneous
Trial' No. 36 of 1954 and direct the withdrawal of
the complaint. .

. {1J (1948) B.L:R: p. 40i. :. .

 1955] B U R l\IIA LAW REPORTS . -I

APPELLATE CRIMINAL
' Hc f v;, C San Jfaun g and. L' Ba Thou a~, JJ.

BO 00 SEIN AND FOUR OTHERS ( AP PELLANTS)

v.
No v. "
THE UNION OF BURMA (RESPONDENT). *

Higlt Trcaso12 Act, s. 3 (! ' -Waging 1CJat' again st (;cvcrnmwf , conti11uin g

o/fencc-Co1mnttn itJ of Purpose attd contin?J-ily of action-- Comict ion in
three seParat e tritTls f Clr three distinct offcnccs-OIIc con solidated trial
only nccessary--Cr im r"ual ] Jr ocedurc Code, s. 403- A.ulre fois convic t.
.. . . . . t .... J. ! .. : ...... 1.. "

CORRECTION

In 1955 Burma Law Reports, High Court

section , p lease read:
" M yint Htun, Aung M in (2) and A y e
Maung" for .'' M yint Htun and Aye
Maung ", at page 7, and "Aung Min
(2)" for '' Aung M!n (1) "atpage 14.
" - .. .. .
U SAN .MAUNG, J._ln Criminal
.......
Trial
~

Regular.
No. 65 of 1951 of the Sessions Judge, Yenangyaung,
sitting as . Firsf Special Judge, Bo Oo Sein, Bo Ky~r,
Bo Mortar (a) Maung Aye, Bo Aye Saung, Bo Nyan
Win (a) Saya Ba Than and Maung Hla Maung were
convicted under section 3 (1) of the High Treason Act
for committing high treason by waging war against
the Union _o f Burma and were se ntenced to death. On
appeal by these accused to this Court against their
convic~ons and sentences the conviction on Maung
Hla Maung was altered to one under section 4-(1) of
the High Treason Act and the sentence red-uced
"' Criminal Appeals Nos. 338 to 341 and 342 to 345 of 1954 ~gainst the
orders of th Special Judge, Yenail_gyaung~ _-in Crirrinal Re gular T rial Nos. 66
()' 1951 and 5 of 1952. . . .
8 BURMA LAW REPORTS.

H.C. to ten years rigorous imprisonment, while the convic-

1954
tions and sentences on the rest of the accused were
B,~N~o F~~~N confir~ed in Criminal Appeals Nos. 332 to 337 of
oTHEr<s
v.
1954. There it was held that the action of Bo
THE UNioN Oo Sein and four others, who. were convicted under
OF BUHMA,.
section 3 (1) of the High Treason Act, in seizing the
U SAN
MAt:NG, J. town of Yenangyaung and setting up a parallel
Government, constituted waging war against the
Union of Burma, for which they were liable to punish-
ment under section 3 (I) of the Act. In Criminal
Regular Trial No. 66 of 1951 of the same Court Bo
Oo Sein, Bo Kyar, Bo Mortar (a) Maung Aye, Bo Aye
Saung and Bo Nyan Win. (a) Saya Ba Than were
again convicted under section 3 (1) of the High
Treason Act for the clash between the White Yebaws
and the Government Forces at Thitcho e1i route to
Magwe which the \Vhite Yebaw.s seized on the 25th
February, lc949, two days after the seizure of Yenan-
gyaung. In Criminal Regular Trial No. 5 of 1952
of the same Court the same accused were convicted
for a third ti1~e under section 3 (1). of the lligh
Treason Act for waging war against the Union of
Burn1a by the seizure of Magwe and the setting up
of a parallel Goveniment 1n . that town .. The
accused have appealed against their convictions and
sentences in these two cases andas the facts involved
in .them being closely connected and the point o{law
requiring consideration being the same, the two sets
of appeal will be dealt with in the san1e judgment.
. In Criminal Regular TriaJ No. 66. of 1951 the
learned .Special Judge prefaced his judgment with the
. following remarks:" The _episode. at Thit-cho is to
be interpreted in the light of what had taken place at
Yenangyau.ng and Magwe, as it formed . part of the
:-general scheme ~n the .insurre.c tion of the: White Band
Y ebaws. " . T .herefore,. it . is obvioqs that.the incidents :
1955] BURl\1A LAW REPORTS. 9

which occurred at Yenangaung, Thitcho and Magwe H.C.

1954
were in the course of the same transaction in that they
were the various incidents occurring in the insurrection Bo uo SE1~
AND FOUl<
of the White Band Yebaws. The three incidents were OTHERS
also closely connected in point of time as Yenan- THE v.UNION
gyaung was seized on the 23rd of February, 1949, OF BURMA.
the incident at Thitcho occurred on the 24th of MAUNG, V SAN
J.
February, 1949 and Magwe was seized on the 25th of
February, I 949. The community of purpose and the
continuity of action disclosed in these three major
incidents \Vi1J. be clearly appreciated if a brief
resume of the facts is given.
In the year 1948 there was a split in the
Peopl~'s Volunteer Organization commonly known as
the Pyithu Yebaw Aphwe into two sections, one
known as the Yellow Band PVOs who were in support
of the Government and the other known as the White

Band PVOs who went underground: Later
there .were some negotiations between the
Govern1nent and the White Band PVOs with a view
to arrive at an agreement to resist the K.NDOs
who were regarded as the COlnmon enemy. In
these cirqumstmces so1ne of the White Band PVOs,
including the accused in the present cases, who had
been underground, again made their appearance.
About 7 days before the fall of Yenangyaung on the
23rd of February, 1949, there was a talk between the.
leader~ of the White Band PVOs of YenGl:ngyaung and
the local administrative Officers regarding the help
which the White PVOs should give the Governn1ent
to resi~t the KNDOs who were.at Meiktila. However,
the Divisional Commissioner U Ba Sein and his
deputies ~id not entirely trust the White PVOs, so .
that arrangen1ents were tnade to bring the goods
Of .tl~e Civil Supplies Department lyi~g at Kyauk~
.
padaung . to Yenangyaung..
When this decision was
10 BURMA LA\V REPORTS . [1955

it~ . n1ade known to the White PVOs they came out

in their true colours. The goods brought fro m
B:_..., 1 ?c~,~~:~N Kyaukpadaung to Ye nangyaung were intercepted
0 '1'.1-liCHS
'l/ .
by them en route. On the same evening the White
'fH g U NION PVOs under Bo Oo Sein and Bo Kyar who
OF B URM A .
were reinforced by the contingent from Kyaukpadaung
M~~A:, J, attacked the Myon1a Police Station at Yenangyaung,
seized anns and ammunition belonging to the Police,
seized the Treasury also and the anns in the possession
of the Union Military Police at Yenangyaung. The
local Officers were put under house arrest. Ther~after,
although there was some rapprochement for co-
operation on the part of these Officers no workable
~rrangen1ent could be arrived at, as the White PVOs
insisted upon the Officers' renouncing their allegiance
to the legal Government. Some of the Officers, as .
for instance the Additional Deputy Inspector-General
of Police "tJ Thin, were later put under close arrest.
After the fall of Yenangyaung on the 23rd of-February,
. 1949, the legal Government ceased to function in that
town. On the next morning, .
namely 24th February '
1949, the White Yeba ws left Yenangyaung for Magwe
inabout 50 buse~ and trucks: On arrival at Nyaungdo
bridg~, 5. miles to the south of Yenangyaung, the
vehicles were stopped and arms distributed. In the
meantime Bo .Thein M aung, who was second in
cohin~and of the levies stationed at Magwe, being
anxious about the n1en whon1 he had sent for inform-
ation from Yenangyaung left Magwe for Yenan~
gyaung with two con1panies of levies. Near Thitcho
he was ambushed
.. . .from
. behind the trees
. . . . and in the
course of the encounter two or three persons from
the opposite side were ~aptured and they were found
to be White Y eb(lws~ Sub.seq uently; . Bo Thein
Maung sent a messenger with a . inessage. on a
Red Cross jeep to Bo Kyar because of a... previous
1955] BURMA LAW RE,PORTS. 11

understanding between the Y ebaws and the Govern- i .C ~

l 'l5t
Inent Forces for mutual help in the fight against the
KNDOs. This was followed by a meeting between Bo uo
A:-,:1 > fO l.l(
:_;P. c\
Bo Thein Maung and Bo Kyar, Bo Oo Sein and Bo oT H ERs
'L'.
Mortar at which the White Yebaw leaders informed TilE t: ~IOK
OF B UWitA .
Bo Thein Maung that ihey had taken Yenangyaung
and seized the firearms from the UMPs besides the l: :'.A!\'
MAI::\G , J.
n1oney in the Treasury. While this conversation was
in progress there was a fresh outbreak of firing
between the White PV Os and the levies and the
engagement lasted about 4 hours between 2 p.m. and
6 30 p.m. . The levies then withdrew to Magwe while
the Yebaws spent the night at Daung-thay, midway
between Yenangyaung and Magwe. The next day,
namely the 25th of February, 1949 the White Yebaws
under Bo Oo Sein and Bo K.yar proceeded to Magwe.
At that time U Hla, Circle Inspector of Police, was
in charge of Magwe Police Station. He s~w between
300 and 400 Y ebaws bearing all sorts of arms .come
into the town .on several motor vehicles. They
announced by means of a loudspeaker that the
Y ebaws had come to an understanding with the
Deputy Commissioner and District Superintendent .of.
Police at Yenangyaung and that no "resistance should
be offered. A letter addressed to U Hla and written
by U Thin .to the effect that there was an under-
standing between the Government and the PVOs was
also delivered. The Police Officers of Magwe were
made to give up their fireanns. All firearms held
on private licence were also seized. Some of the
Police Officers, including U Ba Ohn, S.D.P.O.,
Yenangyaung, also arrived. After the fall of the
town it was.immediately put under ll1ilitary administra-:-
tion. The Sub-Treasury and .the Supplies Depot
were seized and a People's court. presided by three
Judges w as set up. . A pa_rallel Government was
12 BURMA LAW REPORTS. [1955
H .C.
1954
also set up at Magwe on the same pattern as that
at Yenangyaung.
Bo Oo SEIN
A;>.:Jl l"OUH Ftom the above it is clear that the seizure of Yenan-
OTHERS
v. gyaung, the incident at Thitcho and the seizure
THE U~UO!\: of Magwe were part of the same transaction,
OF BU!{MA.
namely, waging war against the Union of
u SAN Burma by the \Vhite Band PVOs. The question
lVIAUNG, J.
now for consideration is whether Bo Oo Sein, Bo
Kyar, Bo I\1ortar, Bo Aye Saung and Bo Nyan Win
had committed three separate offences punishable
under the High Treason Act for these three distinct
overt acts for which they could be tried separately and
convicted or whether they had committed one olJence
of high treason punishable under section 3 (1) of the
Act. There is no direct authority on the point, but the
ruling in the case of GarnMallu Dora alias lvfallayya v.
King-Empf(rOr <1) is not inapposite. There it was
held that the waging of war is a continuing offence and
a charge against the accused under section 121 . of the
Indian Penal Code, specifying more than three
offences coh!mitted in the course of the war, and
spread over a period of more than one ye'!.r, is
not illegal. Speticer, C.J., with wh01n Krishnan,
J., agreed on a difference of opinion between the
learned . Chief Justice and Reilly, J., has made the
following observation : -
" It was decided . ~y Oldfield and Ramesain, J J., in one
{)f, the appeals arising outof the Malabar rebdliont R,T. No.
80 of 1922: that the waging of war is essentially. a continuing
offence. in which several incidents, which may ir{ themselves
be separate offences. rriay be comprised. I see no reason
to think it is otherwise. Rebellio.n implies a state of being
rather than the doing of any act. although for a .conviction
it . is necessary to prove that some overt ~ct "vas committe~ .:
. by the off~nd.e.r. Rebeilions and. wars c ontinue until they
. 'are suppressed by captl!re or destruction of the . rebel forces .
(1) 49 Mad.74.
. .
1955] BCHMA LA\V REPORTS. 13
or by rebels Ia) ing down their ar ms and ma king their H.C.
submission a s subj ects to their sovereign and r ~ce i v ing his 1954
pardon." .Bo Oo R E t:\'
A ND F O U R
0 1'H EHS
In the cases now under consideration the several ~-

accused we re a nimated by the desire to overthrow the THE U NION'

OF B UT<M A.
legal Government by force or threat of arms and with
u SAN
this end in vie w they seized Yenangyaung and then :\lAU:\G, ~J.
Magwe and they came into a conflict with the Govern-
ment Forces at Thitcho on their way to seize Magwe.
The incidents a t Magwe, Thitcho and Yenangyaung are
the overt acts from which their intention could be
gathered. Ali the accused could and should, in fact,
have be~n tried in one case of the offence punishable
under section 3 (1) of the High Treason Act, 1948.
However, in fra ming charges against them the several
[ncidents which took place on the 23rd, 24th and
25th of Febr uary, 1949, should have been enumerated
in the charge in support of the fact that their intention
was to wage war against the Government of the
Union of Burma. The accused having been conv1cted
Jf the offence under section 3 (1) of the High Treason
Act in Criminal Regular Trial No. 65 of 19 51 and.
:heir convictions and sentences having been confirmed
Jn appeal, their convictions and sentences in Criminal
Regular Trial No. 66 of 1951 and Criminal R e gular
.frial No. 5 of 1952 should be set aside on the
~rinciples of qutre fois convict embodied in section
t03 of the Criminal Procedure Code.
In the result the appeals of Bo Oo Sein, Bo Kyar~
go Mortar (a) Maung Aye, Bo Aye Saung and Bo
~yan Win (a) Saya . Ba Than succeed. Their
~onvictions. and sentences under section 3 (1) of the
:Iigh Treas()n Act inCrimi.n al Regular Trial No. .66
>f 1951. arid Criminal Regular Trial No. 5 of 1952.
tre 's et aside and they_are acquitted and released . -so:
!ar as the charges ther~in, are
concerned'i . . .. "
14 BURMA LAW REPORTS. [1955

APPELLATE CIVIL.
Bcfo1e U Tu1z Nyu, C.l ., fl1ld U Aun g Khi11e, J.

H.C. CHANDRABHAN SINGH (APPELLANT)

1954
v.
Nov. 22.
KISHORE CHAND MINHAS (RESPONDENT).*

Urban Uent Co~tlrol Act, s. 14 :1)-Co:,;Promise d.:cree- Paymc11t of futur

1'Ctzl ~, whether an orde1 willliu ambit of sec/io11-Disc1etion of Cott1'l
c.1:t en t of, under s. 14.
Held: S. 14 (1) of the Urban Rent Control Act makes no prods ion for th
payment of future rents, and the stipulation for t he payment of futui'C rents i
the consent clecrt.:e ruust be con~ictered to be a m<~tter extraneous to th
purpose of s. 14.
Bhogee Ram v. U Ba So and one, (l949) B.L.R. 565, followed.
field tllso: An onler passed under s. 14 (1), Urban Rent Control Act i
appealable both on tact and Jaw vide s. 15, but no appeal lies against
consent decrce:;:ide s. 96 of the Civil Procedure Code. where a compromi~
petition is filetl the Court has no alternative except to pass a decree in terms<
the compromise, but the Court under s. 14 (1) of the Urban Rent Control At
has a discretion to pass such order as it might think fit arid reason.able.
In re South Am~?'ican and Mexican Co., (1895) 1 Ch. D. 37; Neale
Gordon Lenno,~:, (1902) A.C. 465, distinguished.
Held further: S. i4 (1) Urban Rent Control Act confers a distinctive rig:
.upon the judgment-deptor, al;ld a heavier burden than that provided by tb
section cannot be imposed upon hi111.

P. K. Bqsu .for the appellant.

Aung Min (1) for the respondent.

The judgment of the Bench was delivered by

U TuN BYu, C.J._The . plaintiff-:appellal

Chandrabhan Singh instituted a suit under section 1
(1) (d) of the Urban Rent Control Act,. 1948, for tl
ejectment . of the defendant-respondent Kisho:
Chand Minhas from a. rooni on the .fhst floor of
building at No~.si;ss, 37th Street, Rango.o n, in ci~
*Special Civil Appeal No.6 of 1953 against the decree .of the High Co1
(App~Uate Side) in .C hit Mis.c. Appe-~1: No;_.Z7 .of 19SZ. . .
1955] BURI\-IA LAW REPORTS. 15
Regular Suit No. 855 of 1950 of the Rangoon City H.C.
1954
'Civil Court.
CHANllRA-
Kishore Chand Minhas, however, denied that he UHANSJNGH
was a tenant of Chandrabhan Singh; and he alleged v.
KlSHORE
that he had instead been a tenant of one latta CHANIJ
1\1JNHAS.
shankar Shukla since October, 1946. The parties
U TvN BYU,
however arrived at a compromise on the 29th C.J.
September, 1951 ; and a decree was drawn up in
these terms, which .were in accordance with the
-compromise-petition filed by the parties_
"This cause coming on the 20th day of September 1951
for final disposal before U Ba Kyaw, B.L . 4th Judge of the
C ourt, in the presence of Mr. Roy for .Mr. Modan on the part
-of the p~aintiff, and Mr. N. Mohamed ~or U Aung Min (2) on
the part of the defendant by consent, it is ordered that the
defendant do quit vacate and g"ive up peaceful possession of
the suit room in question to the plaintiff, failing which he and
.anything found on the room shall be removed therefrom.
Each party to the suit shall bear its costs. Upon reading the
joint petition dated 30851, following order passed :_
( 1) That the arrears of rent and compensation for the
suit room are due and payable for the period
1st January. 1948 to 31st. July, 1951 at the rate
of Rs: 45 (Rupees forty-five only) per month.
(2) That the defendant shall pay the above arrears in
respect of the suit room at the rate of Rs. 45
(Rupees forty.five only) commencing from the
15th September 1951 and thereafter month by
month on the same date.
(3) That in addition to the aforesaid payment of Rs. 45
every month the defendant shall also pay the
current compensation of Rs. 45 . every month
al9ng with payment towards the arrears on the
same date.
(4) Thus the defendant shall pay, in view of the
above terms,: a total sum ~ of Rs. 90 (Rupees .
ninety only) . by way of monthly instalments
commencing_' from (5th s_~ptember . 1951 .until
such . time that all the aforesaid . arr.ears are
 .
16 BURMA LA\V REPORTS. [1955
H.C. cleared and the current compensation paid
1954
month by month as aforesaid and there remaim
CHANDI<A- no arrears whatsoever.
~HAN SINGH
(5) That on payment and clearance of all arrears and
~'
KlSHORJo: all current compensation in manner aforesa ic
CHAND
MINHAS.
the consent decree shall be rescinded.
{6) The aforesaid decree shall remain unexecutablc
U TUN BYL' ,
C.J. so long as the defendant pays Rs. 90 (Rupee~
ninety only) every month in the manner anc
on the dates aforesaid.
(7) On the defendant paying all the arrears and thE
current compensation as it bec6mes due and or
there being no arrears whatsoever the plaintifi
shall assign the suit room in the name of tlH
defendant provided the Controller of Rents
City of Rangoon allows such assignment".

K.ishore Chand Minhas subsequently defaulted ir

the payn1ent of Rs. 90 per month, as required unde1
the terms of the consent decree. On the 2nc
January, 1952, Chandra.bhan Singh, the decree.
holder, applied for the execution of the deere~
obtained against Kishore .Chand Minhas ; and the
latter in turn applied, under section 14 (1) of tht
Urban Rent Control Act, 1948, for the stay of tht
said . execution proceeding. . The application o:
Kishore Chand Minhas for stay of the executior
proceeding made under section 14 (1) . was latei
dismissed ; and the relevant portion of the. order
dismissing his applicatiop, so far as the presen
appeal is concerned, reads :_
''
IIi my opmiOn the compromise decree is a decree i1
accotdarice with .section 14 (1) of the Urban Rent Contro
Act. Terms have already been impo'sed and the applicant fD
h,ad .obtained an order for stay of execution by the compromist
decr.e.e. on condition that he paid the instalments due on o:
before the i 5th o.f every r!J.onth from September 51
Admittedly . he has failed to comply "with the . condltiOJ
. impOsed. The Court holds therefore thatth~ judgment-deblo
l955] BURMA LAW REPORTS.
17
;annot apply aga in for stay of execution under section 14 H.C.
:n of the Urban Rent Cont~ol Act . J .D's application is 1954
.herefore dismissed."

Kishore Chand Minhas next preferred an appeal

18 BURMA LAW REPORTS. [1955

H.C.
1954
far as his interest or right under section 14 {l) is
concerned. It was observed In Bhogee Ram v.
CH ANDRA-
B HAN SINGH U Ba So and one (1) :_
~~~
KisHoRE "
CHAND
MIN HAS.
It has been argued by the learned Advocate for the
appellant that the amount payable by the tenant for the
U Tu~.J~Yu, period occupied by him after his tenancy has been terminated
according to law must be regarded as mesne profits and that
therefore, the Court was competent to impose the condition
that the decree would be rescinded only if the mesne profits
accruing in future were paid regularly on or before a date
fixed by the Court. As to that. it seems clear to us that the
words ' arrears of ' occurring before the words ' rent or
mesne profits' in sub-section (1) of section 14 of the Urban
Rent Control Act, 1946, qualify both the word ' rent' and
the words ' mesne profits' and that the , word~ ' mesne
profits , had to be added to the word ' rent ' in order to
provide for the cases of those from whom arrears of mesne
profits would be due because they were persons permitted to
occupy the p-remises in question under the provisfon of sub-
section (]) of section 12 of the Urban Rent Control Act~."

The Diary Order. in Civil Re!Jular No: 855 of

1950, dated the 20th September, 1951, under which
the. consent decree was drawn up were in these
words:
"Roy for Mod~il for . Plaintiff. Noor Mohamed for
U Aung Min (2) f.o r Defendant. Parties file joint petition of
compromise: Let there be an order i.n terms of thecompromise
application."

It is thus clear that the second portion of the

consent decree was not made in pursuance of the
provisions of section 14 (1) of the Ur}?an Rent
Control : Act, 1948, but in . accordance .:with the
compromise-petition; and it . could not, in our
opmion, be con~idered. to b~ an order m~de under
s~ction 14 (1) ..
(1) {194~) B . L~R., p: 565.at P.: 5i0.
 1955] BURiVIA ..LAW REOPORTS . 19

The order passed under section 14 (1) of the H.C.

1954
Urban Rent Control Act, 1948, is moreover appeal-
able both on fact and law, vide section 15, HI~;~AN~~~,~-H
whereas no appeal lies against a consent decree, Kts~~nE
which was passed in Civil Regular Suit No. 855 of :V!CHANo
I"' HAS.
1950, vide section 96 of the Code of Civil Procedure.
It appears to be clear also that the Court has no u TuN
C.J.Bvu,
alternative, where a compromise-petition is filed as
'in the present case, except to pass an order for a
decree to be recorded in terms of the compromise
arrived at by the parties. The Court, on the other
hand, has a discretion within the ambit of section 14
(i) of the Urban Rent Control Act, 1948, to pass
such order as it might, in the circumstances of a
particular case before it, consider to be reasonable.
Our attention has been drawn to certain observa-
tions 1nade in re. South American and Mexican
,Company (1) and in Neale v. Gordon Lennox
(2) to indicate that a consent decree passed on a
(compromise arrived at between the parties to a
litigation should be considered to be final and
conclusive, in that it embodied the terms voluntarily
agreed upon by the parties themselves. What Earl
.Halsbury, L.C., observed in Neale v. Gordon Lennox
{2) at page 470 was_
"Where the contract is something which the parties. are
themselves by law competent to agree to, and where the
.contract has been made, I have nothing to say to the policy of
law which prevents that contract being undone : the contract is
by law final and conclusive."

Secti~n 14 (1) of the Urban Rent Control Act,

1948, however, contains provisions which specific~lly
enjoin tha~ a decree is to ~ be rescinded. in certain
circumstances
. indicated therein. A consent decree .
(1) (1895) 1 Ch. D. 37. (2) (1902) A~C p, 465.
20 BURMA LAW REPORTS. [1955
H.C. is clearly a decree within the meaning of section 14
1954
(1) of the Urban Rent Control Act, 1948; and
CHANDI~A
BHANSINGH section 14 (1) will therefore apply to a consent
v.
KISHORE
decree. Moreover~ section 14 (I) purports to confer
CHAND
Mil\ HAS.
a distinctive right up0n a judgment-debtor, . even
after a decree has been passed.
U TUN BYu,
C.J. The present appeal is for the reasons which we
have set out above dismissed with costs, with
Advocate's fee K 85.
 1955] BURMA LAW REPORTS. 21

APPELLATE CIVIL (FULL BENCH).

Before U Tun Byu, C.J., U Eo Gyi aud U Chtw Tun Atmg, JJ.

DAw PU (APPLICANT) H.C.

1954
v. Oct. 4.

AHMED ISMAIL SEMA AND FIFTEEN OTHERS

(RESPONDENTS).*

lrfallonred<~n, devolulio1~ of
estat e of-Governed by Mahomedan Law-Burma
Laws Act, s. 13-Righf of Stlccessiol~, uhen accrues-Convert to Mahom-
edan religion, Position of, 'in respect to succession-Representatiot~
principle of, 110/ recogmsed- Succession detern fined bj indePendent
rigllt-Claim of Mallomeda1tlrtir, whether deftaled by Bttdd.'zistfather wlto
died before accrual of right.
Held : Mahomedan Law will apply in respect of the estate Of a person who
was a Mahomedan al the time of his death, t'ide s. V, Burma Laws Act.
C;V.N.C.T. Clt.edambaram C!u.ttyar v. Ma Nyein Me atzd others, (1928}
l.I..R; 6 Ran. 243, f>llowed.
Held : The estate of a decep.sed Mahomedan devolves upon his heirs only
at the time of his death and not earlier, see ss, 41, 52 and 56 Of Mulla's
Principles of Mahomedan La\v.
Heltt: A per~on may be a Mahomedan either by birth or by conversion;
after the conversion, he is on the same footing as a natural born Mabomedan
t 1nder Mahom~tian Law.
Mitar S'en Singh v. Maqbttl Hasa1t Khau and others, 57 I.A. 313=A.I.R,
{P.C.} (193ll) p. 251 al 253, followed.
Held also: A person acquires a share under Mahomedan Law in his or her
own indepe~dent right which comes into existence only at the time of the
death of the deceased; the principle of representation is foreign to the Mahom
edan Law of inh~ritance.
Jaffri Begam v. Amir Mt~ltammad Khat~, I.L.R. 7 All. 822, followed
. Held lastly:. As the claimant's father was already dead at the time when
the right to succession ac(;rucd, the fact that he was a Bu.ddhist.and could not
claim any share in the estateis immaterial, as the nature of the claim can only
be ascertained when the right accrued.

Civil Reference No.3 of 1954 arising out of a Reference dated. the 26th
March 1954 by U SAN MAUNG, J~ in. Civil Revision No. 91 of 1953. of .the. High
Court under .Rule
. I
25 of the Appellat~
.
Side Rules of Procedure (C'ivi'l) High
Court Rules ~nd Order Manual. (Reproduced below.) . .
 BURMA~LAW REPORTS. [1955

~ ~
5 Than Sein for the applicant.
DAw Pu
v. P. B. Sen and G. N. Banerjee for the respondents.
AHMED
ISMAIL SEMA
AND FIFTEEN Aung Min (l) Arnicus Curiae.
OTHERS.

[This reference arose out-of Civil Revision No. 91 of 1953

of this Court, where Mr. Justice San Maung being of the
opinion that the question involved is of great importance and.
far reaching consequence referred to a Bench or a Full Bench
the question. which appears, with the facts of the case, from
the order reported below.]

U SAN MAUNG, J._Civil Regular Suit 'No. 9 of

1940 of the District Court of Mandalay is one for
adn1inistration, partition and accounts filed by Daw U
who clain1ed to be the wife of S. A. Sema who died
on 13th Dece1nber
~ ' 1932. The defendants in the case
were the two brothers and the legal repr~sentative of
the sister of the deceased S. A. Serna and an. alleged
wify .of the deceased whose status the plaintiff denied ..
The plaintiff claill)ed that she was entitled to half of
the estate left by S. A. Serna. as his partner ai1d to
.one-fourth of .the rest of the.estate as his heir. As.
a partner she claimed accounts and as his heir and
partner, partition and delivery of her share. .It was.
dealt with by the then District Judge Mr. Gledhill
who passed orders on the .several preliminary. issues.
raised therein: . The learned District Judge held that
the .. s.uit was bad . for misjoinder _and. . ordered
amendment of the plaint so as to confqrm. to the
rectuiremep;~s. of an a~ministration suit, pure and
simple .. "C>n appeal to the High .Court it was held
that there w~s "no misjoinder of causes of action and
. that the plaintiff's .suit .. as" originally ..brought was
maintc::tinable. Ther.e after ' .the : Japartese invaded :
Burma and in the cha~s. that ~oUowed lhe records of
1955 ] . BURMA LAW REP6RTS. 23

the case were destroyed. After re-occupation the H .C.

1954
~ecords were reconstr ucted and it was then found that
~ DA\v l)r
two of the brothers of the deceased S. A. Serna, v.
namely, I. A. Serna and E. A. Serna had died and that Is}~~~~~~~rA
their legal representatives would have to be brought A~o F I FTEE:-<
was accor d'mg}y d one. Among OTHERS.
on t h e record . ThIS --
the defendants who contested the suit were defendants M~u::.Nr.
Nos. 12 to 15 who filed a joint written statement and
defendant No. 16, the original third defendant E. M.
Seedat who filed a separate written statement. The
rest of the defendan ts did not appear and the case
was ordered to be heard ex-parte as against the1n.
The 1nain defences raised by the defendants were that
the plaintiff Daw U alias Mariam Bibi and Ma Tin
were not lawfully wedded wives of the deceased S. A.
Se1na, that the properties left by the deceased S. A.
Sema, in which D aw U claimed a share.a were not
acquired jointly by the deceased and Daw lJ and
that Daw U was not entitled to any share thereof as
a partner either. Subsequently Daw U herself died
on the 12th October, 1952, and one Maung Pu
claiming to be the nephew of Daw U applied to be
brought on the record as a plaintiff, as legal represent-
ative of the deceased Daw U. This application was
later withdrawn in view of the ruling of this Court in
Ko Aye and -one v. Rasul Bibi and three others (1)
where it was held that a Buddhist cannot inherit' fron1
a Moham.rp.eda:Q. Subsequently, on the 30th Jan uary,
1953, one Daw Pu (the present applicant) claiming to
be a niece .of Daw U filed another application. praying
that her name be brought on the record as plaintiff
because sh.eis a legal representative of the deceased
Daw U. :.-I n the 'lneantime defendants Nos. 12 to 15
assigned . their " interest . iri the subject-matter of
the suit ~o E : M. Seedat by .a regist~red deed .and
(1) (1950) B.L .R. 288. .
24 BURMA LAW. REPORTS. [1955

E. M. Seedat himself filed an application praying that

he might be transposed as plaintiff in the suit as, if
DAw PU
w;:;: .x~ 'V. Daw U was a Mohammedan and widow of the
~AHMED
ISMAIL SE'MA
deceased, he would. be her heir.
AND FIFTEEN The question therefore arose whether Daw Pu:
... OTHERS. the present applic:int, can be regarded as a legal
u SAN representative of the deceased Daw U. The.deceased
MAUNG, J.
Daw U died a Mohammedan and the present
applicant Daw Puis also a Mohammedan. However
the learned District Judge, Mandalay, dismissed
Daw Pu's application for the reasons occurring ir
a passage of his judgment reproduce4 below :
"The point that now arises for consideration is whethe:
under Mahomedan law Daw Pu is a person on whom the estat<
of Daw U or even part of the estate would devolve; if so, the1
there would be no impediment to her being brought" on recor<
as her legal. representative. Daw Pu may be of the Mahom
edan faith, but she claims to be Daw U's niece through he
father who was a .Burmese Buddhist and who died a. Burma1
Buddhist. There is, therefore, a break in, so to say, the chail
of heirship, which, in my opinion, Rlaces almost an ihsurmoun
table barrier to the claim put forward .to her. Had U Po Tm
been living he would certain_ly not p.ave got any share in th
estate of Daw U, and since tbe root through which. Daw P
bas claimed is shown not to be entitled to any~ sha):e; I ar
unable to see how the applicant Daw Pu can .step ~n as legz
representative of Daw U. See sections 74 and 75 ofPrinciple
of Mahomedan Law by Mulla, thirteenth edition, at p~ges 84-8t
Daw Pu cannot be held to be a legal representative of tb
deceased Daw U as defined in order 2 (12) of the Code c
Civil Procedure.,

The present is an application for revision of tb

order . of the District Judge refusing to substitut
.the name of . Daw Pu in the plaint as a leg(
:ieprsentative of her deceased aunt D~w .U . .::-
: The qu~stion involved is of great interest to tb.
Mohammed~n communi- ~there
. ty 1n. Burma arid
~ : .{.\ .
ai
 1955] BURMA LAW REPORTS. 25
no reported rulings either of this High Court or H.C.
1954
of any High Court in India. In Mulla's Principles
Pu
of Mahomedan Law, 1950 Edition, the following DAW
v.
passage occurs at page 55 under the caption AHMED.
I sM AIL SEMA
.:' Impediments to inheritance " :_ AND FIFTEEN
OTHERs.

" The Sirajiyyah sets out four grounds of exclusion from U SAN
inheritance, namely, (1) homicide, (2) slavery. {3) difference of 1\fAUNG, J.
religion, and (4) difference of allegiance. Homicide, as an
impediment to succession, is dealt with in the present section.
The second impediment was removed by the enactment of Act
V of.-1843 abolishing slavery [Ujmudin Khan v. Zia-ul-Nissa
( 1)]. a.J?:d the third by the provisions of Act XXI of 1850 which
abolished so much of any law or usage as affected any right of
inheritance of any person by reason of his renouncing his
religion. The bar of difference of allegiance disappeared with
the subversion of the Mahomedan supremacy.
A person incapable of inheriting by reason of any of the
above disqualifications is considered as not exiting, and the
estate is divided accordingly. According to the Sirajiyyah he
does not exclude others from inheritance (Sir, 22_ 28). Thus if
A dies leavi.ng a son B. a grandson C by B. and a brother D.
and if B ~a~ caused the death of A. B is totally excluded from
inheritatu.~~. but he does not exclude his son c. The inheritance
will devo~~e asif B were dead, so that C, the .grandson, will
succeed to the 'whole estate, D being a remote heir." .

Therefore, it would appear that the fact that Daw Pu's

father happened to die a Buddhist would not disbar
Daw Pu from inheriting the estate of Daw U both
she and .het deceased aunt being Mahomedans by
religion~ . However, I consider that the question
should be decided 'by a larger Bench than that of a
single Judge of this Court. Therefore, as provided in
Rule 25' of .the Appellate Side Rules and Procedure
{Civil), as substituted by High Court Notification No.
4 (General), dated the 27th May, 1949, I .would refer
. for the. decision of a Bench of ~wo Judges or of a
(1) (1~79) 6 I.A. 13i', 3 Bom. 422.
26 BURMA LAW REPORTS. [1955
H.C . Full Bench, as the Chief Justice may direct, the
1954
follow~ng question of Law :_
DAW Pu
A:~ED " Is a Mahomedan woman debarred from inheriting the
IsMAIL SEMA estate of her aunt who died a Mahomedan by reason of the
AND FIFTEEN
oTHERs.
f act t hat her f atb er t b roug h wh om sh e c1a1ms
. h'1p w1th
kms . t h e
deceased, is a person of a different religion, narn~ly, a
u SA.N J.
MAUNG,
Buddhist?"

The judgment of the Full Bench was delivered by

U TuN BYU, C.J._ Daw U instituted a suit ,f or

the administration, partition and accounts o f the
estate of one S. A. Sen1a, who was a Mahorn ... e. ctan,
.
in
Civil Regular Suit No.9 of 1940 of the District Coi1~t,.
Mandalay. She alleged that she was the widow of
the said S. A. Se1na who died in 1932. She claimed
one-half of. the estate of the deceased S~ A. Serna on
the ground that she was a partner in the ~usiness
which he carried on before his del11ise, and one-quarter
of the re1naining half share of the estate, as . an .h eir
' .. . of the deceased S. A. Sen1a. .The first and . second
defendants, I. A. Serna and E: A .. Sen1a denfed that
Daw U (a) M ariam Bibi, wa~ . inter alici a widow of
the deceased S. A. Sema, .or that she was a partner in
his business. The third defendant E. M. Seedat, who-
was the executor of the deceased Rasool Bibi, a $ister
of S. A. Serna, also set out a similardefence.' .S.-u bse-
quently, Ma Tin, who also claimed to be a wi.d ow of
the deceased S. A. Serna,' was added as the ; .fourth
defendant, and her defence was on the same ll.nes as.
the other defendants. It might be mentioned,
however, that none of the parties in th~ p resent
litigation admitted that Ma Tii1. was .a widow :.of. the
deceased. ' ,,
.i A. 8e1:11a and E. A~ Setn~ di~d subsequently~ and
their legal rep~e~e~tativ~~ J;ad _b een n1ade pa~ties tO
 -- ,
19).) BURMA LAW REPORTS. 27

the suit. Later, Daw U died in or about October, H.C.

1954
1952, and one l\t1aung Pu, who claimed to be a nephew
of Daw U, appiied to be brought on the record, but DA~: Pc
his application was withdrawn, apparently because he AHm~.0
- 1SMAIL wE~IA

was a Buddhist. Thereafter Daw Pu, who clai1ned ANn nFTEEN

to be a niece of Daw U, applied to have her name oTHERs.

brought on the record . Daw U was a Mahomedan H~/~~J .

.at the time of her death. Her niece Daw Pu is said
to be ~ Mahomedan also, and th~s reference is heard
on this basis. The learned District Judge dismissed
the application of Da w Pu on the ground that she
was not a person who would be entitled under
Mahomedan law to claim any share in the estate of
the decea_sed Daw U, in that her father U Po Tun,
who was an elder brother of Daw U, was a Burmese
Buddhist.
Da w Pu next filed an application for revision,
known as Civil Revision No. 91 of 1953, in the High
Court agai.n st the said o"rder of tl).e District Judge,
Mandalay, dated the 25th June, 1953. The learned
Judge before wh61n the application for revision was ..
first hea~d has referred the following question for
decision, n~mely :-.-
" Is a: Mahomedan woman debarred from inheriting the
estate of her aunt who died a Mahomedan by reason of the
. fact that her. father .through whom she claims 'kinship with ~he
deceased, is. a person of a different religion, namely, a
.Buddhist?" :..

It seems to us that it will be more appropriate to

make a slight verbal modification in the question~
which has been referred to us, and we c.onsicfer that
the question .referred should be, r~~~ as follows: .
. .
" Is a Mahomeda.n woma~ de~atred from inheriting the
estate of . her aunt _ wl~o died a Maho~~d~h by reason.bf the
28 BURMA: L.AW REPORTS. [1955
H.C. fact that her father is a person of a different religion, namely.
1954
a Buddhist ? "
DAw Pu
'l).
It is not disputed that U Po Tun, the father of
AHMED
Is:rvrAIL SE~rA Daw Pu, died a Buddhist, and that he pre -deceased
.AND FJFTEI-"N
OTHERS. Daw U. Daw U was admittedly a Mahomedan at
U TuN
her death. Daw P~ is said to be a Mahomedan also.
BYU, C.J. Mahomedan law will apply in respect of the estate of
Daw U in that Daw U was a Mahomeda:q at the time
of her death-vide section 13, Burma Laws Act,
wherein the Court, in considering questions relating
to successjon, inheritance, marriage or caste, or any
religious usage or institution, the Buddhist,
Mahomedan or Hindu law, as the case may be, is to
be applied where the parties are Buddhists, Mahom-
edans or Hindus. A decision to this effect will be
found in the case of C. V.N.C.T. Chedambaram
Chettyar v. Ma Nyein Me and others (1). The fact
that the deceased Daw U was a convert will make no
difference ; and the observation of their Lordships in
Mitar Sen Singh v. Maqbul Hasan Khan and others
(2), was:
c;, In other words. when once a . person has

changed his religion and changed.lils per~onal law~ that law wil1
govern the rights of succe.ssion: of his children. It may. of
course. work hard to some extent upon expectant heirs,
especially if the expectant heirs are the children. and perhaps
the. unconverted children of the ancestor who does in fact
ch~nge his religion. but. after all. it inflicts no more hardship
in their case than in any other case where the ancestor has
.changed the law of succession. as. for instance, by -acquiring a
different domicile. and their Lordships do not find it necessary
to cqnsider any questions of hardship that may arise.
. "

A persoi) may be a Mahomedan either by birth or by

copversio:ti, '.~nd it .appears to us thaLa .con~ert is~
. (1) (192.d) I.L.R, 6 Ran. 243
..(t) (19.~0) 57 I A. 313.,. A.I.R.. (1930) .(P.C.) 251 at ,253.
1955] BURMA LA\V REPORTS. 29

after the conversion, on the same footing as a natural H.C .

1954
born Mahomedan under Mahomedan law. Our
DAW Pu
attention has not been drawn to any provision of law t .
or decision which will indicate that a convert is not AHMED
ISMAIL SEl\fA
on the same footing as a person who is a Mahomedan AND FIFTEEN
O'tHERS.
by birth under Mahomedan law.
It has been strenuously contended before us U TUN
BYu, c:r.
during the arguments that as Daw Pu's father , who
was a brother of Daw U, was a Burman, Daw Pu
could have no claim to any share in the estate of the
deceased Daw U under Mahomedan Law in .that
' '
U Po Tun, brother of Daw U, could not himself
claim any share in the estate of Da w U under
Mahomedan law. Such argument involves, in our
opinion, confusion of ideas in regard to the real effect
of Mahomedan law in this aspect. The relevant
portion of section 41 in Mulla's Principles of
Mahomedan Law, (13th Edition), at page 32, is 1n
these words :
" Subject to the provisions of sections 39 and 40, the
whole estate :of a deceased Mahomedan if he has died intestate.
or so much o't' it: as has not been disposed of by will, if he has
left a will, devolves on his heirs at the moment of his death.
.. . "

Thus, the . estate of a deceased person devolves

upon his heirs only at the time of his death, and not
earlier. S.ecti.pn 56 in Mulla's Principles of Mahom-
edan Law giv(..s the same indication, and it reads :

"'A vested inheritance' is the share which vests in an

heir at the mom~nt of the ancestor's death. If the heir dies
before distribution, the share_ of the inheritance which has
vested in ..h.inr\vil~ .pass to such persons as are his heirs at the
time of .his dea~h . . The s4.ares ~herefore at:e _to be determined
at . each death."
.30 BUR1\'1 A LAW REPORTS .

H.C. Section 52 in Mulla's Principles of " l\1aho n~edan

1954
Law also leads us to the same conclusion, and it is
D Aw Pu
v. in these terms :
AHMED
ISMAI L SEM A "The right ,'f an heir-a pparent or presumptive comes
~ND FIFT EEN
OTHEHS . into existence for the first time on the death of the ancestor,
and he is not entitled until then to any interest in the property
UTuN
Byu, C.J. to which he would succeed as an heir if he survived the
ancestor."
..
;

It is therefore clear that a person acquires a share

under Mahomedan law on his or her own independent
right, which con1es into existence only at the time of
the death of the deceased ; and in the present case
Daw Pu's father died before Daw U. It is probably
for this reason that the theory of repres.e ntation,
speaking generally, was not recognised under
Mahomed~n law.
In Jalfr{ Begam v. Amir Muhammad Khan {1) it
was observed:
"The~e authorities leave no doubt in my mind that the
devolution of inheritance takes place immediately . upon the
death of. the ancestor from whom the property is inhe~ited.
But I wish further to adopt certain tests to confirm my view.
The first of them is an absolutely universal rule of t_he ~aw of
Muhammadan inheritance itself. The jes representationis being
absolutely foreign to the Muhammadan law of inheritance, the
question of the devolution of inheritance rests entirely upon the
exact point of time when the p~rSOJ,l through whom tl:i.e heir
claims, died_ the order of deaths being the sole guide in such
. questions."

There is a similar observation in Ameer Ali's

Mohomedan .
Law, (5th Edition) ' at. page 35, ..and it is
.in these words :
. .
'' As a general rule, neither : the Sunnis , n or the Shiah~
rec?gp.ise tlie principles of r~presentation.'' -._:
<9 I.L.R. 7 ."All~ 822 at 834.
1955] BURMA LAW RBPORTS. 31

Thus, in no circumstance could it be asserted that H.C .

1954
Daw Pu, who claimed to be the legal representative
of Daw U, was in reality claiming not in her own 1'.
A H MED
independent right but only through her father Is~IAI L S E MA
U Po Tun, whose death occurred long before Daw U. ANDOTHERS,
F IF'l'EEN

Daw Pu possesses, under Mahomedan law, a right

U Tu:-J
independent of her father at the time Daw U died, BYu, C.J.
and which right accrues to her only at the time of
Daw U's death, by which time her father U Po Tun
was already dead. The fact that U Po Tun was a
Buddhist and that he could not, as a Buddhist, claim
:tny share in Daw U 's estate is, in our opinion,
.mmaterial so far as Daw Pu's claim is concerned, as
:he nature of her claim can only be ascertained at
:he time of Daw U's death. It is difficult in the
;ircumstances to appreciate the argument that because
J Po Tun was incompetent to claim any~ share in
)aw U's estate, Daw Pu should under Mahomedan
aw be considered to be also incompetent in respect
>f her claim to be the legal representative of Daw U
tnder Mahomedan law, and section 606 (7) of
ryabji's Muhammadan Law, (3rd Edition), at page
:40, reads :
" (7) A person incompetent to inherit, does not. except
n so far as it is expressly so provided, exclude another pr
ause him to i~ke a smaller share." .

It cannot be disputed in the present case that the

state of Daw U will, under Mahomedan law, pass to
b.e distant kindred, if there are no sharers or
esiduaries, and the re~evant portion of section 68 in
tfulla's Principles of Mahomedan Law, (13th Edition),
~ads: . ,: ..
"(1). Distant Kindred are divided into four classes,
0

am.ely. (1) descendants of the :deceased other than sharers and

~iduaries ; .{2) ascendants
~: .
the
of . . .deceased other
. than sharers
32 BURMA LAW R$:PORTS. [1955
H.C. and residuaries ; (3) descendants of parents other than sharers
19S~
and residuaries; and (4) descendants of ascendants how high.
DAW Pu soever other than residuaries. . , . , ."
71.

AHMED
IsMAn, SEMA Daw Pu ts
a d escend ant o f a" parent oth er taan
t..

AN~J!~~~~N sharers and residuaries, as indicated in item (3)<

u TuN abqye. It was however argued, in view of the
BYu, c.J. wording in item (3) above, that her right to bea legal
representative of Daw U must be considered -to have
been acquired through her father, and not indepen-
dently of her parent. Daw Pu is a blood relation of
Daw U, and she is a Mahomedan, and we do not
consider that there is any real merit in this contention.
It is clear that, under Mahomedan law, the. estate of
a . deceased Mahomedan will devolve on his heirs
from the moment of his death, and the interest of
each heir, if there are more than one heir, comes intb
existence cf rom that 1p0ment only. The answer to
the question propounded will, for the reasons set out
earlier in this judgment, be answered in the negative.
Each party will bear its own cost so .far as thi~
reference is concerned.
1955] 33

APPELLATE CIVIL.
Bejote U Sa1z llfaung, J.

DAw PU (APPELLANT) H.C.

1954
v.
Nov. 14.
KO DON (RESPONDENT) .*

Urban R eul Control Act, s.Jl (1) (a) --Tra1zsjer of froperty Act, s. 106-Lease
of rooms-Suit for eviction- Wl'itten notice necessity of-Corztract Act, s.
56-Fntstratil>fl, u.llen applicable to leases- Suit, determi11ation of, ou
point 1zot raised specifically in Pleadings, -not permisstble.
a
Heid: As valid lease was admitled, pos5ession of the suit premises
can be obtained by filing a suit under s. 11 (I) of the Urban Rent
Control Act dt.:r notice under s. 106, Transfer of Property Act.
% T. H. Kltan \'. Dawood Yusoof Abowatlz ana others, (1947) R.L.R. ~s.;;
Salm Att.and Sarup v. S. Ta.iyab HoJsa11, A.l.I<. (1943) All. 279 refe m::d to.
Held also: It is onl y under very special circumstanecs that the doctrine
Of f r .!~tdion app.Iies to
le:>.ses. Occupation of a to.:Vn by ins1 rgenl-; is only
a te.1 po~ary r-ha; e not comparable to occupation by enemy forces, in which
c,enc the dodine can be in.voked.
K. M. Modi v. Mohammed Sidtlique an::/ one, (1947) R.L.R. 423 ; Rangoon
Telephone Co_. Ltd. v. Union of Burma, (1948) B.L.R. 527.
Held furtlz~r: A party should be allowed to win or lose on a C<:se set out
in his pieading _an'd it ts not the f unciion of a trial or a11 appellate Court to
m~.k; out a cas~ different from the one set out.
A .S.P.S.l(f?_. KamPPan Cltettyar v. A. CflokaUngam C!1etlyar, (1949)
B.L.R 46. .

S. R. Cho})'dry for the appellant.

.
P. K. Bas1:1. forth~ respondent.

. MAUNG, J._ In Civil Regular Suit

U SAN. \
No. 17
of 1951 qf the Court of the Subdivisional Judge,
Pyinmana,-.the plaintiff-appellant Daw Pu sued the
defendant-respondent Ko Don for the recovery of
pos~ession. of .a building situated at Pyinmal).a,
Civil 2nd A'ppe.aJ No. Sl of 1952 against the decree of the District Court,
Pyinma~a. in Ci'v.~l Ap peal No. 1 of 1952.
a ,
....
3
34 B URl\lA LA\V REPORTS. [1955
H.C.
1954
together with the fittings and furniture which she had
put therein. Ko Don was the owner of the building
DAWPU
v. having' erected it on the land which he had leased
Ko DoN.
from one Ali Hussein. The building consisted of
U SAN six rooms let out to various tenants, Daw Pu being
MAUN<.i, T-
the tenant of two middle rooms on a monthly rental
of Rs. 100 which was subsequently reduced to
Rs. 80. The rooms were used by Daw Pu as a
jeweller's shop after she had carried out certain
improvements such as the erection of a loft and the
equiptnent of fittings and furniture necessary for the
purpose of her trade. On or about the 28th of
January 1949, about two years after the commence-
ment of the lease in favour of Daw Pu, the. lady left
Pyinmana for Rangoon when Pyinmana was threat-
ened by the Karen insurgents who had . already
occupied Toungoo. Her brother Ohn Shwe alias
Gafoor was kept in charge of the rooms b'u t he . was
not given any express authority to pa)< the rents
therefor. Daw Pu explained that _this omission> V-JaS
due to the fact that she had thought ~hat the-occupa-
tion of Pyinmana by the insurgents would be only a . .
temporary phase. However,. when Pyinni.a na was
left by the Karens. after . occupying it for a short
period, it was subsequently held by the Comn1unists
until they were ultimately driven. out _by the Govern-
ment' forces about a year later. At the time of the
Communists' entry into the town a fire broke out in
the vicinity of the suit building so that Maung Ohn
Shwe took the precaution ofremoving the r oof for
fear of the fire spreading to the building. Thisroof
was later replaced by Ko Don who .thereafter
occupied the front part of the . building,. the rear
portion being requisitio~ed by the._Tenants A,ssocia~
tlon. Maung Ohn Shwe himself .it:l ..the capacity of
a worker, and not as .agent of .. his sister Daw
.
Pu,
l955] l3UR!\I A LA\V REPCJRTS. 35

:tpplied and obtained permission from the Com- H.C.

195-J
11Unists to re-occupy the suit rooms for the pu;rpose
)f plying his trade. However, he could not actually ..
I<o D o:-<.
)btain possession as Maung Don refused to vacate
hem. Thereafter, when the Government forces c SA:-<
MAU.:-<G, J.
>ccupied Pyinmana Maung Ohn Shwe made further
Lttempts to obtain possession of the rooms but this
vas again resisted by Maung Don who continued
o retain possession with the permission of the
)ubdlvlsional Officer, Pyinmana. The plaintiff-
lppellant therefore filed the suit now under appeal
;laiming that the lease in her favour was in the
tature of a permanent one terminable only at her
)ption, that she had made the improvements
nentioned in her plaint with the knowledge and
..
xoress consent of the defendant and that she was
:ntitled to obtain possession not only of the rooms
mt also the fittings and furniture which she had put
herein.
The defendant-respondent in his defence stated
hat the lease was fro1n month to n1onth only. He
.enied that
.
the improvements
.
and fittings ' etc., done
y Daw Pu were with his knowledge or consent and
ontended that he was entitled to resun1e possession
f the rooms .because of the failure of Daw Pu to pay .
rrears of ren:t due to him and for her abandonment
f the rooms consequent on the occupation of
'yinmana by the insurgents.
The tri~l Court framed several issues as appear-
lg in thes~ proceedings. but none of then1 relates
J the fru.s tration or otherwise of the contract of
!ase. It subseq~ently dismissed the suit mainly .on
1e ground. that the lease had been termip.ated under
1e provisions of section 4 of the Monthly Leases
.ferminationf Act, 1946, and by .'the principle of .
~ustration aS applied to .leases as l~id doWn Ill
36 BURMA LAvV REPORTS . [1955.

H.C. K. M~ Modi v. l'vtohammed Siddique and one (1).

1954
On al?peal to the District Court of Pyinmana by the
DAWPU
'll
plaintiff the learned District Judge pointed out that
Ko DoN. the provisions of section . 4 of the Monthly Leases
U SAN (Tern1ination) Act, 1946, could not be applied to the
MA UNG,J.
case as the. word '' enemy " as defined in section J
of the Act cannot be held to include the insuFgents
such as the Karens and the Communists. He,
however, drew a parallel between the facts and
circumstances occurring in the case under ap:feal and
those inK. A1.. Modi v. Mohammed Siddique and one
( 1) and held that they are as exceptional as those
appearing in K. M. lt-tJodi's case and that the doctrine
of frustration as applied to leases could be invoked
in favour of the defendant-respondent. His findings
are summarized in the passage which I reproduce
below: "
"The plaintiff-appellap.t ha"i stated in her examination
that she went away to Rangoon on the eve of the occupation
of the town on a business trip. But she had admitted in her
plaint as well as in her cross-examination that she purposely
evacuated to Rangoon as the Karen~ ;had occupied Toungoo
and were threatening to take Pyinmana also. She further
admitted that when sbe left Pyinmana she had left no instruc-
.tioris nor any authority with her brother Maung Ohn Shwe
(a) Gafoor to make payments of the rent to the defendant-
respondent: In this connection it may be mentioned that the
plaintiff-appellant had further admitted that she had not paid
the rent of the premises for about 9 months before her evacua-
tion to Rangoon. The total amount of rent thus due would
be Rs. 720. Towards this amount the plaintiff-appeilant had
taken from her on credit one gold chain arid a pendant valued
at over Rs. 400 thereby leaving a balance of about Rs. 300 due
by her. Besides this she had made no provision when she
. _ieft Pyimnana for payment of rents. This is covenant which
. is the essenQe <?f the lease: . It formed the very. basis oi the
lease and its performance a:s f~ndamental to it. Moreover . in
(1) (1947) ~.L.R. p. 423.. . . ..
 1955] BURMA LAW REPORTS. 37
view of the conditions prevailing in the country at the time of H.C.
the insurrections and the succ~sses which the insurgents had 1954
made in occupying ma.ny of the important towns in the. whole DAw Pu
of middle and upper Burma, there is reason for the defendant- v.
Ko DoN.
respondent to presume that the period of occupation of the
town by the Communists would be of indefinite duration. It u SAN

means in my opinion that the insurrections had interfered with MAUNG, J.

the performance of the contractual obligations of the lease and
that it had been terminated by frustration . I therefore agree
with the decision of the lower Court on this issue and consider
that the suit has been rightly dismissed."

.In the result the suit of the plaintiff Daw Pu was

dismissed with costs in both Courts. Hence this
:appeal tinder section 100 of the Civil Procedure Code
by Daw Pu.
In the first place it has been urged by the learned
Advocate for the plaintiff-appellant that both the
Judges of t.he lower Courts have erred in deciding
the case on a point which has not been pleaded by
the defe.n dant in his written statement, that is to
say that the lea~e has been terrt1inated b~cause of
frustration. I think there is amp~e force in this
argument. The q~estion whether a contract of
lease is frustrated is one of mixed facts and law and
if the defendant relied upon the doctrine of frustra-
tion he should have tnade a plea to this effect in his
written state~ent. As pointed out by U Thein
Maung,. 1., in K~ M. Jrtodi's case (l) it is only under
very special: circumstances that the doctrine of
frustration .applies to lea~es. In this connection it is
interesting to note the observations of the three learned
Judges who had dealt with K. M . Modi's case 0) in
appeal. Roberts, c;.J., said (at page 463) :
" Witp. regard to the .question of frustration, I ba ve read
the lucid analysis of the learned trial Judge a nd should hesitate
lo.ng before I ventured to disagree with him in deciding that
in very exceptional cir.cumstitnces a demise for a term of
38 BURMf'" LAW _REPORTS. Lt955

H.C. years might possibly be frustrated. I should find the reasoning

1954 of Lord Simon and Lord Wright hard to resist. I am not
DAW PU quite so sure that the circumstances here, though in many
v. ways exceptional, would necessarily terminate the .demise : as
Ko DoN.
Lord Wright pointed out, a temporary interruption of the
U SAN tenants' use and occupation does not affect the covenants or
MAUNG, J.
chattel interest."
Sharpe, J., was even more cautious. He said (at
page 468):
"There remains the question of frustration. That issue
loomed very large in the trial Court and indeed more,than half
the learned trial Judge's judgment is concerned wlth that
topic ; I therefore feel it incumbent upon me to say something
about it, even though, as I am in favour of the respondents on
the question of forfeiture, it is unnecessary for me to deCide the
matter. . It is indeed a difficult question to answer, whether
the abstract proposition, that a lease can, in certain circum
stances, be determined by events equivalent to frustration, can
be maintained in law.. The latest reported case in England
dealing with this subject is one in the House "6f Lords in 1945,
which, as regards the general proposition I have mentioned~
terminated inconclusively, Lord Simon and Lord Wright \being
divided against Lord Russell of Kill9wen anci Lord Goddard,
.with Lord -Porter, the only other member of the House,
declining to come down either. on the. one. . side or th~ other.
To my mind this is so thorny a subject, and the ground out of
which the thorns spring is itself so uncertain, that it is a
matter -qpon which I myself would only be prepared to give a
decision . were circumstances such as absolutely.t9 .compel me
to do so. I would not care to say that the doctrine o{frustra-
tion can apply to determine a lease unless I were Ci;Jiifronted
with a set of circumstiinces such as to produce 'the result that
the lease had. in thai particular case, been determined by
frustration."
. . . .

Blagden, J.-, the-third J~dge on _the Bench, differec

from the learned Judge on the Original Side, nan1ely
in
,l1:<f.hein Maung; J~, these words (page 470) :
_:,,-On the difficult question whether a lease .can b
fr'us~rate~_ I find. myself also in agreement witp.: my brothe
 1955] BURMA LAW REPORTS.

Thein Maung. Such is the nature of a lease that it is H.C.

admittedly difficult to imagine a case of its frustration by 1954
impossibility of performance. Even in the case of il sub- DAw Pu
sidence of the earth, resulting in the demised premises being v.
Ko DON,
completely inundated by the sea, the tenant, during the - :... .:.1
remainder of his term, might, presumably, insist on the U .SAN'"'"
exclusive right of fishing in the area of water covering his MAUNr>. T.
tenement. for what that right might be worth. But_especially
at the present time_ I see no great difficulty a bout a lease
being frustrated by supervening illegality : * * *
As at present advised, however. I have the misfortune
to differ from my brother Thein Maung as to the applicability
of the doctrine of frustration to the facts of this case.''
I have given the above quotations with a view
to emphasize the fact that it is quite unfair to spring
a surprise on the opposite party a plea that a contract
of lease has been terminated because of frustration
only at the time when the case has to be argued.
Such a difficult question of facts and law" should be
specifically pleaded and proved. In this connection
I need only refer to the case of A. S. P. S. K.R.
Karuppan Chettyar and one v. A. Chokalingam
Chettyar 0) where the Supreme Court has ru~ed
that ''a p~rty should be allowed to win or lose on a
case set out in his pleading and it is not the function
of a trial o~ an .appellate court to make out a case
different .from the one set out in pleadings". It is
also observed therein:
" What' particulars are to be stated in the plaint depends
on the facts of each case but it is absolutely essential that the
pleading in order that it may not be embarrassing to the
defendants should state those facts which would put the
defendants on . their guard and tell them what case they have
to meet when the case comes up for trial."

These observations apply equally well to written

. st~ternents as they are to plaints in suits. However, ,'
(1) (19.491 B.L.R .p. 46.
40 BURMA LAW REPORTS. [1955
H.C.
19$4
even assuming for the sake of argument that, though
not pleaded by the defendant in his written statement,
DAw Pu
'V. he could on the facts appearing in the evidence raise
Ko DoN. the plea that the .contract of lease between him and
U SAN Daw Pu had been terminated because of frustration,
MAUNG, J.
I cannot agree with the learned Judges of the lower
Courts that in this particular case the doctrine of
frustration is applicable. As pointed out by U "Bo Gyi,
1., in Rangoon Telephone Company, Limited v .. The
Union of Burma 0) the principle regarding the
frustration of a contract is embodied in section
..
56 ~,\.

of the Contract Act, which reads :

" An agreement to do an act impossible in. itself is
void.
A contract to do an act which, after the . contract is
mqde, becomes impossible. or. by 'r eason of some ~vent which
the promisor .could not prevent, unlawful, becomes void when
the act beco'ines impossible or unlawful."

On .the facts found by the learned District Jlidge, as

summarized in the paragraph of his judgment quoted
above, I cannot see how any of the : a..cts which the
lessor . and the le~ee in this case had contracted to
do became impossible. of performance or unlawful
owing to the occupation of Pyinmana by the insur-
gents. Daw Pu had never abandoned the premises
as, although she left Pyinmana for fear of the
insurgents, she kept her own brother to look after
t he rooms~ If no rent could be recovered.from her
. brother during the occupation of Pyinmana by the
insurgents it could certainly berecoveredfrom her
on the re-occupation of the town by the Government
.forces. It cannot surely be anybody's case that the
occupation of any town by the.'insurgents. is anything
buf a temporary ph3:~e.not to' .be compare.d to the
uJ (t94s>.B.L.R. :p. -s?7.
 1955] BURMA LAV'v" REPORTS. 41

occupation of a country by enemy forces as appearing H. c.

1954
inK. lvl. Modi's case (1). For these reasons I hold
that the contract of lease between Daw Pu and Ko Don DAw Pu
v.
had not been terminated because of the provisions Ko Do::-~ .

of section 56 of the Contract Act. U SAN

The learned Advocate for the respondent has MAUNG, J.
argued that there was no valid lease in favour of
Daw Pu as she had alleged the existence of a lease
for an indefinite period terminable only at her option,
which could only be made by a registered instrument
signed by the lessor. In this connection he has
cited the case of Sahu Anand Sarup v. S. Taiyab
Hasan (1) where the headnote reads :
f' Where under a written agreement to lease, the parties
reserve yearly rent a lease' in pursuance of it can only be
created by the .execution by the lessor of a registered instru-
ment inasmuch as a lease is a transfer of property and not a
mere agreement or contract. In the absence ol such instru-
ment. there can be no lease. . It is not open to the Court to
infer a lease from the circumstances of the case on some terms
other than those which can be inferred from the agreement
to lease beca~se a lease can be created only in the manner set
forth in the provisions of the T.P. Act. The fact that the
proposed .lessees were in possession of the property does not
mean that a valid lease was created in their favour or that the
interest of lessees in fact passed to them. They being in
possession of the property without any title thereto must be
treated as licensees :"

However, the fact remains in this case that the

defendant has himself pleaded .that there was a valid
lease from month to month subsisting as between
bim and the plaintiff and even if the plaintiff's plea
of a lease. terminable only ~t her option fails, _the
defendant:'s plea that there was a lease fronl lnonth .
to month ~must be deemed to have
. .
been. establish.e d
by his own adn1ission. Such bei~g the case, the
. (1) A.l.R. (Wt-3} All. 279.
 42 BURl\iiA LAW REPORTS. [1955
H.C. defendant can only obtain possession of the suit
1954
premises by filing a suit under section 11 (1) (a) of
DAw Pu
v. the Urban Rent Control A.c t. In tl:.lis connection
Ko L'oN.
the foUowing observations of a Bench of the late
U SAN High Court of Judicature at Rangoon in the case of
MAUNG, J.
T. H. Khan v. Dawood Yusoof Abowath and others
(l) are apposite:_
"This suit should have been brought under section 17
of the Rangoon City Civil Court Act, and it could not have
been brought, unless the tenancy had been determined under
section 106 of the Transfer of Property Act. The effect of
the Urban Rent Control Act, 1946, on the situation is that the
respondent would further be bound to show that the case
came within the purview of clause (a) 9f section 11 of that
Act, but he could not, by shewing that this was the case, evade
the necessity of determining the tenancy before instituting his
s uit."

The defelfdant had neither terminated the lease

in favour of the plaintiff in the n1anner required by
the Transfer of Property Act, nor had he filed a suit
under section 11 (1) (a) of the Urbap Rent. Control
Act. He had taken the law into his o:wn .:hand by
invading the pre1nises wbich \Yyre :W.f~~ly in the fa
possession of his tenant . Daw Pu. He is .therefore
in no better position tlian that of a trespasser who
should be evicted iii the suit under appeaL
As regards the furniture and fittings~ I find, it
difficult in the circu~stances appearing in this case
to come to a definite . conclusion that the defendant
was responsible for their removal. They co1:1ld very
well have been removed by ~he c.onnnu:ri~sts who
. were bent on confiscating the property belonging to
the bourgeoisie including the plaintifl:' Daw::pu, In
. these:circumstances I shall make no. qrdei_.s regarding
them.- . '
.. ' .
. . . -- -
--,--'- .------- ______ ____
(1) . (1947) R:L.H. 354 a:t
.. .
.;...._

358~ .
--'-'.

.
1955] BURMA LAW REPORTS . 43

In the result the appeal succeeds in so far as that H.C.

1954
part of the suit relating to the possession of the suit
DAW PU
premises is concerned . The judgments and decrees v.
Ko r::o:-:.
of both the lower Courts are set aside and the appeal
is allowed with proportionate costs throughout. U SAN
MAUt\G, l
44 BURMA LAW R.EPORTS. [195!

APPELLATE . CIVIL.
Before U San Mmwg, f.

H,C.
1954 DAW SAR YI (APPELLANT)
JVov. 6. v.
MA THAN YIN (RESPONDENT).*
Tra :tsfe1' of l'1opcrty Act, s. 53-A-S. 58, clause (c) as ammdcd by An;endiug Ac
20 of 1Y29-Sale, house a1td site, by registered dced-Con.temporan.eou.
a:' recme11t for 1'Csalc-Evidcuce, admissibility of, to PrM'e t.ransactioll t
tuorlga;;,c-Husbancl of Plaiutiff, 1ethereabott.ls unknown, not joined a;
Par lY-Burmesc Buddltist cottPle, uot agent for each otlter- Co-owuer
slziP, e.~tent (!j 1iglds to ProPerty.
Held : By p: O\ iso to clat se (c) of s. 58 of th6 Transfer of P'roperty Ac
inserted by A;r.encling Act 20 of 1929 no evidence is admtssible to prore a sale
of hovse and site by registered deed was C011\'erted into a nwrtgage by ar
agreemt.nt for res:~le executed contemporaneously. S. 53-A, Transfer o
Property Act cal1not be relied l:pon as a defence.
11fall.ll{fS;;we Plzoo anti eight others v. llfaung Tun Sltitt and three others
5 R .n. 64~, referred to.
Held A Burm.;sc Buddhist wife has a vested interest in propert~ acquire<
.. b, her husband but she is not a co-owner in the sense that during tht
s~;bsisttnce of tilt: m<~rriage s'le can claim pJrtition of the proper.ty. . There il
no pn:~ mptiot: de facto or de jure that a;Burmese Buddhist couple Jivin~
togethtr are authorized agents for each other. A Burmese Buddhist wif(
cannot fi'e a s it for possession of property sold to her husband withou
join=ng her h sbind as. co-plaintiff in the suit.
N.A.V.R. Cltettyar Firm v. Maung TlzaJt Daing, 9 Ran. 524, referred to.

Hla Tun Pru and Tun H~a for the appellant.

Leong and Thein for the respondent.

uSAN MAUNG, J._In Civil Regular Suit No. 8

of 1951 of the Subdivisional Court of Thatrawaddy:
the . plaintiff-respondent . Ma Than Yin sued the
defendant-appellant Daw Sar Yi for possession of the
house and site in suit . . . .Iter case is that she is the
"' Civil 2nd Appeal ~o. l~O of 1~52 ~gainst r:'the decree Of tl_J.e District .
Court, Tharrawaddy, in Civil Appeal N.o. S<>f 1952.
1955] BURI'dA LAW REPORTS. 45
H ~
19 :>l
wife of one U Tun Yon whom she married about 10
'
vears ago after the d eath of his first wife Ma Han, --
that on the 2nd lasan of Pyatho 1309 B.E.{13-12-1947) DAw v~AR YI
U Tun Yon bought from Daw Sar Yi the house and MAYI!\ TH A :-:
.
site .in suit for a sum of Rs. 2,000 by a registered deed u SAN
Exhibit A that U Tun Yon was . captured by insurgents MAUNG, J.
in the year 1949 and has not .been heard of since that
tim~, and that by virtue of the fact that she is his
wife she asked for a declaration that the house and
site in suit belonged to her and for possession of the
same. Among the variou::; defences raised by Daw
Sar Yi it was contended that the suit was bad for
non-joinder of U Tun Yon and his atet children as
parties to the suit and that although Exhibit A purports
to be a sale it was, in fact, intended to be a mortgage
as evidenced by the fact that contemporaneously with
it an agreement Exhibit 1 was executed. by U Tun
Yon whereby he agre~d to resell the property to her
on payment of Rs. 2,500 within 2 years from the
date of its execution. Of the several .issues framed
on the pleadings, the first three relate to the allege.d
non-joinder of parties, admissibility in evidence of
the fact- that the sale deed Exhibit A read in the light
of Exhibit 1 was, in fact, a mortgage instead of a sale,
and the admissibility of the plea that the agree1nent
Exhibit A was a _valid defence to a suit for possession.
All these . issues were answered by the learned trial
Judge in favour of the plaintiff with the result that
her suit w:as decreed. The learned trial Judge took
the extraor4inary step of invoking the provisions of
Order I, R~le 8 of the Civil Procedure Code because
he consld~~ed that it was appropriate it;1 view of the
absence of U Tun Yon.
On appeal by the defendant .Paw Sar Yi to the
District Co.u rt, the Distri~t Judge held.tha~ no evidence
.wa~ admissible to show that. the:transaction evidenced
46 BURl\1A LAW REPORTS.
/
H.s;. by the documents Exhibit A and Exhibit 1 was, in
19.: > 4
- f act, a mortgage an d .not _,a sale an d t h at sectwn
.
D Aw ;:\.R Yr 53-A of the Transfer of Property Act was inapplicable
MAYTHA~
IN.
to the facts of the case. The learned District Judge
observ~d that before him the learned Advocate for
U SAN
MA uNG, J. the appellant had abandoned all the grounds of
appeal except those with which he had dealt. Among
the grounds so waived would appear to be ground
Nos. 1 and 2 which read as follows :
" .The Lower Court erred in law and procedure in
holding that the respondent has right of suit based on the sale
deed, which is in the name of another person living and not
in the name of the respondent. ,.
That the Lower Court erred in law in hold~ng that the
respondent can file the suit on behalf of her husband, U Tun
y o.n."

However, iJJ spite of this waiver the learned Advocate

for Daw Sar Yi who ha.s preferred this se_cond appeal
has tried to urge before 1ne that the plaintiff-
respondent's suit for possession is not main-tainable in
lawand I have -allowed him to raise this point because
it cuts at the root of the whole case.
As regards the nori-adn1~ssibility of evidence to
show that the, trans.actiori evidenced by Exhibit A and
Exhibit 1 was, in fact, a mortgage I need onlyrefer to
the proviso to clause (c) of section 58 of the Transfer of
Proper.ty Act which lias been inserted by the Amending
Act 20 of 1929, 2 years after the decision in the case of
Maung Shwe Phoo and eight others v. Maung Tun
Shin and three others (.1). I also agree with the
learned District Judge that the provisions of section
53-A of the Transfer of Property Act could not be relied
upon by the d~fendant jn the circumstances--of the case.
. However:, .there is ample force in the .- contention .
~fthe learned Ad:vocate for the appellant paw_. Sar Yi ...
(1) 5 lhn. 644.
.955 ] BU RMA LAW REPORTS. 47

hat the plaintiff-respondent Ma Than Yin cannot H.C.

1954
ring a suit for possession of the house and site in
uit. No .
doubt as a Burmese Buddhist wife she had DAw vSAR
.
Yr
vested interest in the property acquired by her MA THAN
.usband U Tun Yon vide N.A.V.R. Chettyar Firm v. YIN.

1.aung Than Daing (1). However, she is not a co- M~u~~~ 1

wner of the house and its site with her husband
J Tun Yon, in the usually accepted connotation of the
~rm co-ownership. One co-owner usually has a right
) claim partition of the property jointly owned by him
nd another whereas during the subsistence of the
1arriage no Burmese Buddhist wife can claim parti-
on of the joint property in which she has a vested
1terest. Therefore a Burmese Buddhist wife cannot,
1 my opinion, file a suit for possession of the property
)ld to her husband without joining her husband as
co-plaintiff in the suit. In the case now under
)nsideration the plaintiff-respondent Ma Than Yin
as not been . shown to be authorized by her husband
, file the present suit and there is no presumption
~ facto or de jure that a )3urmese Buddhist couple,
ving together, are agents for each other or that the
llsband is deemed to consent to the acts of his
ife or vice versa. Furthermore, the defendant Daw
1r Yi is not a mere trespasser. She is in possession
: the house and site in suit under an agreement for
) resale and there is no knowing whether U Tun
on if he is present in Court would or would not file
suit for .possession in the circumstances of this case.
e might have honoured the agreement and at the
me time grant Daw Sar Yi .an extension of the time
lowed in t~e agreement for the repurchase of the
operty. . .. .
In the r~suJt I hold that the suit has been wrongly
~creed by the learned Judges of the lower Court~ 'in
(1) 9 Ran. 524.
48 ru ~ !.__.: 1-,\. .~\ 'l .~
;;\ .L
' A \.\J R ~
r.- l)C) R~rs . [1Y55

H.c.
1954
the absenc-e of U Tun Yon as ~.-a co-1,;laintif1'
.
in 'the .case.
- . The appeal succeeds. The judgment and decree of
DAw ~-AR 'Y r the District Court of Tharrawaddy, confirrrting those

MAYTHAN
IN.
of the Subdivisional Court are set aside and the
plaintiff-respondent's suit for possession, dismissed
u SAN
MAo NG, J. with costs throughout. Advocates' fee in this Court,
5 gold mohurs.
 1955 J BURiv1A LAW REP'ORTS. 49

APPELLATE CIVIL.
Before U Sa11 Maung, J.

DA w SAw (APPLICANT) H
1955
<.:.

V. l au. 13.

L. RAMANATHAN CHETTIAR (RESPONDENT).*

Ci~il /-'rocedure Ccd<, Order XX, Rttle 11 (2 )-Limit(l/ioil Act, .4rticlc 175-
APPficatiou l. y iudp.11:~u!-dclitcr for order to PaY dt'etclal al/louut b.y
instalments-Limitatio1! A ct, s. 5, a.pjJlicabilily of- l:zltTference i11
re'i.d~to n, wli f'lf jus/ ified .

Held: S. 5 of l he Lin itatiOn Ad does not apply h) applications g O\erned

by J\1 tide 17S of the Ad s,:ch; s the present application for an order to p:t
a decretal amout:t by instalment filed six n:ontlls after the decree had bee~
p assed.
Ma Naw Na1u rmd oue '. V. E .S.S.M. Soma~mrdra11 Clictty, I. L.R 2 Ran.
6SS; Kali Prasad Tcu:ari :. Parmeshwar Prasad Manvari, A.l R. ( 1929)
All. 127; B. Narotam Da:, " B. Bltaguau Dass, A.I.R. (1934 ; All. 314;
A.R.K.N. Rame~nu/lratt Cltetlyar v . Baldan Sin[!.lt, A. I. R.-.( 1933) R.m. 110;
Vcerayya v. Sree!ailam, A.I.R (1928) Mad. 556; Ram Raj Dassundlti v. Mt
Umraji and at;otller, A. LR. (1926) All. 345.
Held also : The powers of the High Court und t:r s . 25 of t he City Civil
C ourt Act ar e much wider than those exercisable under s. 115 uf the Civil
Procedure Code, and the High Cou: t can interfere in revision where the City
Civil Cout has entert~i n edan ap plication clea1 ly beyond the period prescribed
'l>v limitation .
. Ma Tlran Yilt v. Ta1~ Khrat Klrcng (a) .
Tan Keit Scin, (1951) B.L.R. 161 t
distingt:ished.
Siva Dass Dey v. Asliabi and one, I.L.R. 3 Ran. 471. folbwed.

San T he(n for the applicant.

Tin Hfa for the respondent.-

U SAN MAUNG, J._InCivil Small Cause Suit No.

1064 of 1951 of the City Civil Court, Rangoon, the
plaintiff Daw Saw, who is the applicant in the present
application for revision, obtained a decree for a sum
of Rs. 616 with costs as aga~nst L. Ramanathan
Civil Re~is'ion No. 88 of t9S2 against the order Of the Chief Judge, City
Civil Co~tr t, in Small Cause.Sl!it No. 1064 .of. 1951.

4
so BURMA LAW REPORTS. f1955
H.C. Chettiar. The decree was passed on the 2nd
1955
November 1951. On the 21st June 1952, more than
DAW SAW
v. 6 months after the date of the decree, the judgment-
L. RA)!A-
N ..\THAN debtor filed an application under Order XX, Rule 11
CHETTIAR. (2) for an order allowing payment of the decretal
U SAN amount by instalments. The application was opposed
MAU~G, J.
by the decree-holder Daw Saw. The learned Chief
Judge of the City Civil Court, however, allowed the
application and ordered that the decretal amount be
paid by monthly instalments of Rs. 25. In this
application for revision, it is urged that the learned
Chief Judge of the City Civil Court was wrong in
having allowed the application to be filed after the
period of six rp.onths limitation prescribed in Article
175 of the Limitation Act as the provisions of ~ection
5 of that Act are not applicable to such applications.
In my opinion, this contentio.n n1ust be allowed to
prevaiL .,
Section 5 of the Limitation Act reads :
'' Any appeal or . application for a review ofjudgment
or for leave' to appeal, or any other application to which this
section may be made applicable by or under any enactment for
the time being .in force. may be admitted after the period of
limitation prescribed therefor, when the appellant or applicant
satisfies the Court that he had sufficient cause for not preferring
the appeal or making the application within such period.''

Section 5 of the Limitation Act has not been made

applicable by or under any enactment to applications
governed by Article 175 of the Limitation Act. .
In Ma Naw Naw and one v. V.E.S.S.M.
soma.sundran Chelty (1) it was held that th~ provi-
sions of section 5 of the Limitation Act do .not apply
to an application to set aside an ex~parte decree, not .
to .an application t<fset aside an orderof dislpissal for
.. . default. > .This decision was followed by the. Allahabad
('1) "(1924). I.L.R. 2 Ran.:, p. 6S5 .
 1955] BURMA LAW REPORTS. 51
High Court in Kali Prasad Tewari v. Parnzeshwar H.C.
1955
Prasad J\tlanvari (1) where it was held that section 5
DAw SAW
of the Limitation Act was not applicable to applica- v.
tions for restoration of a case under Order IX, Rule L.RAMA-
NATHAN
4 of the Civil Procedure Code as there is no expressed CHET'l.IAR.

provision in that order which makes section 5 U SAN

applicable to such applications: In B. Narotant Das MAUNG:, J.

v. B. B hag wan Dass (2) a Bench of the Allahabad

High Court held that section 5 of the Limitation Act
did not apply to an application under Order XXI,
Rule 90 of the Civil Procedure Code. See also the
cas~s of A.R.K.N. Ramanathan Chettyar v. Baldan
.Singh (3), Veerayya v. Sreesailam (4) and Ram Raj
.Dctssundhi v. !Vlt. Umraji and another (5).
The next point for consideration is whether this
Court should interfere with the order of the Chief
Judge of the City Civil Court in revision under section
.25 of the City Civil Court Act. No doubt in Ma
Than Yin v. Tctn Kheat Kheng alias Tan Keit Sein
-(6) it was pointed out by U Bo Gyi, J. that n1erely
:because an erroneous decision has been arrived at by
the lower . Court there is no ground for holding that
the Court when coming to the decision it did exercise
:its jurisdictioil illegally or with material irregularity
within _the meaning of that phrase in section 115 of
:the Civil Procedure Code. However, it is clear that
the powers. of . the High Court under section 25 of the
-City Civil Court Act are tnuch wider than those
~exercisabie under section 115 of the Civil Procedure
Code. See. Siva Dass Dey v. Ashabi and one (7),
where in a case like the present the- learned Chief
.Judge of tpe City Civil Court has entertained an
;.application clearly beyond the period prescribed by
(I) (1929-l A..I. R. All., p.l27. !4) (1928J Mad., A.I.R., p. 556 .
(2) !1934) :A.I:R. All., p. 314. (5) (1926) A.I.H. All. 345.
(3) (l933) . A~I~R. Ran., p. 110. (6} (1951) B.L.R. p. 16.
. (7 1 ii925) I.L.R. 3_Ran. p. 471.
5.2 BURMA LAW REPORTS. [195

H.C. limitation, I think, interference of his order for revisio

1955
is called for.
DAw SAW
v. For these reasons, I would set aside the order c
L. RnrA-
NATHAN
the Chief Judge of the City Civil Court dated the 28t:
C'HET'frAH. July 1952, allowing the respondent L. Ramanatha:
U SAN Chettiar to pay a decretal amount by monthly instal
~AUNG, J.
ments of Rs. 25. There will be no order as ' to cost
of this application.
1955 ] BURMA LAW REPORTS. 53

APPELLATE CIVIL.
Defore U Ttul Uy11, C.J., and lJ Atmg A'hiut:, J.

DA w THEIN KHIN (APPELLANT) H.c.

1954
v.
Oct. 27.
ABDUL JABBER AND ONE (RESPONDENTS).*

JrbatJ Rellt Control Act, s. 11 (1} (d)-E:r:pression building or

buildings" whether confined to residential or t!wclli1tg /iou~es
only-Expression "bonc'l fide "~Mearting of, by rcjcreuce to conte.rt.
Held: There is nothing in clause (d) of s. 11 (1) of the U~ban Rent
:ontroi Act which would definitely suggest that the building must
ecessarily be a dwelling house or a place of rest and abode.
SilL Tek " Lak!Jany Brothers, Civil 1st Appeal No. 19 of 1951 (H.C.) ;
'icltards v. Swansea lmtrovemenl aud Tramways Co., (1878) 9 C.D. 425 ;
o Wah Nak v. Ko Tu1z Sei'z a1td two others, (195 1) B.L.R. 188, followed.
Held also: T he expression ' bona fide" in clause (d) of s. 11 (1) of
ae Urban Rent Control Ad wilJ have to be read in the context in which
.at express ion apr,>ears to obtain its re:.l meaning.
C. A h Formg (al Chow Ftmg Mee v. K. Mohamat Kaka and two others,
.950) B. L.R. 346, f,Jllo\\'ed.

lla Thein for the appellant.

1-. N. Banerji for the respondent No. I.
'he judgment .of the Bench was delivered by

U TuN. BYU, C .J. -The plaintiff-appellant Daw

'hein Khiri is a cigar manufacturer and she carries on
er cigar manufacturing business .at three different
heds or premises . in Rangoon, namely, at Yegyaw,
:ow Lane .'and Myaunggyi Road, respectively. In
uly, 1949 she p urchased a piece of land, situated at
ro. 129/131 ; Stockade Road, measuring 501 X '991,
) f Rs. 8,000 under a registered sale . deed. There
reie four huts on. the land at the time Daw Thein
~hin purchased it. Subsequ.e ntly; Daw Thein Khin
1stituted four suits for the ejectments of the
* Special Chi~ Appeal No.' 1 of 1952 against the decree of the i:iigh
)urt ir. Civillst Appeal No. 27 of 1951.
54 BURMA LAW REPORTS. [195 .

H. c. defendants who were -said to be in occupation c

19 54 '
- those huts, under section 11 (1) (d) of the Urban Rer:
DA~H~~HEIN Control Act, 1948; and these suits were known a
AB~uL Civil Regular Suits Nos. 873, 874, 875 and 876 o
JABBER ANo 1950 of the Rangoon City Civil Court, respective!)
~ Judgments and decrees were passed in.favour of Da\
u T~~J.BYu, Thein Khin in all the four suits. On appeal to th
High Court, those ju~gn1ents and decrees were how
ever set aside, with the result that Daw Thein Khi
obtained leave for the institution of 'the four specie
Appeals under section 20 of the Union Judiciary Ac
1948, namely Special Civil Appeals Nos .. 1,2,3 an
4 of 1952. It is with these Special Civil Appeal
that we now deal with.
Two common questions arise in all the fot:
appeals J10W before us, namely whether the expressio
"building or buildings" in clause (d) of section 1
(1) of the Urban Rent Control Act, 1948, . mear
residential or dwelling houses only, or not, ail
whether the plaintiff-appellant Daw Thein Khin can, i
the circumstances of the present litigation, be said t
require the land bona fide within the meaning <
clause (d) of the s~ction 11 (1) ? tt will be mo1
c onvenient if we reproduce, at the outset, the releva1
portion of the clause (d) of section 11 (1) of the Urba
Rent Control Act, 1948, as .is applicable to tl
present case, and it reads :
0 0

. " 11 (1). Notwithstanding any thing contained in t:

Transfer of Property Act or the Contract Act' or the Rango1
City Civil Court Act no order or decree for the recovery
possession of any premises to which this Act -applies or f
~he ejectment of a tenant therefrom shall be .made or giv
unless- ' .
. . . . . . . . .. . .
~

(d) the premises, . in the case of :land . which

0
w.
primarily used as a house site . a'Iid was su
sequently let to a tenant? ar.e bona fi
 '
1955] BURMA LAW REPORT&. 55
required by the landlord for erection or H.C .
195~
re-erection of a building or buildings and the
lan dlord executes a bond in such amount as DAW . THEIN
the Court may deem reasonable that the KHI..-
v.
premises will be used for erection or re-erection A lli)L' L
of a building or buildings. that he will give JABBER AN'U
ONE.
effect to such purpose within a period of one
year from the date of vacation of the premises U TUN Bvu,
C.j.
by the tenant, and that he will. if so
desired by the tenant, reinstate the tenant
displaced from the land on completion of
erection or re-erection of such buildings in
case the buildings are erected for the purpose
of letting ; or
"
It is not disputed, and we might add that it can-
not on the evidence be disputed, that the land in
question is a house-sit~ within the meaning of
section 11 (l) (d) of the Urban Rent Control Act,
1948. It was, however, contended on behalf of the
defendant-respondents in all the four appeals now
before us that the building which was to be
con~tructed tnust, by reason of clause (d) of section
11 {1), be a dwelling or a residential house only.
There is, in our opinion, no force in this contention.
The expression " buildin_g or buildings " are clearly
wide, and they ought to be given their ordinary
mea.Qing. It was observed in Sin Tek v. Lakhany
Brothers (1) in these words:
" . . . . . The expression ' house' in clause (d)
ought. moreover. to be given its ordinary wide construction.
inCluding a place of business. in the absence of anything to
indicate, .more or less clearly, that it was intende~ to be
used in a more restricted sense. James, L.J . in Richards v.
Swansea Improveme1rt and Tramways Company (2) observed-
Of course, the word ' house' does not mean, it
'. see~~ to me, necessarily a mere dwelling house.
(lJ.Civillst Ar-peal No.19 of 1951 of High Court, Rangoon. :
. (Z( ((878) 9 C.l) . 4ZS at 431. .
. ..: .
56 BURMA LAW REPORTS. [1955

H.C. or a house only used . c r exclusively or

1954 ;>rincipall y used, for a residence; the word
DAw tn EIN ' ho use' includes a shop \1r may consist of a
KHIN
'lJ .
shop.
A BDUL There is nothing in clause (d) of section 11 ( 1) or in
fAll BER AND
ONE , any part of the Urban Rent Control Act. 1948, which would
u Tu;-;"Bvu, definitely suggest that the building, which is to be constructed,
c.r. must necessarily be a dwelling house, or a place of rest or abode.
We might mention here that the word ' residential' which
appears in clat1se (f) of section 11 (])is not present in clause
(d). If the Legisla ture had intended tha t the building or
buildings that are to be constructed under clause (d) should
be residential building or buildings only, we would in any case
expect it to express its intention more precisely."

A similar observation occurred in an earlier case

of Ko VValz Nah v. Ko Tun Sein and two others 0)
and it was there observed-
..
" It has been urged before us in this app~_al that clause
(d) of section 11 (1) of the Urban Rent Control Act, 1948 will
not help the plaintiff-appellant, in that he desired .to construct
a.building for I1imself and not for the purpose of letting it.
There is, in our opinion, no substance in this contention.
Clause (d) appears to us to be clear, in that it also allows the
owner of land to have back the .possession of the lal).d which
had been let out to a tenant if he requires it bona fide for
erecting a building or buildings .thereon, and no restriction is
placed on the putpose for which a building might be constructed.
so far as clause (d) is concerned."

The wording of the l.a ter portion of clause (d)

of section 11 (1) of the Urban Rent Control Act,
1948, which preScribes the nature of the bond to
be execut~d by th<f landlord cannot, in o:ur. opinio~,
control the plain . ineaning of the ~arlier . portion of
clause (d) on the fulfilment of which fhe owner is
.entitled to a ..decree for ;' the ejectment of the tenant
himself. It is difficult also to understand how the
. . . . ' ' ..
(1} (.1951) B.'~.R. p. J ~8 at 1S9 . .
'
 BURMA LAW REPORTS.
.
l<JS.S] 57

bond taken under clause (d) can be described as H.C.

1954
useless if the building, which was to be erected , was
DAW THl-.!N
not in the nature of a dwelling or residential house, KHI:-.7

because the bond can be executed against the owner if As~uc

h.e fails to construct the building within one year from JAnBER ANu

the date the premises is vacated as required under the ONE.

bond executed by him. It iS true that the exp.reSSiOn U Tg~J.BYUt

"' reinstate "was used in the later portion of clause
{d) of section 11 (1), but the presence of the expression
" re-instate in the later portion of clause (d)
does not necesssarily indicate or imply that it
'is only a dwelling house or residential building
which can be constructed under clause (d) of
:section 11 U). The bond is to be executed only
:after the judgment and decree are passed, and
the terms of the bond to be taken under the later
-portion of clause (d) cannot in any case ~ontrol the
.e arlier portion of clause (d) under which the owner
.seeks to obtain a decree for ejectment. It seems to
us that the expression "reinstate" in clause (d) has
been used somewhat loosely.
In conne.ction. with the second question which
:arises in these four connected appeals, the expression
" bonafide" in clause (d). of section 11 (1) will have
to be read in the context in which that expression
appears to enable us to obtain its real meaning.
1n <;. Ah Foung (a) Chow Fung Mee ,v. K. Mohamat
Kaka and two' others (1) 'it was .observed :
It will thus be obs.erved that what C. Ah Foung is
:required to prove .for the purpose of clause (d) of section 11(1)
of the Urban Rent Control Act. 1948, is that he requires the
land. which is. in the possession of the defendants-respondents,
.bona fide for constructing a ~uilding thereon. We might say
:at once that,"the motive which impelled C. A.h Fo.ung to file a
:suH against the defendants-r~sponde:nts does not. and cannot,

(1 1 (1950) B.L.R. p. 346 at 34/.

58 BURMA LAW REPORTS. [1955'
H.C. constitute a deciding factor in this matter, although It 1S a
1954
circumstance which the Court ought to take into consideration
DAw THJ::I)\ in attempting to find out, on the evidence which i:S produced
K~. lt1
1
before it, whether C. Ah Foung really requires the land in
AuvuL qustion bona fide for constructing a building thereon:"
JAHUEn AND .

~ Daw Thein Khin stated that she required the land in

u T~~/vu, question for buildii1g a shed or premises for her cigar
manufacturing business, and we accept her statement
in this respect. She has moreover filed a plan of the
shed or premises she proposed to construct on the land
in question. She has also examined Ko Po . Kyaw, a.
carpenter, to show that she has made arrangements
for him to construct the shed or premises on
the land in question. There is therefor.e sufficient
evidence on which the learned Judge of the Rangoon
City Civil Court could come to the conclusion that
Daw Thein Khin bona fide reql!ired thy land in
question for constructing a building thereon. The
judgments and decrees passed in the . Civil First
Appeals No. 27 of 195L No. 28 of 1951, No. 29 of 1951
and No. 30 of 1951 are set aside, a,nd the judgments.
and decrees passed in the Rangqon City Civil Court
will be restored. The judgment passed in this
case will also be considered to be judgments for
the other three connected Special Civil Appeals.
The Special. Civil Appeais Nos. i, :2, ~' and 4
of 1952 are therefore allowed with costs through-
out, and Advocate's fees will be k .. 34 for each
case in all the Courts.
U AUNG KHINB, J .-1 agree .,
 1955 J BURMA LAW REPORTS.

APPELLATE CIVIL.
B,;forc U Tun/Jyu, C.J., and l ! ..lung ]{him:, f.

HAJI ABDUL SHAKOOR KHAN (A PPLICANT) H.c.

1954
V.
Nov. 3.
THE BURMA PUBLISHERS LTD. RANGOON
'
(R ESPONDENT). *
l.hliOIJ Judici<t1'Y .4 ct, s. 5 (b) and {c)-Issue of certi.ficc~te for /cav~ to apteal
to t11e SttPrcme Court-Citil Procedure Code , s. 10.) (cl - Union of
Bu,'ma 1Ada.Plaliv11 of Laws) Order, 1948.
H eld: An application for the issue of a ccrt ificate to nppeal to the Supreme
Court will not lie under c.:i:mses (b) and (c) of s. 5 of the Union Jucliciary Act
if the . judgment and decree again~t which the appeal is lo be laid
was not in respect of or related to a subject matter the !yalue of which is
Rs. 10,000 or more.
Hel d also: S. 109 of lhe Ci vil Procedure Codt- a& modified by the Union of
Burma (Adaptation of Laws) Order, 1948 was a n earlier legislation as far as
the Union Judiciary A!:t is conce rned, and the plain meaning of the Iutter
rleten riines the a pplication uninfluenced by the cousidecation whether s. 109,
Civil ~rocedure Code has been repealed.
Sci Cheng v: u Thein, (19-t8) B.L.R. 600, referred to.

Mess~s . Basu and Venkatram for the applicant.

P. 1V. Ghosh for the respondent.

The judgment of the Bench was delivered by

U T UN Byu, C.J.- The applicant Haji Abdul

Shakoor-Khan, who was the defendant on the Original
Side of the High Court, applied that a certificate
might b~ issued to him, under section .5 of the Un.ion
. Judiciary .Act, 1948, to enable hin1 to appeal to the
. . Supt:eme . Court again~t the judgment . and decree .
. p as.~ ed i~ Civil First Appeal No. 97 of 195f, -whfch .
~ Civil Mis c. Application No. 26 of 1953:'
60 BURMA LAW REPORTS. [1955
H.C. affirmed the judgment and decree of the Original
19.)4
Side of the High Court. The value1;.0f the appeal in
t~~:~~~~g~r. Civil First Appeal No. 97 of 195-~~~ was Rs. 7,710.
K:,~A~ The value of the appeal to the Sup~)'hle Court, for the
THE Bui~MA purpose of the present application .t would also be
PUBT, ISHERS '
LTn., Rs. 7,710; and 111 any case, the value of the appeal
RANGooN. to the Supreme Court, if any, would be less than .
u T~~ ~vu, Rs. 10,000. It is clear therefore that the application
1 for a certificate to appeal to the Supreme Court will
not lie under clauses (b) and (c) of section 5 of the
Union Judiciary Act, 1948, in that the judgment and
decree passed in the Civil First Appeal N"o. 97 of
1951 was not in respect of or related to any claim
or subject-matter, which was of the value of
Rs. 10,000 or 1n6re; and clause (a) of section 5 also
do.es not apply in the present case. .
. It was contended on behalf of the applicant that
the application for a certificate to appeal to the
Supreme Court can be made, in the present case,
under clause (c) of section 109 of the Civil Procedure
Code. Clause (c) of section 109 of the Code of Civil
Procedure includes, of course, cases, which cannot be
brought under section 110 of the Code of Civil
Procedure but which cases are fit cases for appeal as
indicated in clause (c). In other words, it is not
necessary for the purpose of clause (c) of section 109 ..
that tb.e value of the Claim or subject-tnatter of the
suit should at least be Rs. 10;000. We might
observe.here that section 109 of the Code of Civil
Procedure, as n1odified by the Union of Burma
(Adaptation of Laws) Order, 1948, was an earlier
l~gislation so far as the Union Judiciary Act.~ 1948, is
concerned, and section 5 of the Uriion. Judiciary Act,
. 1948 reads : .
. ...
. . . " 5. Save where an appeal. lies to the High Court itself
.under the provisions of section .20, an appeal shall lie. to the
 1055] BURMA LAW REPORTS. 61
Sup reme Court from the judgment. decree, or final order of the H .8.
Hi gh Court (whether passed before or after the commencement J9S4

of the Constitution) in any civil. criminal. or other case, if the HAJI AH " !; L
SHA\,OOR
High Court certifies- . KH A~

(a) that the case involves a question as to the validity v.

THE Bt:!;~!A
of any law having regard to the provisions of PUlH,IS H El::l
LTI>.,
the Constitution. or !~ANGOON.
(b) that the amount or value of the subject-matter of
the dispute in the Court of first instance and lJ TUN BYU,
C.J.
still in dispute on appeal was and is not less
than ten thousand rupees, or
(c) that the judgment, decree, or final order involves
directly or indirectly some claim or question
respecting property of the like amount or
value
and, wher'e the judgment. decree, or final order appealed from
affirms the decision of the Court immediately below in any
case other than the one referred in clam:6 (a), if the High Court
futher certifies that the appeal involves some substantial
question of law."
It Will thus be observed that section 5 of the
Union ..Judiciary .Act 1948, prescribes in what cases
' .
the High Court will issue certificates for appeal to the
Supreme Court. U Thein Maung, Chief Justice of
the High Court as he then was, observed in Sei Cheng
v. U Thein (1):
" .. Of the two certificates which are
necessary for the purpose, one must be to the effect that the
amount o'r. value of the subject-matter of the dispute in the
Court of first i.n stance and still in dispute on appeal. was, and
is, not less than Rs. 10,000, or that the judgment, decree or
final order involves, directly or Indirectly. son:ie Claim . or
question ..respecting property of the like amount or value ;
and the other certificate must be to the effect that the appeal
involves some substantial question of law."

seems to 'u s to be clear that. clause (c) of section

109 of the Code of Civil Procedure cannot exist side
(1} (1948) B.L ..R. 6oo ...
 BURMA. LAW REPORTS. [1955

H.c . by side with section 5 of the Union Judicir:y Act,

1954
1948 after the latter was enacted ) otherwise it would
H An ABn u t mean that the High Court could grant a certificate to
SHAKOOR
KHAN appeal to the Suprenie Court in cases not covered by
THE Bur~MA the provisions of section 5 of the Union Judiciary Act,

Pu s~~~-~r<s 1948. It was argued on behalf of the applicant that

RANcoo~. if clause (c) of section 109 of the Code . of Civil
.u T uN Bvu, Procedure was to be considered as having been
C.J. impliedly repealed by the provisions of section 5 of
the Union Judiciary Act, it would mean that litigants
had been deprived of their right of appeal under
clause (c) of section 109, of the Code of Civil Procedure,_
which existed prior to the Independence. We cannot,
however, permit such argu1nents to influence us as
to what is the plain meaning of section 5 of the Union
Judiciary Act. Moreover, there is section 6 of the
Union Judi~iary Act under which the applicant can
apply for a grant qf special leave to appeal , to the
Supreme Court so far as the present case isconcerned.
Section 6 of the Union Judiciary Act, 1948, applies,
of course, to final orders only, but this drcumstance
cannot assist us to interpret a:s to the meaning of
section 5 of the Union J udic~ai:y Act, 1948 ; and so
far as the applicant is concerned the provisions of
section 6 will obviously apply. The meaning of
section 5 of the Union Judiciary Act is quite plain ;
and 'the application is therefore dismissed with costs,
Advocate's fees K 85. .
U AUNG KHINE, J.-I agree.
1955] BURMA LAW REPORTS. 63

APPELLATE CRIMINAL.
Before U Sau Mautzg, 1 .

KA WLI JANNA (APPLICANT) H.C.

195t
v.
Dec. 20.
THE UNION OF BURMA (RESPONDENT).*

Foreig11ers Rt"gi~t y,,t;o:t Act (nurma Act No. 7 of 19{0 ), s 5 - Fail1tre !o regis-
t er w tder Registrat iOn of Foreigner s Rules, 1Y48-Excmptio1z 0rtfcr No.4,
dated the 16t h December 19-i<V- Foreigner in lite servi:e of t he Union .
Held :By :\c.:t 35 of 1952, the Inland Wate! Tn nsport Hoa rd i:; :1n organ
;zation Of the Government ; the applic :mt is i :1 the s e rvice of the Ooard and
:herefore of the Unio:t Government, and, as such, he is exemp t frcm the
Jrovisions relating to the registration of foreigne rs contai ned in the Registra-
ion of Forei~ne :s Hul es, 19-1::! .

-.....for the applicant.

'Mya Thein (Government Advocate} for the
respondent.

TJ SAN MAUNG, J._In Criminal Summary Trial

~ o. -3333 of 1953 of the Third Bench of Honorary
Magistrates of Rangoon, the applicant Kawli Ja.nna
;vas convicted under section 5. o.f the Foreigners
legistration Act (Burma Act 7 of 1940) for alleged
:ailure to register at the office of the Foreigners
tegistration Department as required by the Registra-
ion of Foreigners Rules, 1948. He was sentenced
.o a fine of~ 25 or in default 30 days' simple
mprison.ment. The fine has been paid. On
Lpplication to the District : Magistrate of Rangoon
>Y Kawli Janu a, the learned District Magistrate by his
>rder of a reference in Criminal Revision No. 82
>f 1953 has .recommended that . the .conviction and
.entente on.: Kawli Janna be set aside as the same
\ .
Criminal R~~ision :-Jo.187 .'(Bl oC1954 being R eview of U1e o r der : of
)e Honorary Mag istrates, RangQon, in Criminal Sutnmary Trial No . .3333
f 1953; . . . . .
64 BURMA LAW REPORTS. [ 195:

H.C. was contrary to law. In making this .recommenda

t954
tion, the learned District Magistrate has relied upoi
KAwL~!ANNA the provisions of clause (a) of paragraph (~. of tht
THE UNroN Exemption Order No. 4 under the ReoistrrM on oJ
OF .BURMA. b '.\/fli
Foreigners Act contained in Foreign Offio ~""N otifi
M!Ju~~N J. cation No. 130, dated the 16th of Decen1J er 194~
published in Part I of the Burma Gazette
dated the 25th of December 1948. The relevan
portion of this paragraph reads:
" 4. The provisions of the rules, except Rule 2 an
such of the provisions of Rules 4, 14,15 and 16 as apply to, or i
relation to, passengers and visitors who are not foreignen
shall not apply to. or in relation to :_
(a) any foreigner in the service of the Union ;"

The rules referred to therein are those contairie-(

in Foreig.n Office, Immigration Branch, . N otifica
tion No. 129, dated the 16th of December 194
published in the same volun1e of the Burm
Gazette.
The question which arises for consideration i
whether the appljcant Kawli Janna is a foreigner in.th
service of the U nion. .He is admittedly a for eigne
employed in the Rangoon Foundry of the Inlan'
Water Transport Board and he possesses. an I dentit
Card .issued by tlie Board. Therefore if the Inlant
Water Transport Board is an org~n of the Governmen
of the Union of Burma, Kawli Janna must be deetne
a foreigner in the service .of the Union. .
Now, the Inland Water Transport Board was
body constituted under the provisions of the Inlan
Water . Transport Order, 1946 contained in Transpm
and Comlnunications . Department, . Marine Brancl
Notification No. 44, . <;i.ated the . 20th of May 194
published in Part I of th~ Burma . Gazette, .dated th
25th. of May 1946. . Fr~m the pr~visi?ris: containe,
 '
1955] BURMA LAW REPORTS. 65

:herein, especially those relating to the advance of H.C.

1954
uoney by the Government to enable the Board to
l{.~WLt J AN NA
~xercise its powers and functions, the appointments 'fJ.

)f the members of the Board and the submission THE UNION

OF B URMA.
)f the agenda and minutes of all the meetings of the
u SAN
3oard qr any committee thereof to the Secretary to ~1AL'NG, J.
he Government in the Transport and Communica-
ions Department and the Finance and Revenue the
:x~mption of members of the Board and officers or
ervants thereof from suit, prosecution or other
,roceedings in. respect of anything done in good faith
mder the provisions of the Inland Water Transport
)rder, the .v~sting cf all fund and property in the
iovernment on the dissolution of the Board and the
.evolution upbn the Government of all debts and
:abilities. of the Board ' I consider that the Inland
Vater Transport Board as constituted under the Inland
Vater Transport Order, 1946 was nothing but an
rgan ofthe Govern1nent. This order was superseded
y the Inland.Water Transport Board Act (Act 35 of
9S2). The provisions of that Act, especially, those
~lating to Budget and Accounts also leave no room
)r doubt th.at the Inland Water Transport Board
ontinues to. be an organ of the Government.
For these .reasons, Kawli Janna must' be considered
J be a foreigner in the service of the Union and as
llCh . exempt .from the provisions relating to the
!gistration of foreigners contained in Registration of
'oreigrier's Rules, 1948.
F or 'these rea~o~s, I would set aside the convic-
on and sentence on Kawli Janna in Criminal Summary
'rial No. 3333 of 1953 of the Third Bench of
[onorary Magistrates, Rangoon. The fine paid by
:awli Janna' . must'be refunded to hitn.
.

5
 ,,
66 BURMA LAW REPORTS. [195.

APPELLATE CIVIL.
Before U San Ma1,ng, J.

H.C. K. LUCHANNA (APPLICANT)

1954
v.
Dec.1S.
BABOORAM BY AGENT CHAKRAPAN
(RESPONDENT).*

Sttif on promissory-1wfe-Signalurc of dc/c1tdtmt in foreig u langua._~~ e-

Judgment based on cotnj>arisou of signatures by Judge, 7cl!t.ether sound.
Held: Though the signatures on the:: pro-note, the written statem~nt an<
the po::er of ,, ttorney are similar, it is unsatisfactory and dangerous to slak
a c~eci5ion in a case where there is a dir.ect conflict of- testimony betweei
parties as to general character of a signature, on the correct determination o
the genuineness of the signature by mere comp<,rison wi:th the adn:itte.
signatures, especially without the aid in evidence of microscopic enlargement
or any expert advice.
Ql

Kessarbai v ~ Jetltabhai fi?Jatt, A.I.R (1928) (P.C.) 277- ; Rudragoudr
Vcnkangouda Patil v . Ras:mgouda DanaPPagouda Patil, A.J.R. (1938) 13om
257, referred to.
. .
N. R. Majumdar for the applicant.

G; N. Banerji for the respondent.

U SAN .MAUNG, J:..-In .Civil S1nap Cause Sui
No. 965 of 1949 of the City Civil Court, ;:Rangoon
the plaintifl'-respondent Babooram by .his agen
Chakrapan sued the . defendant-appellant K
Luchanna for . the recovery of Rs. 702-8-0 bein!
principal and interest due on the promissory-note ir
suit. The defence was a total denial, the defendant
even co.n tending that he never kne'Y the plaintiff.
. The learned trial Judge after the examination oj
witnesses .cited :.. by both parties and ~pmparing the
signatu~e. on,.'.the suit .pro-note with .the . admittec
* Civil .;Revisi.on ~.No. 89 of 1952 against- the decree of the 2nd Ju<lge
~.angoon Cil~ C:iyil Court in Small Cause Sutt No. 965 of 1949'
 1955] BURMA
/
LAW REPORTS. 67

signature of the defendant came to the conclusion H.C.

1954
that the execution of the suit promissory-note has
been proved. He accordingly gave the plaintiff a K. L~~HAN-
decree as prayed for. In the present application for 1
'

. .
reviSIOn . h as been con ten d e d t h at the }earne d trial
It BABOOI<AM
nv AGENT
Judge . was wrong in having relied upon his own CHAKRAl'AN.

comparison of the signatures as a piece of corrobora- M~uS:~ J.

tive evidence especially as the learned Judge was not
only not a handwriting expert but was not conversant
with the language in which the signatures were
written. ~-
The question for deternrination in this application
for revision therefore is whether the learned trial
Judge's finding on fact is so erroneous th~t an inter-
'ference in revision is called for.
Chakrapan in giving evidence said that he hilnself
was present at the time of the loan which .. was give.n
by hi~ brother Babooram and that Sita Ram and
.P anchi Pal were also present at that time. Sita Ram
(PW 1) in his examination-in-chief was able to state
with exactitude that the suit pro-note was executed
:in his presence by the defendant at 4 p.m. on the
.2nd day of June 1947. However, when cross-
,exaniined this witness had to admit that he did not
know the English months anq that he did not even
remember the date on which he was 1narried about a
_year ago. F..;ou rthermore, he stated that he came to
Rangoon about four years ago and that the suit pro-
note was .e xecuted about three years after his arrival
there. In these circumstances the learned trial
.Judge, in my opinion, has been right in having
discredited
,. the evidence of this witness.
However, in contrast to the evidence of Chakra-
:pan who .seems to have . . .
told a. straightforward
. . .
,.,.;._
story
.Luchanna~s . conduct tn. .. the . W1tness~.w
.~
9x was most
:.unsatis(ac~ory. WJ;iereas. in the writt~ri;,~.t~teme~t as
0 ._.. ~:~: ~"'
68 BURMA LAW REPORTS.
H.c. well as in the power of attorney given .by him to his
195
{ pleader he had admittedly signed his name as Kasami
K. L;_;HAN- Latchanna he said that his na1ne was Kasani
v.
BABOOHAM
Lakchamanna. Therefore ' it is .clear that he has
:uy AGENT been extr:emely evasive even as regards his owti name.
CUAKf<APAN. His version of the story is that he had borrowed

u SAN
MAU~G, J.
Rs. 20.0 from the plaintiff's agent Chakrapan in the
year 1947, that he had . fully repaid the loan to-
Chakrapan and that this suit was a false orre brought
against him because of a quarrel which ensued when
he asked Chakrapan to return the pro-note to him.
He, however, had to admit that although he did not
know the name Chakrapan had a brother who was
working along with him at the B.O.C .. before the
War.
A comparison of the signature on the suit pro-
note , with ~hose on the written statement and the
power of attorney shows that there is considerable
similarity between them. However, as pointed out
by their Lordships of the Privy Council in Kessarbat
v. Jefhabhai Jivan (1}: "It is unsatisfactofy and
dangerous to stake a decision, in a case where there
is a direct conflict of testimony between parties as to
general . character of a signature, on the correct
-deter'mination of the genuineness of the signature by-
mere comparison with the admitted signatures,.
especially Without the aid in evidence of mioroscopic-
enlargerrients or any expert advice." :[See also
Rudragouda Venkangouda Patil v. Rasangouda
Danappagouda Patil (2) .]
Ho_~ever, in t4is case I do not think that the-
. Jarnyd trial Judge was wrong in having preferred .
:the evidence of Chakrapan to that of. .th.e . defendant-
Furthermore, Chakrapan has applied .to the Court to
hav-;e. . . the evidence of .a . handwriting
' .
.... . .
expert:
.
f.or the:.
. ., .
195 5] . BURMA LAW REPORTS. 69
purpose of assisting the Court in arriving at a decision H .C.
1954
regarding t]le disputed signature and if the Court
refused to examine such a witness Ch akrapan can K . L~;u":-;
hardly be blamed for it. ( .t.
BABOO I~A~ l
For these reasons, I d o not consider that the BY AGE:-;T
C IIAK UAP A'\:
judgment and decree of the 2nd J ud ge of the City
U S AN
Civil Court call for any interference in revision. M AUNG, J.
The application fails and must be dismissed with
costs. Advocate's fee_ 3 (three) gold 1nohurs.
70 BURMA LAW REPORTS.

APPELLATE CIVIL.
Before U l1a (1i, ].

H.C.
1954
KO SAw MAUNG (APPELLANT) -
Oct. 1. v.
AYIN KU AND THREE OTHERS (RESPONDENT~).*.
Limitation.-Retie~v of judgme11t, li111e fahe.n nP 11-t.-Sftbsequwt aPf>cal,
Period of limitation pcrlllissiblc-AI'lich: 173, Fir!il Schedule, Limitation
Act-Re'Liew aPPlication, deficit Courl-fccs-Dale of paymc1~f of prope1
Com-t-fe~s rela~es back to rlatf of presentation.

Held: The Allah:.bacl decision in I.L. f~. l2 A ll. 57 that lime tal,en tlp in
dispcsal of an applic-;.tion f,>r reYiew with cleficit Court-iees cannot be
exc.luded has been superseded by s. 149 of the Civil Proced.<re Code ..
Acceptance of the defidt Court-fees by the Court has the same effect al!d
force as if the fees had been paid in the first instance.
Held also: 'rime occupied by an application in good faith for review .
although made upon a mistaken view of the law, should be deemed as added.
to the period allowed for presentin~ an appeal. .
l! P:yin. Nya and ano!htr v. J.lf.azmg Ttm and another, P. J. L. B. 515: BriJ'
lndar Singh v. Kanshi Ram attd atzother, 44 I. A. 218; Devi Das v. Bttsltahr
Sangh, A~I.R. {1953) Himachal Pradesh 110; followed.
Heldjt.Jrther: There is no authority for the proposili<'n that tbe pe:iod Of
90 da~ >itJ.der A!ticle 173, First Schedule, Limitation Act should also be:
excludea in wmputing the period of limitation for the present appeaL

Khin Muung for the appellant.

Maung M aung for the respondents. .

U Bo Gyi, J ._This second appeal is ~gainst the
judgment of the District Court of Thayetmyo, dated
the. 11th August 1952, disn1issing the present appellant
Ko Saw Maung's appeal on .the gro_u nd that th~.
appeal was barred by limitation. Ko Saw Maung,
had instituted Civil Suit No. 3 of 1951 in the Town-
ship Court ,of .A llanmyo . against- the present four
res.p ondents. for
.
.recovery
.
of posssession
.
of . a house
*Civil . 2nd Appeal No~ . 115 of 1952 ;:tgainst the. decree. of the. District
Court! Pro me,in Civil Appeal No. 12-T of 1952.
 1955] BURMA LAW REPORTS. -11..
site in Allanmyo as specified in the plaint on the
ground that he had derived the land from the owner
U Kyaw Tha, his father-in-law, throu .....,t!h his wife Ma Ko :::Aw
!\JAI":\G
Ohn Hmin. U Kyaw Tha and Ma Ohn Hmin were AYINt<.Ku
dead at the date of institution of the suit. The 3rd AN !J 1'1-i :<F,(o;
and 4th respondents, Ko Tun Shein and Ma Mya oTH E~<s.
who were the real contestants claimed to be owners u Bo Gn, J.
of the )and. Ko "Saw Maung having stated that his
father-in-law U Kyaw Tha had purchased the land
from U Po Thin, respondents Ko Tun Shein and
Ma Mya questioned U Po Thin's title tu the land.
One of the material issues .framed in the suit was
whether U_Po Thin had the right to sell the land to
U Kyaw Tha.
Altogether seven issues were framed and the
learned trial Judge held that Ko Saw Maung had
failed to prove that U Po Thin had the right to sell
the land to U Kyaw Tha. He also found the other
issues in fa vout of the respondents and dismissed the
suit on the 12th November, 1951. On the 2nd
J anu~I:Y 1952., Ko Saw Maung filed an application
for review of judgment, the application being stamped
with a 12-anna Court. Fee Stamp. Objection was
r aised .by the respondents as to the sufficiency of the
court-fees and on the 28th March 1952, Ko Saw
Maung pai~ in court-fees to the value of K 50,
evidently w ith the permission of the Court. The
.Township Court then <?n the 26th April 1952
dismissed the review application.
On the sth June 1952, Ko Saw Maung Jiled the
memorandum of appeal against the decree of the
Township Court before the District Court of
Thayet~yo. The learned District Judge held on the
authority of the ruling in ( 1890) I.L.R. 12 AIL 57 that
since the application for review ha~ bee~ put.in with-
out" . sufliCi~t~t court-fees the tin1e taken up in the
72 BURMA LAW REPORTS. [1955

H.C. disposai of the review application could not be

19 54
excluded in computing the period of .limitation
K o S AW
MA UNG prescribed for the appeal and accordingly dismissed
v. the appeal.
A YIN K U
AND THREE The Allahabad decision quoted by the learned
OTH E RS.
District Judge has been superseded by the provisions
U Bo GYI, J.
of section 149 of the Code of Civil Procedure. Since
the payn1ent of the deficit court"fees was accepted by
the learned Township Judge, the application for
review had the same force and effect as if the fees
had been paid in the first instance.
The next question that falls to be considered is
whether in the above circumstances the period of
time consumed by the review proceedings sh~uld be
excluded in computing the period of limitation
prescribed for the appeal. U Pyin Nya and another
v. Maung Tun ancj another (1) it was observed that
in the abstSnce of special circumstances the time which
may have been reasonably consumed in the applica-
tion for a review of judgment as well as the time
occupied by the Court in disposing of such applica,-
tion ought to be excludedin computing the: peri~d : of
lin1itation. The Privy Cquncil in Brzj lndar Singh
v. Kanshi Ram and others (2) held that the tinie
occupied by an appllcation in good faith for review,
although made upon a mistaken view :..Of the law,
should be deemed as added to the period ailowed for
presenting an .appeal. . Their Lordships did . not
consider the question, whiCh was consid~red in the
Printed Judgments, as to .whether the .time which may
have I?een reasonably consumed in the application
for a review of judgment should be . exclud~d .' The
Privy Council . decision has beeri .fol19wed . in.D evi
Das v. Bushahr Sangh (3) . where several' .' authorities
------c-----------~------~~--~~,-~
(1} P.J.LB. 515.' '(2) 44 LA. 2i8. .
c3J A. LR.-(1953) Hima~;:haJ . Pra~esh uo.
1955 ] BURMA LAW REPORTS. 73

on the point at jssue were discussed. I consider that H.C.

1954
it is only the time occupied by the Court in disposing
o.f the application for review that should be excluded. Ko :SAW
~,j AU:-\(~

It is contended on the appellant's behalf that the AYI>:v. Ku

period of 90 days allowed under Article 173 of the AND THREE
OTHERS.
first schedule to the Limitation Act should also be
:excluded in computing the period of limitation for u Bo Gn, f.
the present appeal. I cannot find any authority in
support of this content_ion and the learned Advocate
.himself admits that he can find no authority to
support it. Unless there is strong authority in
support. of this contention I am unable to hold that
the appellant should be allowed two periods of
limitation, one for appeal and another for review of
judgment and to add them up for computing the
period of limitation for his appeal.
It has been contended that the application for
review must be based on reasonable grou11:ds. It
seems to me that there were very good grounds for
n1aking the application for review. U po Thin's
title to. tlie.land had been challenged by the respond-
. ents and th~ .trial .Court held that Ko Saw Maung
failed to prove such title. Ko Saw M aung then filed
an application for review supported by an affidavit
and prod1}cing two title deeds purporting to show
that the land had been purchased by U Po Thin from
its owne~ Ko Shwe Yi. Ko Saw Maung stated in
his a'fp.davit that these documents had been locked
up it~ his wife's . box and that it was only after the
decision of the suit that he .h ad found the docun1ents
iri the box. The key to the-box had been lost and
he somehow managed to open the box because he
wanted. to offer some of his wife's properties to a,
pagoda-in.charity. .I.t:i these circumstances, I am of
opinion that Ko Saw Maung m3:de his application
for review on reasonabl~. grounds.
74 BURMA. LA'\V REPORTS. [1955
H.c. Now the Township Court of Allanmyo passed
1954
judgment on the 12th November 1951 and the appeal
~Au~~~v was not filed . before the District Court till the 5th
AY::; l{u June 1952, that is to say till after the expiry of 205
A~n 'I'HREE days frotn the date of the judgment. The application
OTHEnS.
for review of the judgment was filed on the 2nd.
u Bo GYI, J. January 1952 and was dismissed on the 26th April
1952; and 115 days were occupied in disposing of the.
application. The appellant has to account fqr 90
days. The certificate on the copy of the decree filed
before the District Court shows that 11 days were
occupied in obtaining the copy of. the decree of the
Township Court.
.In the above circumstances
. '
I must hold that the.
memorandum of appeal was filed long. after the period
of limitation allowed for the appeal had expired .
. The a~peal is accordingly dismissed with costs as:
time barred, Advocates' fees in this Court 3 gold
mohurs.
 ~55] BURMA LAW REPORTS. 75

APPELLATE CIVIL.
!Jrfore U San :lfttr111g, f.

KIM SOON AND ONE BY AGENT CHIN KAN H.C.

195{
(APPELLANTS)
Sept. 28.
v.
~HIN HWET (a) MAUNG SEIN (RESPOND ENT) .*

'rban Ren! Control Act, s.11 (1) (a)-Transfer of 1'1operty Act, s. 111 (g)
(h)-House, suit for declaration of owncrs111p cmd Possession-Absence Of
110lice i1t writing tv detetmine lease-Unauthorised c.1teusiou to ltottSC not
made spectfic grou11d for etjclion.
H eld: Though the house w~s extended C'lt c~nsidcrable cost, :IS it was
nauth orised, the extended building must be declared to be U1e properly of
1e lessors.
Fakier Chew v. Kewal Ram aud anotlter, (1912) 16 I.C. 633, followed.
Held : In the abser!ce of a notice in writing by the lessor to the lessee to
etermine the lease, the lcss..,r cannot sue for and obtain possess ion of the
~ased house.
Held also : As it wa> not made a basic groun1 for :.e jectment the
na,tthorised extension to the building cannot be invoked as gro\tnd under
. 111 (h) of the Transfer of Prope.r ty Act for termination of the lease
md ejectment of the lessee.
Maung Khin Matmg v. Daw Hla Yin a1id one, ( 1948) "B.L.R. 481, dtSCtiSSe.d .

)ein Tun (1) for the appellants.

). B.. Leong ..for t~e respondent.
U SA:N MAUNG, J._In Civil Regular Suit No.
355 of 1950 of the City Civil Court, Rangoon, the
?laintiff-respondent Chin Hwet (a) Maung Sein sued
:he defendant-appellants. Kim Soon and Tan Ma for
:L declaration that he is the owner of the house in suit
known as No. 81, 24th Street, Rangoon, and for Rs.
630 as mesne profits. The prayer for possession as a
consequential r~lief was also added when an amended
.. plaint wa~ filed following an issue beip.g raised l?Y
the qou:t;t suo motu whether a suit .for declaration
* Civil 1st ~ppeal Nc.. 13 of 1953 ag:linst the .decree of the 3rd Judge,
Cit>' Civil Court, in Chil Hegular "l\o. 355 of 19.56. .
76 BURMA LAW REPORTS. [193.

H.C.
1954
without a prayer for possession as a consequentia
relief was maintainable. The defence was a denia
Kr;.r SoON
ANu oN I: o f t he plaintr'ff's ownership.. o f t h e h.~. ouse n.
~;1 ~Gr~N question. It was contended by the defendants tha1
v. this suit land was leased to Kim Soon at a renta.
C H IN H WET
(a) of Rs. 6 per day and that the suit building wa~
MAuNG_!EIN . erected by Kiln Soon and later extended by Tan Ma.

M ~ SAN who is now in possession - as agent of the first

" AUNG, J. defendant It would appear also that the plaintiff
had in an earlier suit, namely Civil Regular No. 4/
of 1949 of the City Civil Court, Rangoon, sought tc
eject I<inl Soon and two others from the site which
was already leased by Kim Soon but that suit was
distnissed on the ground that the notice required to
be given under section 11 (1) (a) of the Urban Rent
Control Act was defective. Therefore, one of the
defences raised in the present suit was that . it was
barred by"the principle of R~s Judicata. However,
in our opinion this contention had been - rightly
rejected by the learned trial Judge. Even if the
present suit had been one under section 1f (1) (a) of
the Urban Rent Control Act, it W.Ol;Ild be. IP,?.intain-
able as to hold otherwise . would . 'l'l;lean that once a
suit is dismissed for want .of notice or . defect . . in . the
notice required to be given under that section, no
other suit can be filed the tenant would virtually
become the owner of the premises of which . he is in
a
occupation. Such .construCtion would . not be in
accord with justice and reason. ~..
. .
The present dispute .arose on an application being
made by the defendant Kim Soon to .the Contro.ller .of
Rents for the fixation of the standard rent of'. the site.
Although the plaintiff clai1ned that .the. ' liO::Use also
belonged to . him, the Rent :. Cqntroller fixed the
~tandard rent for .: the land at .R s. 50 _per.'i~1ensem~
leaving ~h~ questlofl. of ownership. of_the ho~se open.
955] BURl\1A LAW REPORTS. 77

The plaintiff Chin Hwet in giving evidence said H.C.

:hat when t he prem ises were let to the defendant Kim

1\!M $ ,)0N"-
)OOn there was situated on the land a single storeyed ANI' oNE
'uilding measuring 30 feet by 20 feet with corrugated ~:~z-:''G~~~
ron roofing .and .
walling. Later, while the house in c III!-:7'Lrr \\' ET
he occupation of the second defendant Tan Ma and (t1.)
me Tan Chin Kan the latter demolished the back l\LwNc; SEIN.
>ortion of the house and extended it by constructing I\L\(l'!I:G, s .\N
J.
t two-storeyed building to adjoin the suit house.
:ie gave notice, Exhibit B, to Tan Chin K an and
eceived a reply from Tan Chin Kan to the effect that
te had nothing to do with the premises in suit and that
he plaintiff _w as at liberty to deal with Tan Ma, the
.gent of Kim Soon, in any n1anner he deemed
.t. The notice and the reply thereto have been
.dmitted as evidence as Exhibits B and C.
The .P laintiff's story receives strong support in the
.vidence of J(o Pwint (PW 2), clerk of Messrs.
~althaza~ & Sons, from whon1 the plaintiff had
a ken a lease of the suit land. This wi~_p.ess stated
hat when Messrs. Balthazar & Sons re-opened
1 the year 1946, he inspected the suit land and
JUnd thereon the .house in suit then in OCCUpation
f tl~e plain'tiff. The plaintiff was asked to sign a
;nancy agreement, which he did. About a year
efore the date of suit this witness again visited_the
ite and found som~ one making additions to the
.1ain buil~_ing so that what was primarily a one-
toreyed building became. a two-storeyed one.
1aung Seit:l Khin (PW lJ, a r~sident of 24th Street,
lso supported the plaintiff's story and said that it
as the defendant Tan Ma who. exten.d ed the
lainti.(f's house by constructing a double storeyed
:iucture . at the back of and :adjoining the original
uilding. Dataratn (PW 3), a Bill Collector of .
1essrs. .. Balthazar & Sons, . said that there were.
78 BURMA LAW REPORTS. [1955
H.C. three smail huts on the land in the year 1946 and
1954
these were gradually converted by the plaintiff into
KIM S<'>{)N
ANn oNE two huts and then into one hut. This evidence is in
c~~:G~~~ accord with Bon Kyu (PW 4), the carpenter who said
'C HIN
v.H
WET
that what he had to build for the plaintiff were three
(al small huts and that later he saw one hut in place of
MAUNGSEIN.
_ . . 1 t h ree. Th'
the ong1na .
~ IS Witness d'd
1 not. k now who
M~u;:,N J. built the n~w hut. But if Ko Pwint's evidence be
believed, it is clear that the plaintiff was still in
occupation after the 3 small huts had been converted
into one large building.
The defendant Tan Ma, in giving evidence, stated
that the first defendant Kim Soon took a lease
of the site only from the plaintiff and that he erected
a building thereon. At the time of lease there wa~
an old hut which the plaintiff demolished and took
away. 'Fhe original building which he . and Kim
Soon erected on the land cost them Rs. 1,500. The
later extensions were to the value of Rs. 9,000. Thi~
defendant's story finds support in the evidence of U
Kyaw Din (DW 1), Ward Head1n~n of 24th Street
U Ba Than {DW 2) an electrician, and .Ko Ba B2
(pW: 3), a merchant, living in the same street. Yec
Urn Bak (DW .5), a carpenter, stated that he wa~
engaged by the defendant _Kim Soon to build the sui1
house, that on his first visit he saw a hut on the lane
which was no longer there two days later, and tha1
he received Rs. 320 for constructing this suit bujld.
1ng..
The learned trial Judge; who has had the oppor.
tun.ity of seeing the w!tnesses and of appr-aising theiJ
credibility, preferred to believe the. sto.ry . of th(
plaintiff strongly supported by that. _o f .Ko Pwin
<PW. 2) to :the evidence of .d1e defendant( and thei1
witnesses: He considered Ko Pwint m'ore : disinter.
ested than t he Ward Headman living in .th.e . _local~ty
1955 ] BURMA LAW REPORTS. 79
Sitting as a Court of Appeal, we are not prepared H.C.
1954
to say that the learned trial Judge 's appraisal of the
evidence is unsound. The learned trial Judge had 1' ')' sooN
ANil 0 ~1-;

placed great reliance upon the notices B and C as uv AGENT

CHIN KAN
showing consistency in the plaintiff's conduct. v.
However, although Exhibit B is relevant to show C Ht:-< (a)Hwr:.T

that the plaintiff acted promptly when he found that MA l' NGSElN.

the back portion of his house was being demolished, u SAN

,great weight should not be attached to reply Exhibit MAUNG, J.
C, as it was made by a party who is a stranger to
these proceedings and there is no evidence to show
that the defendant-appellants were aware of the
contents of Exhibit C.
However on the evidence on record , we are of
'
the opinion that the original building was that of the
plaintiff and that it was extended by the defendants
after their occupation at considerable costs to ~hem
selves. Therefore, in view of the d~cision in the case
of Fakier Chan v. Kewal Rant and another (1} the
plaintiff is entitled to a declaration that the house in
suit belongs to liim.
The decree for possession cannot however be
allowed to stand. No doubt, the defendants had in
the application before the Rent Controller set up a
title adver~e to the plaintiff by claiming title to the
building. However, the lease cannot be regatded as
determined under the provisions of section 111 {g) of
the . Transfer of Property Act in the absence of a
notice in. writing given by the lessor to the lessee of
his intep.~ion to determine the lease. . We have also
considered whether the ruling in the case of Maung
Khin . Maung v. Darv Hla Yin and one (2) could be
applicable to the facts of this case. There it was
held ttl.~~ under section 11 (a). of the Urban Rent
Control. Act the obligations of the tenan9y implied
(1) (l~.i~)-16 l.C. p. 633. (2) (1948) B.L.R. p. 481.
. . .

.
 .
80 BURMA LAW REPORTS. [1,955

~~
_
94 therein under section 108, clauses (o) and (P) of the
Transfer of Property Act had been broken by the
K;~~ ~~~N tenants and the lease had been terminated in
llY Ao:N'!'
CHIN K A N
accordance with law under section Ill (h) of . the
, v; . .. Transfer of Property Act and that the plaintiff was
CHJN .-l\\1-.f
(al
I d
enttt .
e to eJect t h e d.e f en d ants f' rom th e Iand 1n. smL
.
MAu~ SEJN. However, in the present case, the plaintiff had not
u SAN made the unauthorized extensions to his building a
IVTAU!':G, J.
basic ground for the ejectment of the defendants.
If such a stand had been taken by the plaintiff,
questions of fact would arise whether or not the
extensions were made on the implied consent of the
plaintiff. This question cannot now be agitated in
the absence of a specific issue thereon.
The decree for mesne profits also cannot be
allowed to stand. Once it is established ..that the.
plaintiff is the owner of the house as well as the .site,.
the plaintiff should approach the Rent Controller for
the fixation of the standard rent for the house and
the site. If he fails to recover the stat1dard rent so
fixed, he can file a suit for ejectn1ent. under section
11 (1) (a). He may _also, ifso advised, file a suit
for the recovery of the rent. .
In the result, the appeal succeeds in part. The
decr'ee of the trial Court in so far as it relates ~o
nlesne profits and the possession of the house in:
suit will pe set aside. There will accordingly be a
decree for declaration that the house in suit belongs
tq the plaintiff. .
As the appeal succeeds in part, ~e would. direct.
that each . party bear its own costs throughouL
Advocate's .fees in . this Court, .
3 gold . mohurs.
. .

U BA THAUNG,_ J._
. I . agree.
 1955j BURMA LAW REP'ORTS. 81

APPELLATE CIVIL
llcj01e U Sat! !1/auug t1wl U Bo Gyi, .TJ.

LAL BIHARI JADO (APPELLANT) H.C.

1954
v. Nov. 15.

RABIDUTT PANDAY (RESPONDENT).*

Promissvi)'110le, $U'it 01t-M01tcy Le11ders' Act, s.IS-Antrdatiug, cffecl of-

Amwdmcnt of Plaint, 7vhen and in what circz~msta1JCt'S pernussible,-
Negotiable instrumwt, whether it is take,z as sole consideration for loau
or merdy as collntc:ral security for repaymerzt-Normal amJ prima faci e
i u.fe ren ce.
Held: S. 15 of U1e Money Lenders' Act, 194Sis explicit that a pro;nissory-
note on which U1e date of execution is stated incorrectly shall be void .
.'fiVallcr Mitcllel/ v. .d. K. Teuueut, 52 Cal. 677.
. .,
Held also: An <!mendn.ent of tb.e pleachngs can be allowed at any stage. Of
the proceedings w 11ere the soh: nsult of a refusal Would be to force u1e
pJr,intiff to another suit : but wp.ere the effect of the amendment would be
to take a.way frc m tl1e defendant a legal right \\'hich has accrued to l1im by
laps,; of Wne, tJ1e a:nendmcnt ought to be refused.
Ma111i.g Shwe Myat v. Maung Po Sin and Otle, I.L.R. 3 Ran. 183 ; Kr islma
Prasad $tngh and om~ \', Ma A ye and others, I.L.R . 14 Ran. 383; Cltarcw Das
v. Amir ~(han, I.L.R. 48 Cal. 110 ; Ranettdramohan Tagore v. /(ashebchatuira
Chanda, . J.L,R. 61 Cal: 433.
. H eld fzwt Iter : When a promissory-note has been lost the plaintiff can
rely upon the original consider ation when it has been taken as a collateral
security fo~ repaym ent of the loan which is a normal and Prime? iacie
inference, ~:mt when the negotiable instrument itself is tlle ~onsideralion for
the loan:th~)ender is restricted to his rights under the negotiable instrument
b.y whidt he must st:md or ran.
PtTVan~ Reeud Samiuatlld1 and another v. Pana. Lm1a Palaniapp..~, (1913)
I.A. l42 : lll<l'l7lg Chit a114 a 11oth e r v. Roshan :O..'.M.A. Kareem Oomcr & Co.,
I .L.R . 12. Ean. 500 ; E Yar and o11e v. Teh Lu Pe, I:s. L. R. (S.C.) 239.
. .
G. N. Banerjee for the appellant.

Messrs! P . B. Sert and B. K. Sen forthe responden~.

~ Civii 1st appead~o .. 9~ of 19.52 against the decree of tlle 3ra Judge,
Rangoon .9it;y .Civil qourt,iri Civil R egular No. 1034 of 1949.
 BURMA LAW REPORTS. [1955

H.C. The judgment of the Bench was delivered by

1954
L AL B IHARI
JAPO U SAN MAUNG, J.- In Civil Regular Suit
v. No. 1034 of 1949 of the City Civil Court, Rangoon,
RAB IDUTT
PA!\bAY the plaintiff-respondent Rabidutt Panday sued the
defendant-appellant Lal Bihari J ado for the recovery
of Rs. 1,100 due on the promissory-note in suit: The
defendant by his written statement denied having
executed the suit promissory-note and contended that
it was a forgery. When asked to give particulan
why he considered the suit protnissory-note to be a
forgery, the defendant pointed out that the stamJ;
which was used on the suit promissory-note was onl)
issued to the public after the 1st October 1947, .i.e
more than 9 months after the date appea:r~ng on th(
promiss6ry-note in suit. The plaintiff then .counterec
this alleg~.;tion by saying that the original p~omissory
riote on which the defendant borrowed the sum o
Rs. 1,000, which was executed on the 1_5th Marc1
1947, being lost he had requested the .defendant t1
.e xecute a fresh promissory-note which the .
defendan
. #
.agreed to do. But when the new promissory-not
came to be executed the date. 15th March 19.47 had tc
be put in because the defendant insistecl. that h
would only sign a proniissory..:note bearing such
date lest the plaintiff might "Claim two . sums . unde
the two promissory-notes .w ere they to bear: differen
dates. When these . pft.rticulars were .given by th
plaintiff the defendant filed an an1ended writte
statement wherein he still c ontended. that the su:
promissory-note was a forgery as .the same .was neve
executed by him. He also contended that in vie'
of the plaintiff's own story that the promissory-not
irt Suit was exeGufed on a date . su,bsequent: to thE
:appear.i ng thereon the._ proin~ssoty~note ::is voiP.. undc
section 15 (1) 9f the Money Len~ers~ A:ct, : l945. . .
 .
1955] BURMA LAW REPORTS 83

The plaintiff himself in giving evidence stated H.C.

1954
that he knew the defendant since about 5 years
LAL BIHAr~
before the institution of the case, that on the 15th JADO
March 1947 the defendant took from him a loan of I'll.
RA BIOUTT
Rs. 1,000 for which he executed a promissory-note, PA~'WAY.

that later when the promissory-note was lost the u SAN

defendant execut~d the suit promissory-note wherein MAUNG, ].

the date 15th March 1947, which was the date of the
original loan, h~d to be put in at the insistence of
. the defendant. He also said that the defendant
besides signing the promissory-note affixed his thumb
jmpression thereon. The plaintiff's story is supported
by the evidence of Ram Prasad Panday (PW l) and
Babu Lal (PW 2). According to Ram Prasad Panday,
he . was a mutual friend of the parties and he had
requested the plaintiff to lend Rs. 1,000 as the latter
was in need of money. The defendant' executed a
promisorry-note bearing interest at the rate of 1 .per
cent. per mensem 'for the loan of Rs. 1,000 which he
received. About 7 or 8 months later, .the plaintiff
came to tell him about the loss of the promissory-
note; He and . the plaintiff then went to see the
defeil:iant who promised to execute a fresh promissory-
note in .lieu of the one said to be lost. On . the
appointed day, the defendant procured a printed forn1
and stamp from . Mogul Stree.t. . Thereafter, they
wentto .Babu Lal who filled in the promissory-note,.
including the date thereon at the instance of the
defendant, who said that he must be protected from
payirig twice for the same loan.
Babu Lal (PW 2), who is an unlicensed petition-
write ._aid that he type:i out the promissory-note in
the pres e of the parties and Ram Prasad .Panday
(PW. 1), tll e date appearing therein was put' in
a t the' inst nee of the defen dant and that the
defendant .. executed . the promissory-note .in his
84 BURMA LAW REPORTS. [1955
H.C.
1954
presence. The thumb impression thereori was also
taken by him.
LALBIIIAP.I
JAno 1t10n tt-O the a b ove ev1"d ence, t here 1s
I n a dct. . tne
'
R...r~;oun fact appearing in the evidence of Mr. J. Ross (P\V 7 ),.
PANoAv. . a Finger Print Expert, who stated that the thumb
U SAN irnpression appearing on the suit promissory-note was
MAU~G, }.
identical with that of the defendant.
The defendant did not choose to appear in the
witness-box to deny either his signature or the thumb
impression appearing on the suit promissory-note.
He was content 1nerely to cite evidence to show that
the stan1p affixed to the promissory-note was isstied
only after the 1st October 1947. '
. This was in . support of his contention that the
p romissory-note in suit was void under section 15 of
the Mqiley Lender.s' Act, 1945. The learned trial
Judge, howe:ver,. did not accept this contention. He
relied on the ruling in the case of Walter Mirchell v.
A. J(. Tennent ( l). In his view the promissory-note
was valid notwithstanding the fact that it bote a date
prior to that on which 'it was actually executed. In
our opinion, the learned Judge has entirely misinter"
preted the provisions of section 15 of the . Money
Lenders' Act, 1945, Which is entirely explicit on the
point that a promissory-note on which the :. Qate of
ex ecution is stated incorrectly shall, be void::.' Faced
with this, the plaintiff asked the . permission of this
Court to allow amendment of the plaint so as to
base his claim on . the original consideration as an
alternative to .that arising under the suit promissory-'
. note. We have allowed him to do so in vi~w.. of the
rulings in the cases of Maung ShweMyaiv. MJlUng Po
. Sihand one (2) and Kri$hna Prasad Singh and another
y.~ Ma Aye and _others p)~ In the first .case, it was

(1; 52 Cal: 677.' . {2) (1924) I.L.R. 3 Ran~ p. 183.

. : (3) (1936) I.L.H. 14
I{an:-r . .383.
1955] BURMA LAW REPORTS. 85
held that amendment of pleadings can be allowed at H.C.
1954
any stage of the proceedings , where the sole result of
LAL firHAIU
a refusal would be to force the plaintiff to anoth er JADO..
suit, to avoid which is one of the principal objects of v.
RABIDUTT
the 1nuch wider rule as to amendment which has PANDAY.

been introduced in the present Code of Civi! u S.-\N

Procedure, and that when the plaintiff filed a suit on l\huKG, J.

a promissory-note tlie execution of which he failed
to prove and the defendant, whilst denying execution
of the note, admitted receipt of the original con-
sideration the plaint could be amended any stage of
the proceedings by the addition of an alter,native plea
so that the plaintiff n1ay be given a decree on the
original consideration after the necessary amendment
on his plaint. In the latter case, Dunkley, J. has
made the following observation at page 387 :
. . . The principle for which learned counsel for the
respondents contends is that leave to amend ought to be
refused where the effect of the amendment would be to take
away from the defendant a legal right which has accrued to
him b'y lapse of time, and this general rule ought not to be
departed from except in very exceptional cases. This is
undoubtedly a correct statement of the law as laid down by
their ~ordships of the Privy Council in the case of Charan
Das v. Amir Khan (1). It has been followed by a Bench of
the C~lc~tta High Court in the recent case of' Ranendramohan
Tago'r,e v. Ka~hebchandra Chanda (2). This latter case is
exactly on all fours with the present case,. There a suit was
brought upon a promissory-note, and after a suit for recovery
of debt was time barred an application to amend the plaint, so
as to ailow the plaintiff to sue for the original debt, was made
. and was allowed, and it was held by tbe Bench that under the
cirCUIJ;lS.taQces the amendment was properly allowed. In fact,
the deci~ion is to the effect that in a case such as the one now
before nte an amendment of the plaint so as to permit of the
.. suit be{rig brought upori the original consideration is one . of
the exc~ptional
. . . eases to which
.
reference was made by their
: : '11) .(192.0) I,.L. R. 48 C~l. uo. (2) (1934) I.L. R. 61 Cal. 433.
 BURMA LAW REPORTS. [1955
H.C. Lordships of the Privy Council in Charan Das's case ( 1). It
1954
seems to me to be clear that that must be so, . for in the
lAL BIHARI original plaint an alternative claim based upon the original
}ADO
v. consideration could have been ~ade, and then no question of
RABIDUTT limitation could have arisen, and it would be monstrous, to
PANOAY.
my mind, that the plaintiff should lose his money merely
u SAN because of a technical error in th~ execution of the promissory-
MAUNG, J.
note, which is no more than a conditional paymerit and not a
discharge of the debt.

The defendant has sought by an amended written

staten1ent to say that although he did execute a
promissory-note on the 15th March 1947 for Rs.. 1,000-
in favour of the pl~intiff, he did not receive any con-
sideration therefor and that the suit promissory-note
which was executed on the 19th October 1947 in lieu
of the one said to be lost was in extinguishtnent of
whatever .debt or liability was due on the lost promis.::
sory-note. By this amended written staten1ent he
sought to contend that the promissory-note in suit
being void could not be sued upon and there was no
cause of action independent of the suit promissory-
note as the same. was e~ecuted in extingui.s.Q.n1e11t of
the debt or liability under the original p;romissory-
note. The defendant has in our opinion now sought
to set up a totally new and inconsistent defence, .as
will be obvious when his amended written -statement
is compared with that o(the original whef'e. he had
entirely denied executing the suit . promissory-note
and contended that lt was a mere forgery~

.From the facts and circumstances appearing in

the case, we are convinced that the plaintiff , did not
take the suit promissory-note as in extinguishinent of
the debt or liability under the originaL prQ.missory-
. note. Furthermore, as th~ original promissory-note
. is .lost, the plaintiff .c an rely upon the original consi:-
. deration for the relief which he .
seeks. ... .: In this
.
1955] BURMA LAW REPORTS. 87
connection, the case of Pavana Reena Saminathan H.C.
and another v. Pana Lana Palaniappa (1) is 1954

apposite. In that case where the plaintiff sued upon LAL BIHA!U
JADO
pro1nissory-notes and the action failed owing to a v.
RABIOUTT
material alteration . in the notes and the plaintiff PANDAY.
thereafter sued to recover a part of the consideration U SA!II
for which the promissory-notes had been given, their M.tt:NG, J.
Lordships of the Privy Council held that although
the clain1s in the two actions arose out of the same
transaction, they were in respect of different causes
of action and that the second action was tnaintainable.
This is one of the rulings relied upon by a Full Bench
of the late High Court of Rangoon in Maur~:g Chit
and another v. Roshan N.lVl.A. Kareem Domer &
Co. (2) where the learned Chief Justice, after an
exhaustive review of the rulings on the subject, held
that if the negotiable instrument is given , by the
borrower to the lender and the negotiable instrument
is itself the consideration for the loan the lender is
restricted to his rights under the negotiable instru-
ment by which he n1ust stand or fall, but that if it is
agreed between the parties that the negotiable instru-
ment is taken as merely collateral security for the
repayment of the loan the lender is entitled to sue
upon the original consideration independently of tb.e
security, and that normally and prima facie a lender
is regarded as taking a negotiable instrument only as
a conditional- payment and not in satisfaction of the
loan. This case was cited with approval by the
Supreme Court in E Yar and one v. Teh Lu Pe
(3). In our opinion; the prima facie presumption
that ~he original promissory:-note executed on the 15th
of March 1947 by the defendant was taken by the
plaintiff merely as collateral .security has rtot been
(1) (1913) 41 I.A., 142. (2) (1934) I.L.R. 12 Ran. 500.
. (3 (1950) B. L. R. \S.C.) 239.
88 .BURMA LAW REPORTS. [1955

H.C. rebutted in any way. The plaintiff is entitled to fi le

1954
a suit on the original consideration.
LJ\L BrHARr
JADO
In the result, and for reasons different from those
v. given by the learned 3rd 1udge of the City Civil
RA!3ID UTT
PANDAY. Court, we would confirn1 that part of the decree
'G SAN relating to the payment of Rs. 1,100 by the defendant
MAUNG, J. to the plaintiff. As regards costs, in view of the
fact that the plaintiff is successful only because of the
amended plaint filed before this Court ~ we consider
that the ends of justice would be met ~it we direct
each party to bear its own costs throughout. Order
as to costs will, therefore, be 1nade accordingly.
1955] BURM.A LAW RE)?ORTS. 89

APPELLATE CIVIL.
B.:fore U Tun Byu, C.J., aad L' .-Juug /{fzi ;e. J.

MAUNG CHAW (APPELLANT) B.C.

1954
v. Dec. IS .
MA AYE MA AND THREE OTHERS (RESPONDENTS).*

Disposal of Tt:nan.cies Act, 1948-V'illage Agricultural Com111itfee-Exprrssion

"fitutl" in Rule 8 (3) of the Disposal of Teuaucies Rules, 1949, when
applies-Suit for iujunction agaitzst Village Ag1'icultural Committee,
wlte/IIer ties.
Held: By the proviso to s. 3 of the :)ispcsal of Tenancies Act, 1948, a suit
can be maintained in a Ci~il Co:trt for the p:trpose of ascertaining whether a
Village Agricultt'tral Committee or a District Agricultural Committee has
jurisdiction to deal with a matter which it h~s decided.
Held also: Tl;e expression ' final" in Rule 8 (3) of the Disposal of
Tenancies Rules, 1949 will apply only to a matter o\cr which the Village
Agricultural Committee or the District Agricultural Committee has jurisdiction
directly or incidentally to deal with or pass orders therein. ~
Tlre.' Secretary of St nte v. FaltamidanniSsa Begum aud others, I. L. R. 17 Cal.
590, follo\ved

D. N. Du.tt for the ~ppellant.

Tun I for the respondents.

The judginen~ of the Bench was delivered by

u TU:N ~.YU,
C.J._Ma Aye Ma, Maung Tun Ya,
Ma H~oo Ka and Ma Yit, who are the pl~intiffs
respOiidents~ own a piece of .p~ddy land, known as
Holding No.. 9-A of 1940-41 in Kwanta Kwin No. 882,
Paung._Township; tneasuring 227 acres. It is said
that in June 1950" the Kadonsi Village Agricultural
Comn.tittee allotted 12 acres out of the said 22 7 acres
to the de.feildant-appellant Maung Cha~ for cultiva-
tion ; ari,d the Kadonsi Village Agricultural Committee
* Spe~ial Civil Appeal Nq~ 10 of 1952 against the decree of the Appellate
Side, High eourt, in Civil 2nd Appeal No. 16 of .1951. -
90 BURMA LAW REPORTS. [1955
H.C. was said to have been constituted under the Disposal
19 54
of Tenancies Act, 1948. On the 28th June, 1950
MAUNe; .
-CHAw Ma Aye Ma, Maung Tun Ya, Ma Htoo Ka and
M .... ;~EMA Ma Yit instituted a suii: in the Court of the Assistant
A ND TH REI~ JUldge, Thaton, known as .Civil Regular Suit. No. 18
OTHERS
- of 1950, for a declaration that the Disposal of
N BYU T
u .T Uc.J. . A ct was not app 1'1ca ble to t he :1and tn .
enanctes
question and for injunction to restrain the ciefendants,
including the Kadonsi Village Agricultural Con1m!ttee,
from interfering with the right of the plaintiffs to
cultivate the said paddy land. The learned Assistant
Judge held that a suit for injunction against the
Kadonsi Village Agricultural Con1mittee was not
maintainable and dismissed the suit. df the ..plaintiffs-
respondents.
The latter appealed to the District Co1;1rt against
the said order of the learned Assistant J:upge, and
their appeal was dismissed by the learned District
Judge on 31st January 1951. The plaintiffs--
respondents next instituted an appeal against the said
order of the learned District Judge in the High Court,.
known as Civil Second Appeal No. 16 of t951 ," and
they were successful in their appeal in the High Court,.
with the result that .the orders passed .against them in
the Court of the Assistant 1udge and iri the Court of
the District Judge, Thaton, were set aside. The
defendant-appellant Maung Chaw next filed an appeal
under section 20 of the Union Judiciary Act, 1948,.
and the question which requires consideration, in the
present appeal is, can the plaintiffs-respondents
institute a suit in a civil Court for a declaration of
the natui"e they have asked for. It has b.een argued
. on behalf of Maung Chaw that a civil suit .is barred
. . in view of the . decision of the Village..;Agricultural
Committee, which n1ust be considered to be final, by
reason ~f Ruie 8. (3) .of the Disposal bf: ,TenatiCies
 1955] BURMA LAW REPORTS. 9!

Rules, 1949, which provides that the order of the H.C.

1954
District Agricultural Committee shall be final. The
MAUI);G
expression "final" in Rule 8 (3) of the Disposal of CHA\\'
Tenancies Rules, 1949, will apply, in our opi~ion, only ~ .

lYIA AYE MA
to a matter over which the Village Agricultural AND 'fHREE
OTHERS.
Committee or the District Agricultural Committee
U TUN BYt:,
has jurisdiction, directly or incidentally, to deal with C.J.
or pass order therein. We desire, in this comiection,
to reproduce the observation made in a Privy Council
case of The Secretary of State v. . Fahamidannissa
Begum and others (1), as it expressed the principle of
law succinctly and accurately, and it is in these words :
"Their Lordships cannot hold that the Board of Revenue
can, by purporting to exercise a jurisdiction wh ich they did
not possess, make their order upon such a matter final, and
exempt themselves from tl~e control of the Civil Court. "

We consider that a suit can be maintained \n a civil

Court for the purpose of ascertaining whether a
Village Agricultural Committee or a District Agricul-
tural Com1nittee has jurisdiction to deal with a 1natter,
which it has decided, particularly in view of the
proviso to section 3 of the .Disposal of Tenancies Act,
1948, which reads :
".Provided that the provisions of this Act shall not
apply to any agricultural land or lands-
... (a) not exceeding fifty acres in area and in the
possession of a person who is engaged in the
cultivation of the same land with his own hands
as his principal means of subsistence ; or
. (b) belonging to any institution created, controlled or
guaranteed by government or to any religious
'
or charitabl~ institution. "
We are unable to trace anythirig in the Disposal
Jf Terie1:ncies Act, which can be said to .deprive the
:jurisdiction of a civil Co.u rt . for this .. purpos.e; .
(l) (1S90) I.L.R. 17 C~l. 59~ at . 604.
 92 BURiyiA LAW REPORTS. [ 195!
H.C. particularly in the light of the proviso to section 3 o
1954
the Disposal of Tenancies Act. The word " fina l ~
M AUNG
CHAW appearing in Rule 8 (3) of the Disposal of Tenancie:
M A A~E MA Rules, 1949 will not apply to matters outside t h(
A Nn T H RI<;E Jurisdiction of the Village Agricultural Committee 01
OTH E RS.

. U T UN B YU,
District Agricultural Committee. It is ....difficult t<
c.J. appreciate how a proceeding can be said to have
been decided by a Village Agricultural Conunittee o:
District Agricultural Committee in a matter ove:
which they have no jurisdiction. It is the Disposa
of Tenancies Act that we have to look to in order t<
ascertain whether a Village Agricultural Co1nmittec
or District Agricultural Committee has jurisdiction t{
entertain a parti~ular proceeding before -it or not. I
the subject-matter falls outside the scope of th(
jurisdiction of a Village Agricultural Committee o
District Agricultural Comn1mittee, it becmne:
obviously a matter which is outside the j.urisdictio1
of the Co1nmittee concerned.
It has been also contended on behalf of Maun1
Chaw that a suit against the Kadonsi Village
Agricultural Committee, who was made a secon<
d~f_endant, .is barred by reason of section 9 of the
Disposal of Tenan~ies Act, 1953 ; but it is clear fron
the wording of section 9 that it goes not apply to the
exercise of power over a subject-1natter which tile
Village Agricultural .Conunittee or .the bistrict Agri
cultural Committee has no jurisdiCtion to deal with
nor to a matter which is outside . the scope of the
Disposal of Tet1ancies Act. Moreover, so. far as the
. present . litigation is . concerned, the :Oisposal o
. Tenancies Act, 1953 was enacted long .after the sui
was instituted in the Coui:t of the Assistant Judge
'Thaton.
The d"ec~sio.p of u .Bo. Gyi; J., P?tssed in Civi"
' Second App~al No. 16 of 1951 must ~herefore bt
 .
155 J BURMA LAW REPORTS. 93

)nsidered to be correct. The case will go back to H.C.

i954
1e trial Court to proceed with the hearing of the
MAUNG
1it before it. CJIA\\'

We desire to mention here that where the proviso v.

1\IIA AYE MA
) section 3 of the Disoosal
' .. of Tenancies Act has
'
AND 'fiiREr:
OTHERS.
een pleaded, it is necessary to consider whether
U Tt' N BYe,
roper ev.idence has been adduced to establish all the C.J.
Lets. required for such purpose, and the parties
1ould be given opportunity for adducing evidence.
This appeal is accordingly dismissed with costs
ith Advocate's fee K. 85.
U AUNG KHINE, J._I agree.
'94 BURMA LAW REPORTS.

APPELLATE CIVIL.
Before U San Ma~eug, J.

H.C.
1954 MAUN G CHIT. MA UN G AND ONE ( APPLICAN'
.Nov. 8. v.
DAw SAw (RESPONDENT).*

Decree Of subordinate Cottl'f-Time fixed for poymeut of certain st/11;

motzeY- Liabit-ity for 1wa-cMttPliauce-Appcal, wlletlter time fixed
Pay-ment enlarged-Difference betwee1t the effect of an aPPeal summa
dismissed and of an appeal gidng judgment a11d decree cOit-firmmg t
of trial Court.
PI4intiffs sued defendant for ejectment from -ho:1se and o_btained judgrr
provided the~ pay Rs. 6CO within one month on failure of which suit
stand dismissed. District Court confirn:ed the judgment. and conditi<
payment en r.ppeal ; second appeal summarily disinissed by High Co
Plaintiffs then made the payment within a month of the High Coyrt's ord
the trial Court declin~d to accept it and dismissed the suit. Plait~Hffs appl
for revision of the order; High Court oil a review of the twelve auth
ties cited.
Held: If a decree in which time is given for payment of money is confirn
on appeal, it has the effect cf t::xtendinh the tim~ fixetl under the decree t:
confirmed, so that time would ru:1 from the date of the decree confirming
However, where an appeal is dismissed unjer Order xLI, l~ule 11, C
Procedure Code, the decree appeal ed from cannot be taken to have b<
-confirmed under Rule 32 so that dismissal of the appeal leaves the dec
untouched. Ramaswami Kona v. Sm~dara !(orn, l.L.R. 31 \lad. 2S; Dau
.and Jagiivan v. Bliukandas Manekchand, I.L.R. l1 Hom. 172; Satw
Balcrjiraw Deshamukh v. Saklrarlal Atmaramslrct, I.L.R. 39 Bom. 17
v"attatraya VithalGarwara v. Wasudeo Anant Gargate and others, I.L.R.
Born. 956; Bhola Nath Blmltmcliarj,e v. Kanti Chw:dta Bhuttarcltar:
I.L.R. 2.5 G2.l. 3_11; Batu v. Vajir, I.L.R. 21 Born. 543; Noor ALi Clrowdh
v. Ko ,i M(ah and othos, I.L. R. 13 Gal, 13; Nam ]lla~ain Singh v. L,
Roghunath Salrai, I.L.R. 28 Cal. 257: Basa11ta!.. Kumar Ada!l v. Rrci
Rant Dasi awl another, A.U~ (19221 Cal. 32); Lala Gobind Prasad v. h
.Jugdap Sal!aY, I.L.R. 4 Pa!. 345; Pali'Clm Sahu v. :M~tltamtnad Yakub a
.ether; A.l.R. (1927) Pat. 345; Ghatzshyam L"a_l v-. Ram Narian, I.L.R
. All. 379
.; Civfl Revision No. 56 of 1952 against the decree of. the Townsl
Court of Kyauktan_jn Civil Reg11br :No. 4 of <951.
 .
1955] BURl\1A LA\V REPORTS. 95

Tun On for the applicants. H.<.:.

1954
MA l iNG CHIT
Hla Pe for the respondent. MAUNG A!llO
ONE
V,

U SAN MAUNG, J.-This is an application for DAW S AW.

the revision of the order of the Township Court of

l(yauktan , refusing to pass a decree for the ejectment
o(the defendant in Civil Regular Suit No. 4 of 1951.
In that suit the plaintiffs Maung Chit Maung and
Ma Thein Kyi, who have filed the present application
for revision, obtained a conditional decree for the
ejectment of the defendant-respondent Daw Saw,
provided that a sum of Rs. 600 due to the defendant
as balance of the purchase price of the house in suit
was paid within one month from the date of the
decree; failing which the suit would be dismissed
with costs. The plaintiffs being dissatisfied with the
judgment and decree of the trial Court appealed to
the l),istrict Court of Hanthawaddy: but that Court
after .going into the meiits of the case confirmed the
judgn1ent and d~cree of the trial Court and dismissed
the appeal by a judgment dated the 6th November
195!'. The plaintiffs then sought to agitate the ma:tter
further by preferrin_g a second appeal to this Court
but their appeal was sun1marily dismissed by this
Court o.n the 30th January 1952. Thereafter, the
plaintiffs .filed on the 26th February 1952 an applica-
tion praying that a decree for possession of the suit
property be passed. At the same time they deposited
ir1 Co~rt asum of Rs .. 742, being the total of Rs. 6()0
mentioned in the original decree and Rs. 142 as cost~
to be .paid to the defendant. The trial Court,..
however, rejected the applicati<:>n as hav.i ng been
made .beyond the period of' :one 11.10nth prescribed
in the. orig~nal decreedate4 tiie 21st July 1951.. . In
so d<?irig, the learned trial Jud.ge.relied upon tJ:le ruling
96 BUR1v1A LAW REPORTS. [1955
R.C. in the case of Ramaswami Kona v. Sundara Kona
1954
(1), the head~note of which reads as follows:
MAU,I'\G (;H IT
MAU.NG A~D "The decree of the lower Court provided that ' on the
ONE
plaintiffs paying into Court the balance of consideration, Rs.
1.0, within a month from this date,' defendant should execute a
U SAN sale-deed of the suit land. The money was not paid within the
IviAUNG, J. month and the defendant preferred an appeal after the expiry
of the month. The Appellate Court simply confirmed the
decree of the lower Court and dismissed the appeal.
Within a month of the ai1pe1late decree the plaintiff deposited
Rs. 10 ; and applied for execution of the decree:
Held, that he was not entitled to execute the decree, as he
had not made payment within the time fixed by the original
decree and as the ' appellate decree canno~ under the
circumstances be held to have enlarged the time 'fixed by the
original decree. The appellate decree simply confirming the
original decree cannot be read as giving the plaintiff one month
from the date of the decision on appeal. Such an extension
can be claimed only if expressly or impliedly gi vcn by the
Appellate Court."
Hence, the present application for revision.
I have taken con~iderable time to consider this
matter as there is no reported decision either of this
High Court or of the late High Court of Juaicature.
The High Courts in India. seetns to be a.t varian.ce
regarding the principle to be followed in such cases
and in fact there seems no unanimity even in the
decisions of the same High Court. In DauZat and
Jagjivan v. Bhukandas Manekchand (2) where in a
suit by a mortgagee on a mortgage, the decree of the
Court of first instance directed payment of the
mortgage-debt within two months from .t4e date of
the decree from which the defendants appealed, hut
which was confirn1ed by the appellate Court, it was
. held that : .
.. " under the circumstances of the case, :that .it was. th( ..
. intention of the Appe~late Court that the term of_ tviq. month~
(1) {t907) I.L.R. Vol. 31 Mad. p. 28. (21 {1886) 1:L.R. it Born ..172 .
 195S] BURMA LAW REPORTS. 97

allowe::l for payment should be counted frcm t.!1e date of its H.C.
1954
own decision. and not from the date of ihe original decree,"
MAUNG C!':lT
MAUN(; AND
The reason fo: the decision is that it was thought ON
unlikely that the High Court in conf]rming the decree 'V
D AW SA\\'.
of the trial Court would not have dealt \vHh the actual
u SAN
lapse of more than two months from the date of the M AUI\ G, f.
original decision had it intended that the time of
payment should be still within two months from
the date of the original decree. In Satwaji Balajiraw
Deshamukh v. Sak harlal Atmaramshet (1) the
B omb~y I-Iigh Court went still further and held
that-
" the time fo r executing a decree nisi for possession ran
from the dl!te of the High Court's decree confirmi ng the decree
of the lower Court. for what was to be lo~ke d at and interpreted
was the decree of the final appellate Court."

In tha~ case , the plaintiff bro1:1ght a suit to recover
p ossessiqn of property as purchaser frotn defendants
1- 6 and to redeem the_tnortgage of defendant 7. The
trial ColJrt having dismissed the suit, the appellate
Court, on plaintiff's appeal, passed a decree directing
the plaintiff to recover possession on paym.ent to
defendants 1-. - 6 of a certain sum of n1oney within six
mon.ths from the date of its decree and then to
redeem defendant 7, and that on plaintiff's failure
to pay. within six n1onths from the date of the decree
he should forfeit his right to recover possession. All
the parties to the case being dissatisfied with the .
appellate Court's decree, the plaintiff preferre.d a
second appeal to the High Court while the two sets
of defendants filed separatesets of cross objections.
The High Court, however, confirmed the decr~e and
withi1i :six :months of the date of the High Court's
d~cr~~ .t~e P.laintiff deposited i~ C~uj-t the arn.ol,lnt
0

:(1) .(1914) I.L.R. 39 Bom.-175.

7.
98 B_UR!MA LAW REPORTS. [1955

H.C.
1954
payable by him and applied for execution. The
trial Court and the first appellate Court, however,
MAUNG CHIT
MAUNG AND upheld the contention of defendant 7 that the plaintiff
ONE
v. having failed to comply with the terms of the decree
DAw SAW. of the first appellate Court, his right to recover
UiSAN possession was forfeited. The plaintiff then applied
MAUNG, J. to the High Court with the result n1entioned above.
In Dattatraya Vithal Garwara v. Was11deo Anant
Gargate and others (l) the Bombay High Court
makes a distinction between the summary dismissal
of an appeal under Order XLI, Rule II of the Civil

.
Procedure Code, and the confirmation of the .judgment
of the lower Court in appeal. It observes as follows :
" No authority has been cited in support .of the proposi
"

tion that the time fixed under a decree appealed from is extended
by such dismissaL There are decisions to the. effect tpat
where the a~peal "is admitted and heard on the merits. and
where ultimately the <fecree app~al.~d from is confirmed. it has
the effect of extending the time fixed under the decree thus
confirmed in appeal, and in such a ~se the time
would run
from the date of the decree confirming it. It will be enough
to refer to the decision of this Court ..in Satwaji BalajiraHJ
Deshamukh v. Sakharlal Atmaramshet (2). Several decisions
have been referred to in the Judgment . of the learned Chief
Justice in that case, but there is not a single one iri which the
summary dismissal of an appeal is held to have the effect which
the appellant in this case contends for. The decision in Bhola
Nath Bhuttarcharjee v. Kanti Chundra Bhuttarcharjee (3) is.
against the contention of .the appellant ; and the observations
in Bapu v. Vajir (4) also go to show that the dism.issal of an
appeal under OrdecXLI. Rule 11 cannot have the effect of
extending' the time as argued on behalf of the appellant.
Speaking with reference to the dismissal under s~ction 551. of
the Civil Procedure Code of 1882, Farran, CJ, obs:erves
(p. 551) : -
i The ~hange of language made in 18S8 in: that section
. by the
.
Legislature
.
_.shows. w~ think. =that
. it was
. . (1) (-1923) I.L,R. 47. B.)m. 956.at p. 958, (3) us97.) I.L.R, 2s.Cal. 311.
t2H19~4) I.L.R. 39.:Bo1l.l; ,l7-,5. -. . l~i (i896) 21 Born. 54_3.
1955] BCR~IA LAW REPORTS. 99

intended that there should be a difference H.C.

betv,;een the results of a dismissal under it an d 1954
of a confirmation under section 577; as, indeed, ;\fA U ~G 1.. HIT~
MAVNG A!l:!)
we think. there must be. Dismissing an ONE
appeal is, we think, refusing to entertain v.
DAW SAW.
it as in the case of an appeal dismissed as
being time-barred. Where an appeal is u SA\'

dismissed under section 551, there is no decree MAt.:NG, J.

of the High Court which can be executed, and
the reasoning in the cases to which we
have been referred does not apply."
The rule as to the extension of time has been held
to apply where the decree under which the time is fixed is
::onfirmed in appeal. Where it is dismissed under Order XLI.
Rule 1L the decree appealed from cannot be taken to have
been confirmed under Rule 32. The dismissal of the appeal
leaves that decree untouched."

In Noor A.fi Chowdhuri v. Kohi Meah and .. others

(1) a decree which was one under section 52 of the
Rent Act (Bengal Act VIII of 1869) provided that
unless the arrears of rent with costs and interest
were paid within 15 days of the date thereof, the
:enant should be liable to ejectment from his holding.
fhe decree was confirmed in appeal some 6 months
1fterwards, and within 15 days of the appellate
:ourt's decree, the judgment-debtor deposited the
1ecessary. amount in Court. The ~ecree-holder
-vho had taken no steps to execute the original
lecree then rnade an application to be put in
>ossession of the holding and the question arose
vhether . the period of 15 days granted to the
udgment-debtor should be computed from the date
f the. o.riginal or the appellate decree. It was
teld by the . High Court. that-
" iiiasmu~h as the appellate depree . must .be presumed to
lCOrporate the. term~ of the Or~ginal ~ecree, , arid w,as the ~nly
. . . . ..
.~1) 1&86J I.L;~.13 Cal: .13.
.100 .B.URl\IA .L AW .R.EPORTS. [195:

H.C. decree of which execution could be taken. the tenant (judg

1954
ment-debtor) h1ving paid the decretal amount within 15 day
MAU~G CHIT of the decree was protected from ejectment."
MAU:\G AND ,
oN'E This decision was followed in Nam Narain Singn v
DAwvSAw. Lala Raghunath Sahai (1). I:n Bhola Nati
uS::N Bhuttarcharjee v. Kanti Chundra Bhuttarcharjee (2 1
MAUNG , J. however, the Calcutta High Court distinguished the
decision in Noor Ali Chowdhuri v. Kohi lYleah anc
others (3) and held that-
" Where, in a suit on a mortgage, the decree of tht
Appellate Court simply dismisses the appeal, leaving the decret
of the first Court untouched , the time for redemption would rm
from the date of the decree of the first Court. "

This later decision was followed in Basanta Kumw

Adak v. Radha Rani Dasi and another (4), whicl
was also a mortgage suit. The Madras Hlgl
Court's decision in the case of Ramaswami
~ . Kona v
Sundara Kona (5) was followed and the Bomba)
High Court's decision iri Satwa]i Balajiravv
Deshamukh v. Sakharlul Atmaramshet (6) was
dissented from.
The Patna High Court in the earlier case oj
Lala Gobind Prasad v. Lala . Jugdap Sahay (7;
dissented from the Madras High . Court and
preferred. to follow the decision of the Bombay
High Court in Satwaji Balajiraw Deshamukh v.
Sakhar!al Atmaramshet (6) . . In a later decision,
. however, it dissented fro1n th~ Bombay High
Court and followed the decision of the Madras
High Court. It is the case of Panchu Sahu v.
Muhammad Yakub and others (8) where it . was held
that where a decree declares the right of the decree-
holder .to get possession of property .subject to th~.
(1) (1895) I.L.R. 28 Cal . 257. (5) 11907) I.L.R. Vol. 31 -Mad. p. 28 . . .
(2) t1897) I.L.R. ~5 Cal. 311. {61 (1914) J.L.R. 39 Born 't75. ..
- (3) (I886)1;L.R, 13 cal. 13. (7) (1924) I.L.R. {Pat. 345 ..
-. .
: (4f fr922J A;f.R.. CaL~9..:... :: : ... .JS): (f927) ...A:tR. Pat. 345.
. . . '""' . . . .. .. ,, .
 '1955] BURMA LAW REPORTS. 101

right of the judgment-debtor to redeem the property by HC

l 1.i 5~
payment of a certain sum of n1oney within 6 months
MAt:Mt;
from the date of the trial Court's decree and the !\{AUXG
(.!!(';
A:XO
judgment of the original Court was confirm.ed on ONe
l'
appeal by the judgment-debtor, the time for the DAW SAW.

deposit of this amount by the judgment-debtor must lJ SAN

be computed from the date of the trial Court's decree. MAU'NG, J.

In Ghanshyam Lal v. Ram Narian (1) where a
plaintiff claimed the principal sum of money due on
a bond with interest at 30 per cent per annum and the
decree of the trial Court directed that if the defendant
deposited the money within 3 months from the date
of its decree he would be liable to pay interest at the
rate of 12 per cent per annum and would be exen1pted
from further liability, and this decree was a ffirmed by
the High Court and finally by the Privy Council on
appeal by the judgment-debtor but the tim.e of pay-
ment was not extended. It was held-
" that the defendant having made default in the payment
of the money within the time allowed by the first Court. he
:ould . not claitn exemption from further liability and could not
be allowed to pay the principal with interest at the rate of
12 per cent from the date of _the Privy Council decree."
fhe decision in the case of Noor Ali Clzowdhuri v.
Koni M eah and others (2) was distinguished on the
~roun~ that ~t was a decision under section 52 of the
3engal Act VIII of 1869.
On a review of the authorities quoted above, it
ould appear to me that the High Courts in I~dia
lre almost equally divided in opinion regarding the
natter now under consideration. H<?wever, the m~st
ogical and reasonable view seems to be that expressed
:h Satwaji . Balajiraw Deshamukh v. Sakharlal
. ttmaram~~~t (3) in the light of the subsequent decision
. (1) (1909) I.L.R.. 31 .All,379.. . . . .(.2) (1886.) I. L.~.13 Cal.l3.
. . (3) !1 914) I.L.R ~9 ~ . 175
102 BURMA LAW REPORTS. [ 19 ~

H.C. of the Bombay High Court in Dattatra)

1954
Vithal Garwara v. Wasudeo Anant Gargate a1~
~:~:~ c:~~ others (1) . If a decree in which time is given f<
o NE
t:l .
payment of money is confirmed on appeal it has tr
DAw SAw . effect of extending the time fixed under the decree thl
u SAN confirmed so that time would run from the date <
M AU NG, J. the decree confirming it. However, where an appe;
is dismissed under Order XLI, Rule 11 of the Civ
Procedure Code, the decree appealed from cannot t
taken to have been confirmed under Rule ~
so that dismissal of the appeal leaves n
decree untouched. Applying the principle s
deduced to the case now -under consideratiot
I am of the opinion that payrr1ent of R
600 by the plaintiffs would have been in tim
oniy if it was n1ade within one 1nonth "from the 6t
Novembyr 1951, which is the date of the decree ~of th
District Court. The payment having bee1i made onl
on 26th . February 1952 was not a payment withi
time. Before I leave this case, I would like to observ
that there is consi~erable force in th,e contention of th
learned Advocate for the respoi1dent that the orde
of the Township Court, dated the 7th Apri-11'952, no'
sought to be. revised; really relates to the execution c
. the decree and that.it should therefore be treated as
n1atter coming under section 47 of the Civil Procedur
Code.
In the result, this application for revision faii
and m ust be dismissed with costs-Advocate's fee
3 gold mohurs.

(1) (i 923) I.L~R. 47 Bdm. 956 atp. 958 ..

 195 51 BU RiVIA LAW REPORTS . lOB

APPELLATE CIVIL.
Before U Tttll Nyn, C.J., and U Atmg K/Jinc, J.

M RS. D . RAEBURN (APPELLANT) H.C.

1954
v. Dec. I .
M RS. M. JOHNSTON AND ONE (RESPONDENTS).*

Lease of house-Term 3 years-No ~flritten instrument-Transfe1 of l 'ropcrty

Act, ss. 106 and 107-0ral ag1ec111ent with ddivery of p ssession of
premises,' talid lease co~tstifttted-Mesne profits, suit for, mat'ntaiua l;ili/y
of.
Held : S. 107 of the Transfer of Property Act is clear that a lease o
immoveable properly can be effected by an oral agreement accompanied by
deliYery of possession, r.ncl as a month's rent had been p~id, a monthly
tenancy has been created by implication of law under s. 106 of the Transfer of
P roperty Act.
Clztm.i Lal Dutt and others v. Gopiram Bhotica, (1927) A.I.R. Cal. 275;
Calcrttta Landing & Shippi11g Co. ,., Victor Oil Co, Ltd., (1944) A.I.R. Cal
84 ; Ram Kumar Das v. Jagdish Chan dra Deo a11d others, (1952) A.I.R. Vol.
39 (S.:C.) 23, followed.
Held also: As a monthly tenancy has been constituted, the defe ndants
could I;ot be said to be trespassers against whom a suit for mesne r rofits for
use and occupation would lie.

$ein T un ( 1) for the appellant.

A ung Min (1) for the respondent No. 2.

The judgment of the Bench was delivered by

U TuN BYU, C.J._Mrs. D . Raeburn, who was

the owner of a house known as " Rerry House ", at
No . .'. 4, Franklin R oad, R angoon, sued for the
recovery of a sum of Rs. 4,5.60 from Mrs. M.
Johnston and her husband E. H ..Johnston, as mesne
. profit~ for the use of the said house for the period
from the 1st August, 1947 to the 20th March, 1950.
Civil t s.t Appeal :No. 94 of 1952 ' ag~inst the .decree of the 2nd Judge,
I~ar:goon City ChiJ Court, in Civil _R eg\!lar ::iuit No. 555 of 1950.
i04 BURMA,LAW REPORTS. [1955
. .
H.C. Mrs. D. Raeburn subsequently sold ' Kerry . House ,
1954
to. one U Pauk on .the 20th March. 1950~. but this
MRs. D.
p,<\EBURN circumstance will not affect the oresenf case as the
L . )
v. claim for mesne profits which Mrs. D. Rae.burn made
MRs. M .
JOHNSTON was for the period prior to the aforesaid sale.
AND ONE.
The evidence shows that it was Mrs. M~ Johnston
u TUN .BYU, alone, who negotiated for the lease of . "Kerry
~C.J.
House " from Mrs. D. Raeburn and that E. H.
Johnston went and lived there only subsequently,
i.e. in or about January, 1949. Mrs. M. Johnston's
case is, inter alia, that Mrs. D. Raeburn agreed,
verbally, to lease " Kerry House " to her for a period
:of 3 years, at a rental of Rs. 150 per month, that
she, Mrs. M. Johnston, undertook to carry out the
repairs that might be required at her own expense,
that they agreed to reduce the terms of the lease, so
, arrived at between them, in to writing, and that early
.in August I9'47 she paid Rs. 150 to Mrs. n: Raeburn
as advance-rent for the month of August 1947 and
took possession of the house. Mrs.. M. .Johnston
also alleged that she had carried out considerable
repairs to the said house. . No written lease was,
however, executed. Mrs. M. Johnston was already
in occupation of the house when a. draft lease was
prepared, which according to Mrs. M.". Johnston
contained new terms which were .not. contemplated
. by the parties at the time the verbal agreentent was
maq~ ; and she declined to approve it.
The learned 2nd Judge, Rangoon City Civil
Court, held that a monthly lease had, in the circ:um-
stances of the present case, been constituted; and he
also answered all the issues in favour of the
de~endants-respondents.
The . real question . which requires .con,s).deration .
.in tlie present appeal; is, whether a lease.had, in the
circl!mStances of the case, been constituted.: or:-tiot ?
 955] BURMA LAW REPORTS . 105

[his is a question of mixed fact and law, and it will H.C.

1954
'e necessary to examine the evidence closely also.
MRs. D.
Nhat Mrs. D. Raeburn stat ed early in her examination- RAEL!URN
v.
n-chief was : MRs. M.
JOH:f"STO~
"She (Mrs. Johnston) told me that she wanted to open a AND ONE

:linic there. Ultimately we came to an agreement that the 1st U TuN Hvc,
iefendant was to take a lease of my house for 3 years an d C.J.
hat she was to carry out all the necessary repairs to that
10use at her own cost and the rent would be Rs. 150 a
nonth."

rewards the close of her examination, Mrs. D.

Raeburn also said :
All that I was interested was getting the rent from
Mrs. Johnston and I was not anxious about the repairs
?crsonnlly. The mnin concern between me nnd Mrs. J o hnston
.vas that she should occupy the bouse and I was to be given
:he rent by her. Except this there were no other terms to be
~mbodied between us.

Mrs. Johnston wanted a written lease registered because

:he term was to be for the period of 3 years. "

[twill be observed from the statements which Mrs .

D. Raeburn made in Court that she had, in effect,
verbally agreed to lease "Kerry House " to Mrs. M.
Johnston for a period of 3 years at a rental of
Rs. 150.per month, that it was agreed that Mrs. M .
Johnston was to carry out the necessary repairs at
her own expense, and that she, Mrs. D. Raeburn, also
~greed to have a written deed executed because M!s.
M. Johnston insisted on it, as the 'lease was to be for
a periqd of 3 years. The statements which Mrs. D.
Raeburn made, as reproduced above, entirely support
:he statement which Mrs. M. Johnston made when she
w-as. examined in Court; and the statement Mrs. M.
rohnston made was to the same effect. According
:o Mr~. M. Johnston, she soon co1ninenced to make
 --

106 BUR~ffA LAW REPORTS. [195

H.C. repairs to the house and that she went into occupa
tion in August 1947 and paid Rs. 150 to Mrs . r:
1954

~~~~u~~ Raeburn as advance-rent for the month of Augus

v . 1947; and we accept Mrs. Johnston's statement.
.J~~~s~~ It is true that Mrs. D. Raeburn alleged in he
AND o NE. statements in Court that it had also been agre,e<
u T~~J.BYu, between them that Mrs. M. Johnston was to occup:
the house only after a written lease . had bee1
executed; but the learned Judge who heard the c,asc
in the Rangoon City Civil Court had . not accepte<
her statement in this respect. We are also una.bl<
to entertain a different view. It is most unlikely tha
Mrs. M. Johnston would, without delay, commence t<
n1ake repairs at "Kerry Houre" unless Mrs. D
Raeburn had verbally agreed to lease the house u
her. It is . also improbable that Mrs. D-. Raeburr
would haye dismissed the durwan, who kept watch a
"Kerry House" unless she had definitely agreed tc
lease the house to Mrs. M. Johnston, as a-lleged b)
the latter. It is only reasonable to conclude, in th~
circu1nstances of the present cas~, that there was, ir
effect, an oral agreement to lease " Kerry House " tc
_M rs. M~ Johnston in the terms, as alleged by her ir
the present case~
Section 107 of the Transfer of Property Ac1
makes it clear that a lease of iminoveable propert)
can, in certain cases, be effected also by oral agree.
inent, accompanied . by delivery of possession. Ir
the case of Chuni La!. Dutt and others v. Gopiran
Bhotica (I), where -the facts are somewhat similm
to the case now under appeal before us, Rankin.
C.J., ob~erved :
" But it is contended by Mr. Sircar that ifthis letter o1
the 22nd of March is. regarded as a mere letter of instructior
to the solici.t or ariy. verb(,l_
l agreement to the same effect as thi~
(1) {1927) A.Ll~. Cal. p. 275 at 276.
. ~
 1955] BURMA LAW REPORTS. 107

letter wo uid be a verbal agreement intending to operate as H C.

1954
passing a pres ~ nt interest in the land for three years.
Accord ingly, he says that being so, even a verbal arrangement M RS . D.
RAEH t: <:t~r
would be nugatory, in spite of the fact that if provided for the v.
arrangement being subsequently embodied in the terms of a :\IRS. i\1.
form a] lease. It is said that such an oral arrangement would JA~D O IIKSTO:'\
ON F..
be intended to pass an immediate interest in the property and is
U T U N 13n; ,
by itself a lease within the meaning of the Transfer of C.J.
Property Act, and although naturally an oral agreement
cannot be hit by the Registration Act it \VOuld be entirely
void because it would attempt to operate as such within the
meaning of ss. 105 and 107 of the Transfer of Property Act.
Iq my judgment, that is an argument which is not to be
accepted at all and there are a great many cases in which
oral agreements and terms such as these for leases have been
specially enforced in th is Court, and I am not prepared to say
that an oral agreement to the effect in the present case would
be a mere nullity notwithstanuing the fact that the parties
were intending a lease to be executed. In point of fact, it
appears that the defendant some little timt; dter paid a
deposit and was allowed into possession on the strength of this
verbal agreement."
The decision in the case of Calcutta Landing &
Shipping Co. v. Victor Oit Co. Ltd. (1) was said to
be to the same effect as in the case of Chuni La!
Dutt v. Gopiram Bhotica (2), but it does not appear
that the point now before us was discussed in any
detail there, w~ere it was apparently conceded by the
parties concerned that a verbal agreement for a lease
for 3 years, accompanied by possession, constituted,
iri the absence of a written instrument, a month to
month's tenancy, as contemplated in section 106 of
the Transfer of Property Act. Mukherjea, J. also
observed, at page 88 of the report,_
" . In the case before us there were negotiations
between the parties for a three year's lease, and there was an
agreement arrived at that the leas.e would be for a period of
thieeyears from 1st June 1936, and a formal instrument of

(1} (194-l) "\.I.R. C ..l. p. 8-J. (2) (1927) A.I.R. C:.J. p. 275 at 276.
108 BURMA LAW REPORTS. [1955
.H.C . lease for that period would be executed and registered. No
19 54
document was however executed, and the tenancy was
{\J RS. D. . constituted by the clefendant's taking possession of the godown.
R".FflUHN
and paying rents which were accepted by the plaintiff.
1\.f Hs. M. According to the case made by the plaintiff in his pla~nt, there
}OHMTON
AND ONE.
was a tenancy from month to month under s. ~06. T.P. Act.
Thus, there was no agreement between the parties regaruing
U TUN BYU, the period of the lease. As there was no agreement fixing
C.J.
the period, the tenancy has been taken to be from month
to month under s. 106, T.P. Act which applies only where
there is no agreement to the contrary."

We have already observed that in the present case

now under appeal before us, no instrun1ent of lease
was, in fact, executed ; and section 9 of the Transfer
of ~roperty Act allows a transfer of property to be
made without writing in all cases in which no Written
instrmnent was expressly required by law.
In Ram Kumar Das v. Jagdish Chandra Deo and
others 0) B. K. Mukherjea, J. observed:
" . The question now is. whether there was a
contract to the contrary in the present case? Mr. Setalvad
relies very strongly upon the fact that the rent paid here was
an annual rent and he argues t hat from this fact it can fairly
be inferred that the agreement between the parties was
certainly not to cre:1te a monthly tenancy. Jt is not disputed
that the contract to. the contrary. as contemplated b.y s. 106,
T.P. Act, need not be an express contract ; it may be implied,
but . it certainly should . be. a valid contract. If it 1s no
contract in law, the section will be operative and regulate the
duration of the lease. It has no doubt been recognised in ~ever a!
cases that the mode in which a rent is expressed to be payable
affords a presumption that the ten~ncy . is of a . character
corresponding thereto."

The advance~rent which Mrs. M. JohnstOIJ. paid

. .to .Mrs. D. Raeburn in the case now under appeal
'v. a.s for the. month of August, 1947, and it .w as thus
~--------~------~----------------~--~-----
(!) :(1952) A.I.R. Vol. 39, S.C., p. 23 at 26 . . .
 B U Rlv1A LAW RE'PORTS. 109

in the nature of a monthly rent. We are of opinion H.C.

1054
that it could, in the circumstances cf the case now
i\liK f,\.
unde: appeal before us, be said that a monthly RAF. Bt:R:-:

tena~cy had, by implication of law, been cr~ ated by 1'.

1\i HS. l\i .
reason of section 106 of the Transfer of Property JOHXSTo::-:
ANI) ON.
Act ; and the defendants could not rherefore be
U TuN Bvu.
CC?nsidered to be trespassers against whom a suit for C. f.
1nesne profits would lie. The appeal must in the
circumstances of the present case fail ; and it is
dismissed with costs.

U AUNG KHINE, J.._ I agree.

ilO BURMA LAW REPORTS. [1955

APPELLATE CIVIL.
Before U Sail Jlla1mg, J.

H.C. MA KYIN TIN (APPLICANT)

1954
NoJ.18. v.
BANU NANIGRAM JAMNADASS FIRM AND ONE
(RESPONDENTS).*

Eject 11Jent sztit-A ppzicat io1t by sub-tenant to be added as a party-<Relat ionsl,i p

. betwee1'tlandlord and sub-te11ant necessMy Party, circztmsta nces when sub-
. letta1st become.s one.

lleld: Un.d er the Urban Rent Control Act, 1948, a sub-tenant is a tenant
only in relation to the tenant-in-chief, and he is not a tenant to the superior
landlord, the owner of the premises.
t~

Baban v. Chanz~abai, J.L.R. (19-49)-Nag. 432; il1 akhan f..al Kela and another
v. Gird/zari Lal and mwther, A.I.R. (1952) All. 421 ; Raml:is$eudasand another
v .Bin}taj Chowdhury and another, I.L.R. 50 Cal. 419, referred .to. .
Held:' When a 1andlord, who has obtained a de:ree for ej:e:tment against
his tenant, is resisted by a third patty who was' not a party to' the proceedings
the landlord can avail himself of the provisions of Order XXJ., Rules 97 and.9S :
of:the Civ-il Procedure Code. . .:.
" ""r r . /
Babz1- Sajarmal Tibr~wala v. G. M. Latimour, (19+8) B.L.R. 113, followed.
:'Periayya .v. Kyi:r:w Leo11g Tong Society, (19+7) B.L.R. 19), dissented
from. '
Messrs. Iinporters a11d Manufacturers Ltd. v. Plteroze F1'mm-oze
Taraporewaza apd o'tfzers, A.I.R. (1953) (S.C.), India 73, followed,
Held Jtirther: . In .a suit for ejectment based upon the fact of there bein~
arrears of rent; the landlo:-d must not only aver but must also prove that
there bad bee11 in fact arrears d rent. As a sub-tenant is . bound by .the
. decree against the tenant, he is vitally interested in seeing that there is no
c'<?llt;slqn be~w~en the Iand;lord and the tenant ; accordingly, ~ sub-tenant
is not only a proper party but o~e whom the Court should add as 'a party
deft:ndant. under Order 1, Rule' 10 .(2), Civil PJocedure Code.
Jati~1dra Moluin. Das v. Khitpatinath Mitra and another, 84 C.L.J. 263;
Rajani Ka1t.to. Das v. Daval Chand [)e a1zd otltet:s, A.I.R. (195.0) C;.L ~44,
.distinguished. .
Bacha
.. Shant. S1tndcr Kuer v.l3algobind
; - Singh, I.L.R.10 Pat.
..
90, followed.
. .

* Civil Re\'is~ou No. 102 of 195.2 .against the orJt.r 0f the. 3rd Judg<-,
Rangoon ' Oity Pi.il . Co\trt in. Civil 'Regular ~o. 802 of 1952~ .
955] BURMA LAW REPORTS. 111

. B. Sanyal for the applicant. H.C.

1954

i\IA K YI ~: TJN
~. K. Dadachanji for the respondent No. l. ~.
B o\ Nl' N A::-11
G ~A )I

. U SAN MAUNG, J.--In Civil Regular Suit No. }AM'lAIJ ASS

F!H) I
02 of 1952 of the City Civil Court, Rangoon, the AN D ON F .

1laintiff Banu Nanigram Jamnadass Firm by its

1artner Tibrawalla sued the defendant-respondent
(hoo E Sein for his ejectment from the premises in
uit, namely, Ro01n No. 3 in House No. 81 /83,
)andwith Road Rangoon, on the ground that he had
) .
>een in arrears of rent for the period October 1951 to
v.fay 1952. As 'the defendant could not be found in
he address given in the plaint substituted summonses
vere ordered to be issued against him and .in the
tormal course of events, the suit would have
>roceeded ex parte against him. Howevt)f, in the
neantime one Ma Kyin Tin who is the applicant in
he pr~sent application for revision intervened io sa,y
hat .Khoo E Sein had sub-let the premises to one
(o Ko Gyi with the knowledge and co.nsent of the
>laintiff, that she was the partner and agyn~. .pf Kp
(o Gyi and that i~ her capacity as sub-tenant sli~
1as been . paying rent direct to the plaintiff since
tbout 1947 and for .all times material to the ~mit..
)he therefore claimed to be .a tenant of the .plain.tiff
t's defip.ed in the Rent Control Act and stated that
:or a compJete adjudication of all the questions
nvolved in the suit her presence as a party-defendant
aS .neqessary. This application was objected to by
he plaintiff and the learned trial Judge by his . ord~r
lated the 15th September 1952, dismissed Ma Kyin .
fin's application ~ainly q~ the ground that a .sub.-
:enant . wa~ not a . n~cessary party to a .s uit for
~jectm~nt' of a tenant by his landlord. In tllis
~onnection, the learned. t~!ai Judge..' relied . mainly
~
112 BURMA LAW REPORTS. [ 1955

iks~ upon the rulings in the cases of Bahan v.

-- Chanzpabai and others (! j and .Aiakhm1 La! l{e/a
r.1 ~ KYI:-< Tz ~ ar~1 avr>t;za:, : t t"'! 1 rn~ r 1 rtr1r>i' f zo 1/
V G u ,r1ho .. ""! ;1
v. , ......
t<. <... '-'' . . .. ,
.... " ' ' ' ..-1o1 . - vi . , ...... 1.
" v~ L-lt . J .. --~

BA~~~:Nz- the first case it was held that under the Transfer of
1AMN.,,D,., ss Property Act there was neither privity of contract nor
F:HM
AN r> oNE. privity of estate between a lessor and a sub~lessee.
u sA:v I n the latter, which was a decision under the United
MAUNG, J. Provinces (Temporary) Control of Rent and Eviction
Act, 1947, it was held t hat a sub~tenant is a tenant
. only in relation to the tenant-in-chief and that he is
not a tenant in relation also to the true owner of the
accotnmodatlon. I have no observation .whatsoever
to make in regard to the decision in Chan1pabai's
case. However, as regards the case of Makhan Lal
f(ela and another v. Girdhari La! and another (2),
the decision seems to turn upon the d~fi.nition of
"landlord?' therein which expressly say that "landlord"
means a tenant in relation to his sub-tenant. The
definition of landlord in the Urban Rent Control
Act, 1948 (Burma Act, No. 6 of 1948) js not so
specific in that it onl)r says that " landlord '." 111eans a
tenant who sub-lets any premises. However, when
the definition of '' landlord " is read in conjunction.
with the definition. .
of " tenant " I have no doubt .
whatsoever. that under the Urban Rent Control Act
'
1948 also, a sub-tenant is a tenant only in relc..tion to
the tenant-in-chief and he is not a tenant to the
superior .. landlord, natnely, the true owner of the
premises-. However; this fact is not s-qfficierit to
dispose of the tnatter now under consideration. No
doubt::~ it was held by the Calcutta High Court in
Ramkissendas and another v. Binjraj'-.C howdhury
and a_nothet:._(3) that a sub-tenant need not be nlade'
a. party in an . ejectment
. .
suit. and that. .. . the . .. ..
decree. .
(1) l.L.R. (1949) Nag. 432. (2) A.I.R. (195Z.) All. 421.
.. . . . (3) I.L.R. 50. Cal. 419; . ' ..... , . .
 .
1955 ] BURMA LAW REPORTS. 113

against the original tenant is binding on him. H.C.

1 95~
Moreover a Full Bench of this Court in Babu
' . MA KnNT~N
Safarmal Tibrewala v. G. M. Latimour (1) has held 11,

BAN U NANI-
that when a landlord has obtained an order of Gf<AM
ejectment against his tenant under section 17 of the ]AMXAT>ASS
FtHM
Rangoon City Civil Court Act and in the course of AND ONE.

the execution of the said order is obstructed by a U SAN

MAUNG, J.
third person who is not a party to the proceedings,
the landlord can avail himself of the provisions of
Order XXI, Rule 97 of the Civil Procedure Code and
obtain an order under Rule 98 in appropriate cases.
In coming to such a decision this Court dissented
from the views expressed in S. Periayya v. Kyaw
Leong Tong Society (2) where it was held that a
decree of the Rangoon City Civil Court under
section 17 against the defendant, cannot be executed
by the eviction of a sub-tenant who ha~ not been
made a party to the proceedings. Therefore, it
would seem that if there is a valid decree under
section 11 (1) (a) of the Urban Rent Control Act for
the ejectment of a tenant from the premises in suit
the s:ub-tenant.is also bound to be ejected whether or
not .he has been made a party to the proceedings .
.'This view finds support. in the observations of
.a Bench of the Supreme Court of India in Messrs.
Importers .and .Manufacturers Ltd. v. Pheroze
Eramr,oze Taraporewala and others (3). There the
Supreme Court observed as follows:
" Apart from that section, under the ordinary law
a decree for possession passed against a tenant in a suit for
ejectment is binding on a person claiming tit~e under or
through that tenant and is exe~utable against such person
wheth~r or not he was or was not a party to ~the suit. The
non-jo1nder of such a person does n~t render the decree. any
. e les~
th' . binding on him. It is in this sense;
. therefore.
. that
,

. '(1) (194S) .B.L.,R. 113. (2) '(1947) B.L.R.' 190.

(3~ A.T.R. {1953) (S.C.), India 73. .
8
114 BURMA LAW REPORTS. [1955
he is not a necessary party to an ejectment suit against the
tenant. It is, however, recognised that such a person is.
~i~ KYINTIN nevertheless a proper party to the suit in order that the
BANU v.NA~I- question whether the lease !has been properly determined and
GRAM the landlord plaintiff. is entitled to recover possession of
JAM~~~tss the premises may be .decided in his presence so that he may
AND 0NF:. have the opportunity to see that there is no collusipn between
U SAN
the landlord and the tenant under or through whoni he claims
MAu~G, J. and to seek protection under the Act, if he is entitled to any.
Such a person may be joined as a party to the suit from the
beginning of the suit or at any later stage of the suit if the
Court thinks fit to do so."

These observations seem apposite to the case

now under consideration. Under the Urban Rent
Control Act, 1948, a landlord cannot eject his tenant
except in the circumstances enumerated in section
11 (1). If a suit is based upon the fact of there
.being arre'ius of rent the landlord must not only aver
but also prove that there had been in factarrears of
rent. . As asub-tenant is bound by the decree against
the tenant he is vitally interested in seeing tP,at
there is no collusion between the landlord .and the
tenant, as, from the definition of " landlord " and
"tenant ", the tenant who is his own,l andlord cannot
himself eject him except as provided in section 11 (1} .
.Therefore; a sub-tenant is not only a proper party in
a suit by .a landlord against his tenant but one whom
the Coutt should, under the provisions of Order I~
Rule 10, sub-rule '(2) add as a party defendant, when,
as. in thi~ case the sub-tenant offers to prove to the
Court that no arrears of rent were in fact due by the
tenant to the l~ndlord and that no decree for eject-
ment should therefore be passed.
rhe learned Advocate for the respondent Banu
~Nan!graQl Jamnadass Firm has . cited the cases of
.... Jatindr.a . Mohan "Das v~ Khitpatinath Mitra and
. '-: ... ~ . . .
 1955] BURMA LAW REPORTS. 115

another (1) and Rajani Kanto Das v. Daval Chand H.C.

JIJS..j.
De and others (2). There it was held that a sub-
l\L-\ K Y I ~ T IN
tenant had no right to intervene and ask for a v.
variation or rescission of the decree obtained by the B A~~;,:...~A~r
landlord against his tenant. These cases are, in my JA~~~~~~tss
opinion, distinguishable from the present case on AN I> o N :::.
facts. A case more in point is Bacha Sham Sunder c: S AN
Kuer v. Balgobind Singh (3). There it was held M AU:-<G , J.
that an intervenor, who in a duly verified. petition
sets forth the allegation that he has purchased the
holding and that the landlord has recognised him as his
tenant, ought to be joined as a party and at the hearing
of the rent suit, and not before the truth of the
intervenor's allegations should be investigated.
In the result the application for revision succeeds.
The order of the 3rd Judge of the City Civil Court,
Rangoon, refusing the application of Iv1a Kyin Tin
to join her as a party defendant as agent of the sub-
1enant U Ko Ko Gyi is set aside and - Ma Kyin Tin
'directed to be added a .; a party-defendant in her
.capacity as agent of U Ko Ko Gyi. The applicant
:is allowed costs of her application. Advocate's fees
.five gold .m ohurs..

. (!) 84 C(L.J ..:263. .(2) A .J.R.. (1950) Cal. 244. .

. (3) I.L.:It 10. P.at. '90. . .. ::: . .
116 BURMA LAW REPORTS. [195$

APPELLATE CIVIL.
Before U San Mattn:g, J.

H.C.
J955
M.C.T. CHIDAMBARAM CHETTYAR.BY AGENT
K. R.M. MUTHIAH ACHARI AND SIX (APPLICANTS)
lat~. 25.
v.
V.L.S. CHOCI(ALINGAM CHETTYAR AND FIVE.
(RESPONDENTS). *
Citil l'1'0t:cdure Codt:, Order VI, Rttlcs 4 a11d 3--Furtlter and better
particttlars-Fraud and collnsion, allfgations of-Arbitration
proceedings-Interlocutory order, r.:tisiou of, when justified . .
Held ': Where charges.of fra~1d or misconduct against the othe.r p:trty have
. bctn a!leged, the trib~m:tl which is called upoa to decide sucil issues <>hQuld
comptl that litigant to place on record precise and specific details of these
charges. A charge of fraud must be substantially proved as laid; when one
kind of fraud is char~ed, another kind cm1~ot on faiLtre of prqof be substituted:
..:
for it.
John 1-ftallillgford v. 111utual Society, 5 A.C. 69i ; Bha1'at D/lamra Syndicate
v. Barish Chand1-a, A.I.R. (1937J. (P.C.) 146; Atdul Hosseitz Zanail Abadi v.
Cht:{rles .4.it~ez~ Turttef' 11 Bom. 620 (P.C.); Balaji Valad :RaojiCollte v . .
.(;a'hgadltar R a.mkrislwa Ktelkami, 32 Bom. 255, referred to.
. Held also: The High Court will revise an inter1oc ,,tory order only when.
' irremediable injury will be done and a miscarriage of j tlS tice will ensue if the
Court held its band. .
Mahomed Chootoo and o!hers v. Abdul Hamid Kha1l aud ot/ters, 11 Ran. 36,.
followed.

S. R. Chowdhury for the applicants.

Messrs. P. B. Sen and B. K. Sen for the respondents ...

U SAN MAuNG, J.-ln Civil Regular Suit No. 1

of 1951 of the District Court of Pegu, the plaintiff.
V.L.S. Chockalingam Chettyar sued his partnets, the.
defendants 1 to 4 and the legal repres_entative of a 5th
partner, for a declaration that tlieaward given by the.
:~arbitrators in an arbitration proceeding bet:ween him .
. .
CiviiRevisi<>n ~\o-. 53 .(Jf.1952 against the orderof th~ ~strict Court, Pegu .
in Civil-Regular No.1 of 1951. . .
~. . .
1955] BURMA LAW REPORTS. 117
and the aforesaid defendants was void and inopera- H. C.
1955
tive in law. The arbitrators were also impleaded in
fii .C.T. ,.
the suit as defendants Nos. 8 to 12. The ground on CH!n AM RA-
RAM
which the award was sought to be set aside was CIJ E TTYAR
.n1ainly fraud on the part of the arbitrators and HY AG ENT
K.R.M
.collusion between them and the other parties to the l\lL:nHAH
.'\CIIAHi ANO
arbitration proceedings. The defendants asked for SIX
v.
particulars of the fraud and collusion which had been V.L.S.
alleged against then1 and the learned Judge of the C HO CKALIN-

District Court (U Po On) by a well considered order

A:'llD FIVE.
dated the 11th April 1954 directed that the plaintiff
.must give particulars of the material facts constituting l! SAN
MAU NG, J.
"fraud, collusion or other misconduct which had been
.alleged against them. In so doing the learned Judge
-relied upon the provisions of Order 6, Rules 4 and 5
of the Civil Procedure Code and the fan10US dictum
Of ~ord Selborne in John Wallingford ,v. Mutual
Society (1) where the Lord Chancellor observed a,s
follows:
" With regard to fraud, if there be any principle which
:is perfectly well settled, it is that general allegations, however
:.strong may . be the words in which they are stated, are
.insufficient even to amount to an averment of fraud of which
,any Court ought to take notice. And here I find nothing but
perfectly general and vague allegations of fraud. No single
:materia.l fac_t is condescended upon, in a manner whichwould
-enable any' Court to understand what it was that was alleged to
.be fraudulent. These allegations, I think, must be entirely
disregard~d .; ,;

rhe plahitiff had before the date of the order q1ent-

.:ioned ab.ove given several particuJars which in his .
:opinion constituted acts of fraud and collusion on
the part of the arbitrators. These the learned District
Judge considered were not sufficient for the purpose.
His. successor (U Tun Tin) thought otherwise .and by -
an.o rder dat~9. the 4th August 1952 now sought to be
<P 5 A..C. p: 697.
118 BURMA LAW REPORTS~ [ 1955

H.C.
1955
revised, the defendants were directed to file their
written statements at an early date, Hence the
c:~~~;~~- present application for revision.
CH=~~!YAR In Bharat Dhamra Syndicate v. Barish Chandra
BY AGE~T ( 1) it was held that where a litigant prefers that
~~~~-;~H charges of fraud or other improper conduct against
AcH~~~ AND the other party, the tribunal, which is called upon to
v.
V.L.S.
decide such issues should compel that litigant to place
CHoci<ALI~- on record precise and specific details of these charges ..
CH~*~YAR Furthermore in Abdul Hossein Zanail Abacli v.
AND FIVE. Charles Agnew Turner (2) their Lordship of the Privy
u SAN Council pointed out that it is a well-known rule, that.
MAuNo, J. a charge of fraud must be substantially proved as
laid, and that when one kind of fraud ' is charged7
another kind cannot, on failure of proof, be substituted.
for it. '
Therefere if the plaintiff fails to give more
partiCulars. regarding fraud, collusion or other acts of
Inisconduct than that which he had speCifically stated~
he will not be allowed at the trial to adduce evidence:
in support of the acts of fraud in respect .of which he.
had not given specific particulars. In this connection
the observations of Chandavarkar, J., in Bal_aji Valad"
Raoji Colhe v. Gangadhar Ramkrishna Kulkarni:
(3) are appos.ite. There the learned Judge said:
"It is an elementary rule of. law that where fraud is set.
up, particulars of lt must be given and it must be based upon.
a specification of the facts relied upon as constituting fraud ..
. .No S'Qch particulars being given in the plaint. the Subordinate
Judge ought to have required the plaintiff to amend his plaint
by specifying the fraud;alleged ; and. in case of failure by him
to amend, the Subordinate Judge ought to have re.fused to enter
into the question. . * *. * * *. We desire to impress.
.UP9Ii Su~ordinate Judges the supreme importance and necessity
of insisting tl;lat a case .~f fraud .shall no~ be.' the subject of a.
----~----------~~--~~~----------~--~
(1) AiR: (1.937) (P .C.) .P14.6. (2) 11 'Bdm .' p; 620 (P.C.;.
(3) 32 Bom. p. ~ss~
 1955] BURMA LAW- REPORTS. 119

mere vague allegation in the plaint or written statement, but H.C.

that it shall be supported by particulars ; and that if that 1955
condition is not complied with, the party relying on a case of i\I.C.T.
CHIUA~[El\.
fr aud. shall not be allowed to raise that case in the form of an RA)-1
issue. It is generally advisable, indeed, when framing an issue CHJ-:T'fYAR
on the point of fraud. to set forth in the issue itself a brief BY AGENT
K.R.iVI.
statement of the fraud alleged, or at least to refer to the passage MUTHIAII
in the pleadings where it is specified." ACUAI~I AND
SIX
v.
From the above observations, it is clear that the V.L.S.
plaintiff will only be allowed to prove only those CHOCKALIN-
GAM
facts constituting fraud, collusion or other misconduct, CHETTYAR
Al'\D FIVE.
as have been particularised in the plaint or in the
furlher and better particulars furnished by him after uSAN
MAUNG, J.
the institution of the case.
The question which now arises for consideration
is whether the order of the learned District Judge
dated the 4th August 1952 spould be revised. As it
is an interlocutory order, the principles l~id down in
J11ahomed Chootoo and others v. Abdul Hamid
Khan and_ others (1) should be followed. There i t
was pointed out that the High Court will revise an
interlocutory order only when irremediable injury will
be done, and a tniscarriage of justice will ensue if the
Court held its hatid.
I am no t satisfied that such an irren1ediable
injury_. will be done if I refuse to interfere at this
stage. In fact it will be to the advantage of the
defendants if the plaintiff does not give more and
better particulars than thos~ already give.Q. because in
that event the plaintiff's suit will be in danger of being
dismissed as . unproven. Even if the plaintiff is
successful iri the District Court, the matter can be
agitated in appeal against the judgment and decree of
the District Court.
For these reasons, I shall dismiss the application
for "revision wit'li no order as to costs.
(1) 11 Ran. p . ..36.
120 BURMA LAW REPORTS. [ 1955

APPELLATE CIVIL.
Before U Srm Maun .~ u11(/ U Ba Tlioung, JJ.

H.C.- MAUNG TIN WA (APPELLANT)

1954.
Nov.l. v.
S. E. I. DAWOODlEE AND ONE (RESPONDENTS).*

Civil Procedure Code, s. 47-" Represe"lative "-T!tird Party obtainin!!.

occupation of premises dnri1ig pendency of lil.it!aliou in ,-espcct of it-
Suit b_vthird party agai11sllaudlord dccree-l1older not maiutawable.
Htlrl: A third person who has stepped into the shoes of the tena11t
judg:nent-dcb tor and occupied the p remises in the course of tl_1c execution of
the ejectment decree against the latter can be taken as re;1resentative of the
parties as contemplated ins. 47 of the Civil Procedure Code, and as such
representative is bar;ed from briagiog a suit against the l;i!idlord decree-
holder.
ls/ia'' Chuttdcr Sarkar and one v. /Je:1i Madhub Sirkar, I.L. ~~- 24 Cal. 62,
foHowed. f)

H dd olso: A landlord decree-holder can avail himself of th_<;.-' pro vi~ions of

Order XXI, Rules 97 and 98, Civil Proeedt1re C)de when obstructed hy a
stranger to the suit for posse5sion of the premises.
Bal:u Saf<~rmal Tibrcl/Uala " G. M. Latimour, (19-18) B. L.R. 113, referred
to.

U Chit for the appellant.

M. M . Rafi
...
for the respondent No. 1.
#_,._~

. The judgment of the Bench was delivered by

U BA TROUNG, J._In Civil Regular Suit N-o.l120

of 1950 of the 3rd Judge of the City Civil Court,
Rangoon, the 1st respondent S. E. I. Dawoodjee
obtained an ex-parte deGree for ejectlnent against the
2nd respondent A. Judah from room No. 3 of House
No. 155, Sparks Street, Rangoon, and in execution of'
the deeree for ejectment, the appellant Maun_g Tin Wa
Civil lst Appeal No. 17 of 1953 against the d~cr~~- of the .Ciu~f judge.-
City Civil _C ourt, iu Civil Regular No. 63 o.f 19~2.
 955] BURMA LAW REPORTS. 121
vas found to be in occupation of the said premises. l !.C.
1954
rhe execution of the ejectment decree was then
.'.f..\UNG
.tayed with the consent of the parties for a month TrN WA .
tom the 15th November 1951 till the 15th December v.
S. E. I.
l951 ; but on the 11th January 1952, the appellant DA \\' OODJEE
AND ONE.
\1aung Tin Wa filed Civil Regular Suit No. 63 of 1952,
UBA
.n the Court of the Chief Judge of the City Civil THOENG, J.
:ourt, Rangoon, in which he asked for (I) declaration
:hat the ex-parte decree obtained by . the 1st respon-
ient against the 2nd respondent in Civil Regular Suit
No. 1120/50 was obtained in collusion and fraudu-
lently, and that it was not binding on him as he was
in occupation of the premises, and ' (2) for an order
for perpetual injunction restraining the Ist respondent
from executing the decree in Civil Regular Suit
No. 1120/50.
The learned Chief Judge of the City Civil Court,
R angoon, held that the suit (Civil Regular Suit No. 63
of 1952) is barred by section 47 of the Code of Civil
Procedure; that no fraud or collusion on the part of
the plaintiffS. E. I. Dawoodjee has been proved in the
suit, and that the appellant was not entitled to get
the declaration and the injunction asked for, and the
suit was dismissed with costs. Hence this appeal.
It is clear from the evidence of the appellant
Maung Tin W a in this case that he got the suit premises
from the 2nd respondent A. Judah. He ~tated in his
evidence that l;le could not say whether the Myingyan
Association occupied the premises before or after the
1st respondent has obtained the ejectment decree
against the 2nd respondent. So what has been
set up by the defence in this case that the plaintiff-
appellant was not in occupation of the premises at
the ti~e of the suit but that he occupied t~e premises
o:Q.ly d'uring the pendency of the suit may be taken
as true. The appellant is therefore a 3.r d person
122 BURMA LAW REPORTS. [1 95~

H.C. who has stepped into the shoes of the 2nd respondent
1954
A. Judah and occupied the suit premises in the course
MAU;.;<;
TIN W A of the execution of the ejectment decree against
t .
S . E . I. A. Judah, and he can be taken as representative
DAw ooDJEE of the parties as contemplated in section 47 of
AND ONE.
the Code of Civil Procedure. See the case of
U BA
THOUNG, J.
/shan Chunder Sarkar and another v. Beni JWadhub
Sirkar (1) with reference to the term " representative ' ~
as used in section 47 of the Code of Civil Procedure.
It has also been held in the case of Babu
Safarmal Tibre wala v. G. !'vi. Latimour (2) that when
a landlord has obtained an order of ejectment against
his tenant under section 17 of- the Rangoon City
Civil Court Act and in course of the execution of the
said order is obstructed by a third persot;J. who is not
a party to the proceedings under section . 17, the
landlord can avail himself of the provision of Order
XXI, Rule 97, of the Code of Civil Procedure and
obtain an order under Rule 98 if the facts would
justify such a course. We are therefore of. the
opinion that the finding of the learned Chief Judge
of the Rangoon City Civil Court that the . _appellant's.
suit is barred by section 47 . _o f the Code of Civil
Procedure i.s correct. -
As regar9-s the allegation by the plaintiff-appellant
that the I st respondent obtained the ex-parte decree:
for ejectment against the second respondent by
collusion and fraud, there is no _evidence wha_tever to~
support this . For the above reasons this appeal.
cannot b~ aU owed and is .dismissed w.ith costs .

.. .
-'----~-------- ---- . --~'-:--:---

(1) I ..L.R. : 2~ -cal. 62. (2) .(1948) B.L.R. ll3.

 .Y55] BURMA LAW REPORTS. 12J.

APPELLATE CIVIL.
Before U Sau Mmwg, I.

P. A . M. ABDUL K.ADER AND TEN OTHERS H.C.

1954
(APPLICANTS)
Nov. 2.
v.
S. M. M. MOHIDEEN FIRM BY PROPRIETOR
S. M. NAGOOR MEERA AND SIX OTHERS
'(R ESPONDENTS).*

Witnesses iu ]ll(iict-lssue of comission for examinatiotJ of- Application

filed by defendants 110l same as one filed by Plaitlliff- Delay immaterial
-Re~isiou of order refusing application-S. 115, Civil Procedure Code
a11d s. ~_.;,City C:vil Court Act.
Held: Del:1y is not material in considering the issue of a commission
for the examination of a deft:ndant. l<'ailure to distil,$uish between
applications for the issue of a commission on the part of the plaintiff and of
t he defendant is all irregubr exercise of j:trisdiction flr which the High
Cour t cal' interfere in revision.
Jagauut~tlia Sast-n v. SMnlhamb(l.l Ammal a11d two ol lzers, I.L.R. 46 Mad .
574; M. Pal,miappa Cltettiar v. Na1ayanan Chettiar, A.I.R. (1946) Mnd.
331 ; refer rect. to.
Rajagofahi Pi/lai v. Kasitisvanat han Cl1ettia1'1 I.L.R. (1933) Mad. 705,
f ollowed.
Held f-urther : ASS\lnling that th e High Court canuot in terfere in
r evh:ion against an interlvcutory o rder of the s ubor din ate Court relating to the
issue of a commis':lion undt:r s . 115 of the Civil P r ocedure Code, the High
Court can do so under s. 25 of the Cit y Civil Court Act.
Ma Tlza:J Yin v. Tau Kcat Kheug (a Ta1t Kt;it Sein, 11951) B.L .R. 161,
r eferred to.

R. Basu for the applicants.

D r. Ba Han for the respondents.

U SAN MAUNG, J._ ln Civil Regular Suit No. 753

of 1953 of the ._City Civil Court, R angoon, the
plaintiff S. M. M : M-ohideen -~inn by its alleged sole
* Civil' Revision Ko. 4 of 1954 ag;liist the order of the Chief J udge, City
Civil C9.1rt_in _Civil l{egubr No . 753 of 1953. .
124 BURMA LAW REPORTS. . [195:
H.C. proprietor S. M. Mohamed N ago or Meera, sued the
1954
defendants P. A. M. Abdul Kader and 16 others fo1
l'. A. l\1.
AHt.n:L their ejectment from the premises in suit, namely
KADEH AND
TEN OTHEHS Room No. 4 of 237 of Tseekai Maung Taula)
v. Street, of which the plaintiff alleged that he had beer
S. M.M.
MoHfD.EEN the tenant since the 1st of June 1946. It is the
F'IRM BY
PROPRlET()R plaintiff's case that the defendants are in po'ssessior
S.M.
NAGOOR
of the suit roon1 as mere trespassers and that wher
MEEIM
AND SIX
he, by his agent Syed Aboo Back:er, applied to thE
01'HERS. Controller of Rents, Rangoon, under section 16 (a)
u SAN of the Urban Rent Control Act for permission to
MAUN!G, J.
assign the room to one T . S. Shaul Hameed the
defendants had filed an objection to the proposed
transfer on the ground that they were the sub-tenant~
of the plaintiff. The defendants in their written
statement contended inter alia, that S. M. M. Mohideer
Firm was. . a partnership and that the plaintiff, whc
\

claims to be the sole proprietor of the firm and the

tenant of the premises, was not entitled to file a suit
for their ejectment. In order to prove their cont~n
tion, the defendants have produced Exhibit-'1, which
is a Deed of Partnership dated the 2nd June 1946:
and also cited as their witnesses two of the
partners, who. are now residing in Tinnevelly District
of India. Theyalso applied for the examination of
.a third witness residing in .the same place, namely,
0. S. Syed Hoosein, for the purpos~ of proving a
Power of Attorney relevant for the case and the hand-
writing of oneS. A. Syed Aboo Backer, who granted
documents Exhibits 4 and 6, to the defendants. The
applic~tion . for the examination of these three
witnesses on commission were, however, dismissed by
the 'learned Chief 1 udge of the City Civil Court by
his order, dated the 15th December . 1953, as . the ..
learned .Judge was of the opinion that ..there .was ..
su~cient material on record to . deeide the . cas~
 1955] BURMA LAW REPORTS. 12S

without the examination of these defence witnesses ~l .C.

1 1.54
on commiSSIOn. The learned Judge also gave as his
P. A . ~:r.
view that even if the partnership had been in existence A illl:L
it must be deemed to have been dissolved on the KAtHW AND
TEN OTHERS
expiry of the term mentioned in the Deed of Partner- 'C'.
S.M. l\1.
ship, Exhibit 1. MOHWEEN
FJl~:\( lSY
In the present application for the revision of the PIWI'l?tETOR
order of the learned Judge, it is contended inter alia S. M.
NAGOOR
that the learned Chief 1udge was not justified in MF.EflA
Ai'\0 SIX
assuming that the evidence of three witnesses, who OTHERS.

were proposed to be examined on commission, was U SAN

not necessary for the determination of the case and MAUNG, J.
that the learned trial 1 udge had erred in considering
that section 42 of the Partnership Act had any applica-
tion in the circumstance of the ca::;e. Several
authorities have been cited by the learned A-dvocate
for the applicants in support of their contention that
the learned trial Judge was wrong in having refused
the issue of a commission to India. Of them, the
tnost important is the case of Jagannatha Sastri v.
Sarathambal Ammal and two others (1), where
Wallace," J. held that_
" Where a party asks for the examination on commission
of a witness not under his control owing to the witness residing
more than 200 'miles from the Court-house. a commission
should issue as a matter of right unless the Court is satisfied
that the application is an abuse of the process o~ the Court.
and that it is not..for the Court to decide whether the party
will be benefited by the issue of the commission or not ; that is
a matter entirely for the party."

This decision of Wallace, J. was however dissented

from in M. Palaniappa Chettiar v. Narayanan
chettiqr (2); where Bell, 1. held that_
'~ A commission cannot be issued as a matter of right.
It is ~ matter or' discretion for the Court in the circumstances
. .. ,. .
(1) (192.!1. p ..l ' . 46 Mad. :p. 574. (2) l1916) A.I.R. Mad. p: 331.
126 BURMA LAW REPORTS. [195.

H.C. of each particular case and amongst those circumstances mus

1954 be included the question whether that ~idence cannot b~
P.A.M. adduced save through the particular witness mentioned in th,
ABUUL application. "
KADER AND
'fEN OTHERS
v. However, the case most nearly in point seems to b(
s. M.M. that of Rajagopalu Pillai v.I<..asivisvanathan Chettia;
MOHIDEEN
FIRM 1:\Y
PROPRIETOR
(1), where it was held that_
S.M.
NAGOOR "The mere advantage of observing the defendant':
MEERA demeanour in the witness-box is not a sufficient reason fo1
AND SIX
OTHERS.
refusing a commission for his examination. Delay is no
material in refusing the issue of a commission for the examina
U SAN
MAUNG, J. tion of a defendant. Failure to distinguish between applica
tions for the issue of a commission on the part .of the plain tift
and of the defendant is an irregular exercise of j.prisdiction ir
which the High Court can interfere in revision." \
. .
In the present case, the witnesses cited by the
defendants seems to be tnaterial witnesses for the
purpose of substantiating the defence that the
plaintiff had no right of suit as against them. In the
.circumstances of the case, it can hardly be .said _th a1
their application is not bona fide and thedelay is not
material in refusing the issue of a:commission for the
.examination of the defence witnesses ..
The .learned ~d~ocat~ for the-respondentS. M. M.
:Mohi\leen Firm has submitted that in view of the
.o bservation of the Full Bench of this High Court in
Ma Than Yin v. Tan Keat Kheng (a) Tan f(eit Sein
. (2) n<? revision lies against the order of the learned
Chief Judge of-the City Civil Court refusing the issue
o f a commission to India. However, i1.1 my opinion~
even assuming that the decision in the -Full Beneli
case is an authority for the proposition that the High
Court :cannot .interfere in. revision under section 115
_-of the Civ.li -:Procedure Code an interlocutory order
of a subordinate C<?urt . r-elating to the issue of a
(1.1 (1933) I.L.R. Mad. p.. 705. (2) {1951} B.L.R. p,. 161.
l955] BURMA LAW REPORTS. 127

:om mission, it is quite irrelevant for the consideration H.C.

19.)4
of the powers of the High Court under section 25 of the
P. A.M.
City Civil Court Act. A comparison of the language A uot.;r.
KA OE !~ AN ;)
of this section and that of section 115, Civil Procedure T EN 0 1HE RS
Code, will make this point quite obvious. Further- ~ .

S. :;J. :1!.
more, in Civil Revision No. 81 of 1952,1 have already MOHI DEEN
l"IT~M .BY
interfered in revision the order of the 3rd Judge of P ROPT\lETOR
the City Civil Court, Rangoon, refusing the applica- S.M.
NAGOOR
tion of the 2nd defendant of Civil Regular Suit l\1EERA
AN D SIX
No. 970 of 1951 for the issue of a commission to OTHERS.
examine him in Calcutta. u S AN
In the result, the application for revision succeeds. MAUNG, J.
The order of the Chief ~udge of the City Civil Court,
refusing the application of the defendants for the
issue of a con1mission to India is set aside 3-nd the
learned Judge is directed to issue a commission as
prayed for by them. The respondents mttst pay the
.applicants 3. gold mohurs as costs of this application.
128 BURMA LA'vV REPORTS. [195:

APPELLATE CRIMINAL.
Before r.; Bo Gyi, 1.

H.C.
1955
THE UNION OF BURMA (APPLICANT)
Jan. 6. V.
KALU (RESPONDENT).*
Crimi11al Procedure Code, s. 562 (1)-Rcle.tse on P1'olwtion of good cot/duct-
,, Instead of'' otlza punishment.
H eld: An orde r of release on probat ion or good conduct can be passec
under s. 562 (1) , Criminal Procedure Code only instead of sentencing :
convic.:ted 0ffendcr to punishme nt.

for the applicant.

for the respondent.

~

U Bo GYI, . J . -The accused in this case ha~

been convicted under section 380 of the Penal Codt
by the Subdivisional Magistrate of Mauifgdaw wh(
sen~nced him to imprisonment till the rising of th'
Court and at the same time under section 561 (1) .o:
the Code of Criminal Procedure directed his releas(
on his entering into a bond to appear and receiv<
sentence when called upon during the period of ont
year and in
the mean time to keep the peace and bt
of good behaviour. The learned Subdivisiona:
Magistrate appears to have overlooked the fact tha1
an order of release on probation of good conduc
can under section 562 (1) of the Code be .passed onl~
instead of sentencing a convicted offender to punish
ment. Here in this case, the learned Su'bdivisiona
Magistrate has directed the .release of tlJ.e accused or
. probation
. .
of good. conduct in. addition
... . to $tmtencin!
. .

Criminal 1~evision No. 1-B o ! 955 beilig re\;iew of the order.oft.h

Subdivisional Magistrate, .Maungdaw, in Criminal Rt-gular: Trial .No. 35 o
19S4. . .
. 955 ] BURMA LAW REPORTS. 129

tim to punishment which was imprisonment till the H.C.

1955
i sing of the Court. As the punishment has been
THE UNION
:uffered and for reasons given above, I direct on the oF BvR~IA
ecommendation of the learned Sessions Judge of v.
KALU.
~rakan Division that the order under section 562 ( 1)
U Bo Gvi, J.
>f the Criminal Procedure Code be set aside.
130 BURMA LAW REPORTS. [195.:

APPELLATE CIVIL.
Before U San Maung, J.

H.C.
1954
u
MIN SEIN (APPLICANT)
Oct. 7.
v.
MOHAMED SHAFI AND ONE (RESPONDENTS).*
Transfer of Property Act, s. 69 (2) (a) aud (b)-Mo rtgagor and worlgagee-
Relatzonship of a(;,e.ncy-Sale oj property, conditiom nquisitc for exercis.
of light of sale by mortgagee-Three 11/0tttli s' NIJtice, imPerative-
MuniciPal taxes zn arrears--Agreement empoweri1tg mortgagee to sell i1
that event irretocable-Cc;+ltract Act, s. 202.
Held: The provisions of s. 69 (2) (a) of the Transfer of Property Act ar.
imperative and the three mcmths period provided therein cannot be curta'He1
by agreement between the parHes that when the mortgagor is in arrears il
respect of paJment of interest or Municipal taxes the property mortgage
may be sold by the mortgagee without th~ intervention of the Court.
Babamiya Mohidin Sltakkar and others v. leha11gir Dinshaw Belgau'l'.
W allah, A.I.R. (1941) Born. 339, followed.
Held also : Under s. 69 (2) (b) of the Transfer of Property Act interes
amounting to <~t least Rs. 500 must be m arrears befort: the right of sale o
property can be exercised~ .
Held further: Where a party cotltends that the provisions of s. 6~
Transfer of l'~operty Act restricts the power of the p~rties to enter in'to
contract, the burden is on hiru to show that restriction. The law permits th
greatest of freedom of contract between adult parties, and an agreements
:nade is irrevocable under s. 202 of the Contract Act.
Mulraj Virit v. Nainmal Pratapmal and others, A.I.R. (1942) B~m. 4(
followed.

J. B. Sanyal for the appellant.

M. Cassim for the respondents.

U SAN MAUNG, J._In Civil Regular Sui

No. 237 of 1952 of the City Civil Court, Rangoon
the p~aintiff-respondent Moha~ed Shafi sued th'
defendant-appellant. U Min . Sein and defendant
:* C1 vii Revision No. 60 of 1952 against the dc::ci-ec: of the 4th Judge
. Rapg()O:n. City Civil Court, in Civil Regular N?~ 237 of 1952.
 1955] BURMA LAW REPORTS. 131
Tespondent Messrs. Balthazar and Son for an H.C.
1954 ..
jnjunction restraining then1 to sell the property in
.suit except in accordance with law. The plaintiff's u MxN SEIN
v
.case was that on the 20th January 1951 he borrowed MoHAMED
. se1n
f rom th e fi rst d efendant U M 111 . R s. 2,200 at an SHAPlAND
o~E
.interest of 5 per cent per mensem and executed a u SAN
.deed of mortgage in which the rate of interest was MAUNG, J.
mentioned as only 1 per cent per mensem. On the
20th July 1951 the plaintiff was made to sign a
.second mortgage deed for Rs. I, 100 made up of
jnterest at 5 per cent per mensem on Rs. 2,500 and
other incidental charges. Later, the plaintiff came
to know that the first defendant had without his
;knowledge and consent inserted a clause in the
mortgage deeds giving the mortgagee power of sale
without the intervention of the Court. Subsequently,
by a letter dated 24th January 1952 the first
defendant deman.ded from the plaintiff' Rs. 3,600 as
:principal on the two mortgage deeds a.nd Rs. 107
;as inte~est que up to 20th January 1952, failing
which the first defendant threatened to sell the
property mortgaged through an auctiol}e~r. The
plaintiff, therefore, by a letter dated 7th February
1952 denied, among others, that he had ever agreed
to give the first defendant power to sell his property.
.Nevertheless, the defendant appointed Messrs.
Balthazar and Son as auctioneers and the latter then
:advertised in. " The Nation " that the sale had been
fixed for the ~Oth of February 1952. Hence the suit
for an injunction had to be filed as even assuming
for the sake of argument that the power of sale
without the . intervention of the Court had been
giv.e n by t.P.e : plaintiff, the defendants could. t:tot s,e ll
the property : ii1 question in contrave~tion of the
provisions of .. section 69 (2) ..(a) and (b) o.f tile
Transfer of Prop.e rty Act. . The first d~fendant ~n
132 BURMA LAW REPORTS. . [195$

H,~ his written statement denied the allegations that the

19
- . .
rate of tnterest was at )- per cent per mensem an d;
u MINv. SEtN that the second n1ortgage deed for Rs. 1,100 was in
~;~~M:;n respect of the interest accruing on the mortgage deed
0 NE. for Rs. 2,500. He also denied that the clause:
u SAN relating to the power of sale without the intervention
MAuNa, J. of the Court had been inserted in the n1ortgage.
deeds without the knowledge and consent of the:
plaintiff. As regards the contention that no sale in
contravention of the provisions of section 69 (2) (a)
and (b) of the Transfer of Property Act could take:
place, the first defendant contended that as. he was~
acting bona fide as agent of the plaintiff in bringing:
the property to sale under the terms and conditions.
laid down in the mortgage deeds, n6 suit for
ihjunctionolay. ~~
On the pleadings three issues were framed by
the . learned trial Judge, the plaintiff having been
given leave to agitate in a later suit his contention
that there was no cash consideration for the second.
mo.rtgage and that the power . of . sale had been
fraudvlently inserted in the mortgage deeds:
1. Whether the defendants can selt the pro-
perty mortgaged without the intervention
of the Court in contravention . of
.section 69 (2) (a) and (bJ 9f the Trans-
. fer of Property Act ?
2. Whether the suit as framed is mamtainable ~
3. Whether . the plaintiff is entitled to tlie
injunction prayed for?
The .learned trial Judge answered all these issues ir
ra vour: of the plaintiff. and directed in his . fudgmen1
that a decree as prayed for should b~: granted to th(
;plaintiff.: However, when the decree.was . drawn UI .
:it took
.
the form of a perpetual.
injunction
. .
restraininl
.
 1955] BURMA LAW REPORTS. 133

the first defendant from ever exercising his power H.C.

1954
of sale because the relevant portion of the decree
readS : U MIN SErN
v.
MOHAMEIJ
" . . . it is ordered that the defendants be and they SHAFI AND
are restrained by an injunction from selling the property ONE.

known as a piece or parcel of Rangoon Development Trust U SAN

land situate in Block Yedwingon ' A' Theinbyu Circle. MAUNG, J.
Rangoon Town District, known as 5th Class Lots Nos. 87 and
.88 and do also pay Rs. 64-4-0 the .costs of the suit."

In fact, even if the COJ!_tention of the plaintiff

that the sale advertised for . ~he 20th February 1952
was in contravention of the provisions of section 69
(2) (a) and (b) of the Transfer of Property Act be
correct, the only decree which could have been passed
was that that sale or any other sale in contravention of
the provisions of section 69 (2) (a) and (b) should be
restrained~ It was wrong to pass a decree perpetually
restraining the first defendant from exercising the
power of sale contained in the two mortgage deeds
in suit.
Now, regarding the mortgage deeds in question,
they seemed to be couched in very peculiar tenns .
. In the first mortgage deed dated the 20th January
1951 it is mentioned that the mortgage amount would
be repaid on the 20th July 1951 and that in the
meantime the property would be kept covered by
insurance and that Municipal taxes and land taxes
would be regularly paid. If the money could
not be repaid within the period of six moriths
prescribed therein, the mortgagor would continue
to keep the property covered by insurance
and cqntinue to pay the land and Municipal taxes
as these fell due. If however there is a default in
.the . payme~t of the monthly interest and in the
payment of the land and Municipal-. -taxes, the
. .. mortgagee has the . power to . sen .the property
134 BURMA LAvV REPORTS. [1955

H.c. n1ortgaged to him, either by public or private auction

1954
and for this purpose the mortgagee has been
u M~~ SE!N constituted an agent of the mortgagor. The recitals
':MoHAMED in the second mortgage deed for Rs. 1 100 are in
SHAFI AN O
s1m1 h . h d'
ONE. 1ar terms except t at In t e secon mortgage
u SAN deed it is n1ereiy mentioned that the power of sale
MAUNG, J. is to be exercised only on failure to pay the;
Municipal and land taxes.
As the first mortgage deed recites that the.
property 1nay be sold on failure to pay the Inonthly
interest, the power of sale without the intervention
of the Court must be held to have been given by
necessary implication. However, as held by W adia~.
1., in Ba~amiya Mohidin Shakkar and others v.
.iehangir lJinshaw Belgaum Wallah 0) the provisions;
of section 69 (2) (a) of the Transfer of Property
Act are imperative and three months period
provided therein cannot be curtailed by agreement of'
parties. Therefore, notwithstanding the . fact that
the mortgage deed contains a provision to the effect.
that power of sale may be exercised on failure to
pay the monthly interest no power of sale can be
exercised ' unless and until notice in writing requiring..
payment of the principal 111oney had been served on
the mortgagor or one of the several mortg~gors and
default has been made in payment of the principal
money or of part thereof for three months after.such
service. It is an adnlitted fact that this has not
been done. It is also not disputed that Clause (b)
of sub-section (2) of section 69 is not applicable as
interest amounting to at least Rs. 500 was not in
arrear and unpaid for three 1nonths after becoming due.
This is sufficient to dispose of the application.
However, as .it is mentioned in the affidavit filed by
the first defendant Y.Mii1 Sein .In support of his.
. (1) A.l.R .(1941) Borr.. 339.
.955] BURMA LAW REPORTS . 135
Jbjection to the issue of ad interim injunction that H.C.
:he ground rent due to the Rangoon Development 1954

frust has been in arrears for the past 8 or 9 u :IIN SEil'f

v. ~
JUarters-a fact which is denied by the plaintiff in MOiiAflfED
SHAFl AND
1is counter-affidavit-! would like to observe that ONE.
:here is nothing in the provisions of section 69 of U SAN
:he Transfer of Property Act to prohibit the mort- MAUNG; f.

~agor and the mortgagee to come to an .agreement

Nhereby power of .sale can be exercised on the
:nortgagor failing to pay the t~xes as they fell due.
t\s observed by Kania, J., in Mulraj Virji v. Nainmal
'!ratapmal and others 0) where a party contends that
:he provisions of section 69 restrict in any way the
?OWer of the parties to enter into a contract, the
Jurden is on him to show that the words of that
iection prevent an agreement between the parties as
}tnbodied in the document.
No doubt where ~nterest is concerned section 69
>f the Tr~nsfer of Property Act is explicit in th~t
>Ower of sale shall '
not be exercised until such
nterest as is mentioned in clauses (a) and (b) of
.ub-section (2) a:f.e due and for the period mentioned
herein. However, there is nothing in section 69 ~o
)revent the parties fron1 inserting in the mortgage
teed that the n1ortgagee 1nay sell the property if
and and Municipal taxes remain unpaid as it should
e remembered that as between the adults the law
ermits the greatest freedom of contract unless it is
xpressly taken away. The power given to the
aortgagee to sell the property in the event of the
ailure to pay the Municipal and land taxes is
~revocable under section 202 of the Contract Act,
rhich enacts_
" Where the agent has himse~f an interest in the pro-
erty w~ich fori:ns the subject-mat~e~ of the agency. the
(1) A.I.R. (1942) liom. 46:
13.6 BURMA LAW REPORTS. [1955

H.C. agency cannot, in the absence of an express contract, be

1Y54 terminated to the prejudice of such interest."
u MJN SEIN
v. The mortgagee undoubtedly has an interest in the
MOHA~!ED
SHAFI AND property mortgaged and to terminate the agency
ONE.
would undoubtedly be to his prejudice. Therefore,
U SAN
MAUNG, J.
the clause relating to the power of sale in the event
of the taxes remaining unpaid is irrevocable.
However, it is not the defendant's case that he
was exercising the power of sale for the failure on
the part of the plaintiff to pay these taxes and no
issue has been framed on this point. Therefore, the
decree cannot be set aside on this score.
For the reasons given above the decree will be
t_no.dified in the sense that the sale advertised for the
20th of February 1952 and those in contravention of
the provisions of section 69 (2) (a) and (b) of the
Transfer of Property Act shall not take ptace. This
does not, ~however, apply to the sale for failure to
pay the land and Municipal taxes. As the application
succeeds in part I would direct that each party bear
its own costs of this application. The order regard-
ing payn1ent of costs by the defendant in the lower
Court will stand. .
 1955] BURMA LAW REPORTS. 137

APPELLATE CIVIL.
Before U San Mat~ng, J.

u SAN PE (APPELLANT) H.C.

1954
v.
Nov. 18.
M'A THIN KYI AND ONE {RESPONDENTS). *

Civil Procedure Code, s. 100-Di/ference between clause (a) and clause (d)-
Value of .rppeal, btlow atui above Rs. 500-()uestion of law and quesf,otJ
of fact, wllal is, to bri1~g s. 100, sub-s. I, clause(a) into operation.
Held: As the value of the appeal does not exceed Rs. 500, the appellant can
onl y succeed if he can bring his appeal within the a mbit of clause (a ) sub-s.
1 of s. lOO of the Ci vil P rocedure Code, that is to say, unless he could show
the>t the decision is contrary to h w or to some usa~e having the force of law.
W here the val ue of the subject-matter exceeds Rs. 500, however, c lause (d) of
sub-s. 1 of s. 100 as inser ted by Burma Act No. 17 of 1945 is applicable and
the second appeal can be treated as if it were an appeal against the decr ee in
. a-n original suit.
. Held also: Q .1estions of law and of fact are sometimes difficult to
disentangle. The proper legal effect of a proved fact is essentially a question
-of law, but the question whether the fact has been proved when evidence for
and aj:!ainst has been properly admitted is necessarily a pur e question Of fact.
Najar Cflaudta Pal v. S!tukt'r and otlletsl 45 I.A. p. 183; Wali
/lfohammad and otT1ers v. Moham111ad Bakhsh and others, 57 I.A. 91 ; Dttrga
Choudr(lin v.lawahir Sittgh Cltoudhri, L .R 17 I.A. 122, 127; Midnapur
Zams11dary Co. v. U-ma Charan Mandal, 23 Cal. W.N . 131, followed.

N. C. Ser:z fqr the appellant.

L. Kin Su (a) U Ba Than for the respondent No. 1';

U SAN MAUNG, J t-In Civil Regular Suit Nos.

fJ; 7 and 8 of 1951 of the Township Court of :eyu the
plaintiff-respondent Ma Thin Kyi sued the defen-
.dant-appellant U San Pe and defendant-respondent
Saya Pein for therecovery of various sums of money
.alleged to be due from them for timber supplied from
. . Her case was that on the 1Oth lazok
time to, time.
CiyiJ 2nd .Appeals N os. 79 and 81 of 1952 against the decree of the
Distnct 'court, To ungoo, in Civil Appeals Nos. 4 and 6 of 1952:
138 BURl\'IA LAW REPORTS. [1955

~9~4 of 'fabodwe 1312 B.E. the two defendants came to

her house together and the defendant U San Pe was
u S AN PE
v. introduced to her by Saya Pein as a sub-contractor
Mt~~H~~:.v engaged in the construction of some rail way barracks
1

~ SAN at Pyu. At the request of both U San Pe and Saya

MAuNG, J. Pein Ma Thin Kyi agreed to supply U San Pe with
timber on credit. On Saya Pein standing as a surety
in course of the first transaction, timber to the value
of Rs. 1,333-8-0 was supplied for which she was paid
Rs. 1,300 leaving a balance of Rs. 33-8-0. From the
1st lazan of Tagu 1312 B.E. to the 3rd lazan of Tagu
1312 B.E., she supplied timber to the value of
Rs. 321-2-0 as per bill annexed to the plaint in Civil
Regular Suit No. 6 of 1951. Frmn the 11th"fazan of
Tagu to the 8th lazan of Kason, she supplied timber
to the value of Rs. 752-15-0 as shown in the -bill an-
nexed to the plaint in Civil Regular Suit No. 7.of 1951.
From the l&t lazok to the 11th lazok o( Kason 1313
B.E., she: s~pplied timber to the value of R.s .. J09
as shown in the bill annexed to the plaint in Civ.i1
Regular Suit No. 8 of 195 L As she rece~ved no
payment for these amou11ts she h~d filed ~h~ thre~
. suits. The defendant Saya Pein confessed judgn1ent
in all the three suits and decrees .were passed against
hiin on his. own admission. The defendant U S'an
P~ huwever denied that the contract was between
him and the plaintiff and contended that the timber
.which he had -received as agent of Mr. Awain of
Moulmein was supplied by Saya Pein with whom
Mr. A wain had a contract. On these 'Pl.eadings
the learned trial Judge framed almost identical issues
in the three. suits, the most important one being as
reg~rds the contention that the contract' was between
th~ plaintiff atid the first and. second defendants 'in
the _case. The ~vipence adduced .PY the. plaintiff in
same. .
all the . three suits was practi~ally the .. The
 1955] BURMA LAW REPORTS. 139

defendant U San Pe cited witnesses only in Civil P..C.

1954
R egular Suit No. 6 of 1951 but the evidence given
by the defence witness in this suit was by the consent u s~.~ Pe
of the parties treated as evidence in the two other M A T!iONE.
i N KY-t
A ~D

connected suits. The learned trial Judge after a U SAN

careful discussion of the evidence of witnesses cited 1\Lt.uNG, J.
by both the parties held that the plaintiff had failed
to prove that the contract for the supply of timber
was between her and the first defendant U San Pe.
He accordingly dismissed the suits in so far as this
defendant was concerned. On appeal by the
.Plaintiff Ma Thin Kyi against the judgment and
decree of the trial Court, the learned District Judge
of Toungoo by one judgment which he wrote in his
Civil Appeal No. 4 of 1952 disposed of the three
appeais. He held that the learned trial Judge was
wrong in not having accepted the plaintiff's story
that the contract for the supply of timber was
between her and the defendant U .San Pe and not
betw~en her and Mr. A wain as contended by the
defendant. He accordingly gave the plaintiff a
judgment and decree as prayed for by her. Hence,
these second appeals. Of them Civil Second Appeal
Nos. 79. and 81 are in respect of the judgment and
decrees in Civil Regular .Suits Nos. 6 a nd 8 of 1951.
Civil Appeal No. 80 of 1951 jri respect of which a
separate judgment will' be written is in connection
with th~ judgment and decree in the Civil Regular
Suit No. 7 of 1951. Now, as the value of subject
ma:tter of .the suit ln Civil Regular Suit Nos. 6 and 8
<;>f 1951 dqes not exceed Rs. SOOthe appellant U San
Pe could only .succeed if he could bring his appeal
within .the ambit of ~lause (a) sub-section 1 of section
100 of the Civil Procedure Code, that.is to say,
. unless he -could show that the decision is contrary to
law .o r :to some usage .. .having the force of law.
140 BURMA LAW REPORTS. [1955
H.C. Where the value of subject matter of the original
1954
suit exceeds Rs. 500 however, clause (b) of sub-section
'G SAN PE
v. 1 of section I 00 as inserted .by Burma Act No. 17 of
l\!A THIN KYI
AND ONE.
1945 is applicable and the second appeal can be
U ~AN
treated as if it were an appeal against the decree in
MAUNG, J. an original suit. Herein lies the difference between
the provisions of clause (a) and clause (d) of the
aforesaid section.
In my opinion, the decisions in Civil Suit Nos. 6
and 8 of 1951 turn on a pure question of faCt as to
whether or not the contract was between the
plaintiff-respondent Ma Thin Kyi and the defendant-
appellant U San Pe. The fact that the defendant
had produced receipts signed by Saya Pein for the
monies taken from Messrs. Awain and Sons and
from him for the purchase of timber and that the.
learned District Judge of Toungoo had not given
sufficient weight to these receipts, does not make any'
difference. In this conneCtion two cases o(the Privy.
Council may be referred to. In Nafar Chandra Pal
v. Shukur and others (1) ~heir Lordships of the
Privy Council after observing that the questions of
law and of fact are sometimes diffi.cult .to disentangle,
that the proper legal effect of ~ proved fact is
essentially a qu~stion of law but that the ques~ion
whether the fact has been proved when: evidence for
a,nd against .has been properly admitt~d is tiecessarily.
a pure question of fact went on to say 'in. connection
with the case then under consideration :
. " Tb.is seems to be the keynote of the judg~ent, and
apart from the suggestion of prejudice and UJ).reasonable
ass umptions. for which their Lordships .can find no Justification~
it really amounts to no more than a finding that upon th~
documents and evidence placed before the learned District
Judge the High .co.urt would have come. :tq: a different
(1) 4~ I..A. p. 183 .
1955] BURMA LAW REPORTS. 141
conclusion, but it is precisely this revision of evidence which H. C.
is excluded by the limited character of the appeal. 1954
It may weli be that before different tribunals the U SAN PE
witnesses summoned and the documents used would have ...
.,
MA THIN KYJ
created an opinion upon the merits of t!1e controversy different AND ONE.
from that which was formed by the District Judge. But upon
U SAN.
this the High Court was not competent to enter ; their func- MAUNO, J.
tions were completely circumscribed by the provisions of the
statute passed for the express purpose of securing some
measure of finality in cases where the balance of evidence.
verbal and documentary, arose for decision."
In W ali Mohammad and others v. A1olzamm.ad
Bakhsh and others (1) their Lorships made a review
of the decisions of the Privy Council as to jurisdiction
in a second appeal and observed as follows :
" Section 100 of the present Code of Civil Procedure has
replaced section 584 of th~ Civil Procedure Code. 1882.
These 'sections are substantially the same in their terms and
have often been considered by the Board. and the different
High Courts in India. No doubt questions of law and fact
are often difficult to disentangle, but the following propositions
are clearly established:
(1) There is no jurisdiction to entertain a second
. appeal on the ground of erroneous finding of
facts, however gross the error may seem to
be; see Durga Choudrain v. Jawahir Singh
Choudhri (2).
(2) The proper legal effect of a proved fact is
essentially a question of law, but the question
whether a fact has been proved ~hen evidence
for and against has been properly admitted is
necessarily a pure question of fact : see
Najar Chandra Pal v! Shukur (3)
(3) Where the question to be decided is one of fact;
. it does not involve an issue of law merely
because documents which were not instruments
_:.. of. title or otherwise the direct foundations of
. rights~ but were really historical materj.als~
(1) '5 7 J:' A. p:'91. . (2) L.R. 17 I.A.l22, 1'27.~
(3) 45 I.A. p. 183. .. .. .~ '
142 BURMA LAW REPORTS. [1955
H.C. have to be construed for the purpose of
1954
deciding the gt:estion : see Midnapur
U SAN PE Zamindary Co v. Uma Charan Mandai (1).
71.
MA THINKYI In the last cited case the question the Board had to decide
AND ONE.
was. the date of the origin of an under-tenure. The first
U SAN Appellate Court fixed the date from the contents of some
MAUNG. J. documents. No oral evidence had been called in this case.
(4) A second appeal would not lie because some
portion of the evidence might be contained in
a document or documents, and the first
Appellate Court had made a mistake as to its
meaning: see Nowbut Singh v. Chutter Dharee
Singh (2). The judgment in that case was
delivered by Sir Richard Couch under section
372 of the Civil Procedure Code of 1859, but
it has repeatedly bee-n followed in decisions
under the Civil Procedure Codes of 1882 and
1908."
Viewed in the light of these observations, it is clear
that no second appeal lies against the judgment and
decree of the lower Appellate Court, which reversed
that of the trial Court in Civil Suit Nos. 6. and 8 of
1951. In the result, the appeals fail and: must be
dismissed with costs. Advocate's fee in . th!s Court
3 . golq IDOhl:lfS Ill . respect Of each Of these tWO
appeals.

------"':'"':"":--::"-------------..,..-~_.:.._~. -
"(I) 23 cat' W:N. . 131. (2} (187.3) 19 Suth, W.R. 222.
1955] BURMA LAW REPORTS. 1-43

APPELLATE CIVIL.
Before TJ Chan Tun Azmg, C.l. and U San Maung, J.

ANNAMAL (APPELLANT) H.C.

V.K.L. CHETTYAR
v.
FIRM (RESPONDENT).*
---
1955
Mar. 28.

.Limitation Act, Articles ](;.:{, 181-S. 2, Limitation Act-Definition of

"Defendant".
Order (I), Rule 3 and s. 146, Civil Procedure ('ode.
The definition Of the wo:d, "Defend;tnt" ins. 2 Of the Limitation Act is
not meant to be exhm~stive, but includes within its ambit the meaning
assigned to it in the CiYil Procedure Code, except when otherwis::: provided
'by the Code or by any Law for the time bein_g in force.
S. Vendatasttbbaiver v. S. Krislmamttrllty, 38 Mad. 4i2, relied on;
L E Mnung v. P.A.R.P. Clzctfyar Firm, 6 Ran. 494, distinguished .

.Messrs. J. R. Chowdhury and R. Jaganathan for the

appellant.

Nil for the respondent.

U SAN MAUNG, J.-In Civil Regular Suit

No. 2003/1947 of the City Civil Court, Rangoon, an
ex pt;~.rte decree was passed in favour of V.K.L.
Chettyar Firm as against S. R.ayar (deceased) 0n the
17th of May 1950. On the 13th of August 1953
Anna~al, tlhe ~present appellant; a~ the wife an<il
legal representative of the deceased Rayar, filecl
:an application to set aside the ex p'arte decree.
In the course of the enquiry . into her application
the appellant admitted that she received a notice
for .t.h~ payment of tp.e decree as a legal repre.:.
sentative of S. Rayar and that she had given a reply .
to the same in th~ year . 1953. She a!,so admitted
Civil. Misc. Appeal N). 3 Of 1955, against the order pf the ~nd Judge,
City Civil Court o R<:ngoon in Civil 1\lisc . . CzseNo.l32 Of 1953, d:tted the
'9th December 1954.
144 BURMA LAW REPORTS. [1955
H.C. that she arrived in Rangoon on the 14th of March
1955
1953 but pleaded that she could not file her application
ANNA MAL
v. for the setting aside of the ex parte decree earlier than
V.K.L.
CHETTYAR
the 13th of August 1953 because she had been busy
FIRM. trying to obtain a permit to stay in Burma permanently.
u SAN The learned 2nd Judge of the City Civil Court,
MAUNG, J. however, dismissed her application as time-barred
under Article 164 of the Limitation Act as it was
made about four or five months after she can1e to
know of the decree.
In the present appeal by Annamal, . her learned
Advocate has contended that the Article of the
Lin1itation Act applicabl~ . to her application is 181
and not 164 as held by the learned 2nd Judge of the
City Civil Court. .
For. this contention he relies upon the definition
of the word '' defendant " occurring in section 2 of
th~ Limitation Act. There the word '' 4e.fendant "
has . been defined as including .any . person from or
through whom a defendant derives his liability to be
sue."d. From this he argues that legal .r"eprsentatives
of ~- . deceased defendant are not defendai1ts withiti
th.e meaning of that term in the ~!mitatioti : Ac"t.
H<;>wever, in our opinion, the definition~ of the
. word " defendant " occurring in section'. 2.~ of .the
Limitation Act is not . meant to be exhalis.tive, ,but
.in.c.ludes .within its ambit the meaning assigne<:f t<? it
in the Civil Procedure Code. Order 1, Rule 3..of
that .Code enacts that all persons may be joined as
defendants against whom 'any right to relie{1n-respet
o.f .or arising out of . the same Act or transaction
or series of Acts or transactions is aU~ged to exist
and section '146 of the Code enacts that save as
. otherwis~_ provided by the Code m.~ .. by any Ia\~/ Jor .
time;
th~ .. beirig in force, .w here any proceeding may ..
b~ taken: agajnst any person, then the .proc eeding
1955] BURMA LAW REPORTS. 145

may be taken against any person claiming under H.C.

1955
him. Therefore legal representatives of defendants
ANNA MAL
are in the same position as defendants in so far v.
as the provisions of the Civil Procedure Code are V.K.L.
CHETTYAR
concerned, exc~pt when otherwise provided by the FIRM.

Code or by any law for the time being in force. U SAS

MAUNG, J,
We are fortified in the view which we have taken
in this matter by the ruling in the case of S. Venkata-
subbaiver v. S. Krishnamurthy (1). There it was held
that where .a decree was passed ex parte against
the defendant who died seven days after the decree,
and an application to set it aside was made by the
executor of the deceased defendant more than thirty
days after the passing of the decree, Article 164
and not Article 181 of the Limitation Act was
applicable.
The case of U E Maung v. P.A.R.P. Chettyar
Finn (2) cited on behalf of the appellant is clearly .
distinguishable. There the application to set aside
~he :ex parte decree against a deceased person was
. ~Hide not by t~e legal representative of the deceas~d
but by a Receiver appointed by the Court to
administ~r the estate of the deceased. Consequently
jt was heid ihat th~ 'coutt had inherent pqwer to s~
aside . the ex parte decree 1Jnder the special
circumstance~ obtaining therein.
F.or . thyse reasons we ~ee no sufficient grou~d
for admitting this appeal and the same is dismissed
~ummarily.

U CHAN TuN AUNG, C).-I agree.

."(l) 38 Mad. p ... 442. (2) 6 Ran. p. 494.

10 .. .
146 BURMA LAW REPORTS. [1955

APPElLATE CRIMINAL.
Before U San .Mmmg a11d r; A:zmg Khin:, J.f.

H.C. BENJAMIN XAVIER {alias) MAUNG TIN WIN

1955
(APPELLANT)
Mar. 3.
'
V.

THE UNION OF BURMA {RESPoNDENT).*

Com.icl io11: u.nder s. 30.'Z (I) (b), Penal Code-Civcumstantial epidwce- -Na ture,
quantum and burden of proof.
Held: In a case of circumstantial evidence, the failure of one link destroys
the chain so that it is of the utmost importance to gtt on the record every
piece Of evidence which make~ a chain.
Shea Narain. Singh v. Emperor, ( 1920) 58 I tdian Cases, 457, followed.
ii eld furt ft~r: Circumstantial evidence 1r. ust be c:;~nsistent, af.ld
consiStent only with the gllilt Of the ;~ccns-::d, the inculp:ttory facts must be
incompatible. with the innocence of the accused and incapable of
expianation. upon any other reasonable hypothesis than that .of his guilt. I~
the evidence is consistent with any other ratio11al explanati.c n, then there is
~:n ~lement o dolibt of which the acctcsed nu st be given the benefit.
Basangouda Yamanappa v. Emperor, A.I.R. (1941) Boti1. 139; Pir
Ha,san Din y, ETizperor~ A.I.R. (1943) Lab. S6; Slter Mo,h?1-med v. Emperor,
A.I.R. (1945) Lib. 27; Ram Kala J. E-mperor, A.l:R: !1946) . All. 19t';
MaungMautzg Gyi v. The Union of Burm,~, Criminal A-ppeal No. 452 of
. 1954, High Court affi-rmed.
.X H~ld furl:he.r ' A 1udge is bo:nd to ask himsdf whetJ.:leF t!:l.ere is :my
... 'r ational el'pl<mation of the evidence and such a reasonable ex-Planation should
not be ieJ~cted because it was not offered by the accused, ,;
.. ... .
.
.:.~ .\

Basangouda Yamanappa v . E111pero-r, A.LR. (1941) Born: >iJ9, followed.

Held jn1ther: 1\n accused person owes no duty to anyoody and the
' burden of proving his gUtlt r emains throughot1t the trial \\.ith the pros"t::cu<i::>~
. ' 'j
WhO must prove SiKh gdlt beyond all reasonable dou't>t . : . . . . '
Sevn Hla v. The Union of Burma. 11951) B.L.R 289, followed.

Apt'eal. No. 45 . . .
* Criminal. I' f N . of 1955; . betng Appeal fron1 the order. of
. '-e ereP.ce o. 5 . . . . . . . . .
U 'Tin .\VTaung, Stssions Judge, .sitting as Jst Spuial ..Judg!': of ..Mandalay,
. dated-:the 12th day of Janual'y 1955 passed in C.rirnin~l Regular Trial No. 1
t1~Y.f~~~~s.( " . ":. . . . . ~ :-': -~'. . . :. " ": ;-- / '.. . . .,
 1955] BUR!VJA LA\V REPORTS. 14-7

Ba Shui1, Advocate fof the appellant.

Bo. <"JA \If:\"'

[(yaw Th(n:n:; (Governmerit Advocate) for XAVIJH~

respondent. !alras\
~1A'!Nf':' T !N
WIN

. .,. '--~'. lr..lV.I r"c , J,---In

~u ...J 1. : ..!'
'1 '~'-'1'< rtl ...,...,l.,~l .!1..
'-' Real'
.!..!.1 H~.! .. .....,r1
~ : J.lG<.~ .J (~l TuE
, l.,r.-to~
~ OF HURrtlA,
N- 0.
_ 1 u-ric 1954 rv .tt th.......P. .....,._...:)....,
-~,..,.(~1 0 ~1S Ji.d<:t~<>
4
0
. .. ~ l\/. 11<:1:-:ti--
v,
1
J....\.t._, ,
_,c;.. ....

s1tnng as the 1st Special JuJge, !l1c (tppelbr:t

Benjarnin Xavier (a) IViuung Tin Win \-VR:l ~o~1victe -I
of the o:fl'ence pnnishabb under sc:Jion 3 ~ 2 ( l) (b)
of the Penal Code and he was sentenc8ct tv death .
As the fe:!cts of the case have been fuUy ::;tMed 'in the
ju-Jgment of the !e.i.t ned Special JuJgc it is neccs~.1 ?Y
for us to recapituiate the salie:1t featuie:; on!y. -::~1e
~ppellant and the deceased Khin Maung T~1~in (a)
Wali M ohamed (a) 1 hein Thein were intima~:e
f;:-iends . Tne deceased used to gu qut quite frequently
v1ic ~1 the appellant riding en th~ ipnd~e--bclr of. .the
latter's cycle. The deceased Wi:lS fond of .weariag
jewellery on his person anci he aiways used to --vvear
a lady's gold c~~ti a besides a set ~f ~01:.1 shirt-b u~tons ,
tw:-> rings and a rolled-gold wrist watch. wi~h gold
brace:et. During the afternOOil cf t~1e a1y of
occurrence namely t he 21st O~tober 19:53, the
appeHa.n t came to the de: ceased's house And asked
hin1 to conie ::tl0ng to a dinner party which was to,
ta~e phtct; at .i\1yitnge that evening, Nl yitnge .being
se\:'er~l n1i!e:; avvay frcG~ Ivfandala/ T he deceased
agreed to apcornpany him there. T:!c ~~ ..if On the
appeUant borr owed from the deceaseJ\) ~istc~ Daw
Ti.n Tia {P"-~N 4) th0 e thibit bicycle ;.vi.ri,_;~ t.e had
p~edg.ed \Vith --her. He cs.mc back aL cibout 4~30
. p.m. but _find ing tJ1a.t .the d~ccased had n0t had his
bath w~nt away .to retu~n again at -a)out . 5 p.m.
T he deceased then acc.om.::.anjej_ the. a0;:ellant by
riding on the handle-ba r -~f the cyc1e. ' 1\t the ti-ine
148 BURMA LAW REPORTS. ( 1955
H.C. they went away the deceased took with him a sun1 of
1951
K 3,250 besides the jewelleries which he used to wear.
BENJAMIN
XA"IIEP This included a ring set with a Mahuya (Amethyst).
tzlia ,;l
i\1AIJ~(! T IN T . ereafter although the deceased promised to
WIN
i'., .
return home by about 10 p.m. he never came back.
THE UNION
oF B'(,}RflfA.
At about 7-30 p.m. the next morning (22-10-53),
U Aye Maung (PW 1), Y wagaung of Moktakhe
U SAN
MAt:NG, J Villa5e on receiving information to the effect that a
man was lying dead on the road to Rangoon went to
inspect and found the body of a dead mail in a trench
on the east of Rangoon.Mandalay Road. There
were injuries on the back of the head and on the
left side of the mouth. This spot was about a mile
away from Myitnge Police Station, where the matter
was reported. U Tun Tin (PW 19), Sub-Inspector
of Police, M yitnge, at once started to investigate.
Finding that no one could identify the body, he. had it
photographed. Thereafter, it was sent to the Civil
Hospital, Mandalay where a post-mortem examination
'~~s held by Dr. P. Sircar (PW 17). :The doctor
found no less than nine incised wounds . on the region
o{ the head and a depressed fracture of the skull . ~t
the junction of the left temporal, parietal and frontal
bones. This particular injury was sufficient to cause
death while the cumulative effect of all the injuries
w~s necessarily fatal. As there was nobody to claim
the dead body the same was reinoved from the
liosp'itai to Sinbyugan cen1etery where it \Vas buried.
On the very day the body was found; Daw Tin
Tin (PW 4) and Daw Yin Yin (PW 10) sisters of
tile deceased being anxious for his safety wept to the
~PRellant's house to make enquiries. According 'to
.t~m, . they w~re told by the appellant's mother
c;~~istina Amm~l (DW ~) that the appellant railed _ to
te.t u:r n hom~ from the pwe. This fact was however .
~~~e'4 by Christilla Arnmal in h~r evid~nce. After .
4. : : ~; . .
 1955] BURrviA LAW REPORTS. 149

a few days of waiting the sisters went and reported H.C.

1955
the disappearance of the deceased to U Maung Ga1c
lsENJAMIN
(PW 8), S.I.P. of Nyunbaungze Police Station and U XAVIER
(alias)
Maung Gale ordered his Surveillance Head Constable l'vl AU N G TlN
Tun Tin (PW 15) to try and locate the appellant. WI:-1
v.
Later, when the sisters recdved informati0n that a THE UNION
OF BURMA.
tnan was found lying dead near Myitlaung Village
they went to the hospital and found out that the U SAN
M.wNG, J.
dead qody had already been buried at the Sinbyugan
cemetery. The next day, namely 27th October 1953
they went to M yitnge Police Station and there
identified the photographs of the deceased as that of
their 1nissing brother. When that dead body was
subsequently exhumed it was identified to be that of
the deceased Thein Thein by the two sisters as well
as by U Kassim (PW l3J.
Although suspicion fell on the appellant, he
;ould not be arrested since he was found to have
:iisappeared from Mandalay although he had been
working as a laboratory assistant at the Civil
Hospital, Mandalay. It would appear that he had
been ahserit from duty since the afternoon of the
Ust October 1953 and that about 3 days later h~s
moth~r had sent a letter asking for leave of absence
)n the grm,Jnd of his illness. He was finally arrested
:tt
. his mother's
. house on the 22nd Decetnber 1953
~xactly- 2 inonths after the finding qf the dead body.
::>n tl)e 30t:h December 1953 the appellant took U
fun Tin (PW 19) to the shop of _Meher Chand
;pw 7) a-goldstnith, but since nothing incriminating
rvas foun.d there whatever sta~ement the appellant
night p& ve made to the police prjor to the visit to
:ha:t shop is inadmissible in evidence. _ It is only
.Nhei:i a fact which is relevant io .the issue is
. jiscoyei ed -hi cop.~equence. of s_om~ .i~formation ~ven .
)y the ac~~se~ that the information ~htcb relates tu .
150 BURMA LAW REPORTS. [195~

H.C. the fact so discover~d bc..;omes admissible unde

j '955
section 27 of the Evidence Act.
"E:\ JA"vii N
X AV IER
Accor ding to Meher Chan d (PW 7), about :
ia l-ias )
M ,HJ:XG TIN
months before the appellant brought the police t(
W lN hi ; ~ hop the appellant brought to him a gold rint
11.
THE U Nro:.; set with .Mahuya stone for sale and he bought tht
. OF B u R:>lA . gold 011ly for a sum of K 41. This gold have sine'
U SAN been me!ted down so that there was no means o
M AU NG, J.
identifying the ring. o:nthe 2nd January 1954 th
ap pe:lant took U Tun Tin to Lashio to the shop o
Abdul Razak (PW 6), Proprietor of the White Sta
Cycle l\!Iart. There the exhibit cycie was seized an
the sarne vvas proved to have been sold to Du:
Bahadur (PW 5) by the appellant for a sutn o
IC 100 on the 26th October 1953 vide receipt Exhib]
" ~ ,: . This cycle was subsequently iJentified to b
that which the appellant had borro\ved fro't11 Daw Ti
Tiri (PW 4) to whom it had been pledged by him.
This in e1fect wa$ the sum-total of the evidenc
for the pros~cution.
The appellant who gave evidence on . oath o
behalf of his own defence denied having gone to th
deceased's house to take him away to Myitng.e. H
also denied that he had ever pledged the exhibit cytl
. to Daw Tin Tin. He alleged that he returned hom
from work on the 21st October 1953 after doing onl
half day's work because of indisposition.' He the
.left his house for Natntu thenexCinorning ~ecause t
;was angry with his mother who refused to give hii
...the i:noney whiCh he had asked. He adrriitt~d havin
. gone to Namtu:, of having sold the exhibit cych:~ E
-tashiO' and of having sold hjs .own ring set wit
'Mahuya stone to Meher Cha~1d at Mayri1yo. . H:
ln:other Christina Aminal .stated in evidence that tb
~xhibit cycle .was taken .away from .her hous~ b
Manuel (DW 4) about . 7 or . 8 . p.m~ . o
1955] BURMA LAW REPORTS. 151

the 21st October 1953 a1.1d return;:d U1c same H.C.

tn~ )
c.... .. ~1".-"lt () or if) p '"1 1\lfanue ''()'"lObOfated
1
n ~O"llt
J. =i .. 'tt
~ !,_}!.,: ~. .. .... / ! . Lv 1
I. 1 L. .. . .. l ,_ .... l

.
her 0:1 this noint. s:re de~ied that the deceased's
sis':irs came to 1Take enquiries en the :?2nd October
BENJ ..DI:N
X ..wn:F
{alias)
MAUN<> TIN
i 953 and s~~id t~1at it was on!y 10 days L:.:e: that they WIN
'il.
came. Sh';; a~so said that the apr:e1lai1t owned a THE CNr:N
OF BU!~!\JA.
!H. ahu}'a ring.
The learned Special Judge of Mandalay considered u SAN
M A UNG, J.
that in the circumstances of the case the
circumstantial evidence on record was sufficient to
warrant the conviction of the 2~.ppdJant under section
302 . (1) '(b) of the Penal Code. As regards .the
Mahuya ring sold to Me1er Chand (P W 7) he
observed :
.. According to Daw Tin Tin (PW 4) it would appear
that one of the two rings worn by the deceast>:! when he went
a lqng with the accused was a mahuya ring. There is reason
to .believe, therefore. that the ring sold by the accused at
Maymyo belonged to the deceased, although it cannot be said
to have been positively proved. The circumstances obtaining
in this case raise a very strong presumption that the accused
must have niurdered the deceased."

W~ have carefully considered the evidence on

record and we find ourselves unable to agree with the
learned Special Judge that the prosecution had
succeeded in proving the case against the appell~nt
beyond reasonable doubt. Circumstances will be
.altogether different if the ring which the appellant
admitted he had sold to Meher Chand at Maymyo has
been de.finitely identified to be that of the deceased
Thein Thein. As it is the learned Specia~ Judge
himself had to admit that .t he ring had not been proved
to be that _of Thein Thein. As observed by a Bench
of the. Allahabad High. Court. in Sheo Narain Singh v.
E!riperor {1) ~n a c ase of d~cumstantiai evid~nce~ the
'ti; (1920) 58 Indian cases~ .p. :45.7 .
I . . . - t.
152 BURMA LAW REPORTS. [1955
H.C. failure of one link des troys the chain so that it is of
I95S
the utmost importa nce to get on the record every
BENJAM !N d
XAvrE:u piece of evidence which makes a chain. As regar s
MA~'::~"~>Tn.: the quantum of proof necessary to obtain a conviction
WIN in a case resting wholly on circumstantial evidence
THF. v(; NroN the observation of Beaumont C.J. in Basangouda
oF BuRMA, Yamanappa v. Emperor {1) is ~pposite. The learned
u SAN Judge said :
MAUNG. J.

" In my opinion , the rule is that circumstantial evidence

must be consistent, and consistent only with the guilt of the
accused. and that if the evidence is consistent with any other
rational explanation, then there is an element of doubt of
which the accused must be given the benefit ."
.
In Pir Has{ln Din v. Enzperor (2), it was held that in
cases where the evidence is wholly circumstantial the
rule is that in order to justify the inference of guilt,
the inculpatory facts must be incompatible with the
innocence of the accused, and incapable of explana-
tion upon any other reasonable hypothesis than that
of his guilt~ [See also Sher i'dohamed v. Emperor
(3) and Ram Kala v. Emperor (4)1. .In U 1Viaung
Maung Gyi v. The Union of B.urma (Crih1inal Appeal
No. 452 of 1954), a Bench ofthis Court also observed:
"It is a well-known principle that circumstantial
evidence must be ~onsistent only with the guilt of the
~ccused ; if the evidence is consiste1it with any other rational
ex planation then there is an element of doubt of which the
accused must b~ given the b enefit." '

Now beanng these observations in mind let us

. examine the c.ircumstances in this case :
(i) There is evidence on reco~d to show that
the appellant can1~ arid called away the
.. '' deceased. Thein Thein tb attend a dinner
' ., ... l, ~

ui;A~J.R; .I1941} Bom.p. 13~~t- HZ. . {3) A.l.R. (1945) Lah. p. 27;
. 12)
. A.t.R.
,
n943)
. .Lab; 'p.; 56. (4) A.I.R. (19~6) AU. p; l9l, .
1955] BURMA LAVv REPORTS. 153
party at Myitnge and that the deceased H.C.
1955
and the appeliant left together on the
B ENJAMIN
exhibi t cycle at about 5 p.m. on the 21st x,\'VI ER
October 1953. However this fact does (aliasl
MAUNG T IN
not conclusively prove that the appellant WI N

and the deceased left Mandalay THE vUNroN

together on the exhibit cycle much less oF BuRMA

that they were anywhere near the vicinity u

MAUNG,
SAN
J.
of Myitnge at or about the time when
the murder could have taken place;
Myitnge being more than 10 miles away
from Mandalay.
(ii) The appellant told a lie when he denied
having gone to invite the deceased to a
dinner at Myitnge or having left
together with the deceased on a cycle
as alleged. This certainly is a point to
b ~ taken into consideration against him.
However, th -~ fact that he told a lie on
this point can be reas.onably explained
by the fact that he did not want to
admit that he had committed criminal
breach of trust of the cycle which he
had pledged with the deceased's sister
Daw Tin Tin. B)" denying his visit to
the deceased's house tP,at day he also
denied that he had borrowed the exhibit
cycle which he had pledged with Daw
Tin Tin for the puriJose of going to
Myitnge.
(iii) The Mahuya ring which the appellant
had sold at Mayrtiyo on his way to
N amtu has not been proved to be that of
the deceased. Futhetnibre the fact that
the appepant }Va~ s9 .4~fd up for money
that :he na:d to sell this ring for K 41
154 BURMA LAW REPORTS. [195

H.C. doe<:- not b(YO weii 'vV;q, !h .. ' 11 eu-n.; that f!1
~J ..... . 1 \. ..... 1..4 # ., (, ..... 4 .) '
1955
appellant was a party to the robbery a~~
BENJ -\MIN
XAV!EI~
murder o:f the deceased Thein T heir
(alias)
MAUNG TIN
. His sister was definite in that the decease'
Wni had with him a sum of K 3 250' at th ~ tim , ,P .
v.
THE i ' NIO::-. he left the house with the appel1an1
OF. Bu:nrA
If so the appellant w~uld hav~ bee:
u SAN provided with a large sum of money i
M J~ t;;NG,
. .
J.
he had robbed the deceased. In thes
circumstances it W0t."! 1 ::l be the height o
folly to hav ~~ tried to dis pose of a rin
belonging to the deceased for such
paltry sum asK 41.
(iv) The appellant had sold at Lashio the cycl
which he had pledged with- Daw Tin Ti
and had thus committed criminal breac:
of trust in respect of that cycle. It ha
been cont~nded that the fact that th
appellant h:ad sold the cycle on which h
went with the deceased to Myitng
shows th~t he must have been a part.
to.the mu~der of the decea~ed. How
ever as al~eady pointed out above ther
is no conqlusiye proof of the fact tha
the appeidant did go to Myitnge with th
deceased; As regards the cycle, j
carinot b,~ presumed that the appeUan
could oniy have become possessed of j
by murdering the deceased. In thes,
circumstances
:.[ '. the fact
. ..
that
.
he sold thl .
cycle at:. Lashto does not : necessanl:
conrtec~~ him with the crime of th
murder.. of the deceased Thein Thei:IJ
(V) The app~lant no doubt Jeft his job with
out . giyjng . any . :intimation to hi
supefiqr
...
and wen( away to .Nan1tu
: . .
1 055] BURMA LAW REPORTS. 155

However his sudden absence from H.C.

' 1955
home is also capable of another
Rf.JI:IAWX
explanation than that of guilt of the XAVIEH '
murder of the deceased Thein Thein. (alias)
MAUNG Tl:-..
The appellant was very much jnvolvecl WIN
~.
in debt according to Daw Tin Tin and THE TlNIO:'><
01' BURMA.
it is quite possible that he tried to seek
employment at Namtu where he would U SAN
1\lA!JNG. J.
be away from his cred itors. The fact
that he came back on his own to his
mother's house is a point telling in his
favour.
Of course the appeliant hin1self h as not given the
explanation sought to be made on his behalf i n
the paragraph mentioned above. However, as
observed by Beaumont, C.J. in Basangouda
Yamanappav. Emperor (1) a judge is bound to ask
. '
h~_ms~lf whether there is any rational explanation
of the evidence which is consistent with the innocence
of the accused and if there is such an explanation he
is not justified in convicting, and such a reasonable
explanation of the evidence should not be rejected
beca:use it was not offered by the accused.
Furthermore, as held in Sein Hla v. The Union
of Burma (2) :
"An . accused person owes no duty to anybody and
the burden of proving his guilt remains throughout the
trial with the prosecution who must prove such guilt beyond
all reasonabh doubt."

On a review of the whole of evidence appearing in

this. case
. ' we do not consider that the circumstantial
evidence on record is such as. to prove beyond reason-
able doubt tha,t it was t.h e appellant and po other
person who m1:1st have caused the qeath of the
(1) A.i.R: (1941) Bom. p. 139 at 14i . (2 r r1951l ~.L .R. 289.
156 BURl\1A LAvV REPORTS. [1955
H.C. deceased Thein Thein. Tht appellant is entitled
1955
to the benefit of the dcubt on this point.
.kH.NA~IN
XAVIER For these reasons we would set aside the
(alias)
MAUNG TIN
conviction of the appellant under section 302 (1)
WIN (b) of the Penal Code and the sentence thereunder
'1).
THE UNioN and direct that the appellant be acquitted and
OF BURMA.
released in so far as this case is concerned.
uSAN
MAUNG, J. U AUNG KHINE, 1._1 agree.
 1955] BURMA LAW REPORTS. 157
~~-~,

APPELLATE CIVIL.
Before U San Maun~, 1. and U Bo Gyi, ].

DAVl CHIT NGWE (APPELLANT) H.C.

1955
v. Feb. 15.
MAUNG THEIN AING AND OTHERS
(RESPONDENTS).*

Life itzsurance policies taken out by a Burmese Buddhist husband during

coverture with his fint wife-Re-marriage on death of first wife- Claims
betweitt the children by his first wife and the second wife on his death-
Mfmey d,~e on policy not Lettetpwa property of the husband atzd his first
7t'ife-issue of ;oint Letters of Administration to rival claimants, tzot
desirable.
A Burinese Buddhist husband took out three life insurance policies during
the lifetime of his first wife.
On her death, ~e remarried a second wife and later he died.
The child~;en by his first wife applied !or Letters of Administration claiming
. the money as the Lettetpwa property o f their pareuts.
The second wUe ~lso fited a cross .-. ppiicatio~ for Letters Of Administration.
Tpe trial Court gratiteo joint Letters of Administration.
On appeal, it w~ held,-Money due on life insurance policy is paid either
at J:Daturi ty or on the death of the insur~d.
Therefore. the money due on the policies cannot be the Lettetjrwa property
of the husband and his first wife.
It is most inconvenient for tile parli~s who are at logger-heads with each
other to be granted a jo~nt Letters oi Administration. . .

Tun Maung for the appellant.

Than Sein for the respondent. .

U SAN MAUNG, J._!n Civil Regular Suit No. 10
of 1951 of the DistriCt Court of Mandalay, paw Chit
Ngwe, as the .sole surviving widOw of the deceased
'
U Sein Aing' applied .for
. .
Letters :o.f Administration
. .. ' . .
of .
~ tl;le est~~e of the deceased comprising of the mo11-er
. .
. Civil ist Appeal Nos. 58 and 59 of 1952, against the (lecree of .t he District
~ Judge's Cot,irt Of Mandalay in Civil Regular Suit No. 10 of 1951, dated the 5th
~- ~,cb i952, : . . . . .''~ . . . : .. :
 ! " .

158 BURMA LAW REPORTS. [ 1vss

H.C. due on three life insurance policies. The application

lli SS
was contested by Maung Thein Aing, the eldest son
0AW C H IT
of U Sein Aing by his first wife Daw .Ma Ma Lay
M:~NG who pre-deceased him. Maung Thein Aing's conten-
THEIN AlN G tion is that he and his younger brothers. atid sister are
MW OTHERS.
entitled to 7J~ share of the m.o ney on the footing that
USAN
JHAUN<;, J. the money; .due 0!1 the life insurance policies ,referred
to in Daw Chit Ngwe's application is the Lettetpwa
property of U Sein Aing and Daw Ma Ma Lay.
Maung Thein Aing has also filed a cr9ss application
for Letters .of Adtninistration which has been .dealt
with in the connected Civil Regular Suit No. 11 of
1951. TI-Je learned )udge of the District Co:~rt after
hearing the . wjtnesses cited by both parties. in. Civil
Regular Suit No. 10 of 1951 came t)" ;the co.nclusion
that since both the rival- c!_~i.m~nts Daw ' Chit Ngwe
. a.xid M aung Thein Aing .were heirs to, U Sein ...Aing's :
estate they should be given ; joipt Letters of::
Administration... . He accordingly djrectedthata joint' .
Letters of Administration be i:>sued to paw:cmcNgwe
. and M.aung Thein Aing o .;1 their paying,. th~ h~~e~~.ajy
Court .. fees eq J ally . ~nd . furnishing . securityi.-.-f or ~Rs.,
S;OD'b. with orie. surety each .in ~he ~ike, ar:nou.p:t:. ,The
-pr~s~x1t is an app eal by Daw. Chii: .Ngvye agai1ist' die
granting of s uch. a joint- Letters :cf Adininistration.
A life insurance policy. is essentially a contra:::t
t~tween the insured and the Life lnsurance :Coi11pany.
usually to the e~ffect that Oil payment Of certain
certain
pre111iuni:. ai inter<val the .inoriey diie on the.
p;olicy would' be. paid 'e ither at maturity-if the insured
at
is still aFve that date or on the death of the ins.u red
.pe.rsoiL . tti~;efore the: money . d'Ue on .
the .!ife
insur~nce pd~.icy of U Sein Aing.can hardlY' be said to .
be : the Leitetpw.a p.(opeity of lJ . Se~fl. :. Aing .. and
.Da\V' Ma . :M-t L;ty: Furtherrno,.e;, 'it ~ }s. ,: 'mqs-t
inconvenient
. . .
, for. the parties
' .
who are .a t l9gger-head's
.
.
1955] BURMA LAW REPORTS. .. 0
1~/

with each other to be grantee! a joint Lellcrs of H.C.

1955
Administration like the present. In our opjnion the
l).~ \\' C l: IT '
most convenient course to be taken is to g rar:t Letters XG sr:
of Ad:T1];ii<-ra~iv:1 to the widow of the deceased. 'i.l .

r\)i.' these reasons we would set aside the order of the THRI~. ;~ll'<G
AND OTH .EI~$ .
District Judge of Mandalay and direct that Letters of
A.. di.ninistration be issued to ]_)aw Chit Ngwe on her U ~hN
~.fAl'!':G, J.
paying the necessary Court fees and furnishing
security in the sum of Rs. 5,000 with one surety in the
like am-ount. There will be 1io order as to cost-s of
this appeaL
160 BURMA LAW REPORTS. [195~

APPELLATE CIVIL.
Before USan Mdtmg, J

.fi.c. DAW SAUNG AND FOUR OTHERS (APPELLANTS)

i9S5
Mar. 2. v.
MA THAN' AND NINE OTHERS (RESPONDENTS).*

Transfer of Property Act, s. 60-Sttit for Partial redp,mptiott-Prior suit for

partition 11ot necessary wlten all the necessary parties are fully
imPleaded in the suit.
When a mortgagee acquires a po tion of the mortgaged property by
inheritance the provisions of the last p:1ragrc1ph. Of s. 60 of the .Transfer or
Property Act are :lpplicable so as to allow redemption of a portion only Of the
mortgaged property. .
Hamida Bibi v. Ahmed Husain, ~~ All. 335 ; Zafar Ahsan v. ZubtJida
Khatum, A.I.R. (19291 All. 60-t, followed,
A suit for partial redemption is a combination of a suit fOr r~demption and
asuit for contribution -~ a decree for redemption on p<!yment of proportion!'lte
share of the mortgaged money can be given when all the parties ipterestc;d"in
the redt mption are represented . . . .
Thillai Chetti v. Ramanat.ha Awan, 20 Mad . .295, distinguished.

N. R... i\1azurrular for the appellants.

-Than Sein for the respondents.

U SA.N MAUNG, J._In Civil Regular Suit No. 7

of .1952 of the Township Court of Lewe the plaintiff
Ma Than and five . others sued the defendant
Daw Saung a!ld eight others for redemption of their
share of the mortgage in suit. It would appear that
in !the year 1947 the deceased Daw Shwe Mi .h.a d
m.o rtgaged the suit land for Rs . .1~000 to the iir~t.
defendant Daw ~aung.- Daw Shwe Mihad 4 childte~ .
. : Civil 2nd Appeal No.4 of 1953, against the qecree: Of the District Court
of . Yamethiri at Pyinmana in Civil Appeal No~ i3 of l952,d,ated the 31st
October 1952, arising out of the decree Of the Town;,hip_Judge,' Lewe passed
i~ his Ch~il Regula~ Suit No. 7 of 1.Y5Z, dated 24th J~ly ~952. .
 1955] UUH.NIA LAvV REPORTS. 161

namely Ma Shwe Khin, Ko Po Sin , Ko !v1aung Pu, H.C.

19S:i
Ko Thein M aur.g and all of them are now dead.
DA W SAUNG
The plaintitTs a.re the children of Ko Maung Pu and AND FOU-R
OTJJE~S .
Ko Thein Maung and their suit was based upon the v.
ground that after the death of Daw Shwe Mi each of MA THAN
ANO NINE
her children becan1e entitled to a quarter share of the OTHENS.

land and th~t the mortgagee Daw Saung herself being

the widow of Ko Po Sin had also become entitled to
a quarter .share. Defendants 2 to 5 are the children
of Da w Saung and Ko Po Sin and other defendants
are the children of Ma Shwe Khin who had declined
to become party plaintiffs in the case. The learned
Judge of t!01e trial Court after examining witnesses as
regards the fact of the mortgage and of the relation-
ship of the parties to the . proceedings gave a
preliminary decree for the redemption of the mortgage
on .'p ayment of their proportionate share of the
ni.ortgage debt. On appeal by Daw Saung and her
chil~ren to the District Court of Yamethin the learned
District 1udge pointed out that although as a general
rule . redemption of a portion of the n1ortgaged
p1;6perty cannot be allowed, a suit for partial
r.e demption lay in this particular case in view of the
provisions contained in the last paragraph of section
~0 of the Transfer of Property Act. This paragraph
.r eads:
. .
. " Nothing in this section s hall entitl~ a person interested
in a share only of the mortgaged property to redeem his own
share only, 0~ payment of a proportionate part of the amount
recl.~ining .due on the mortgage. except only where'a mortgagee.
or, !{there are inore mortgagees than one, all such mortgage~s.
has or: have acquired, in whole or in part, the she of a :
'm?rfg~gor,"

~.. IIi .ilamid~ Bibi v .. .Ahmed flusain (1), it was held

.by a Bench'
... .
'
of the Allahabad High Court that wheil .
}
(1) 31 All. p. 335 .

, . 11
162 BlTRMA LAW REPORTS. [195:
H.C.
:955
the mortgagee inherits a part of the property
n1ortgaged to him the integrity of the mortgage must
DA\V SAUNG
ANv FouR b~ deemed to have b~en broken. This decision was
oTHERs
v.
followed by another Bench of the Allahabad High
MA THAN
AND NINE
Court in Zafar Ahsan v. Zubaida Khatum (l).
oTHERs Therefore it is clear that the defendant-appellant
u SAN Daw Saung having acquired a portion of the
MAuNG, J. n1ortgaged property by inheritance the provisions of
the last paragraph of section 60 of the Transfer of
Property Act are applicable so as to allow redemption
of a portion only of the mortgaged property.
It has been contended on behalf of the defendant
Daw Saungand her children who have preferred this
second appeal that a suit for . partition of the
mortgaged property among the several co-owners
should have preceded the present suit for redemption.
In this connection, . reliance is placed upon the
. ruling in the case of T hillai Chetti v. Ramanatha
A vvan (2). There . it was held that when several
own.e r's of. undivided shares in immovable property
mortgage . their share with possession to another
undivided sharer, a sn1aller number than the whole
bqdy of co-mortgagors canriot sue to redeerri the
rilortgag~ until there has been a partition of the
property mortgaged among the several co-:-Ovvners.
aowever, in the . present suit all . the. persons
having a .share in the mortgaged property ~ave
been'impleaded either as plaintifl"s or as defendants~
A suit for partial redemption being a conibination
. of a suit for redemption and a suit for contribu-.
.: tion .there seems no .reason why'. a decr;ee fo'r~
redemption on payment of proportionate ~;hare of!
. the mortgaged money canno.t: be given in the present~
suit .. wh~rein ..::til the . p~f.ties int#fe~ted in th~
. :-redemption.
:;ire
. .
.:represented.
.
For. these
. .
reasons ~ :~

(1) A.I.R . (19.:'9) . All . p, 004.. . (2)' io.Mad. P: 29.5. ~

1955] BURl\1A LAW REPORTS. 163

consider that the learned Judge of the District II.C.

11J5~
Court of Ya methin was right in having confirmed the
DAw SAt.~,:;
judgment and decree of the trial Court. This sebond ANIJ F11 i ' l.;

appeal fails and must be dismissed with costs. ..

Advocate's fee in this Court three gold mohurs. MATH ,\~
AND N!Nt.
01'HER,,

U SAN
M.u.:NG, ].
1t4 BURMA LAW REPORTS. [195:

APPELLATE CIVIL.
Before (T San Maung, 1.

B.C. JAGAROUP (APPELLANT)

19~5

MaY. 15.
v.
JEET SINGH AND ONE (RESP.O NDENTS).*

Money Lc11ders Act , s.9-Registration as Money l~ender need. not precede tl

institution of st~it.
A money lender could file a ~uit before getting himself registered as
money lender and the registration need not precede the filing of such a.suit.
S. 9 of the Money Lenders Act enacts that no Court shall pass a decreeo
~ suit by a mon~y lender for the recovery of a loan unless the money lender :
registered under the Act and the registration is in force.
It does not say that no Court shall entertain a suit by the money lend1
unless the money lender had registered himsel.f under the Act.

Tun A ung (1), Advocate for the appeliant.

iVJ.essrs. Leong and Thein, Advocates for th;

. responden~s .

.U SAN MAUNG, J._In Civil Regular Suit No. 3

of 1947-48 of the Court of the As~istant Superinten
dent for Civil Justice, Taunggyi~ the plaintiff Jagarou]
who is the appellant in the present appeal sue_d . .th
defendant-respondents Jeet Singh aj1i(i~:na.w May fo
the recovery of Inoney due on ah~gistered deed o
mortgage. The tnain grounds for defence were (1
that the plaintiff's suit was barred p.y section ~ df th
M oney L~nders Act, 1945 and .{2) that the .n1or(gag
deed in suit was void for want of conside'ration
Both these issues were an$Wered .
.in the..:-Plalntj_ff'
.
~

.* Civii.2o<i'AJ~peal No. 1S Of 1953, _agai'J~t th~ q~ree of U Th.aung p,

. Rcsideat, sou thern .S.1an States, Taunggyi in Civil Appeal No. z or 1948~4~
d~t'(;9 tl;l~ ~4t.Q. Decemb~r 1952, arising. out of -the .decree passed in. CiV
:Regtihr sUit No. 39 of 1947--1-8,$dated the 29th Se.ptember , l.9.4:S; .by . th
A'SsistaJ.lt Superintendent for Civil Justice, Taunggyi_. .
1955] BURMA LAW REPORTS. 165

favour by the learned Judge of the trial Court but H.C.

195\
on appeal by the defendants to the Court of the
Resident, Southern Shan States, Taunggyi_ the learned ,..
JAG A T<OUE

Judge of the appellate Court held that the plaintiff JEET SIN(;ff
AND O~E.
was a money lender and as such the suit was not
U SAS
maintainable under section 9 of the Money Lenders MAUNG. J.
Act because he had failed to register himself under
the Act before the institution of the suit. The learned
Judge also held that the mortgage deed in suit was
void for want of consideration. He accordingly set
aside the judgment and decree of the trial Court and
dismissed the plaintiff's suit with costs ; hence this
appeal.
As regarqs the first point as to whether or not the
plaintiff could file a suit before getting himself
registered as a money lender, it is clear that the
learned Judge of the appellate Court was wrong in
the view taken by him that the registration n1ust
precede the filing of. such a suit. Section 9 of the
MoneY. Lenders Act enacts that no Court shall p ass a
decree on a suit by a .m oney lender for the recovery
of a ioan ~mless the 1noney lender is-registered under
the: Act and the registration is in 'force. It does not
say that no Court shall entertain a s~it by the money
lender unless the money lende1; had registered himself
under the Act. In the present case the pla~n tiff had
registered himself as a money lender witheffect from
the I 8th of June 1948 so that the learned Judge of
;lie trial- Cq1:1rt could have .passed :a decree in his
:avour .on the 29th of. September 1948 the date on
;vpi_9h the juqgment was passed by him: .

1
Asregards the second issue as tO whether or -not
he _m ortgage ~eed was void for 'want of consideration
: ain ' inGli~ed to agree with the learned Judge of the
tppenate.Court _that the. plaintiff had failed to adduce
atisfactory 'proof that -the. C<?DSide,ratio~f ~liege~ .b y
166 BURMA LAW REPORTS. [19.

H.C. him had been paid. No doubt his witness Ebrahi

1955
Kal<a (PW 2) has said that he was present at the tir
JAGAROUP
v. Rs. 400 was paid by the plaintiff to the defenda
}EET SINGH
.AND ONE.
Jeet Singh and that Jeet Singh then adtnitted to hi
that Rs. 1,100 had already been paid. However,
U SAN
MAUNG, J. is significant that although both the plaintiff and t
witness said that Jeet Singh gave a receipt for R
1,100 no such receipt had been produced as eviden
in Court. Similarly, in regard to the alleged payme
of Rs. 1,200 in the presence of Dwaka (PW 3) t1
receipt which was sald to have been signed by Je
Singh in the presence of this witness has not be(
produced in Court. As regards the execution of tl
mortgage deed by the defendants there is a serio1
discrepancy between the plaintiff's evidence and th.
given by his witness Lachman Singh (PW 5). A ceo
ding to the plaintiff, Jeet Singh took him 1
Lachman Singh's house and there asked Lachmc
Singh to dr.aw up the deed of mortgage. Wlien t1
deed was . drawn up, Jeet Singh signed .if "irt.: tl
presence of Lachman Singh who then attach~d h
signature as a witness to the deed. According t
Lachman Singh lPW 5) however it was the phiinti
Jagatoo. Who came and asked him to write out a dee
~of mortgage for Rs: 4,300 and at the san1e :tin
showing 3 receipts for money re'Ceived to :the 'amoUJ
of Rs. 4,300. By reference to the receipts. and .tl:
maps. which were also brought by the plai~tiff l
. wrote out a deed of mortgage: . Jeet Singh was name
therein as mortgagor. He was nat present .at tt
time when Jee(.Singh signed the deed of. mortga:~
and he . only ~lgned as a 'witness .when the plainti
: showed. it. to h~.m ~aying that it had :been duly signe
.by. the :p.arti~s concerned. The discrepancy }?etwee
th~ eviden_ce of: the pla'intiff and his principal witne~
Lachm~n
. :. .
:: Singh. .'iS : irreconcilable,
c. .
:. and : also : len
 195S] BURMA "LAW' REPORTS. 167
considerable colour to the defence story that the H.C.
mortgage deed in suit was executed by th<1 defendants 1vss
without consiqeration and with a view .to evade their JAGAI<OUP
1'.
creditors. The defendants did not go voluntarily to JEET SINGH'
AND ONE.
the registration office to have the mortgage deed
registered. So, their presence had to be obtained U SAN
MAtiNG, J.
by the issue of summons from the office of the
Joint Registrar, Taunggyi. Although there is. an
endorsement on the deed to the effect that the
defendants had admitted receipt of consideration
the statemynts made by the defendants on oath to th~
effect that they told the 1oint Registrar that the deed
had been e,4ecuted without rece~ving consideration
.therefor stands unrebu~te.d. That t~is defence is.not
an aftertho.ught is clear from the fourth paragraph of
. the written .statement where the defendants contended
't hat when they were -summoned before . tb:e .ioj.nt
Registrar they had deni~d receipt of any con~ideration.
.The pla~nt~ff _h~d not' add~ced any ~vid~nce . t~ ~~~ut
t hisa,llegation. . . .....
.-:,,.~For these reasons I consider that there is no
and
Sl)ffi.cie~tt grourid for reversing .the judg11;1~nt ..
decree of .the Court of the Resident, . ~.outher.n
Shan States, 'Taunggyi. In the result .th~ ~pi).~a~
fails anQ. .~he same is dismissed with costs. M,ypc~~c't
..fees tht~~ gold mohurs. . . . . ..
. . :
16~
:~
BURMA:
. - "' ...
~ . LAW
. . RBPOI.:TS.
. .. .
. .. . . '

. APPELLATE CIVIL. .
.Before U San Mau11g, J. , ,.
., ..
- H .c .. KORBAN A'LI (APPELLANJ') .
. J95~

-M~r.. IS.
v.
zoRA Brin (REsPoNDENT). *.
Evulence ACt, s. 92-Constru'ctionoj the words "Between th~ parties. to
. any such instrument ".
The .words refer fo the per~ons who on the one side and the other .came
together to make the contract or disposition of property and would not .apply
to questions raised between the parties on the one side only o'f a deed.. . .
It will in no way prevent parti~s on one side of a deed to show by parhl
evidence their mutual relations, the one with the other so that. H is~ opef1 to
-one of the two persons in 'whose favour a deed of 10ale , i~ pu_rported _to be
executed to prbve by parol evi'dence in a suit by him against tli~ other tliatthe
defendant was not a real but a nominal party O!llY to ..Uie purchase. ..
Ma Aye Tin v. Daw Thant, as reported in A :I.R. (1941) Ranw 99, ~ot the
.same as officially reported i'n i940 R.L.R: 831; Muz'chand and .anotherv~
MadhiJ Ram;.:io . All. 421; Shamshul-fahan .. Begdm ana an-Other..,:. Ah:,Uif
Wali Khqn, -25 All. 337, followed; Maung Tun Gyaw.v . Maung P&.Shizf,t. ;
i'i. ~,B..R. 351,. reerr~d: Mahammad Sultan ltfohidet} Ahmed 4~sari : \~ .. .
A'inthutfalai, A:tR;. (1927) Mad 1102; Lakshmana Sahu v . M. Simachala
. Pat':a A.t.R. (1941) Pat.. 211, {oJi9wed. ""

Ba.. -.. th~;z .i~~ the :~pp~tlarit.:. .-

. !

. . ... . ' . ... .. , . '/:..

. . ';

Dilw,.Kiiin_/fn{:t!r for th. respo~derit~ :

~. : : ,. . .: ' . .... ~ .~ . :; . ~ -: : ...: . .:::. ;', .

:'> ~ U :SAN. ._ In Civil .R~gular Suit ; No.~ > 6-

M.AUNG;J._
of _1_954 o~ the Township ,Cour.t . pf Tav~y, . thd.-
plaititi~~appellant K.orban Ali sued the defe~dan_t..; ;
respondent Zora Bibi for a declara.tiqn that the .
house-site jn .suit situated in Tanga Quarter, Tavoy.: .
was hi~ .exclusive property. The plaintiff and the,
.- . d~f.~t}dant \Vere husband and wife having married.
aceor<:ling.
. . .
to .'the. . Mohamedan rites in or about
. . . . .
the/r;
.

. ; Qi~il: 2nq.Appt:al : :NO.! )9 of .1953,- against the decree of the DistH(:t ~

'. .. Judge's .Court ot T~yoy in Civil Appeal Nq. s of 1952, dated th~ lQth:ditY,c)t .
December l?S2.; settin~ a!lide the judgment and:decree of the Townsbip, C9~rt, .
. Ta:v:o-y in Civit' :Reguhir SuftNo. :6 :of ,t9S2. dated the Sth .dayof Sepfeinl:ler ':
1952. , . . . ~ :. ,
 1955] . BURMA :LAW REPORTS.

year 1931. At that time the plaintiff had an n.c.

2955
Indian wife living at Chittagong. In the year 1939
that is to say about 8 years after his marriage with K-oRB.4N Au
the. defenda11t, the plaintiff and his wife purchased _ZoR':;BzB:.
the house.;.site in suit together with part of a house . u SAN
standing thereon for a sum of Rs. 160 vide registered :\:FAvNG~J.
deed of sale Exhibit A. The plaintiff, however,
alleged that although the P!Operty was purchased in
the joint na-me of himself and his wife, it belonged
exClusively to him as he had paid the purchase money -
with a sum obtained by commutatioJ;t of his. pens.i on
.h~-, having ritired from Government service about
tWo years hefore. The defendant on the other hand
alleged tha.t the _proper~y was exclusively her.s as the
purchase price of R-s. 160 was paid out of her
$aVings,' the plaintitf having taken away practically . .
_ all the... ~oney he had obtained by commutation of
pension to .his wife in India.- On the pleadings two
iss:ues were frari1_eci by the le~rned trial -Judge of
_which the most important being the one relati'ng to
the.qwnership qf the property in suit. . The learne4 _
Judge after :Jh examinati~n of witnesses: -:cited by
both partie$.- cam.e. .to tp.e.con~lusion .that .the-p~~ipqff.'s
story.that'he.: pur~l}.ased the h9use-site with the.:mo:n~y
obt~i~eq .PYcommutation _of pension was ~r~di~le:fl~4
that therefore he .. was .entitled to. the declaration
sought.fo:r by . him~ On appeal ' to the. Dis~rict-: o'urt .
<if.-TaV<?Y ..~Y the defend~nt Zora Bibi, the .learned
Di~t~iot Judge heJd tha;t on :a review of. th~ evidence
adduced ~n tl1e .'c~se the plaintiff haO. not sati~fac~odly
djscP.~rge,d - t~e -:b urden of -proving : that . thp property
was solely his and that therefore his s-u it ol,Jg,}:l~ to
have :been .dismissed. He. accordingly~et~side the -:
judgme:Qt- and _the :.dec~ee of th~ _ ~ri~J -~,~-urt . an,d:
di.S.mis-~eif :tlw Rlaintjff's s.uit wi!h : cq~ts. :.,; - H~~ce\-Jh.is .:
~-- ".~e!:a_ L }' . ' . ': .
~.t'..t' ~, ..
~.
....,_. . :::. ::
.-. ..'.
 i70 B'U RI\1A LAW REPORTS. [1955

H.c. This quarrel arose between the plaintiff and his

~955
wife Zora Bibi only because they had separated from
~pRs:.N Au each other . in the year 1951 and that subsequent to
ZonA.EIBi. this separation the defendant had served a notice on
u SAN her husba.n d claiming the house-site to be her sole
MAuNG. J. property. . It is common ground that the house-site
in ~uit was originally purchased by one Ba Zi (since
deceased) brother of the defendant for a sum .. of
Rs:. 160 and that the money advancedby Ba Zi. was
subsequently repaid. The plaintiff would have ~t
.that he had personally repaid this su1n to Ba Zi but
Ba Zi's widow Ma Mi Sti (PW 5) contradicted in this
re.spect by saying that it was the defenda~t Zora Bibi
who had brought the money. However;. Ma M_f .Su
Went on to say that' when Zora Bibi came to repay ~
the debt she had mentioned that her husband wa.8"1n
funds having commut~d h1s pep.sion~ thus implying
that :the money, which she had brought was .part . of
the proceeds. :Ebrahim (PW 2) father .of. the
defendant Korban Ali also said that the plaintiff had
. told. himthat he had discharged the d~bt of Rs..1.60
due tc>" Ko Ba Zi after he had .obtained money by
commuting. his .pension~ This . statement . alth~ugh .
.nlade ' :b)r.th~ .defendant's own f~ther, is regarding an
ad~ission made .by 'the plaintiff in his. owii favour

and as St.,ICh iS inadmissible in evidence agaiiist the

-defendant.
. .
. Besides ' .even according to Ebrahim. . .
.a nd
.
other. witnesses ~uch as U Ba Hlaing .(P~ . 3~, t~e ,.
plaintiff himself had admitte4.- that the property .
jointiy b~longed to him and his wife:: 'this beingan
admission .against his ()Wn "interest; _:is ..admissible in
.evi<fence against him. :. .. , . . . . . .
. . . Although the. defendant .had Qe~.il,. hard pt~tJo
prove that t~e debtdue to her.Pr.oth.tf'..Ba Zi f.orJP.e
purchase: :price of the property,it?: siJi(:was paid.out' .
0

:of .her: ow~ savings th~ .p. robabilitie.. . .

s :are. that.:lhe
.: ... . ..
 1955] BURMA LAW REPORTS. 171

plaintiff had purchased the property in the joint H.C.

1955
name of himself and his wife for their joint benefit,
KOR BAN ALI
in view of the fact that he was taking away to India v. "
a considerable portion of the money obtained by the ZORA BIBI

commutation of his pension. The plaintiff's story U SAN

that he had protested to U Ba Zi regarding the MAU~G, J.
inclusion of his wife's name as a joint owner in the
sale deed and that he even voiced his protest at the
Registration Office is quite incredible and may be
safely rejected. At the time the suit property was
purchased the plaintiff and his wife were apparently
on the best of terms and there seems no reason why
he should not have spent a comparatively small sum
of. Rs. 160 in the purchase of a piece of land for the
joint benefit of hi1nself and his wife. Therefore on
the facts the judgment and decree of the learned Judge
o f the trial Court cannot be sustained and the same
have been rightly reversed by the learned Judge of
the .lower appellate Court.
The learned District Judge has however in the
'
qoncluding po.rtioit of his judgment observed :'
"Iri my opinion,' it would run counter to the provisions
of section 92 of- the Evidence Act to allow the respondent to
adduce oral evidenc~ to show that the appellant was not a
co-purchaser when the deed has a plain term to show that she
is one." .
The learned Advocate for the appellant Korban Ali
relying to an observation of a Bench of the late High
Court in Ma ~ye Tin v. Daw Thant (1) has conceded
that this statement of the law is correct. In Ma Aye
Tin's case, the learned Judges observed:
"Schedules .D and E contain a number of items of
immovable property whiCh were purchased in the joint names .
of Maung .T han 'l'un and the respondent. The presumption .
ther~fore arises that Maung Than Tun and the respondent
. (l} A.tR. (1911) Ran+ 99.
172 BURMA LAW REPORTS. [1955
H.C. were joint owners in equal shares of this property. This
1955
presumption has not been rebutted by the vague evidence
Ko RBAN Au ca1led by the responde nt to the effect that she paid the whole
... 'V.
ZoHA BIBx. consideration for the purchase of each of these properties and
that Maung Than Tun's name was mentioned in the deed as a
joint purchaser merely in order that he should be able to
present the documents for registration. Evidence of the latter
category is clearly inadmissible under section .92, Evidence
Act:
However, in the authorised report' of the same
case (0 this passage has been omitted . and this
omission seems to me to be significant owing to
the importance of the point involved. It seeni.s to
indicate that the members of the Law Reporting
Com-m ittee were not quite satisfied wlth the exposition
of the law in Ma Aye Tin's case in s a far as it relates
to sectiO'n92 of the Evidence Act. .
~ow, in iV!.ulcliand and another v. Madho Ram (2)
it was h eld that the words in section 92 of the.
Evidence Act " between . the parties to .- any -such
instrument '' referto the persons who on the one sfde
and .the other came together .to .lnake the contract o r
disposition of property, an4 would: . not apply to
q.b.estions raised .between :the parties on tlie one side
only-of a deed, regardingtheir relations to ea~h other
under the contract' and that the words do not preclude .
one of two persons in whose favour a deed of . sale
purported.. ..
to
.
be -e xecuted
. .. ' from . prov.ing .
by:.
.. . a...dd .
evidence in a suit by th.e>one against the other; that'
. the defendant was not a tea} but ;: nomirtal 'patty only . a
. to:the 'purchase, and . that .the .:plaintiff -was solely
ent_itled. to the property to\vllich it: relat~<l. : . ,.
. . ...:':[his :4e~ision was follo~ed . by-anoth,er_I~ench of :
th.e.:,.same .High Court in Sh~msh~ul~ifihcrn --Began_'l . and
anotheF- v. Ahmed- Wqlf . Khan (3) ... The::h~ad~n:ote
~ .. ~,.._, .: ti>. .ii'94oi ~~;~.F~ 831..... . . :. !~) l.O,. A.n~:~~.l~..:_...~.: . - . - :
)

,~ .. : (.3) ~~Alt.337, :
'. . l : . . ... .
1955] BURMA LAVI REPORTS. .. 173

in the case of Maung Tun Gyaw v: A1.aung P- H.C.

1955 ~
Shwe (1) seems to indicate that th~ above 'decision
KORBAN ALI
of the Allahabad High Court have been entirely. v. .:.
zoR.A BIB.L
dissented from by the late Chief Court of Lower
Burma. However, when the body of the judgment tJ SAN
MAUNG,J:
is looked at it is apparent that the learned Judges of
the ~hi~f Court only desired to qualify the statemebt
of law enunciated in the above two cases of the
Allaha~ad High Court. They observed as follows .:
"He (Advocat(( for respondent) urges that section 92 of .
the Evide~ce. Act has. therefore. no application, ~nd he relies
upQn. the ,case. of Mulchand v. 'A1adho Ram (2) which was
ton owed fn the ca se of Shamsh-u'l-jahan . !JegaJtz v. Ahmed .
Wali Khan (3). It was there held that the words. in section 92 .
o~ the Evidence Act " between the parties to any such instru-
ment" refer .to the. persons who on the one side and on the
other ca~e together lo ma,ke the contra~ts dispose of : or
p~operty and woulq not apply to questions raised between the
parties. on the o11e side only of the deed regarding their.
~elatiCI;lS to ~ach; other under the .contract.
We d6 not q.~arrel with this statement of tb.e law. but
in our .opinion the Allahabad Court w.ent too far if {fint~ded .
to J~y d~wn that the parties on. one si.d e of a deed. as beiWe(m
themselves; were able to contradict, . vary. add . 0[ subtract . to
fro~~.
.....-
its .tenrts. by means of parol evidence. . .. c6nsider . we
that the meaning of section 92 is dear; .and that it has .
appii.9ation to all parties to a docume:p.t. Quite apatt from
sect~on . 92 of .tlie Evidence Act. it would of . course . be :
p~ssible for ' the parties on one . side of a deed to. show by .
parol evidence their 'm:utual rei ations the one with the other ..
. That they should be. able to show . with .reference to any ..
transaction to which they are the parties on one side. that ~uch
tt~~act~on. thoug4 purporting to b~ a sale. is ... a mortgage. :.
~~~re ~able to~old.~~ . . . . . . : . .

deci~i~~ .. of ..the.Aliaha.b ad High Co~t~.

-.:... The. above
was folloWed .. by : th~ . ,Madr.~s .. High Court in
~. . " ~ . , . : . . 'I , ,

(1} '11 L.B.R .351. .. '(2} 10 All. 421~: .

(3) 25 All. 337. : .
174 BURMA LAW REPORTS. [1955

H.C. Mahammad .Sultan Mohiden Ahmed Ansari v.

~ 1955
Amthul Jalal (1) a nd by the Patna High Court in
KoRBA:-; A u
'l! .
Lakshn~ana--'Sahu v. M. Simachala Patra (_2). In my
z o nA Ba n . opini<;).n, section 92 of the Evidence Act will in no
u SAN way ptevent parties on orie side of a deed to show
MAuNG, I. by parol evidence their mutual relations, the one
with the other so .that it is open to one of the two
persons in whose favour a deed of sale is purported
. to be executed to prove by oral evidence in a suit by
him against the other that the defendant was not a
real but a nominal party only to the purcha~e and
that he was solely entitled to the property to _which it .
related. Of course, it will not be open -to any of the
persons in whose favour a deed of sa.Ie is .purported to
be executed, to prove by oral evidence either in a suit ..
by one against the o ther purchaser, . or:in. a -suit by _
the _vei1dor_ against either of them that . what was '. .
purported to be a deed of sale was in faGt a deed .~(- .-
..gift or a deed of mortgag~. That would be contra-..
dieting the terms of the deed and .as such within. the .
prohibition of section 92, Evidence Act . ..
: F~r these reasons I would confirmthe -j-udgment
~n4 decree of the learned Judge of : the District _ .
. .Court of Tavoy appealed against and: diiect that- the
present appeal be dismissed with costs~ Advocate's . , .,.
fees in.
this Court three gold mohU'fS. ,

. )j . .

. . .;..}h~J A.l.R~
~ . .
!J.~ -= .~..
'w. )27).
~ . . '
M~d. llOZ:
. .
.
. ....(2) A.ii~. (i<:J4-1J
..
:Pat. 2.1-1. ..-..
 19551 BURMA LAW REPORTS. . i7~

.APPELLAJ'E CRIMINAL. ...

Beft're U Bo Gyi, l.

M: MUTHIAH SERVAI (APPELLANT) H.C.

1953
v. Feb.3. .
THE UN.ION OF BURMA (RESPONDENT).*

.' Penal Code, s. {0~,-A cC'Use_d.' s expZatrat ion, reasonable, t II aug h incredible-
Burden of proof.
: .. The ~Olt)plainant' prosecuteci l he appellant under s . 406,. Penal Code in
r espect Of collections of hioney, entrusted to him on behalf of the Sri Peria
Palayathammam Temple~ .
. The appeJ.Iani'S' defence was that the money receiv ~d was spent in dcfray-
~n g the exJienses of a festival held_in connection with the Tempi~.
A complai:lt was lodged and su.bsequcntly the ;:'ppellant produced the
aqco~-'n ls befl're t-11~ Recd~er of the Temple and its properti~s. .Being
..diss; tisfied, tile R~cel'ver filed a Civil suit in the Rangoon City C'i'vil Court,
Which was s'till pei}dJ'n'g , .
. .In the ine;tntiht, appellant was convicted and s.entenced to 6 months'
~igv~ous impris.o~~ncnt. . . .
: ;H?z;(oir apf.e~l . : 1.t cannot be said th:it the account submiUed by, appellant
as 'to lio"v h~ hnd ~pent the money entrusted to him is unreasonabl!:.
. 'F an ~cc~~eq "pers on giv-es an expia~ation whic'>. may reasonably be true,
!even tho ugb, .jt is not, belbved by the Count, he is entitled to an acquittal;
be<:ause in . such circt.IIn&tari.ces th~ onus Of proving his guil i has not . been
disc.lh\~ged. . .: .
'Appeflant acquitt~d .
. Rohert Stua;rt .W ' al!chope v. EmPeror, (1934) Vo~. 61, I.L.R. Cat. 169~.
followed:
....,..) . .
o.~ N. Banerjl,'. Advocate for the . appell~nt.

U Chit ('G9verp~ent . Advocate) for the respondent.'

. .
t .

.. . U :B.o :~ Gvt,. . J._Appell~nt has . been convicted

;_ under }~ct~o~. 466 of the Penal_. ~ode on_a private .
~prose6u~ion _launched by complainant Ve)u and .
tsenten~e~ ~p. 6 ' (~ix) J:nonth~' rigorous imprison~ent. .
r .Crimi~ai Al?peaf ~~. 6;7 .<?f '1954, bting appeal from 'the orde'r of the .
~.f.i:astern subdiv:isiomll'Magistrate of Rangoon, dated tne 16th dpy of . Dec~inbcr :
~ .-954, passed in Gr!~inal Regular: Trjal NE'). 96 of 1952. r
) L::. . .. . . " .. . .. ,. . . :.t
 176 BURI\1A LAW .R EPORTS. [ 1955 .

<> H.C. . ~ It appears that . in 1951 a SUit WaS instituted jn

1955
. the High Court, Rangoon, for the removal of.' the
M. MtJTHJAH trustees of the Sri Peria Pala,yathammam Tempie and
' SERVAI . . ' . . .
. v. the .O:fficia1 Receiver was appointed Receiver of. the.
UNION T
THE
oF BuRMA. emp1'e and Is't properties.
. B ef ore. th e R. ecewer
. . ha d
u Bo Gn, J. ti~e t? take charge ~f th~_ Tem~le an~ its properties
a festival was held tn connection With the Temple
and collections were nJ'a de in inoney and in kind
from . the worshippers. Rupees 979"12~0 was thus
collected and the. sale of offerings iri. kind fetched
Rs. 50-8-0, . and the total collections came to Rs.
1;os~O~A-0, the complainant and. _certairi . of ~is
Witnesses tried . to tnake out that' 106 .silv.e r . p!ec~s
were also collected but : the letter of .authbrity'
Exhibit . A filed . in the case- cle~rly shows :that .ofiiy
the stt~ of Rs. 1,030-A~O, w~s received. :.. _ it is ..sa~d:
that this money was entrusted to the appellant .with .
. . t(le . direction that it should be deposited with' a
:San.k or a -Che.t tyar Firm.. The. appellant admits-:
.h~ving received that money but . .states.. that )he .
agreement was that only the surplus -after defraying .
.the expenses of tl:ie festival should . he so deposited. ..
. . The complainant states in his evidence that he.
lear~t that the appellant had used the money in his
business, hut he .does not say .how he had Iear~t
~bout it . . On the other hand~ :the . appellant sta~es .
. that he ,s pent the money in defr~ying . the expenses of
t4e festival and ~as. out of p,ocket. to the .extent . of
Rs. 21. When the Official R.eceiv_e r.: c alled upon .
.:hhn .to accotint. for the e~perises he-filed accounts.- !
. ' The o .ffi.ciai Receiver was not satisfied . with . the :~
a.
.,: .accounts a~d . . therefore filed . . :suit :ag~inst the ~
. appellantin:the City :civil Qourt of _R~gooi1. . , . ~
. . .:. .lt- W01Jld s.~m th~t . tl~~ pr~~e~t cq~pl~~nt 'Yas 1
lo~ge~ b~f.?ie ~he ~ui~ ~~as: in~trtute? . a~~ ._the civil~~
..
f ,.. sutt lS ~dl . pendrttg. In ,.these ~llf~umstances it{'
.. ' . . .
1955] " BURMA LAW REPORTS. 177
cannot be said that the explanations given by the H.c.
appellant in the shape of the accounts submitted by ~ .
him as to how he had spent the money entrusted to ~:s~~;::Au.
him is unreasonable. It has been held in Robert . T. a E vu.. NION
Stuart w_allchope v. Emr:eror (1_) that if an accused. oF> ~:;~~A. . .
person gtves an explanatiOn which may reasonably u Bo .G;.r~ J. :--:.
betrue, even though it is not believed by the Court,
he is ~ntitled to . an acquittal, because in such
circumstances the onus of proving his guilt has not
been discharged. ,T he learned Government Advocate
concedes this point and states that. he cannotsupport
the c6nvicticm.. : Furthennore in the present case the
evi.de.nce ~or the prosecution seems partisan and t4e
differences among. the worshippers were s'uch that ail
order under. sectio~ 144 of the Criminal Procedure
Code had to be promulgated.
For' the above reasons the conviction: and.
se~tence -are set aside and . the appellant #!n be.
acquitted . ~IJ.~ : released. .so f~r as th~. present _case is:
coiicerned. .
t . ..


'

' , . . : , . r, ;,.
..: . (1934) Vol. 61, I. C..R,: ~ah P 169. . .
(1) _
:. ... :.. . .. .
:. 12 . .
 1.78 BU:RMA
.. .. .
LAW
.
REPORTS. [1955.

APPELLATE CRIMINAL.
0

Before U San Maung, J.

1i{....C... MA~Y A TIN (APPLICANT)

195'5; ,
Fe.b. 21 . . v.
. THE UNION OF BURMA (RESPONDENT).*
Penal Code, s. 452-S. 562 (1), C~iminal Procedtlre Code.
The applicant was convicted under s. 45Z, Penal C:ode by a Second Class
Power Madistrate who submitted the case under the Proviso.to s. 562, sub-
s. (!) to the Subcthisional Magistrate for release on probation of good
conduct
.The Subdivisional Magistrate himself was only a Third Class Pow~r
Magistrate, not having been appointed under s. 13 .0 the Crim.inal Procedure
Code.
The Subdh:isional Magistrate ordered the Respondent to be released
(Ill his executing a bond for K 100 wiU1 l.wu l!Urt~ties in like amount or in
defa~lt ~eof, to undergo 6 months' Rigorous Imprisonment.
Held :The order for i mprisonment in default is wrong . 'The proper course
is for the Magistrate to ascertain, before passing an order under s. 562, whe-
ther 'the accused is likely to be able to give security immediately qr withiJl . a
reasonable time and if he fails to ~ive security within a reasonable time, the
: Magistrate should pass sentence which should ordinarily be a nominal one.
King-Em#ror v. Tun Gaung, 3 L.B.R. 2, followed; Nasu Meah v. King~
EmPeror, 2' Ran. 360, referred to.
Held further: The order of the Subdivisional Magistrate is void a$
having~ been made without jurismction. It is not imperative on the High
Courtto set. aside e v_ery void order, unless the agg:ieved pen;on move the
Court to do so.
''King-Emperor v. Ba Pe, 4 L.B.R.143, referred to; King-Emperor v: T114
Byt~w, 4 L.B.R. 315; Po Mya v. Ki1~g-Emperor, 7 L ..B.R. 272, compared.

. 1v1ya The in (Government Advocate) for . the

. ' . , respondent. .. . .
.: . .'1
.. : . .. . j
. U SAN MAUNG, J.-In _Crimi~al Regular Trial
No. 31. of 1954 of the Second Additional Magistrate,
Basseili, t~e .~c~used : . M.a Mya Tin was convic~ed of
Cri.i ninal :Revision No.14J (BJ of i954, being Review of the order of the
Subdlvisional Ma:gistrate of :Bassein, dated .the 6th c;lay of May 1954, passed
inhis Criminal Regular Tria:L~o.9 4
oJ.1954, . ,, . 0 1
' I ,
00
0
o
00
! o
00 0
, ' ' ' ' j , o
 1 955] BURMA LAW REPORTS.

the offenGe punishable unde.r section 452 of the ~~

.Penal Code for committing house trespass after -
. . f
mak mg preparatiOn or causmg urt. . h Th e tna . 1 MAMYA'TIR
v
Magistrate who was only Second Class Magistrate ~~tf~i~\
.Powers however considered that the accused should t/~lN ~
.be released on probation of good conduct. He MA'ON9.J .
.accordingly submitted the case to the Subdivisional
Magistrate under the proviso to sub.section (1) of
:the section 562 of . the Crimimil Procedure Code.
However at the time of the submission of this case,
t he Magistrate who had been placed in charge of
Bassein Subdivision was only a Magistrate of the
T hird Class. The_refore although he designated
.h imself as a Subdivisional Magistrate he did not
h ave the powers of a Subdiv_isional Magistrate as
:section 13 of the Criminal Procedure Code enacts
.that only a Magistrate of the First or Second
Class in charge .of a Subdivision can be legally,
.designated as a Subdivisional Magistrate. It naturally
follows that only such a Magistrate can exercise the'
;powers of a Subdivisional Magistrate. .
Howeye~ the.Subdivisional Office~, :Qassei:ri. be~g_
under the 'ip-1pression that he had the powers ~f a~
Subdivis.ional Magistrate, proceeded to pass orders
i n the ca$e directing Ma Mya Tin,to be released on
probation of good cqnduct on her furnishing security,
~or Rs. 100 with -two sureties in the like amount'
:{or a. period of 6 months. The order was passed
on the 4th May 1954 and securities were in fact.
f~rnished and the bond under section 562 of tli~.
-Criminal_ Pr.ocedure Code executed two days later.
T4e Subdivisional Officer made yet another mistake
1n directing . in the. .s:ame ~order that the accused be
sentenced :tp 6 months' rigorous imprisonm~nt if she._
'fails ~o ~urn1sh th~ ,requisite security. . In t;h.is con~
nection; .the. :.;observations ot Sir H~l:bert '.b1rkell
; . . .. . ~.. :~ . : :; . ; ! .'
 i.so BURMA .LAW REPORTS . . [1955

~f-5 White, Chief Judge, in King-Emperor v. Tun Gaung

. ~ - .- ( 1) are apposite. There, it was pointed out that
MA M"~A TIN there is no authority for the view that if an accused.

~~EB~~~i~ person is ordered to give security under section 562

~ of the Code of Criminal Procedure and fails to do,
{j' SAN
M'A~NG, r. so, he should be detained in prison till the expiration.
of the period for which security is to be furnished ..
The proper course is .for the Magistrate to ascertain,.
before passing an order under section 562, whether-
the accused is likely to be able to give security
immediately' or within a reasonable tim~ and if he:
fails to . give security within a reasonable time, the;
Magistrate should pass sentence which should
ordinarily -be a nori1inal one. See alsoNasu Meahv_
King-Emperor (2) . . _.
The order of the Subdivisional Officer, Bassein~
.dated the 6th .May 1954 is therefore void as having
been made without jurisdiction. However it is not
imperative on the High Court to set aside every void
order that comes to its _notice, when the. persons;
aggrieved does not move the Court to do so. $e6.
King-Emperor v. Ba Pe (3). Compare Ki'ng-Emperor
v. Tha Byaw (4), Po Mya v. King-Emperor (5) . .
In the present case the perio4 of 6 months for<
which Ma Mya Tin was ordered to keep the peace.:
and be of good behaviour had already elapse_d.:
Therefore it is not necessary for this Court to take: -
.. any further action in the matter.. Let the proceedingS; .
be returned to the Court concerned :_through th~
se~sidns Judge, :Bassein with these rem~rks. ..
The judg.m ent in this -case 'Should b~ brought.to
the notice of the .G overnment that Third Class. so
Magistrates may not_be. put in charge of Subdivisions.
. . in futun~. -
. (1) 3- L~B.R. p.' 2~ . (3) 4. 'L~B.R. P.~ 14.3.
. . .. . . ""J , : . .
(2) 2 Raii . p.360. . .. . . (4):: 4 L.B~R. p."'31S~ _
. tS) 7 .L.B.R. p. 2i'2. .
 1955] BURMA LAW REPORTS. 181

APPELLATE CRIMINAL.
Before U Ba Thoung, J.

MA THAN MAY (alias) MA YIN MAY H:C.

1954
(APPLICANT)
Feb. 23.
v. .
THE UNION OF BURMA (RESPONDENT).*

;penal Code, s. 411~. 403 .(I), Criminal, P1ocedure Code-APPellant in

possession of 3 Patrs of ear-ri1zgs and wrist watch, one pair of ear-
rings being her own-Convicted under s. 411, Penal Code in respect of one
Pair of ear-rings and a wrist watc't-APPea( was summarily dismissed.
t . .
Appell~twas again trie.l and convicted under s. 411, Penal ~ode in
Tespect of the other pair of ear-ings by the Court of Special Judge.
Held: In the absence of proof that the articles in the two cases were
received by appellant on different dates, the dishonest receipt of the~e articles
by the appellant is a single ?ffence under s. 411, Penal Code.
Conviction set aside under s. 403 (1), Cdrninal Procedure Code,
Ganesh Sahit v: Emperor, L:R. Vol. SO, Cal. 594-L.R. Vol.. 3, Pat 503,
followed.

Ba Kya,lng (Government Advocate) for . the

re~pondtmt.

. U B.A. T ROUNG, J.-The appellant Ma Than M.ay

was sent up for trial before the Court of the Sessions
Judge
. .
(sitting as special Judge) ' Thaton,. under sectfons
392/302/114 of the Penal Code in connection with
the robbery committed by .three luzoes at the houses
()f. U Zaw Pha (PW 10), _Ma Khin Nyun (PW 12)
.and Ma Mu (PW 16) at Pawdaw~u Village.on the
:night of: the . 12th May 1954, :in the. course
of which one To No was shot dead by. one. of the
robbers. As there was no evidence that the appellant
. . pa~t:in
took .
the 'robbery she. was n~t -charged. un4~r
.
.
. Criminat~ppeal No. 603 of 1954, being Appeal ~om the order of :
U Ba Gyan, session Judge (Sitting as Special Judge) of Thaton, dated th~ 19th
day .of Novemt;ier 1954 passed in Criminal Regular rrial .~o~ 15 "~: 195.4, , :
182 BURMA LAW REPORTS. [1955
H-C. sections 392/302/114 of the Penal Code, but she was:
1954
charged under section 411 of the Penal Code for-
:~y~=z~:s> being found in possession .of a pair of ear-rings whlch
MAy!~ MAY WaS identified tO be .One Of the looted properties
THE UNION taken fr01n the house of Ma Mu on the night of
OF BURMA , . .

U &
robbery, and the learned Special Judge convicted
.
her
TilouN'G J. under that section and sentenced her to six months'
rigorous imprisonment. The pl;l.ir ofear-rings found.
in her possession was produced by her under the:
following circumstances :_ On the 17th May l954 i.e~
about -5 days after the said robbery, U Soe Tin.
(P W 2) heard that soni.e luzoes were. shot dead by-
the army and so he asked U Pe (PW I) to make an
enquiry about it. U Pe made an enquiry.and learnt
that Ma Than May (the appellant) who ~as the wife
of a notorious dacoit Mau:ng Aye had con1e back to
the village and was staying at the house of o~e .
u .Tha Po. .u Pe. went to .that house and Sa\V
Ma Than May, when the latter told him that slie
. came back from the jungle as her husband had_ been
sho~ dead by the army. She produced 3 pairs of
ear-rings and a wrist watch saying that one pair of
ear..rings 9elonged to her while the other two' pairs of
ear-rings and the wrist watch were given to her' by
her hushand Maung Aye, whom she a.~it~ed to be
a dacoit. Ma Than May was .handed. over to the. .
police officers together with the ihree.pairs of-ear-rings;.
and the wrist watch produced by_ her. .
It is to be mentioned here that .the app~llant ..
M~ Than May has already been convicted under
section..4Il
: ~ . .. Penal
. . Code and sentenced
.
to suffer . one
. .
year?s rigorous .imprisonment in Criniirtal Reg:ulaf:.
:.. :.
'trial No . .46 of 1954 of the Court of." the 4th Addi..:
~ioital :SpeCial": Power.. Magistrate, .rhaton, in respect
;;.,>Of :one pa~ 'pf ear~rio.gs ~nd a wrist watch.produced_
. by her aS..:stated.'..above. _Her app~al to the Sessions
. ~ .
 '1 .... ; <r

1955] BURMA J-,AW REPORTS. 183

Court was summarily dismissed. She was agaJn H.C.

tried and convicted under .section 411 ' Penal Code 1954

in respect of the other pair of ear-rings in this case MA THA!>;

MAY (nlras)
Criminal Regular Trial No. 15 of 1954 of the Court MA YIN MAY
v.
of t~e Sessions Judge (sitting as Special Judge), THE;J,..i~ION
Thaton, and 'out of whic,h this appeal arises. oF13URMA.

This appeal must be allowed and the conviction U BA

THOUNG, J,
and the sentence in Criminal Regular Trial No. 15
of 1954 must be set aside under the provisions of
section 403 (1) of the Criminal Procedure Code, for
it has not been proved by the prosecution that . the
retention of the pair of ear-rings in this case and
the retention of the other pair of ear-rings and a
wrist watch in the other case in Criminal Reguiar
Trial No. 46 of 1954 in which the appellant has
already .been tried and convicted, .were received by
her on different dates, and so the dishonest receipt of
these articles by the appellant is a Single offence under
.section. 411, Penal Code. In the case of Ganes h
Sahu v. Emperor (1), it has beep held that :
" When there . is no evidence that articles stolen
from several persons were received on different dates.
the d~shonest receipt of the same is a single offence under.
.section 411. o f the Penal Code. and a person tried on a charge
thereunder. in respect of the retention of some of the articles
on a .cer~in date. cann ot be tried~ on a similar charge~ . in
respect of other articles of which he was in possession on
such date. ''

It ..has, similarly, heen held . in the case of King-

.Emperor v. Bishun Singh (2):
For 't he above reasons I set aside the . conviction
,and the sentence pa~sed on the appellant. by the triai.
~ourt, and the appellant is acquitted ~o far as this.
~ase is:. concerned.
.. .
(;) I.L.R. V~I. 50. Cat. p. 594. : (2) I.L.R. Vol. 3; Pat. p. 503. :.:
184 B.URVA LAW R.RPORTS. [1955

APPELLATE CRIMINAL
Before U Aung" Tha Gym~, J.

a.c.. MAUNG BA CHOKE (alias) BOHTHAN-MA-

1'754
NI (APPELLANT)
May 20.
v.
THE UNION OF BURMA (RESPONDENT).*
. .
Offences under two different pe11al statutes-S. 395, Penal Code-S. 17 (l),
Unlawful Associations Act-Misjoinder of charges-S.s. 233, 234, .. 235,
236 and. 239, Critdnal Procedtlre Code-Effect : on the legality of
trial-Acquittal under the Special. Act cmmot cure the illegality.
. .
.. The appellant was .convicted under s .. 395, Penal Code and s. 17 (1)
of the unlawful Associations Act. .
Joinder of charges under a special law with a charge un.der th~ . Penal
Gode has vitiated the trial as being in Yiolation of s . 23"5, Criminal
Procedure Code, especially in the ?.bsence of approximity in time, the
uriity of purpose and continuity of action.
The two. criminal acts are .not ~elated in point of purpose as cause and
~ff~et or .as rrincipal and srbsidiary ads so as to constitute one continuous
act . ' : .
Raj Kishore Tewari and others v. Emperor, A.I.R. (1949) All . 139,
referred to . 1 '

. Heid: The~e ~\TaS misjoinder of charges. If a mandatory provision of

the Code has been mfringecl in framing the charge, the Court must of
necessity be held to have failed in administering justice . to the ac6u~ed.
The trial is bad and no question of curin~ an irreguiarity arises under S.
"'537, Criminal Procedure Code.
N. .. Ramaraju Tevan and another '" EmPeror, A.I.R. :i930)" M ad. 857 at .
.858; N. A. Subramania lyer v. E~tPeror, 11902) 25 Mad. 61;AbduiRaltman
....-. EmPe1:o,; 5 Ran. S3 (P.C.); Sein Hia v. Union. of Burma, B.L.~. (1951)
289; T?abttlal Cltoukltani v. King-Emp-eror~ I.L.R. (1938) CaL .(P.C.) 295;
Pulukut;i Kottaya v. The King-Emperor, I.L.R. (t948) Mad. (P.C.) p~ l; Rex
:. v. Day..., Shanker Jaitiy~ .r.L.R. (1950) .Al'l. 1256 at 1274, referred to.
. The acquittal of the appellant on the charge .. under the . Special Act
cannot cure this illegality, irrespective of" the que~tioit whether. there was ;
any actu~l prejudice. to th~ acci.lsed. or not. ,
.l,a.1. Singh und ' others v. EmPe.ror, A.I.R. (191~)" :Lah~ 148..:
: referred to. .
~ . Retrial Ordered.
. . .
.. . J
. l
' Criminal Appeal No. 540 of ,.1954 being ~ppeal fJ;"~lll: ~: ord.e r . of .th.e -~
. sp~cial Judg~_.(~esllion.s) of Slhvebo, dated the 30th 4a!. of s eptember' 1954-.j
passed in the Special Judge Trial ~o. 5 of 1954. . . . .
. .. . . t.

. .
 1955] BURMA LAW REP:ORTS. 185

.Ba 'Shun, Advocate for. the appellant. H.C.

1954
MAt:N'G RA
Ba Pe (Government Advocate) for the respondent. CHOiffi
alias)
BOH THAN-
U AUNG THA GYAw.-.The appellant Ba Choke MA-Ne v:
.alias Boh Than-ma-ni was convicted of offences fa~ling THE UNION
OF BURMA.
under section 395 of the Penal Code and section 17
( 1) of the Unlawful Associations Act and was
sentenced to transportation for. life .on the first charge'
and to 3 months' rigorous imprisonment ~n the second
charge. The date. of commission of the offences is
said to fall in the first week of July 1949 and Clearly
the charge brought against the appellant under section
17 {1) of the Unlawful Associat.ions A~t cannot be
:sustained. The charge-sheet itself makes no clear
mention of the appellaJ?.t's membership of any known
illegal association. However, in the judgment
reference is made to Ba Choke as being a member
of the White P.:v.o. . Organisation. If this be so,
no offence would appear to have been c01nmitted by .
the appellant as this Organisation was not declared
illegal till ~1st October 1953. See the Burma Gazette,
dated 31St October 1953, Notification No . . 758 of
th~ Ministry of Home Affai:f$. .
It has been put forward on the appellant's behalf
that .the joinder of the charge brought under a special
. I~w ~ith the charge of dacoity punishable under
:the Penal Code h_as vitiated the trial of the appellant
~a.s . being contrary to the mandatory provisions
of .sections 233, .234, 235, 236 and 23'9 of the Criminal
. Procedure C~de. section 233 prescribes that for
every distinct offence of wliich any pe~son ~s accused,
.there shall . .
be a separate charge' and every charge .
. shall b~ tried ~eparately, except in c~ses mentiqned
.in . section~
. . . . . 234,
. 235' 23(} and 239. . Section. 234 .. .
refers. .,to a. pers
"
o n accused
.
ot more offep.ces
. than one
..
186 [1955
H.C.
1954
of the same kind committed within the space of
<>- -. - . twelve n1onths. Section 236 refers to a single act
MAUNG B A
CHOKE or. series of acts -con5tituting one or more offenceS..
(alias) Section 239 deals with joint trial of several persons ~
BOH THAN
1\fA-NI
v.
The section relevant for the present purpose would
THE L'NION appear to be section .235~ It reads :
OF BURMA.
U AUNG THA . "(1) If, in one Series Of acts SO COnnected together as;
GYAW, J. to form the same transaction more offences . than one are
c9mmitted by the same person, he may be charged with; and.
tried at one trial for. every ~ uch offence.
(Z) If the acts alleged constitute an offence falling
within two or more separate definitions o f any law in force
for' the time being by which offences are defined o r punished,.
the person accused of them may be charged with, and tried at
on_e trial for. each of such offences. . . ? ;,.

To Justify the appellant being tried at one

trial on two different charges it must appear that
these offences were so connected together as .to forni
the sanle transaction. Now, if the accused person.
was a 1nember of the P.V.O. Organisation at th.e
time he committed the off-ence of dacoity, his.
membership of the organisation must have commenced
at some time aritecedent to the venture in which the.
present offence of dacoity was committed. It cannot
be said that joining the P.V.O. Organisationat sotne.
time anterior to the commission of the offence of
dacoity 'by the appellant had .any connection whatever
with the said offence. If the formation of ail illegal
. organisation was immediately .followed by the_
com.tnission of criminal offences, th_e approxin1ity in
time; the unity . of' p~rpose . and.. ~ontinuity of
. action disClosed. thereby .might; pos'sibly justify . the
twodifferent charges like. the..present beiD;g -tried at.
the same tri~l u~der:~:sectt..on 235 ._ -,~f . ~~e Code. . But
this cannot be sai<;Iof .the . offences .qow alleged
against the appelianL: The :.:. t~o .criminal . acts
 1955] BURMA. LAW. REPORTS. 187

attriouted to tJ?.e app.~llant are not related in point of -H .C.

1954
P urpose as cause ~~find effect or as principal and
'O.''! W't ~MUNG Bt.
subsidiary acts si,~:as to <.;onstitute one . continuous ctroKE
act to justify the:: assumption that they form the B'~~~;~~AN-
same transaction. See Raj Kishore Tewari and M~NI
others v. Emperor (1). THE UN~9N

There is no .doubt that there.has peen misjoinder. .OF ~ra~.

of ch arges 1n the present case and It . IS
necessary U Gn.w;
A UNG THA
1.
to consider what effect this would have on the legality
of the appellant's trial. This point was dealt with
in K. Ramarajt:t Tevmi and another v. Emperor (2);
" No doUJ:>t ever since the pronouncement of the Judicial
Committee in N. A. Subramania ~yer v. Emperor (3) it has
been the general practice to assume that if a mandatory
provision of the code has been infringed in framing the c'Qarge
the Court must of necessity be held to have failed in admini
stering justice to the acct.Ised. Section 53? affords no real
ground for any such assumption. and the Judicial Committee
itself when it had occasion to refer to Subramania Iyer v.
Emperor (3), in Abul Rahman v. Emperor (4) . clearly
indicated that the impugned procedure must be one that is riot
only prohibitedby.the Code,
. but also works actual Injustice
. to
the accused. "
. .
This Court following Abdul Rahman's case, took a
similar view . of the procedural error noticed in
Sein Hla v. Union o-f Burma (5) it being held
that the defect of procedure in that ca~e was not
so serious .as to have occasioned a f~ilure of j"Qstice
Qr caused prejudice to the accused. But in Babula!
Choukhani v.. .King-Emperor (6j . the Privy Council
observed:
. .
"It has been taken as settled law on all sides throughout
. t.hese proceedip.gs that the infringew.ent ~f .;r.Section 239 (d)
would .if made out constitute an ..,.jUegality, as distinguished
0

. .(1) A;I. R; (1949) All~ .139. . . (4) 5. Ran. 53 . (P.C.) .. ... '
(2). A.I.R;-(19~01 Mad~ 857 at 858. ~ (5). B.L;R. 11951f, 289.
.. . ' . '(3) 11902) :. 2S Mad.
. 61. . . 16l I.L.R. (1938) 2 .CaL . ( P~c :) 295.
 BURMA LAW REPORTS. ft95S
H.C. from an irregularity, so that the conviction would require to
1954 be quashed un~er .the rule stated in Subramania's case as
'MAUNG BA contrasted with the result of an irregularity, . as to which Abdul
CHOKIO;
Cc1has)
Rahn'zan's case is an authority. "
.llOH THAN-
.MA-NI The Privy Council next obsetved . in Pulukuri
~.
THE uN-1oN' Kottaya v. The King-Emperor. (1):
OF BURMA~
c When a trial is conducted in a manner different from
U AUNGTHA
GYAW, J that' pr-escribed hy the Code (as inN. A. Subramania Ayyar's
case) the trial is bad, and no question of curing an irregularity
arises, but if the trial is conducted substantially in tlie mannet
prescribed. by the Code, but some irregularity occurs in. the
course of such coiJ,duct, the irregularity can be cured under
section 537. and nonetheless so because. the irregularity
. involves, as must nearly always be the -case, a breach of one
or more of the very c<;>mprehensive provisions of the Code_.,; :

.Jii. the present case, the trial was condt1cted in

.
a manner not warranted by the Code of Criminal
;

Procedure and as was notice'd in Su.bramania's case;

the 'irregularity went to the root of the trial which
in . the .. 'Cir.cumst~nces of the pr-esent case must be .
considered .'t o be wholly bad irrespective ..of ,' the .
.question whether there was any . actual prejudice
to the accused or not. See Rex v. Da ya Shanker
. Jaitly (.2) . The acquittal of the appelhint on th~
char~ge under .the special Act Cannot cure this.
illegality_ see .Jai Singh and others . v: Emperor q)~
This being the case, tbe conviction and sentences
. passed .on the appellant will be set aside ~rtd ' it
is ordered that . the appellant be re-tried in. the
Court-
. .
of the speC,ial
.
Judge
. '
. Shwebo.

~.------------~~~ ~-
~~--~'~
~
~------~~~
(1 ). I.L.R. (194S) M~:c:P:c.) .p.,l. : c.<). r.L.'R.'0.95o) Ait :i~6a~1274.
.' .:. : 6i .'~~i.R. 0.91srLah~ .14s. :.: l , .... ~'
....
 1955] BURMA LAW REPORTS.

APPELLATE CRIMINAL
Before U Chan Tu11 Aung, C.J. attd U San Mauug, f.

MAUNG BA.HTU (alias) NGA HTU

A~D ANOTHER (APPELLANTS)
AP.l. $;.
. v.
THE UNIQN OF BURMA (RESPONDENT).*

Penal Code, ss. 364, JOZ (If (b), 34-Absetzce of murdered body- Strongest
pqsstble eviden_ce of factum of murder esseuiial-Otfct~c.: t:nder s. 364,
when ar1sc:s-S. 365, Penal Code.
\Vhere . the body of the person said to have been murdered is not
fort hcomin g, strongest possible evi!ience as respect the facbm of m urder at
tl)e' hand of the accused concerned is essential.
Adtt Shikdn r v. Queen-Empres~, {1885) I :L;H. 11 Cal. 635; Bhatrdh.u and
a11olhcr v. K in.g -Emj>eror, (1924) A.T.~. 11 All. 662; .(J.zam Ali v . Emffror,
A.'r.R. 11929) All. 710 at 717, referred to.
'.fhe offence under s. 364 of t :1e Pe!1al Code arises only when the
prosecution e:~tablisl:ies'the kidnapping of the person concerned with a ' 'iew to
that p'erson being murd<:red or put in- danger of being murdered . I n the.
a bsence ofsach facts. the off .:nee o.f mere kidnapping cannot fall within the
purview ol the said sectit>n .
v:
.llf~ung H..rn .andotlrers The King, (1947) R.L.R. 31'1, referred 'to .
.Conviction altered to one under s. 365, Penal_Code.

Than Sein for the appellants.

B(l Pe .(Government A~voc~te) for the respondent.

The judgment of the Bench was delivered by

.. U CH,AN . TUN AUNG,' C.J._The two appellants

Maung .B~ Ht~ (a) Nga ~tu and Nga Maung (ar
Maung Mauug were found .to have been guilty of
offences . under. section 364~ and section 302 (1) (b)
read with section 34 of the Penal Code for the alleged
abduction and murder. of' one Nyan Bo', and.each. was
.
c n. :.. j
.:l!tn:t
Appeal No. 9 z' f 195 b .
Reference No. 7 o
1 f
: : cmg apr~a rom
th . . d .
e or e r of the
lat Spedal Judge of Meq?i i.n ~mi:nal ~riai No. 1~ of 195(
 -~9.0 BURMA LAW REPORTS. [1955
H.c. s-entenced to suffer lO years' rigorous imprisonment
w~ o
on the first charge, and to suffer death on the second
MAu<NGzBAl
t,!TU a
charge by the Special Judge, Mergui, in his Criminal
~as
NGA HTu Regular Trial No. 10 of 1954. The circumstances
,.-\ND AN01'HER
v.. as d'1sc1osed b y t he prosecution
' 1ead'1ng. to t h.e
~:Es~:~~ conviction and sentence of the two appellants are
-~
~U CHAN TUN
briefly' as follows :
Au::-\6, c.J. The two appell~nts belonged to Mazaw village
within the jurisdiction of Mergui Police Station and
so was the deceased Nyan Bo, who was a Karen.
On the 5th of March 1954 at about noon while Nyan
Bo was in the house of one Ma Bwint. (PW 3) of the
sa1ne village, appellant Nga Htu accosted Nyan Bo
and asked Nyan B-o to a;ccompariy him for a stroll in
th~ village. Nga . ;Htu had a dah with him at that
time. According to !via. Bwint (PW 3); Nyan Bo
w-e.nt down the house and went towards N ga Htu.
As soon as these two persons got on the road Nga
Htuwas seen attacking Nyan Bo with the dah which
he had brought with hin1. N yan Bo then ran toward~;
the house of one Ma Kyin Mya Shwe (PW 2) which . .
was next door to Ma Bwint's. At that moment the
second appellant Nga Maung appeared .on the sceri~
and he was seen going towards Ma Kyin Mya Shwe's
hous~ . and br:inging back N yan Bo to the road..:
Thereafter, according to Maung Tin . (PW 4), . the.
three persons, namely the .two appellants and the ..
' 'deceased NyanBo walked away towards the south
Of the 'village where there was . a creek~ Nyan
.Bo was in front while the two appellants
followed him from behind, all walking at an ordinary
. pace. Since that day~ Nyan Bo disappeared; : He
wa~s rio more to be. found .in the .village .or Mazaw. ~
:Karen Affairs Officer of Mergui, ~Saw Shwe. Lay (PW .
. .. ... _. 1 ); said_ to be:tne uncle .o f .Nyan . .Bo, aft~r. ~~aling
:. . . .:some - enquirie~. from :tvfa_, ,Kyin.Myft:. Sl~we .~nd Ma.
. '. ~ ' : . ' '
... ', . ::.. '

.. ..
 .1955] BURMA LAW REPORTS . 191
.Bwint lodged the First Information Report at the H.c.
1955
Mergui Police Station against Nga Htu and Nga
Maung. The investigation of the case was taken up ~A;(a~~~
by U Hla Pe (PW 12) a Sub-Inspector of Police of NG~ HTu
Mergui. p oI"Ice station.
. H e examine
. d M a .l"'--Ylll
T.l' M ya ANDANOXHER
v:.:. , .
:Shwe (PW 2), Ma Bwint (PW 3), Maung Tin (PW 4) T!EB~~~-N
,and SOme .Other WitneSSeS, and after apprehending the U CHA~,TtJN
;appellants, sent up the case for trial. We may AuNG, c.r
how~ver note here that no attempt whatever was '
11iade by the investigating officer or by Saw Shwe
.Lay, the Karen Affairs Officer of Mergui, to find out .
ihe whereabouts of Nyari Bo, nor was any attempt
.n1ade to examine the village stream towards which
N yan Bo was seen to have been led away by the two
:appellants. In 'fact, there .is nothing on the record
to indicate whether the stream and its neighbouring
places had been properly searched and scoured with
.a view to find out whether Nyan Bo was really dead
or alive. It appears to us that everybody had
~ssu1ned that since Nyan Bo was not se~n jn the
village again J:le had been done to death by the two
appellant~. . .
On the s trength of the testimony of the eye-
witnesses who spoke about seeing t he att~ck made l;>y
Nga Htu on Nyan Bo, and also about Nga Maung,
.the second appellant~ . accmnpanying Nga Htu, and
Nyan Bo. when they walked away towards the village
.stream and on the assumption that Nyan Bo had
been done to death by the two appellants.~since he
wa~ . not seen in the village agaip_ the learned trial
.Judge charg~d th~ two appellants under two counts .
:as aforesaid~ .
... BotP, the. appellants gave evidence on. oath and
itheir ciefynce was a total denial. . They .also set up a
ple'i: of'afibi: this defence was rejected . :and . the
tr1al Judge. . considered that. a .$trong . circu.mstantial
192 BURMA LAW REPORTS. [1955

;l:i;c. evidence was available for holding thal the tw:q

1955
,'
appellants after assaulting the deceased abductelhim.
0 ' .

H~~~~~~:, and then to?k him into. the jungle nearby an? there:
. NGA wru. murdered h1m. The tnal Judge further -held 1n effect
ANDA~~THER that non-discovery of the dead b?dy qf Nyan Bo was.
~i~~:~:; imtnaterial to sustain .the conviction of murder as.
. ,.,........._ against the appellants.
U ~.LlAN .TUN
AuNG, c.J. . In this appeal it has been urged that the murder .
of Nyan Bo by the two appellants has not been.
conclusively pioved. it is further contended that, in
a case where the body of the person said . to have~
been murdered is not forthcoming, strongest eyidenc:
as respect th~ factum of murder at the hand of .
accused concerned is essential before the accused can.
be.convicted of the said offence. '
.In suppo~t of these ~u~missions our attention has:
been drawn t.o the following decisions :.- Adu Shikdar
v; Queei2-Ernpress
. . .
0)
. ' Bhandhu
.
and anotherv.
.
King~-
.

Emperoi (2) and A tam Ali v. Emperor (3) .. Th~re~
is considerabl~ force in these submissions. . Aperusal :
of the decisions cited by the learned counsel leave u~~
'convinced that although by the absence of dead.b'ddy
or.ncn-discovery of body of the m urdered person, it
might under certain circumstances, sustain : :ar
conviction of an accused person 'foi murder;: '
yet in the particular circumstances obtaining in the~
present case, and _es.p edally .in view of the failure on.
the part of the ai.ithorities .-concerned in, . not evert.
making an attempt' search the stream ~nd lts: .to
~eighboutbood towards which N yan Bo was last seen, .
.walk away leisurely with the two appellants, it will be
impossible for us In a:.m atter in which the.life an~(
. deatiiof' accused .persons are concerned, ''to a, leap
..gap "in the prosecuHon .evidence.and to arr1ve by -:~
: ' . +

'

~(1) (1S8S)
.
-I.L.R-
. . .
11 Cal. p,:635; ~ .. . (2) (1924). A.LR. All. p. 662.
. . . . . . t;Cr' . . ..
. . . . (3) A.I;'R.J.l9:29) A!l. p. 710 at 717.
. ... .. .
~.
:
 1955] BURIYIA LAW :R~fQ~TS.
.
proc.ess of speculation at a conclusion which there H.C.
1954
is no evidence to justify ".
Furthermore, what was seen by the so called eye- ~~~~~li-:,
witnes~es for the prosecution merely referred to their NcA HTt!
having seen appellaQt Ng3: Htu alone attack Nyan Bo A~PA~~aER-.
. . . h. I THE . UNfON'
and appe11 al,lt N g~. M aung JOlnmg 1m ater when he oF':. B:nJt~r.u:.
and Nyan Bo walked away towa.rds the jungle stream~ u c~~ :~t:
It appears to us to be very strange that even after Aut-lG, e~r.
the dah-attack made by- Nga Htu, Nyan Bo was seen
walking leisurely along . with .the two appellants .
.. Fr'om this circvmstanr~ it seems to us that Ny~n Bo
did not receive any severe injury. There appears to
be a bit of exaggeration on the part of some eye-:
Witnesses for th~ prosecution. No doubt, since that
incident Nyan Bo was absent from the village but-it
does not by that fact alone- exclude the reasonable
possibility of Nyan Bo being .still alive; .or even if it
ean :be reasonably assuJ;Ded that Nyan Bo is d~ad,. it
will .riot in e.ur opini.on be safe for us to conclude b_y a
process of speculation_so to say_in the absence
t?f: ~strongest possible evidence that Nyan Bo. has
, been murde~ed, and that the murder was perpetrated -
by the appellants. For the aforesaid reasons we .are.
not -fully satisfied beyond reasonable dQubt,. that: the;
two :appellants. were concerned in causing the death
Qf Nyan Bo, and that the charge of mprde(has. been
'br-ought h ome against them. However, the question'
remains .as to 'What' offence . the appellants . have.
ec,>mmitte~ on~ the facts' as deposed .t o by some of the .
prosecution witnesses. The:r:e can be no doubt that.
from the ey~-witnesses' account of the iriciqent ..the
appellant Nga Htu first of all attacked -Nyan Bo with
a dah . and then Ng~ Maung joined in, and that soon .
after bo~h tqok .away Nyan B.o towards south of the
village; -This . forCible act on the part of the
'~ppel~~n.t~ .ce.~t~i~lx p_qJ;tst~~ure,~_an offence of abduction
. .. . .
. .
". 1~ :
:.
 194 BURMA LAW. RE.PORTS. [1955
H.C.
1955
within the ambit of section 362 of the Penal ~ode.
But this leave us the question whether in the cir-
MAuNG Ba
thu (!llias > cumstances obtaining in the case, an offence under .
AN~<;;~~r~~R section 364 or section 365 of thePenal Code has been
v.
TH E UNION
made out ag.ainst the two. appellants. The offence
v

<>F- BuRMA. under section 364 of the Penal Code ar~ses only when
u CHANiTu N the prosecution establishes the kidnapping of the
AuNG, C.J. person concerned with a View to that person being
murdered or put in danger of being murdered. In.
the absence of ' such facts, the offence of mere
kidnapping cannot fall within the purview of the said
section_see Maung Han and others v. The King (1).
As have been observed by us, in this case, there is no
tangible evidence from which we can safely conclude
that the two appellants had forcibly kidnapped Nyan
Bo with a view to Nyan Bo beirtg. murdered or
dispos'i ng him of by putting hirri in danger of being
murdered. The most we can infer from available
evidence is that the two appellants kidnapped Nyan
Bo with a view to wrongful confinement within the
mischief of section 365 of the Perta1 Code. That being
our view of the case, we must set aside the conviction
and sentence of 10 years' rigorous imprisonment uitdei
section 364 of t he Penal Code and also the convietion.
and sentence of death under 'section 302. 0) (b) read.
with s.ection 34 of the Penal Codeimpose<l upon on
each o{ the appellants, and in lieu. thereof,. we enter'
a conviction on each of them under section 365 of
the Penal .
Code read.with section 34 thereof . . . .. '
and we
direct that each of the appellants do . ..
~uffer _7 years"
rigorous imprisonmen.t. .
....-.. .

. . ....
u SAN. MAuNa, J ,.__ 1 agree~ ..
. . '..:.
.
. . . .

...' ~

. . : .:
~ . .' .
. .

:' ..
 ! 955] B URl\1A L A \V REPORTS. 195

APPELLATE CRIMINAL.
BeflJre U Ba Thoui;g, 1.

MAUNG BA ZAN AND ANOTHER (APPLICANTS) H.C,

1955
v. Mar. 22.
THE UNION OF BURMA (RESPONDENT) .*

Sanction-Acquittal under s. 409, 409/114, Penat Code for want of- Subsequent
Prosecution t4>tzder s. 4 (1) (d) read with s. 4 (2) of the SttPPressiort of
CorruPtion Act, 1948, with sanct_ion-A.f>!Jlicabilit y of p~inciPle of
autrefois acquit -:-S. 403, Criminal Procedure Code.
The applicants ~ho a re police officers w ere prosecute-d under s.409!
409/11 4, Penal Code and w ere acquitted for w ant of sanction . .
They were subsequentl y prosecuted with sanc tion and charged under
-~. 4 (1) {dl/ 4 (2 ), Suppression of Cor ruption Act, 1948
On an application to quash the charge on the principle of aut rej ois.acq!-lit.,
Held: T l'te former t rial was no bar to the subsequent trial under s. 403, sub._
-s. \2) of the Criminal Procedure Code
.Maung Po Chit . and one v. The [ttion of Bur ma, (1948) B.L.R. 1751
lfollo~ed; Palan~ Goundan and another v. Emperor, A.I.R. (1925) Mad, 711.;
.
Emperor v. Munnoo, A.I.R. (1933} Oudh 470, referred to,

Tha Tun Khlne _and Tun Aung (2) for th.e applicartts .
U Chit (Government Advocate) for the respondent..

. U BA TROUNG, J._ These Revision applications

arise outof Criminal' Regular Triai No. 24 of 1954
o_f the Court of the 3rd Additional (Special Power)
Magis~~ate, ~a11:tha waddy in which the two applicants
have been charged .under section 4 (1) (d) read . with
.section 4 (2) of . the Suppressipn of Corruption Act;
~- Crimin~t ~evisi.on No. 216 (B) of_ 1954 : being Review of tlie Order
. 21') IBl . . . .
!'Of u Ko . :Ko Gyi, 3rd : Addit ional ~agistrat.e (Spe~ial Po~er) -~r
Hantha\Y'lddy~ dlted the 1st day of Novem ber 1954, pa;:;_sed in Criminal ~~egula~
1'rial No.
..,..24
. of 1954'..
196 BURMA
. . . LAW
. REPORTS.
' . [195$
H.C. 1948 (as amended by Act No. 16 of 1951) for having
1955
committed an_ act of misconduct in respect of 6!-
MAtJNG BA
.. ZAN AND drums of petrol entrusted to them. .
A}qo!.~ER In Criminal Regular Trial No. 94 _of 1952 of the'.
or;: 13~~:.. Court of the 2:Qd Additional (Special Power)
Magistrate of Syriam, the same applicants and o1;1e
UBA
TaouNG,J. Maung Myo Nyun were tried under section 409 ~--
409/114 of the Penal Code and Maung Myo Nyun
:. ' was discharged while the applicants Mau:rig Ba Zan.
and Maung Pe Khin were acquitted.
The applicants have com~ up for revision to.
.g,u.~sh , the c_hat~ges fra,tned against th~m under sectio11::
4-(i-) (d), read with section 4 (2) of the . Suppression.
of Corruption Act, 1948 (as amended by Ac_t No. 16
mf .1951) by t~e 3rd Additional (SpecialPower) .
.Ma gistrate, HEuithawa~ciy in his .Criminal Regu~ar
Trial No. 24 of 1954, on . the ground that the~r :
a_cqui~till_: ~nder section _409; .'4:09/!14 of , the P.~nal
in
Code.. Criminal Regular Trial No. 94 of 1952 has,
eperated as a bar to the su_ljsequent. prqsecution in,
the present ca.~e on the prinCiple of .autrefpis.acqu~i .
as contemplated in section 403 of the Crimitiat'
Procedure Code. .
It c.a nnot be denied that at the time the a'J>plic;:tn!s:
were pro'secuted under section 409/114 of the Penal
; .Code it:I Criminal Regular Trial No. _94 of _1952 iJl:
the Court of the 2nd Additional Magistrate, s)'riam,.
no sanction had yet been obtained to pro~ecute the~e
applicAnts, .. under section 4 (I). (d)/4 (2) of th~:
Suppression of Corruption Act, 1948, and therefore.
that Cour:t _was not competent to try the case against
the applic~~ts lf~der the Suppr-ession of Corrup:-
Hoi:i Act;: 1948 . for - want of sanction: Therefore I
cannot ac~ept .: the . c6_ntentio~ that .Criminal Regular
of
Trjal No ..94 195~ would.bar,the pr~secution. against
the applicants iri the present case in Crirhi_rial :Regu~ai
 1955] BURMA LAW REPORTS. 1.9.7
TriaiNo. 24 of 1954. In the case of ll1.aung Po Chit H.C.
1955
.and one v. The Union of Burma {1) it has been
held that where an accused person was acquitted in a MA:uNG &A
Z.ANJ\No
trial for an offence under section 19 (f) of Arms Act, A~OTH:En
On the ground of the absence of sanction of the TnE: JN10k
Dist;rkt Magistrate, section 403 of the Code of oF BuRMA:
Criminal Procedure does not bar a . subsequent TROUNG, u BA
I~
prosecution w~th the sanction of the . District
Magistrate for the same offence, as the Court was
not acting as a Court of competent jurisdiqtion wheri
he took cognizance at the time of the first trial wit.Q.
~auction. In the above case the acquittal of the
accused wa.s for .want of sanc~io~ anq the subsequent
trial of the. accused
. was for the same. offence after
~anction had been obtained ; the present case is even
stronger ~s the charge against the applicant although
'it relates .to the .same property, was. in respect. of a
distinct of!'en~e for which sanction for prosecution
had not yet be.en obtaineci. The applicants who a!~
:Police .Ofi1cers were charged because after seizing. 6 t"
drums of petrol they did not make a search list and.
they did not: men.tion in the First Informa.tion Report
.about . the p roperty seized ; nor did they menti01;f
.anything about them in their daily diaries in
accordance with therr duties, and fo~ those accounts
they were charged for an offence under section 4 of
the Suppression of Corruption .Act, 1948. The
.offences alleged against them in the ptesent case . are
-distinct from the .. offences of which they had been
charged aQd_ acquitted.#l the other case in Criminal.
Regular Tria~ No; 94 -:of 1952. I . am therefore of.
the view that section 403 clause (2) of the Criminal'
Procedtire code would be app1icahle in the presetj.t
case, and that Criminal Regular Trial No. 94 of
1952. . ..
woulcf
: .. '
Db.t bar.
. .the
.
subsequent trial' Of the .
.. . ' .
 198 BURMA LAW REPORTS.

applicants ln Criminal Reguiar Trial No. 24

H.C.
.
1955
of 1954.
c ~~~N;N~,. In the case of Palani Goundan . and another. v ..
ANOTHER
v. Emperor (1) also, it h~s been held that section 403-
THE UNION clause (4) allows a second prosecution for an offence
QF BURMA.
constituted by the same acts if the Court by which~
u BA J.. the first case was tried was not competent to try the
THOUNG,
offence subsequently charged, and that section 403,
does not apply to such cases. It has also been held
in the case of Emperor v. Munnoo (2) where three
persons are at various times in possession of the~
stolen revolver, the fact that they are convicted in
respect of its possession under section 411 I.P.C . . or:
under section 414, I.P. C. is no bar to their .being
convicted in respect of it under section 19 (f);. Arm~;
Act, also. For the above reasons I hold that the
. Criminal Regular Trial No. 94 of 1952 of the Court
of.'the'.2nd Additional (SpeciaJ Power) Magistrate of
S)rriam against the applicants would not bar their
subsequ.e nt trial in Criminal Regular Trial No. 24 of.
1954 of the Court of the 3rd Additional (SpeCial
Power) Magistrate, Hanthawaddy. These revision
applications therefore fail and they are dismissed .

. : ... :. ~ . . . ';.

. '

. . .

.
. ~;:
.. ::
. . . .. . . ~ . . .: . . .
..
'
: . .... .;
, . .
..
~

.. . '. . :. . :

(1) A:I.R. (1925) Mad. 711. ~~) A.I.R: (1933) O~dh 470.

:~ ..; ... . ... .:

~-

: .. .. .. . .
' ~
 1955] BURMA LAW REPORTS.

APPELLATE CIVIL.
Before U San Maung , J .
.
MAUNG CHIT PE (APPELLANT) H.C:
19gs
.
v. Feb. 15.
u KYAw SHEJN AND ANOTHER (RESPONDENTS).*

A pplicat.iot: under s.1'4 ( 1}, Urba1L Rent Co11trol Act, 1948, for resci~sioll of
decree-S. 11 (1) (d) as askield by ld!tdlord-Controller's certificate ttnder
s. 14-A unnecessary,
The Respondents obtained a decree for ejectment an.d for K 545 as arrears
of rent against the appellant who made an :;>.pplication under s. 14 (1} of the
f.!tban Rent Control Act for the rescission of the Decree ..
Respondents opposed.the application on the ~round that the land was
required by the~ bonafide for their own occupation.
Trial Court held that the landlord could invokes. 11 (f) (d) Of the Urban
Rent Control Act as a shield in a case where the tenant applied {or rescission
Of an ejectment decree, which finding was upheld by the lowt r appellate
Court.
On second appeal, it was contended by the appellant that in the absence
Of a Controller's Certificate under s. 1-l-A, the provision of s. 11 (1) (d) could
not be used as a shield.
Held: S. 14-A qf. the Urban Rent Control Act is explicit in th:tt the Certi-
ficate therein mentioned is required only when the landlord files a suit for the
ejectment Of :1 t~nant or a person permitted to oc.;upy under S; 12 (aj on the
g round specified in clauses (d), (e) or rfl of s. 11 or cl ause (c) of s. 13.
W hen the pr9yisions of clause , (d). (e) or !/) of s. 1 L are invoked as a
shield to an applica.tion under s. 14 (1\ such a Cer tificate ia not necessary.
. Tai Ckuan & Co. v. Cltan Seng Cheong,. 11949) B.L.R. 89, fOllowed ; lr Ko
Yinv. Daw Hla .May, Special Civil Appeal No ..l .of 1949 (H.C.J.

Tun A ung (2) for the appellant.

'.fun .Maung for the respondents.
USA~ MAUNG, J._In Civil Regular' suit No. 143
of 1.951 of . the Township Court of Mandalay the
plaintiff U Kyaw Shein and paw Paw, who are. the
respondents in the present appeal, obtained a deere~
Civ(l 2na Appeal No. 13 of 1953, agairist the decree of the District Court
:of M ~ndaJay"! M~.- K C:Singh) in Civi( Appeal No. 29 of' 1 ~52 arising o~t Of.
Civil Misc.: c~se No, 10 of 1952 of the Ttlwnship Court of Mandala~.
. . ' .. : : .. . . . .. . .
0
 BURMA LAW RHPORTS. [ 1955
H.c. for the ejectment of the defendant-appellant Maung
1955
MAUNG
Chit Pe fro1n th~ land in suit and for recovery of
t:an PE Rs. 545 as arrears of rent. This decree was confirmed
v.
u KYAW by the District Court on appeaL Subsequently, in
SHJ;:IN A ND
AN9THER.
Ciyil Miscellaneous case No~ 1 0 of 1952 of the
Township Court of Mandalay the appellant made an
application under section 14 (1) of the Urban Rent
Control Act for the rescission of the decree on such .
terms as to the paymen~ of arrears. of rent a.s the
Court r#~ght impose. This application. was opposed
by the plaintiff-respondents . on the ground that -the
land was required by them bona fide for the purpose
of erecting a building for their own occupation. The
learned . Township Judge relying upon the dictum
oflhe Supreme Court in Tai Chuan & Co. v. Chan.
Seng Cheong' (1) held that the landlord could. invoke
the provisions of section 11 (l) (d) of' the- Urban- :
Rent
..., Control
. Act as a shield in a case where the . .
tenant applied for rescission .of the ejectment decree.
On the facts the learned Judge held that the lane! was
required bona /ide by the plaintiff:-respondent tJ'I(yaw :
Shein for the purpose of erecting a building for his.
own occupation. He therefore . dismissed the
defendant-appellant's application for the rescission of
the decree. On appeal to . the DistriCt Court of
Mandalay the. learned District Judge relying on the- .
observations of a Bench of this Court in U Ko Yin
v. Daw Hla 1.\fay (2) dismissed the appeal. Hence.f.t.
second ~ppeal to this Court by the defendant under
the provisions of section 100 of the Civil Procedure
co~e . . ...-. .. . . . .. .
It.is contended on behalf of the_. appellant that
the learned, Judges of the two Courts below have .
failed to fake mto '.consideration the fact that the
respohd~ni'
. :
has iiot. ' yet
.. . . .
.obtained
. . .. a; certifica:te . .from
 1955] RuRNfA . LAW .-REPORTS . 201
the eontroller under section 14-A of the Urban Rent H.C.
1955
Control Act that he was really in need of the land ~

MAUNG
for the purpose of er~ction of a building and that in CHIT PE
the absence of such a certificate the respondent 'll.
U KYAW
;should not have been permitted to use the provisions S HEIN. A-ND
ANOTHER.
-of section 11 (1) (d) as a shield. The same argument
U SAN
has, _however been advanced by the learned Advocate MAUNG.J~
:f or the appellant in Tai Chuan & Co. v. Chan Seng
Cheong (1) before the Bench of which I happened
to be a member and the same has been rejected
by the Court. In this co'nnection .the following obser-
vations on page 93 of the report are apposite :-
. " The learned counsel for the appellant company
h owever submits that relief under se.ction 11 ( 1) (f) can be
given' only in a suit filed by an. owner for ejectment qf a tenant
-or for recovery of possession of his building but before he cap .
:file. such a suit he must get a certificate from the Cot;~-troller as
pro\ided by section 14-A that he (the owner) re~lly needs th~
:building for his occupatio~ as a residence. According-_ to th~
]earned counsel sect1~n 11 (I) (f) does not apply to a case
where a _tenant applies to have the order of ejectme~t passed
.against him rescinded or discharged. It is true th~t the Act is_-
silent on this- point. but the general principle is that were there
:is an obligation there is always an implied remedy or relief.
As pointed out aoove. the whole object of the Act is to give
r elief not only to tenants but to owners as well under certain
-circu.r,nstances. and if relief were to be denied under section 11
{I) (f) when the tenant applied to have the order of ejectment
passed against him re.s dnded it would mean not only frustra-
1ing the o bject of the Act but a denial of justice to .the owner.
The LegislatUre i.t:l framing the Urban Rent Control Act. 1948,
never intended to .have such a result as contended.- for by the
~]earned counsel for the appellant company. We are clearly of
~ -opinion that section 11 (I) (f) can . not only be used. so to
; .speak, forthe purpose of offence :in a suit filed by' the owner .
il>ut also as :~. shield iil. a case where tlie tenant applies to have
ft.he order of ejectment passed against him discharged or
rcilded. . . . ..
t1 \ (1949) 13.L.R. f. 89.
202 BURMA LAW REPORTS. [1955
H.C. These observations apply equally well to a case where
1955
~\ the landlord seeks to resist an application under
M:II:UNG
CHIT PE section 14 (1) of the Urban Rent Control Act by
u KYAW recourse to the provisions of section 11 (1) (d).
'Z/.

SHEIN AND
.AN O'l'HER.
Besides, section 14-A of the urban Rent Contror
Act is explicit in that the certificate therein mentioned
USAN
MAUNG, J. is required only when the landlord files a suit for the
ejectment of a tenant or a person permitted to
occupy under section 12 (l) on the grounds specified
in clauses (d), (e) or (/) of section 11 or clause (c) of
section 13. It does not say that when the provisions
of clauses (d), (e) 01~ (/) of section 11 are invoked as:
a shield to an application under section 14 (1 J such
a certificate is necessary.
In the result the appeal fails and must be
dismissed with costs, Advocate's fees three gold
mohurs.
 1955] BURMA LAW REPORTS. 203

APPELLATE CRIMINAL.
'Before U Bo Gyi, J.

MAUNG PU AND ANOTHER (APPLICANTS) H.c.

1955
v. --
Feb. 17. .

. ' MAUNG I<YI MAUNG AND ANOTHER

(RESPONDENTS).*
.: . \

Criminal Revision by Private terso'!:.:P,Enkancement of sentence.

lleld: There is nothing in the Criminal ProcedrJre Code which eitHer
expressly or impliedly prevents the Hight Court from enhancing a sentence
at the instance of a private person.

Ba Shun for the respondents.

Kyaw T haung (Government Advocate) for the

applicants.

U Bo GYI, J.-. This is an application by private

persons, UJ\1aung Pu and Maung 'T in Maung, father
and son for enhancement of the sentences .on respon-
dents Maung Kyi Maung and Kyin Po. who have
been convicted .by the 3rd Additional Magistrate,
Toungoo, under section 324 of the Penal Code and
sentenced to .imprisonment till the rising of the Court
Cl;Dd a fine of .k 75. each or 6 months' rigorous
impr~sofiment. ~.
Originally~ responde~ts' .sister Ma Kyin Ki was
sent up along with them but was acquitted. The
brief facts of the case are that. On the 21st
February 1954 about . 1 p.m. applicant Maung Tin
IY.lal)ng was sent by.his father U Maung Pu to get a.
*Criminal: .R evision No. 203 (B) o 1.954, being_ Heview 'of the .
order of
t.t'Hia Tun, 3rd Additional Magbtrate of Toungoo; dated the 31st dav of July
1954 passed in Criminal Regular Trial No. 1 of 1954.

.
 '204 BURMA: LAW REPORTS. [1955

~ ~. sale deed of a piece of land signed by Daw E ~yu

5
.. - whose house was about a furlong distant from his
MA~~; Pu house. The house of the respondents was in between
ANoTHER
'lJ.
those
..
two houses. Maung Tin Maung went off on
f.)

MAu!'!G KYr a btcycle and shortly afterwards returned Wtth two

'MAUNG AND . ' .
ANOTHER. dah-cuts on hts person, one In the nght cheek and the
11 Bo GYr, J. other in the right hand. There is reliable evidence ~o
show that Tin Maung mentioned the names of the
respondents to his father and within a few hours the
latter laid a report at the Police Station. The
headman U Sa Gyi (PW 6) together with other
persons was at TinMaung's house, at the tirt1e and
U Sa Gyi immediately went over to respondents'
house. to make enquiries~ There are certain ~,.aria.-
tio'ns introduced in the prosecution evidence by
certain witnesses, apparently frotn motives of tlieif
own, some saying tliat Tin Maung could only make
it~.articulate sounds and others that Tin Maung
mentioned only respondent Kyi Maung and his sister
Ma Kyin . Ki. The fact that Tin Maung's fa~her
'reported at the Police 'Station three hours after the
incident that Tin Maung had been cut with dahs 'by
the respondents clearly shows that Tin M'irlirig
:denounced the respondents as his assailants. . . ... ~
The' OCCUtTence took place in broad daylight an4'
I see: no reaso.n to distrust Tin Maung's.ewidence a~ .
to the identity of his assailants. . Maung Ohti Pe
(PW -4) who pr'ofesses to have seen the 3:ttack O"n
J'in .M~ung by the respondent has been disbep.eved
:by the }earned Magistrate. :The reason given by the
Magistrate for distrusting the evidenee of this witn~ss
appears .to me to be:. in~dequate. In_ .any cil~e, .
however. . ' -
l see
.... .
o.ii to .distrust.
no reas' .
the.
. .
evidence
. . .
. ot .
.' .
Tin Maung whiCh is .corroborated by .' that of hiS
u
.father Maung :Pu . who~.- fprthwith'' lodge4 . repo'it a
with the P6t1ce. .

. ...
. :' . .
 0

1955] BURMA LAW REPORTS. 20S

The defence evidence has been adequately H .C.

1955
discussed by the learned Magistrate and I consider
MAUNG P&
that it fails to rebut the case for the prosecution. AND

The learned Magistrate charged the respondent A~OTHER til.

Kyi Maung under S@ction 326 of the Penal Code and MAUNG.AND MAU.NGKYl

respondent Kyin Po under section 324 of the Code. ANOTHER.

At the close of the trial, however, he considered that U Bo GYI, J.
the offence committed by Kyi Maung did not come
within the ambit of section 326 of the Penal Code
inasmuch as the in)ury r~_ceived ~Y Tin Maung in
the cheek was not such as to disfigu:r~ his face
. permanently. The learned S~ssions Judge disagreed
with 'this view. The . learned Magistrate had:
apparently overlooked the medical evidence that Tin
Maung's life was in danger at the time of his
a~mission to hospital because Tin Maung was suffer-
~p.g frorp. a s.evere shock and bleeding profuseJy.
. In this cas.e ' the Government has appeared
. .
an4
supported the recommendation of the lea:::ncd Sessions
Judge for enhancement of the sentences on the respon-
dents and' furthermore
. ' I consider that
.
for
. .
the wanton
..
attack made by the respondents on Tin Maung the
punishment inflic~ed on them was manifestly .inade:r: .
quate both in respect of the merits of the case and as a
deterrent. Con.sequently, while I am reluctant
to. enhance a sentence on revision, particularly at the
instance of a private person, I feel that enhancement .
must be ordered in this case . . There is nothing.in the
Criminal Proc~dtire Code which either expressly or
impliedly prevents the High Court fro~ enhancing a
.: sentence at the instance of a private person.
~ . . . For all .the . above. . reasons
. .. '
I . direct
.
that the
i. sentences pas's ed on. the respondents be.set aside and
' in lieu then~9fthe respondents :will-be sentenced to 2s-
~' (twen~Y.:flve) .Ia~hes of wh1pping : ea9h. : The ._tine
~~hi~h -havebee:n paid iri wilfB.e refund~~ ~o them.. . .: ~
 .,
206 BURMA LAW REPORTS. [1955

CIVIL APPELLATE.
Before U Aung Khine, J.

H.C. N. K. VAIDYO (APPELLANT)

1953
v.
.Feb. 10. W
MA THAN KHIN AND ANOTHER (by their duly
con~tituted Agent Daw Thwai Y:jn) (RESPONDENTS).*

Rent Control Order No.1 of 19-IS, s. 6-Claimfor -rePairs ~~olttntarily carried

out by tenant, um-ecoverable
E\'eryone has a right to waive and to agree to waive f 11e ad vantage of a
law or rule made solely for the benefit and protection o{ the individual inhis
private capacity. which mav be di~pensed with without infringing any public
right or public policy. _,
Saleh Ebrahim v. Cowasjee, A.LR. (1924) Cal. 57, distinguished; S. Raia
Chetty a:n{i. another v. Jagannat hadas Govindas and others, A.I.R (37) (1950)
l\4ad. 284, affirmed.
Under the Assam Urban Areas Rent Control Act, 1949. A tenant can
vontract himself out of the privilege alloweq to him,
Satislt Chandra Ray Chaudhu-ry v, Bimq.lendtt Se1t and another, A.I.R.
(38) (1951) Assam 27, referred to.
A tenant cannot be reimbursed for repairs done ....-oluntarily to . premises. on
the ground.tbatthe hndlord has becefited by the said r~pairs.

p: B. Sen, Advocate for the appellant.

Tun -z, Advocate for the resl?ondents. _
U AuNG KmNE, J._This is a .s-e cond appe~l .
against the judgment and decree of the _District Court
.of Amherst in Civil Appeal No. 7 of 1950; n1odifying -
the judgment and decree of the First Assistant Judge,
Moulmein, in his Civil Regular Suit No. 13 of 1~49.
. .It is not necessary for me to recapitulate _the
facts of the case in detail as both the trial Court arid
the lower appellate Court have exhaustively dealt
: . . * Ci'Vil2nd Appeal No. 28 of l952,against the decree of the .l:)istrict Court
-.of A~herst (K . Ngyi Peik) in Civil Appeal No. 7 of 195~, dat~d -the 20th
' Feb~ary . i957, modifying. th.e j tdgm~nt and decree o the 1st Assistant Tudge,
M6tilmeitd U Hla Htocin), in Civil Re~ular Suit No, 13 of 1949, dated the
. :ilOt~-- ;Aug1,1st '19~0. .,
..

. :.

~ ..
t
~955] BURMA LAW REPORTS. 207
;;..,

~ H.C.
0with a them. I will, therefore, set out now in this 1953
~dgment only the salient facts and they are as
![;'-
~iollows :
The appe11ant N . K . vat'dyo Is
. the tenant N.K. v:VAIDYd

fl(}f the respondents Ma Than Khin and Ma Mya :a~z.r~~~

,
~ Than, occupying .
a three-storeyed pucca building <ANoTHER
BY THEIR
.

)ik.nown as No. 275, Lower Main Road, Moulmein. oui.:s-'

~The tenancy was created some tilne in October 1945 ~~;~:;T~-r:~
.s oon after World War Two. The premises then, as a Taw~YiN).
; result of the ravages of war, was in a state of disrepair u AuNG
. . . d h KHINE, J.
,.and the owners were unw1 111ng to efray the cost t at
~ would entail to have it restored to a habitable condi-
. :tiori. However, on the stipulation that the
. .appellant would . himself do the necessary repairs to
it, the house was rented out to him by the respon-
: .dents. In the suit for ejectment and recovery of
i arrears of rent due the appellant filed a counter-
.claim of Rs. 2,081 being the amount he had spent
. :in the repair of the house, together with his written
4.staten1ent. This counter-claim was disallowed by.
~ .both the lower Courts.
f The suit was strenuously contested and one of
i:the main issues in it was whether there was a.n
~';agreement between the parties that. the appellant
!.should repair . the house at his own expense and
f a4just the cost thereof against the rent accruing. On
t:his issue there has been a concurrent finding against
~ the appellant. . .
The lower appellate Court also held that the
roeounter-claim was barred by limitation.
~ It is contende,d now in this appeal that in spite
tor this concurrent finding on facts .as. regards the .
ragreement relating to the reimbursement of the
. mount. he had spent on repairs the appellant, in
ew of the provisions in section 6 of the Rent
:~ ontrol Order. No.. 1 of 1945, is legally entitled: ...to
' .refund of,the' same~ "
 .,
208 BURMA LAW. REPORTS.

H9~3 When this appeal came up before me- <r'>ome

:-____ . time in July 1952, it was submitted that the lower
N;'K; AtoYo appellate Court failed to discuss the effect of the-:Rent

~~J:~~ Control Order No. 1 of 1945 in spite of.a Sf>ecifi~

ANoTHER ground on this point raised in ~the memorandu1n 6f
{~Y, THEIR . .
ou.LY appeal. The case was remanded to the: lower,
~~~~~DT~~ appellate Court to deal with the following issue:_.

-
THWAI YIN).

U.t\UNG
KHINE. J,
"In view of the Rent Control Order No. 1 oL f945;.
dated 10th December 1945, of the British Military Administra~
tion, was the alleged agreem~nt between the parties by which
the defendant N . K. Vaidyo undertook to defray the cost of:
repairs void initially ? "
The . lower appellate Co_u rt was directed ... t<)>
record the findings .arrived at and to resubmit .
the proceedings to this Court. This.course had ~o
b~ . adopted because,. at the time when this submission~ . ,
was .: made by the appellant the respondentSr.
were not yet -represented in this ,appeat The finding,
of the lower appellate Court is . that the said agree.;.,:
ment between the parties, in spite -..of the . R~nt: _,
Control Order No. 1 of 1945, was not void'inithilly~ ::
In this connection it is now submitted that the~:
nature of the agreement was such. that . it . had;.'
defeated the provisions of the Rent Gontroi Order:-
No. 1 of 1945. . The learned advocate for the.
appellant . has referred . me to the case . of Saleh'-!,:
Ebrahim v~ M. Cowasjee (1), in which . it was htHd~
that where the object of the lease is of such a nature:
that, if permitted, it would :defeat the provis_ions of:
the Rent.
Act' the lease is. void. I must ' however ' ~
point .<:m,t that t~e
facts. in the Calcutta .case af.e. .
diif.erent from those .obtaining. in.this :case. ;The:
main difference -in the two. cases is that whereas in 1
the Calc.u tta case:the .lea:se was . drawn up after . the :
Rent
.. . .Act had been~ .in. force.. ; in the
. ..
present
. case. t-he.:
. , :

-~l) A:i.R . il924) cal. 57::

 1955] BURMA LAW REFO~T:.S. . 209

.agreement was entered into before the promulgation .l1 :C.

1 53
of the Rent Control Order No. 1 of 1945. 9:
Even if the agreement was entered into after N. K _;,_amYo
the passing of the Rent Control Order No. 1 of .KMA. T.H*N
IUN AND
1945, I do not think the appellant can take advantage ANc,)'l;HEn
o f the prov.I. swns
. . . o f section
. 6 of t he sat'd R . ent (13 YDLY
THEIR

Control Order. In S. Raja Chetty and another ~~~~~~rt;~e

v. Jagannathadas Govindas and others (1 ), it was held THwAx YIN).
that everyone has a right to waive and to agree to 'G A;;G
waive the advantage of a law or rule made solely for KHINE, J.
~he benefit and protection of the individual in his
private capacity, which ma y b.e dispensed with
without infringing any public right or public policy.
This was a caserelating to a leas~ of a cinen1a halt
The lease expressly provided that if the rent remained
unpaid for two tenancy months after it became
payable the landlord would be entitled
to' re-e~ter upon the= demised pren1~ses. In
an application. under section 7 (2) (i) of the Madras
Act XV of 1.946 by the . lessor for eviction of the
tenant
.
on default
. of rent for one month
. ' it it was held.
fu,rther that' the Act did not applY. as the parties h.a d
'e;Xpressly entered into a contract inconsistent with; it
arid that their rights would, therefore, be 'governed
by their express contract.
~t. A .similar view was taken by the Assam High
Court in the_case of Satish Chandra Ray Chaudhury
v: Bimalendu Sen. and another (2). This was a case
tinder the Assam Urban Areas Rent Control Act,
_1949, and it was held in that case that there is nothing
in the sai~ Ac~ which prevents the tenant from con-
tracting himself out of the privilege allowed to him
by the Act. Furthermor~, as p ointed out by : the
lower appellate Court, . there is no . provision in the
Rent Co.n trol Order No.1 of.l~45 fot its retro~pective
- ----~~~~----~----~~----~------------
(!) A.I.R. .(37) (1950) Mad. 284. .(2J A,I.R. 138) (1951) All sam f.7. : .

14
 210 BURMA .LAW REPORTS. [1955

He. application. It cannot also be overlooked thatr~there

1953
.. was no actual payment made by the appellant to the
IN. K. ~.AIDYo respondents for. the repairs done to the house~
MA THAN and it is common ground that the repairs were done
KHIN AND
ANOTHER vo1untan'1y b y the appe11ant ~ Theon1y jusb
. 'ficatton
.
(BYDu~~ElR pleaded for reimbursement is based on the fact that
coNsTITuTED the landlords have benefited by the repairs carried
AGENTDAW . .
TH~Ax YIN). out. However, I cannot persuade ~yself to: hold
-
u AuNG that defraying cost of repairs voluntarily made
KHINE, J. is the same as payment made to the landlord for
repairs done in addition to rent.
For these reasons I am of the opinion that
the appellant is not ep.titled to get a refund of the
money spent by him voluntarily in the repair of
the ho:use. Having come to this conclusion, there is :
no necessity for me to go into the question of ::
limitation.
.The appeal is dismissed,-with costs .

... .

. .

~ . .
 1955] BURMA LAW REPORTS. 211

APPELLATE CIVIL.

Before U A:mg Khine, 1.

S. SABIR HUSSAIN (APPELLANT) H.C.

1955
v. Mar.1 .

R. M. L. RAMANATHAN CHETTIAR
\

(RESPONDENT).*
Si1nPle mortgage-Waiver of secttrity-suil on personal covenant to 1'ePaY-
S. 3, Transfer of Immoveable Property (Restriction) Act, 1917-Separation
of personal covenant from the mortgage-S. 24, Contract Act.
The appellant mortgaged hi:; immoveable property to the Respondent
Chettiar, a foreigner, who subsequently filed a simple money suit basing his
claim on the personal covenant of the defendant to repay the loan.
The respon~~nt's suit was decreed by the trial <;:ourt and confirmed by the
lower appellate Court.
On Second appeal, it was contended that the ~uit tra~saction was initially
vo!d. being in dir(d contravention Of s. 3 o( the Transfer: of Immoveabie
Property (Restriction) Act, 1947, as the personal covenant to repay cannot be
separated from the mortgage.
Held: The contract in this appeal is in two distinct parts:
(i) the personal cov~n-ant to repay the money was the first agreement and
(ii) to proceed against the fUOrtgaged property wa.s the second agreem~nt.
The second agreement i~ a subsidiary agreement to be .enforced onl y if the
first agreement was not fulfilied. The first consideration, that is, th~ l oan i s
a good one, and an agreement to repay a good loan is clearly enforceable a nd
this good considera:tion m ust remain una(fected by the disability in the second
p~rt of the contract imposed by the Transfer of Immoveable Property
(Restriction) Act. '
: 1Iar Prasad, Tewari v. Sheo Gobind Tewan, A I.R. (19221 All. 134; A. P.
JosePh v. E.ll. Jose~h, A.~.R. (1926) Ran. 186 and Mohammad Muzaffar.
fiuspin v. Madad Ai~. A.I.R. (19311 Oudh 309, distinguished.
Jarbandhiw v. Badri Narai,t atld Musammat Ram Rati, 45 I.L R. All.
i21; MoltamlnedSiiakurv. Gopi, 35 Ind~an Cases, 202; Mohammad Khalilur
v:
Rahman.Ki1an Mohamma.d Muzammailullalt Klzan, .33A.I.R. All .. 466; Di~
v.
~arian Sini~ Na.gesh.:zr.Pra$ad and a~1other, 52 I.L.R. All. 338, followed.
~ civil2tld
. . .. App~al
. . No. 14 of 1953~ against the. decree of' the.
"T

Resident .
Southe~n .~han :~tates4 Court of Taunggyi il:l Civil Appeal No.4 of 1953, dated
.
~e 28th !3ay o.f.Jan~y l,9S3.
 212 BURMA LAW RE.PORT~. [1955
~I

~fs Dr .. Thein for the appellant.

s. s~Bm K. R. Venkatram for ihe respondent.
HUSSAIN

RK1.L. U AUNG KHINB, J._This appeal is

RAMAN ATHAN against the judgment and decree of e Court of the
CHETTI,\R. .
.. Res1dent, Southern Shan States, Taun y1, confirming .
the judgmentand decree of the Court 6f the Assistant
Superintendent for Civil Justice, Taunggyi, in its
Civil Regular Suit No. 5 of 1951-52.
The respondent R.M.L. Ramanathan Chettiar
filed a suit for th~ recovery of Rs. 5,572-~-0, money
due on a loan made on 6th November 1950 against
the appellantS. Sabir Hussain. The loan made was
Rs~ 5,000 and Rs. S72-8-0 represents the interest .due~
The money was advanced on the security of an
im1novable property of a house lease for Lot Nos. 186
and 186~A situated in Kyaung . Road, Alebaing Qr.',
Taunggyi Town, with all buildings standing thereon.
The transaction as .evideuced by Exhibit " A " wa~ a
simple mortgage ,but the respondent made no mention '
of it in his plaint and he simply based his suit.on the l
personal covenant of the appellant to repay the )oan !
with interest due. This could. only mean that he has l
waived the security given altogether and has. only !
claimed the repayment of his money by enforcement!
0f the personal covenant. The main defence set up4
by the appellant -is that as the transaction was void '
from its inception the tnoney advanced. was ..:qo~
recoverable. It is submitted that the transaction was
.void from the fact- thc:~t the .parties entered .into ad
. agreement whi~h.involved the tra:nsfer of immov~bl~
property in contravention. ,of the provisions in :th~
Transfer of Immovable. rroperty (Restric~ion) Ac~
. 1947. ' Section 3or' the Act 'reads as follows:~ . , -
. ~ NotwithstaD:ding: ~~ytbfng contained in any law fpr -~
. time ~~~ng in ~.orce? no tfan~sfer of iinmo~abl.e p~Q~rty or Ie, ~:
 1955] BURMA LAW REPORTS. 213

of immovable property for any term exceeding one year. shall H.C
be made by any person in favour of a Foreigner .o r any person 1955
on his behalf by way of sale, gift. mortgage or otherwise." S. SAIHR
HtS~Al~

The trial Court held that the transfer was not fl.
R.M.L .
void because the respt>ndent had filed his suit within HAl>fA'NATHAN
CHETTIAR.
one year from the da:te of the execution of the
U AUNG
mortgage. This reasoning, of course, is unsound KHINE, J.
inasmuch as the restriction enforced is against
transfer: of any interest in immovable property to a
Foreigner although the lease of such property for a
tenn not exceeding one year is allowed. A mortgage
is a transfer of interest in specific immovable property
as security for the repayment of the debt and a
lease is a transfer of a right to enjoy such property
for a certain time, in consideration of a price paid or
promised. Therefore it was incorrect to say that
the LaW has not prohibited the transfer of immovable
property for a term not exceeding a year. Having
taken the view . that the mortgage was not invalid ~

the trial Court decreed the suit holding that the

.appellant was bound by his personal covenant to
repay the loan with interest.
The lower appellate Court. by a curious reasoning
: held that there was no transfer of the property as the
:obvious object of the mortgage Exhibit" A" was not
,to transfer the property to the respondent but simply
ito protect him from loss of his money. It is obvious
tthat th~ lqwer appellate Court has but a hazy idea
fof what ~. mortgage under the Transfer of Property
rA.ct' r~~~ly means. There can be no doubt that the
r:_ ower appellate Court was wrong in. holding that
ere. ~a.s no transfer of the property.
The: ,gi~t of the appellant's submission in . thjs
ppeal i.s .~:l;lat the suit transaction was initially void
s it :was
..
.Jovis.ions..of
.
made- iri direct. contravention
. . of the
~4 .Transfer of Imlllovable Property
v .
 214 BURMA LAW REPORTS. [1955

H. C. (Restriction) Act and as the personal covenant to

1955
~
-
s. SABIR
H USSAIN
repay cannot be separated from the mortgage the
money advanced cannot be recovered. In support
v.
R.M.L.
of this contention the following cases were cited :_
RAMANATHAN
CHETTIAH.
1. Har Prasad Tewari v. Sheo Gobind
Tewari (1),
U AUNG
KHINE, J.
.2. A. P. Joseph v. E.' Ii. Joseph (2), and
3. Mohammad Muzaffar Husain v. Madad Ali
(3).
The respondent on the other hand submitted that
the general rule deducible from the language of
section 24 of the Contract Act is that where the
illegal part of the covenant cannot be separated from
the ~egal, the contract is altogether void but on the
other hand where they can be separated the illegal
part may be rejected while retaining the goo~i. It is
further contended that the contract in this case is in
two distinct parts. The first part acknowledged the
reeeipt of the loan and the promise to repay the loan
and the second part co11:tained the agreement offering
a .collateral security against which the mortgagee
sh<?.uld proceed on failure of repayment of the loan.
In support of this submission, the case of Jarbandhan
v. Badri Narain . and Musammat Ram Rati (4) is
cited. In that case the defendant borrowed 1noney
from the plaintiff's father and executed a bond
3:gr-eeing to repay it on a certain date. 'there was a:
further condition that if the money was not repaid .
on that date, the creditor could enter into possession :
of the defendaut's cultivatory holding as a usufructuary.:
mortgagee. The latter part of the agreement was.,
co.J;ltrary to the provisions of the Loca..l Tenancy Act ;
and was therefore found to be illegal. It. was held.~
that the who.le contract . was not :illegal and the~!
. . . . . i
(1) A.I.R. (1922) All. p. 13t : (3) A.I.R. i9Jl) Oudh p. 30::>. j
~2) A.I.R. (1926) Ran. p. 186. : _.(4) 45 I.L.R . AH. p. 621. .;
 1955] BURMA LAW REPORTS. 215

plaintiff was entitled to a simple money decree H.C.

1955
notwithstanding the invalidity of the condition. This
decision re-affirmed a former decision in the case of ~u~~1: -

Mohammed Shakur v. Gopi (1). The case of r~.~.L.

Mohammad KhaliluK Rahman Khan v. Mohammad RAMANATHAN
Mu~ammililu/lah Khan (2) was also cited by the CHETTJAR.

respondent to show that if a contract contains distinct u AuNG

KHINE, J.
covenants some of which are legal and others illegal,
the Court can enforce the legal ones unless the
covenants are not separable. It was also held that
there is nothing in the terms of sections 23 and 24 of
the Contract Act to prohibit the creditor from
enforcing that part of the agreement which the
borrower was competent.to make.
The Rangoon Ruling purports to follow the
decision in Har Prasad Tewari v. Sheo Gobind
Tewari (3) and therefore it does not need to be
discussed. The Allahabad case just quoted was a
suit under section 68 of the Transfer of Property Act
to recover the mortgaged money on the basis of a
personal covenant.; the transaction involved was a
usufructuary mortgage of an occupancy holding. The
Court helc:l that the entire contract of the mortgage
was void under section 24 of the Contract Act and
therefore the personal covenant also fell along with
the contract of mortgage. The primary object in the
case was _tq put the mortgagee in possession and the
right to recover the loan according to the terms of
contract accrued only on failure to deliver possession.
Thus it was agreed that it was only on the failure of
~he promisor to do an illegal act that the promisee
C6uld proceed to take action on the personal covenant.
The present .case can be distinguished from the
. case
i
of
f:(q,r Prasad Tewari v. Sheo Gobind Tewari
. .. .

. -(1) .35 Indi!ln Cases J' 202. . (2} 33 A. I.~ \11. p. 466.
~ (.3) A ..t.R. (1922) All..p.:.l 34.
216. BURMA LAW REPORTS. [1955
H. C. (3) in that the personal covenant to repay the money
1955
was the first agreement and to proceed against the
~~u~::xZ: mortgaged property was the second agreement. I
R.~.L . consider the second agreen1ent to be the subsidiary
R.UrANAT HAN agreement to be enforced only i~ the first agree1nent

~
C HETTIAR. was not f u Ifilled . The fi rst const"derat1on,
. t h at IS
. t he
~H~~~~J. loan made, by the respondent was a good one. An
agr~ement to repay a good loan should be clearly
enforceable, and I take the view that this good
consideration must remain unaffected by the disability
in the second part of the contract imposed by the
Transfer of Immovable Property (Restriction) Act.
Here I may quote the observations of Sulaiman, J.;
in the case of Dip Natian Singh v. Nageshar Prasad
and another (1) with which I most respectfuily a~ree :
. " In most. cases of simple mortgage there is a primary
undertaking to repay the loan and there is a collateral security
offered for the realisation of the amount in case of failure of
payment. If the security offered includes non-transferable
properties there is nothing to prevent the creditor from giving
up the security altog~ther ~nd claiming repayment of his money
~y .enforcement of the personal covenant. Such a peFsonal
c~venant is by n~ me~ns illegal."

The transfer of immovable property in this case

was purported to be made under the Tra:nsfer of
Property
. .
Act and if such transfer ' by the operation
of the Transfer of Immovable Property. (Restriction)
Act, was void at its inception then there was really
no mortgage and the transaction merely amountedto
one of coritract between the parties.as evidenced by
. a.registered document and that ..contract would .be_.
~governed . by . the provisions of Co.ntract Act. As it
in
. s~ands, . this case, the.appellant ca~not be deemed
_to have br<:>ken. his contract so far as t~e Tr~risfer of :
. P~oper.~y is concer~ed be.cause of his failure to perform .-
(1). '52 LL.R. All: p. 338 ~ ..
 1955j BURMA LAvV REP0.RTS. 217

that ~hich he was by law not permitted to perform. H.C.

The promise given with regard to the second portion
of the agreement bJ..r which the security was offered HcsSAIN
s. SABl R
was beyond the performance of the appellant to t .

perforn1 and therefo1;e the disability in the contract RA~~~~~~AN

was from his side. On the other hand the considera- CHETTIAI~.
tion passing from the respondent of hard cash was KHJNE, u AuNGJ.
good and that in itself was -not unlawful. I therefore
do not see any reason why that part of the contract,
which is the primary one and which is legal, cannot
be enforced. I have striven to show that the facts ..
in this case are just the opposite of the Allahabad
case cited, in that the illegal part of the agreement in
this case was. to be enforced only on the failure of
the I awful promtse made.
For the reasons stated above, the respondent's
clai1n to recover the loan with interest due must
prevail and I am . clearly of the opinion that in
allowing his . Claim, it would not be defeating the
. provisions of any law.
As the 1nortgage was initially void, the loan
cannot be held to be a secured loan. Therefore the
interest allowed at the rate of 18 per cent per annum
in the case 'is in order.
This appeal fails and it ts accordingly dismissed
with costs.
 218 BURMA LAW REPORTS. [1955

APPELLATE CIVIL
Before U PlloOim, I .

H.C.
1955 u JONE BIN (APPELLANT)
Apl. 22. v.
N . B. SEN GUPTA (RESPONDENT).*

Execu.tionof decrees of original and of appellate Courts-Time fi~edf01' Pay-

11te1tl of 11'1011ey.

It is a fundamental principle of law that when the appellate Co ar t makes

a decree, the decree of the original Court is m.erged i " that of the superior
Court and.it is the latter decree alone that can be executed .
It is also set.t led law that when a time is fixed for payment by the decree
of the lower Court, and the decree is affirmed on appeal, the decrt'ecapable
of execution is that of the appellate Court.
SaiyidJowal Hussain v. Gendan Si11glt and others, A.I.R. (1926) (P.C.) 93 ;
S.M. Hashim v. J. A. Martin. 4 Ran. 562 ; R'am Chamn v, Lakht" Kant, (1871)
7 B L.R. 704 ; Chanshyam ial v. Ram Narai1~, 1)909) I.L.R. Vol. 31, All.
379; Ratnaswami Kone v. Sundara Kone, (1907) I.L.R. Vol. 31, Mad. 28 ;
SatwaJi Balajiray Desflamukh v. Sakharlal Atmaramshet (1914} I.L.R. Vol.
39, Born. 175 ; Dar1~bhai Mithabhai v. Bec/J~r Desai, (1925) Born. 270; Satwaji
BalaJira'[, Des!Iamukh v . Sakharl'al Atmaramsllet, (19241 I.L.R 4 Pat. 378 ;
Panchu .S ahu v. Muhammed Yt~kub and otlie1s, 11Q27) A.I.R. Pat. 345; Noor
Ali C!towdhuri v. Koni Mea, and others, !18801 l.L.R l3 Cal. 13 ; Nom
Naratn '\ittgft v. Lala Rogltunath. Sahai, (lSC))J I.L.R. 2Z Cal. 467; Rup Chaud
a1td others v. Shamsh-ul-lahan, (1889) I.L.R. 11 All. 467; Maung Chit
i;: Maung and one v. Daw Saw . Civil Hevision No. 56 of 1952 of High Court,
' approved_

Nyunt Han for the appellant.

::-

1vl essrs. Sen and Sen for the respondent.

U PHo OHN, J.-In Civil Regular No.7 of 1951

of .the Court of Subdivisional Judge, Bassein, U lone
Bin, appellant-plaintiff, got a decr-ee for ~jectinent
* Civil 2nd Appeal No. 27 of 1953, against-the order of the Distrkt Court
of Bassein in Civil Appeal No. 2 of 1953, dated .the 5th March 1953, arising
out of the order of the Subciivis'ionaJ Court of. Eassein in . .Ch-i! Execution
;N'o. 9 of 1951, dated the 31st January.t953. .
..
rf 1955 ] BURMA LAW REPORTS. 219

r
{ aga~nst N. B. Sen Gupta, respondent-defendant, in the H.C.
1955
following terms:-
U JONE ~IN
"The.re will be a decree for ejectment with costs. How- N. B.v.SEN
ever, under section 14 (1), Urban Rent Control Act, the GuPTA.
defendant is ordered to pay the arrears of rent of Rs. 3,330 in u P;;QHN,
five equal instalments monthly, each instalment being payable r.
on or before the lOth day of each. month with effect from the
month of August, 1951. So long as the defendant complies
with this order execution of the decree, if sought by the
plaintiff, shall be stayed. If this condition is complied with
by the defendant, the decree shall be rescinded."

Being dissatisfied with the judgment and decree the

respondent appealed to the District Court, Bassein,
(Civil Appeal No. 21 of 1951). On the lOth Septem-
ber 1951 the District Court confirmed the decree for
ejectment but n1odified the amount of arrears of rent.
On the 22nd September 1951 the appellant took
out an execution to recover costs and possession of
the premises in dispute. (Civil Execution No. 9 of
1951).
On the 5th November 1951 the respondent came
up to High Court for second appeal but his appeal
was dismissed. (Civil Second Appeal No. 87 of 1951).
On the 14th January 1953 the Subdivisional
Court, Bassein, directed the issue of warrant of eject-
ment on the application made by the appellant.
Before the warrant of ejectment could be executed,
the respondent applied to the Subdivisional Court
stating that he would p ay the arrears of rent in five .
equal inste;llments as " ordered by High Court. '' At
the same time he prayed that the warrant of ejec~
ment might be withdrawn. His ap.plication was,
ho~ever, thrown out by the Sub divisional Judge on
the ground that he had broken the conditions of the
o~iginal ~ecree by making default in payments of
.three instalments.
 220 BURMA LAW REPORTS. [ 1955
H.C. Against this order the respondent appealed tol the
1955
District Court.
U,,Jo~~ BiN Relying on the rulings in Saiyid Jowal H ussa in v.
NG~P;A~N Gendan Singh and others (1) and S. !Ill. Hashim v.
u P-o J. A. Martin (2) the learned Distorict Judge held that
Ht HN, as the original decree had been superseded by the
decree of High Court and as the execution proceeding
was stayed by the appellate Courts during the
pendency of appeals, the respondent had not broken
any condition ; consequently he set aside the order of
the Subdivisional Court and directed it to fix "fresh
dates for payments of arrears of rent and in the
meantin1e to give the respondent peaceful possession
of the pre1nises.''
Hence, the present appeaL
It is a fundamental principle of law that when the
appellate Court makes a decree, the decree of the
original Court is merged in that of the superior Court
and it. is the latter decree alone that can be executed.
I may here recall the lucid exposition given by
Mr. Justice Dwarkanath Mitter in Ram Clzaran v.
Lakhi Kant (3.) of the true effect of the disposal of an
appeal uppn the decree of the primary Court :
" If the decree of the lower Court is reversed b.y the
appellate Court, it is absolutely dead and gone ; if, on the
other band, it is affirmed by the appellate Court, it is equally
dead and gone, though in a different way, namely, by being
merged in the decree of the superior .Court which takes i.t s
place for all intents and purposes ; both the decrees cannot
exist simul taneousl y."
' It is also settled law that when a time is fixed for
payment by the . decree of the ).ower Court ~nd the
decree~~ affirmed on appeal, th~ decree capable of
~xecution is the appellate decree. Buf the High
Courts' in India. . have no consistent' dec~ions as
(1) A.I.R. {1926) IP.C.) 93. .. (,)'4 Ran ..S62, .
(3t (187 J) 7 B ..L.R~ 704". ,. -

. ;
1955] BURMA LAW RE,P ORTS. 221

to whether the time for the performance of the con- H.C.

1955
dition is extended or not. As far as I know there is
no reported decision on the matter in Burma. c Jo~E B..r:-J
In Chanshyam Lal v. Ran1 Narain (1) the plaintiff N.GB. SEN
. UPTA
claimed the principal sum of money due on a bond --
with interest at 30 per cent per annum and the decree u PH? OHN
of the Court of first instance directed that if the
defendant deposited the money within three months
from the date of its decree, he would be liable to pay
interest at the rate of 12 per cent per annum and would
be exempted from further liability. This decree was
affirn1ed by the High Court and finally by the Privy
Council but the time for payment was not extended.
It was held that the defendant having n1ade
.default -in the payment of the money within the time
allowed by the first Court, he could not claim exemp-
tion from further liability and ,could not be allowed
to pay t4e principal. with interest at the rate of 12 .
per cent from the date of the Privy Council decree.
In Ramaswami Kone v. Sundara Kone (2) the
decree of the lower Court provided that " on the
plaintiff's paying into Court the balance of considera-
~ion, Rs. 10, within a month from this date" defendant
should execute a sale deed of the said land. The
money .was not paid within the 111onth and the
defendant preferred an appeal after the expiry of the
month~ The appellate Court Simply confirmed the
decree :o f the lower Court and dismissed the appeal.
Within a .m onth of the appellate decree the plaintiff
deposited Rs; 10 ; and applied for execution of the
-decree;
It .was held that he was not entitled to execute
the decree, ashe had not made payment within the
time fi:Xed by the original decree and as the appellate
decree
.. . cannot under . the circumstances
~ . . be .held
.. to
(1) (19.;9,. I.L.R. Vol. 31, AIL 379. . (2}_-.(.19.07) I.L.R. Vol. 31; Mad. 28,
222 BURMA LAW REPORTS. [1955

H ~;
1 9 have enlarged the time fixed by the original decree.
-:> The appellate decree simply confirming the original
u. Jo~~ B I N decree cannot be read as giving the plaintiff one
NG~PT~EN tnonth from the date of the decision on appeal. Such
- an extension can be claimed Qllly if expressly or
U PHO OHN,
J. tmp 1'te dly given
. by t h e. appe 11ate C ourt.
In Satwaji Balajiray Deshamukh v. Sakharlal
Atrnaramshet (1) the plaintiff brought a suit to recover
possession of property as purchaser from defendants
1-6 and to redeem the n1ortgage of defendant 7. The
trial Court having dismissed the suit, the appellate
Court, on plaintiff's appeal, passed a decree directing.
the plaintiff to recover possession on payment to
defendants 1-6 of a certain sun1 within six months
from the date of its decree and then to redeem defen-
dant 7, and on plaintiff's failure to pay within six
months from the date of the decree he should forfeit
. his right . to recover possession.. All parties being
dissatisfied with the decree, the plaintiff preferred a
second appeal to the High Court and two sets of
defendants filed separate sets of cross-objections.
The High Court confirmed the decree and, within six
months of the date of the High Court's decree the
plaintiff deposited in Court the amount payable by him
and applied for execution. The original Court and
lower appellate Court upheld the contention of defen-
dant No. 7 that the plaintift' not ha~ing complied
.with the terms of the decree of the first .appellate
Court, his. right to recover possession in execution was:
forfeited.
On second appeal by the plaintiff' the Bombay
. High Court ~ld that-
'~ the t~ine for executing a decree nisi for
pos~essiori ran from the date of the High
Court's decree confirming the decree of
'(1). (19l4)
.. J.L.R.
. Vol. 39,, Born.
. 17.5.
 1955 J BURMA LAVv REPORTS. 223
the lower Court, for what was to be H.c.
1955
looked at and Interpreted was the decree -
of the final appellate Court. " u Jo~~ B~.N:
This decision was followed in Darubhai Atfitha- NG~~;:~N
bhai v. Bechar Desai (1). u P-o
HO HN,
In Lata Gobind Prasad v. Lala Jugdip Sahay (2) J.
the Patna High Court preferred to follow the decision
of the Bombay High Court in Satwaji Balajiray
Deshamukh v. Sakharlal Atmaramshet (3) but dissen-
ted from the Madras High Court. In a later decision
it dissented from the Bombay High Court and followed
the decision of the Madras High Court. It is the
case of Panchu Sahu v. Muhammed Yakub and
others (4) wherein it was held that where a decree
declares the right of decree-holder to get possession
of property subject to the right of the judgment-debtor
to redeen1 the property by payment of a certain sum
of money within six months from the date of .trial
Court's decree and the judgn1ent of the original Court
was confirmed on appeal by the judgment-debtor, the
time for the deposit of this amount by the judgment-
debtor must be computed from the date of. the trial
.Court's decree.
In Noor Ali Chowdhuri v. Koni Meah and
others (5) the decree under section 52, Bengal Act
VIII of 1869 provided that unless the amount due
was paid within 15 days from the date thereof, the
tenant (judgment-debtor) would be liable to ejectment.
That decree was confirmed in appeal, no steps to
execute it..having been taken in the meantime. The
tenant paid the decretal amount into Court within 15
days qf the appellate decree.
It was h~ld that. inasmt~ch as the appellate decree
must be presumed to incorporafe the terms of the
UH1925) Born. 270. (3) (1914) I .L.R. Vol. 39, Born. 175.
.(2} (1924) I.L. K 4 Pat. 378. (4)(1927) A. I . R. Pat. 345.
. (5)(1_886) I.L.R. .13Cal. .13.
224- BURMA LAW REPORTS. [1955
H.C. original decree, and was the only decree of which
1955
execution could be taken, the tenant (judgment-debtor)
n Jo~~ BIN having paid the decretal amount within 15 days of
NG~~T~EN that decree was protected from ejectment.
U PI:!~ OHN,
This decision was followed in Nom N arain Singh
J. v. Lala Raghunath Sahai (1) and Rup Chand and
others v. Shamsh-ul-Jahan (2).
It would thus appear that the balance of judicial
opinion is in favour of the view that when tim:e is
fixed by the decree of the lower Court for payment
of the money and the decree is affirmed in appeal,
time runs fron1 the date of the decree of the appellate
Court. This view is more logical and reasonable;
and the sa.me view was held by U San Maung, J., in
Maung Chit Maung and one v. Daw Saw (3).
The original decree under consideration fixed the
dates for payments of arrears of rent not with reference
to its date of decree but as the 1Oth of each month
with effect fron1 August 1951. This decree is " dead
and gone ", as it had been superseded by the High
Court's decree. There was no express direction in
the original decree that execution should proceed in
default of payment and this Court has also seizin of
the matter. So, in the circumstances of the case and
on the principle of law adduced above, fresh dates
will have to be te-fixed under section 148 of the Code
of Civil P:rocedure and it will be done in a n1oment.
To avoid difficulty and complication this fixation of
dates for payments should be d9ne at the time of the
: disposal of appeals against the original decree.
I will now consider whether the respondent had
broken the ,condition imposed. under .section 14 (1) of
the Urban Rent Control Act, . 194S. . It. was argued
by the learned counsel for. the app~liatit that the
(l)(Hl95) fL .R.12 Cal. 467. " ::. . .. (2){1889) .I.L.R~ 11 -All. 67.
(3) Civti Revision" No.' ~6 ~fi9S.2 of High Court. . '
;.,_r6s<Paa4ooit f.tad C0:n:H>lJ14tted ;tile b peach of co.ndl1!:id.Qs ,~ ..('.
between the .c.fai>6 on wh4il the exeoution w as -ta:'lc,q ~
' t A ~t. .;.l t L 'At. 4<1..~ .-J~ ~ " U t}ON~- !l3IN
01:1 Ml\!1.- ''t'l'.l:e -u.a e on w .u .tvu u.t.IIC OPctcr was .-g1ven l.,-:,Y tt ~:

the High C.ourt to stay the ,e*eoution. This was &~ Nc;~:f 11

the tht-d1Qg ~~f the S.llb.d:ivi,si$.!11'~l.Judge. OnJh~, JOth .0Fi)-~,eHN

September 1951 the appeal ag~inat J~ .origin.a?1!ieP..K~e J.;
was dismissed by the District Court, Bassein. On the
18th September 1951 the respondent submitted to the
Subdivisional Court that he would go up to High
CourtJor second appeal and thereupon the Court
gave hiln time till 20th October 1951 to get stay order.
On the 22nd September 1951 the appellant took out
the execution. But on the 20th October 1951 the
SubdivisionalJudge again gave the respondent another
adjournment to produce the stay order. On the 30th
October 1951 he recorded in his case diary that he
would pass order in the execution case if the respon-
dent could not produce the stay order by the 12th
November 195.1. In the circumstances it must be
taken that between the 18th September 1951 and 12th
November 1951 the execution case was stayed by the
Subdivisional Judge himself. On the 7th November
1951 .order to stay the execution was given by the
High Court and it was received by the Subdivisional
Court on the lOth November 1951.
So, there was no breach of condition even if the
time for _the performance of the condition was not
extended by the supersession of the original decree
by the District Court's decree.
The result is that the order of the District Court,
Bassein, setting aside the order of the .Subdivisional
Judge .for issue of warrant of ejectment is hereby
confirmed. But the vrespondent is directed to pay the
arrears of rent due by five monthly equal instalments,
each instalment. being . payable on or before the lOth
day of the_.month with e:ffect from May 1955. In

' )5
226 lHJRiMA LAW REPORTS. [19.5-5
H.fs default of payment of any instaln1ent, the appellant
::_ may. proceed with his execution. But if the respon- .
..u Jo~~ BxN dent complies with the condition, the decree for
N. B. SEN
GUPTA.
ejectment shall be discharged.

u Pao OHN, In the circumstances eaclr party shall bear its

J. own costs in this Court.
 a955J BURMA LAW .-1ffiPORTS. 227

.
'
APPELLATE CIVIL.
Befo.-e t San Maung! l.

u LWIN (APPELLANT) If,C.

1955
v.. ~
Mar . Z.
MAUNG TIN AUNG (RESPONDENT).*

Rarlition on Re-marriage of survi'!'ing Parent by children of the first

marriage.
Held : It is only on the re-marriage of the surviving parent and not
before, that the right of children of the first marriage to claim a partition of
property arises.
They collectively acquire a vested interest in the joint property Of the
marriage to the extent of the deceased parent's share which is -:>ne half.
P. K. A. C. T. Choc~lingam Clzetty v. Yaung Ni and others, 6 L.B.R
170; Maung Po Kitt and two v. Maung Shwe Bya, 1 Ran. 405 ; Maung
Seik Kaung v. Maung Po Nyei11, 1 L.B.R. 23 at 28 ; Maung Shwe Ywet
llnd. others v. Maung Tun Shein, 11 L.B.R. 199; Ma E Mya and another
v. U Pe Lay and others, 3 Ran. 281 at 287 ; Shwe Po v. Ma11ng Bcint
(1914) 8 L .l3.R. 115; Maung Po Kin and otr.e v. Mazmg Tun Yin and two,
4 Ran. 207; Mau1zg Sein Ba v. Marmg Kywc and others, 12 Ran. 55,
referred to.

Tun Maung for the appellant.

1.Vil for the respondent.

U SAN _MAUNG, J.-In Civil R egular Suit No.

61 of 1953 of the Township Court of Pegu, the
plaintiff Maung Tin Aung who is the respon_d ent in
the present appeal sued the defendant.:.appellant
U Lwin for a declaration tliat the house and site in suit
belonged to him and not to his father U N yun. it
would appear that in Civil E~ecution No. 9 of 19~3
* Civil 2nd Appeal Nb. 98 of 1~54, against the -deeree of the Additional
District Court. of Pegu in Civi' Regular Arpeal No. S of 1954, d~te'd . the
26th June 1954 arising out of the Township t..ourt of Pegu in Civil
Regular Suit No'.J.6l of:l95-3; ctated the 29th;March 195..4. .. .. . . .
 fLC.
1955 of the same Court the defendant-appellant U 'twin
u LwJN had in executiq~ Qt ht~ d~<;re~ .against U N yun
v. attached the house 'i:t:rrcr ;its site as the property
.MAUNG TIN
AUNG. of the judgment-d~~tor and an application for
u SAN the removal of attachment had proved fruitlessr
M~~G, J. It is the plaip-~~ff.'~ p~.s~ t~t tqe \louse belonged
to U Nyun and his mother (now deceased}
and that when U Nyufi contemplated a second
marriage he hacl given t~ property .orally to the
plaintiff who was his only son. The learned Judge
~ df the trial court fratned issues as to whether there
was such an oral gift as ~lleged by the plaintiff and
wbether this gift was valid in law in vi~w of section
123 of the Transfer of Property Act. Maung Tiri.
Aung in giving evid~nce s~id that the gift was made
.iP. ~he presence of lugyi,s by liis father. a bout 7 years
ago prior to his second marria-ge. lf Tun. Hlaing
. ' ' '

(P'W 1). and U Po Ohn (PV{ 2) stated that they were

present at 'the .time U N yun tn~cle a .gift of the house
and its site to the plaintiff as he was desiFous of
. eontracting a second marriage. There is no rebutti~g
evidence on this point. However, the learned Judge
of the trial Cqurt held that the provisions of section
123 of the Transfer of Property Act were applicable
and that the gift could only be made by a registered
documynt. On appeal by the p~aintiff Maung Tin
Allng . ~o. the Additiona l bi~ttiet Court of Pegu,
the 'le~rned A4ditional District Judge h~ld tha:t the
tran~actio~ was not really in tht? nature of a gift
-but tha.t it~ was a partition .o f iriheritane whic.h
. could ~- done orally. for tlrls view the learned
Additioria1 b.istrict Judge . relied. upon the -rulings
in .P~ K ..A. C. T. Cho9kqlirtgctm: (:h~tty -v~. Yaung N~
. cin'd'. othrs '( l), and Mau.ng Po Kin and. vWO others '
v. MaungShwe .
B.y't;z . c~). The, Je.a;n ie:d Addition:~.~ ;
' ~ .

(1) 6 L.B.R. 170.

 19.55] BU.R:MA LAW kEPO.lltTS. 2-29
District .JNdg~ aecordingty. lie-versed ~he jt:ldg.ment an<!
-
li.Q
l~S
decree of the t-rial CoUrt and gav.e a decree f0r
e:.L.wr
de.~larati.on as prayed for b~ the plaintiff. Hence tl.
Pd4uf(~ TrN
this second ap~al by tl;te, 4~Je,ndant U Lwin.. AU~~.
O:Q: belilalf of the ap.p.Hant tt is contemded; that U.SA:.N
at the time of the attege'cl transfer of the hottse a.ntl ~~D'NG, J;
site by U N'yuft to his son Mauhg Tin Aung Mt}ung
Tin Aung did not haye "ny rig.ht to claim p~tftron
of the J?rope.fty a;s his ra.thr h~d not yet COIJ,tra,~ted
a second .marri.a.g.e. f'u,rtiaermor~,.
there .is no sRe.~ific
evidence ~n recor<i to sho:W that the second InaffYtlge
which U N yun contemplated at the time of t-he
transfer was in {act contracted. In my opiniq~,
the.se eontenti.Ons must be ~!lowed to prev.ail. Tbe
right of ehildren to claim a p.art;ition of prQperty
~ises only on the re~arriag~ of (he survivi.n~ .{'.ar~nt.
ln this <;onnecti9n the q~cisio~ in the {ollowiqg
cas.es are apposite..
SeJ~ l(_auiJ.g v.. Ma.u.ng Po . }fy,ein (1)
.in Mau_ng_ I

a Bench of the. Chie{ Court of-Lower ];lurm~ has

made this ob~ervation: ..
" It. may not ..he ver~ dear froiD. the D.b..attunathaU now
~~ailal;Jl~ ~~t ~ $.Q.Q. ca~ l~iJP. ~. Qne~fQ\l~tll .s~r~ {fqJP. h.is
f~ther when :{:le liv-es sepa,rat~ly ~nd w.b.en.. the ~at~e( ~Q.e~ n9t
inattY. a3ain. b1,1.t. it .~s ll9t open tq reasonabl~ d.o.ubt t:ba.t wh~lil
it
the father does i;ilarry again the. ~ld.est S.QJi, espec.ially ,he oe
the eidest diiid, ca'ii claim a oiie:foulih share of the generai
]\lint :esta.te Ol. .fifu parents."'
. .
lii Maung Shwe Ywet .and others v. Mau.ng. l'l!:ll
S..hein (2) ~twas held tb,at WbUe- an (luratha $Qll cannot
claim a 6ne-{outth . share .of the. prop.~dy jointl_y
acquire9 .by his parents . mer~ly by. !e.as.o.n. of ~is
mother's death, the r~.:m@.tfia~e of lti.s ia.ther ~lv.~$
linn a . right to chilm the one-fourth share which he
would. not have if his ~ather : did. nOt reo.marry
(1) l L . }j.R, p. 23 at 28 ..
.
(2} Jl L.B.R. p. 199.
230 BURMA LAW REPORTS. [1955
H.Co
1955
In MaE Mya and another v. U Pe Lay and others
(1) Lentaigne, J ., observed . as follows :
U LWIN
v. " As pointed out above the claim which it is alleged
MAUNG'flN
AUNG that Maung Po Min had to one-quarter share on the re-marriage
of his f.ather was not a claim as orasa son arising .on the
uSAN
death of a parent ; but it was the entirely different claim of
MAUNGi J.
the eldest son to a quarter share on the re-marriage of the
surviving parent. . .
The right to claim such quarter share on the re-marriage
of the surviving parent was decided in the case of Maung Seik
Kaung v. Maung Po Nyein (2) and was' recognised by a Full
Bench of the late Chief Court in the case of Shwe Po v. Maung
Bein (3)."

Iri _A-faung Po Kin and one v. Maung Tun Yin .and

two (4) a Bench of the late High Court held. that,
at Burinese Buddhist Law, the eldest child, on the
re..;marriage of the surviviilg p arents,.becomes entitle~
to a quarter share in the joint estate of the parents; if
he or she has not already taken a share as orasi:J and
thafon'su~h re:..m3:rriage, the young,er chiidren become
entitlecr c6llectively to a q uarter 'Share of the joint
estate of the parents.
in.Maung Sein Ba V; Maung Kywe .and others
(5), anotherBench of the lateiHigh Court distinguished
Maung Po Kin's case an(t held that according to
)3utmese .!cirston1ary law on .
the re-111arri~ge of .a
surviying parent the children {)f ;tl,le ,former marriage
acquire ...a vested interest in the joint property ..of
that marri~ge to the extent of the deceased par~nt's
share~ . .. < . '

., 'The effett ot an tli~se decisibnf'is that it is ~nly .

ori .th'e re-marriage of the.'surviving 'p~tent, and 'not.
b~foie, thai the children 'Of the fir~t itiarriage cQllec-
Hvely acq:uire a ye~ted j 1nt~rest iii the ]oi~t
~ ~ : ... ; . .: . ~ . ' ~ ~ .. .

; .. (1) 3 Ran. p:
2St at-2~m ' (3) (l914) .8 L.itR. p.115 .
.(2) 1 . L.B.R . .p. Z3. at 28. . -.. . ' (4). 4 Ran. p. 207.
. . (5) 12 Ran. p. ss. .
~:. 1955] BURMA t AW REPORTS. :231
~-

property of the marriage to the extent of the deceased H.C.

1955
parent's share which is one-half.
U L w1~
Therefore, the transa ction by which the plaintiff- v.
MA UNG TI~
respondent Maung Tin Aung made a claim to the A t:NG.
ownership of the house and site in suit is an oral gift u SA~
and not an oral partition on the re-marriage of his MA UNG, J.
father, and as such invalid in law in the absence of a
register:ed document. For these reasons I would set
~side th~ judgment and decree of the Additional
District Court of Pegu in Civil Regular Appeal No. 5
of 1954 and direct that the judgn1ent and decree of
the trial Court, disn1issing the plaintiff-respondent's
suit be restored with costs. Advocate's fee in this
Court, three gold mohurs.
 APPfiLLATE CltiMINAL..
Befor.e V Au1tg T-ha Gy,aw,
&
l.

H.C.
1955
U ttJ MAW
May 18.

Ptnat Cd~'tf,.ss. 40'8; 4'11-Sef.'!'tWe of PrJPc'r'ty a'1id tile 1tluh, oJ sa1ne liy pol'ice
to lEomj!lainant~Provis., to s. 5~3 (1),-'Cr,i':tt.ina'l' ProccduM Code-Ab:en'Ce
oJ' feiohl of /he
c.d.si'ence or disp'os,il oj' tlie e.dtibits in tlte case-The
proPh'tyW.di'Sto~M # sf.).l1 witlziu: t:ite jur:i1'i'ttioli of i"';)e M'ag'istrates.::-.
S. 517 (1), Crimznal Procedure Code; , ~~vb.j~ct tb' fi.ttal o-riUn ef fiie
Magistrate. wllether utzder s. 517 or s. 523, Crimmaf Pt'ocedure Code-
Exhibtts though 11ot trodtlcecl l:efore Cott~t, deemed to be produced-
Magistmte'sfull discretiJn of disposal in spzte of the settled law that
proj!Jrty.must be returned to the possessiOte of the terson from whom it
was sei ed. .
The Complainant Goly:m Brothers pr>:::ecuted the Respondents uncler s~. 408
ancl 411 ~ PeMl Code, respectivt:ly in resped of five bales of cotton yarn.
The Police seized the bales from the appli.;ant and nturned them b the
Complainant on execution of a bond under tht: pro,iso to s. 523 (11, Crimiml
Procedure Code.
Ap<Jarentty the exhibits were never p~oduced in Court, nor was there any
mention of their exis~ence or disposal rec )rcied in the proceeding:>.
On acq".JittaJ, the Ma):!istrate ordered the return of the exhibit:; to the
applicant from whose possession they were first ~eized by the po'ice atld th s
order was set aside by the Sessions Judge.
The applicmt filed an appiication in revi.s ion.
field: (i) The return of the' exhibits to the Complainant on the execution .,f
a bqnd is subject to the final orders of the Magistrate, whether under s. 517 or
523, CrimiaalProcedure Code;
(ii) the property so dis )osed of by police did not cease to l!le within the
jurisdicti<Jn of the Ma)!istrate who had taken cognizance ofthe property. The
term of s. St7 Ill of th~ Code w,)uld not exclude such property from the .
Magistrate's. jurisdic.hon;
(iii) the Magistrate to whom a report t:nder s. 523 of the Code is made is
the only person c:>mpetent to m:\ke SllCh order <I.S he thinks. fit regarding
. the dispos.1l of the. pToperty seized by the Police. Maung HaJZ . Thdn v,
The Com:nissioter of Police, Rangoo11, (1950), B.L.R. 45, followed;
"Crlninal.R~vision No. 223 (BJ of 1934, being Review of the order of
U Tun Tin, S~ssions J :1dge of Hanthaw:tddy, dated the 2td day of November
l954 :Pass~d in, hfs Criminal i{evision Case No. 70 of 1954. ,

' ,
19SS] RURMA LAW REFQRTS'. 2'33
(iv) w he re the seizure was r e;1orted by the P olice to the M.aiistr.ale and H.C.
will\,fte knowred'g~ so derivc:d from sucli report, the Magistrate proceeded to 1955
tt y tire offenei m ~~spect O'l tiie s<hd: pllop~l'ty if eoutd b'e sn1d{ that' thl'ot.ighout
the tri-al-the said property w.a'S' pl'o<fueed hcf.o re it ~r was within its c .tstody v. ~
through the intermediary of t he <;.:omptainant w ho had taken passession of the S. P URAN
propc!tty under the bl)ntf ~ei::'tite<f by nim : S r NGff, A:ND
ANOTHER.
~~)~ a MagjstmKe li::rs . ful11 drStrtetion: in. tl:ie matter of' dl!sposal though
ordinarily the pm per.ty seized must be r etur.ned. to the par.ty from whom i t was
sei zed~
He i:; not hound to r eturn it to a party wh:> apparently has n o right or tHie
to same;
V. K. Va i vapuri Chett i v . Sinniall Cltetty , A.I.R. (1931) Mad. 17 ; Hoke
.Cwan v. A'rmg Wi~n Ta1l, (19-!9) B.L.R. 647, referred to:!.
1h~ ap\J.tita'hl ha:i no d-~ ht or tltle to the pi<-O;>erty. T he application in
t:evision dismissed.

T. P. Wan for the applicant.

G . N . Banerji and Ba
Kyaw (Government Advocate),
f~r the resp Jndents.

. U A UNG THA GvA w., J._This is an application

in revisi0n against the. order of the learned Sessions
J:udg~ of Hanthawaddy passed in his Ctiminal
:Revisi:o n No-: 70 of 1954 by whioh he. had set aside
a1:1 order. Of ~ije 8th Additional Magistrate; Rangoon,
wh(}, in. his Cr~i.na:l Reg.u lar Trial No~ 200 of 1951 ,
directea
. at the .conGlusion of. the trial the retur n af
' '

the ~xfl1bits, namely, five bales ef: cott<:u t yarn; te the

app1j.cant in wh~s~ possessi"<Dn the were first seized
by the police. The ac~used . person . in the crimi~al
~rial was ~u:r:an .Si~gh who, aocording to the
fi~ding of the learneq Magistr~te had p~chased the
~aid five ba~es _of Ct?tton yarn fro~ ~h~ ~ivii Supplies
Department with his own ~~ney for t~e P.UU>OSe of
carrying OUt. cet:tain_ experiments on .behaif. Of the
complainant Golyan Br~thers Burma Um~ted.
The _cotton yar:p. of the yarie} boug~t by . the
accused Pl;lran Si~gb. was. not (~d. to~ SUftabl~ for
the purpos~. of bejng ~p~v~r~d tO: cotton , thread in
 BURMA LAW REPORTS . [1955

~9~5 the manufacture of which the complainant Go~yan

u Lu MAw Brothers were interested and Puran Singh accordingly
v. with the assistance of one Han Sein, now an inmate
S. PUllAN
SIN GH A Nn of the Mental Hospital at Tadagale, proposed to
A NoTHER. dispose of the five bales of cotton.,yarn before making
u AuNG any further purchase of cotton yarn of the suitable
THA G Y AW 1
J quality.
Han Sein accordingly contacted the present
applicant who runs the Ludu Pweyone business
engaged in buying and selling comn1odities on behalf
of its clients. The five bundles of cotton yarn were
left in deposit with the applicant but not before an
advance of K 6,200 had been taken from the
applicant by means of a cheque drawn on the
applicanfs bank. About half-an-hou:r la:ter, -after
Puran Singh and Han Sein had left the applicant's
premises, leaving behind the five bales of cotton yarn,
the . police; on a rep0rt lodged by one Ko Ko Lay,
an. Office ~ssistant in Golyan Biothers Bunria -L td;,
arrive-d on the applicant's premises and seized the five
bundles of cotton yarn as property involved hi the
commission of the offence of criminal breach of. trust.- -
Both Purail Singh and Han Sein were sent up for
trial, one charged under sectibn 408 of the Penal
Code and -the other for receiving stolen: property
under -section 411 of the Code. In the course of the
trial Han Seinwent- out of his mind and has since
been under tre'a tment-iii the Mental Hospital. The
criminal-proceedings, ho\vever, continued and at the
conclusion of the trial P uran Singh was -acquitted of
the . charge brought against hiin _and the learned-
Ma gistiate 'ordered the :return of the exhibits in the
case to - the applicant as being the patty in whose
possession tltey were ,first -seized by the police.
. Now~ the:se exhibits were said to have ---beeri
o-r
ha.nded ,o~er' _- by: the.:p,o lice. in -the . course- theif

. . . : . .. .
 1955] BURMA LAW REPORTS. 23$

inve~tigation to the custody of Golyan Brothers, the H.C.

1955
complainant in the case. Except for the order
U Lt: MAW
passed on 3rd December 1953 for the return of the ~.~ .

exhibits to Ludu Pweyone, the numerous diary entries S. PURAN

SINGH ANiil
recording the progr6ss of the trial made no mention A!\OTHER.

Of the fact of the existence or disposal of the exhibits U Au:ow

THA GYA\V~
in the case. The seizure of the exhibits would J.
appear to have been reported to the Magistrate on
23rd May 1951, the day following their seizure,. in
the customary form (page 61 of the record) as
required under section 523 0) of the Code of
Criminal Procedure and apparently acting under the
proviso to this section, the police officer had arranged
the return of the exhibit cotton yarn to the complainant
company on the execution of a bond which, at the
moment, is not traceable. Such an arrang~ment is,
however, subject to the final orders of the Magistrate
as set out in the proviso to the section. Although
no order appears to have been passed by the
Magistrate as required under the proviso, the property
so disposed of by the police .did not cease to be
within the jurisdiction of the Magistra.te, who, in
the present case not only had c0gnizance of . the
existence of the property but also at the .end of the
proceedings passed his orders for its disposal. The
terms of section . 517 (1) of the Code .would not
exclude such property from the Magistrate's jur~sdic
tion; for this section inve.sts him with the power of
passing ord.ers in regard to. the disposal of " any
property or. qocument pr9duced before it or in .its
custody, or regardi.ng which any offence appears to
haYe been committed or which has been used in the
cqmmlssjon of any!.o~e.n.ce." .
. . The .arrang~ment .w ade by 'the. police in regard
to the disposal of the property in respect of which an
offence is alleged to have 11~en committed. can never
 I:I,..c. be regarded as tinal for b<>th tmde.t s.ectiw.IS; 517 and
19$5
523 of the Code . the power remaim.s: vested in the
Y L..!v M~A W
"'' v .. Magistrate regarding their final d.isprO.sal.
S,. P~'RAi!ll
:Sr~G~ kND The Magistrate to whotn. a te}jotll uader section
.A'Nii>;'llFLER,
523 of the Code is,tnade is the~nly. p~rseb c<'HripetMt
U. AUI~-G
'TI!J~. 6Y.A:W,
to 1inak:e S.uch order as he thh~..ks filt teg~Fding the
]. d.ispe:M)al of pro;p:erty seiz<ed . by t:he po.tice. [See
Matl"ng /Jan, '!thiein v.. The Co'trl''nU..sSionet Of Polite,
Rangoon (1}:]. Sine the l~:arned Magistrate h ad
judsclliction to pass his oroers regarding the disposal
of tfi:;e ptop.e rty seized lf>y the police, it is im.m atetial
l!rtllrle.r wll11ich S'eetion he is deemed to have exercised
b.;is: powers in the present case. Where the seizure
was reported by the po.Iice to tire Magisttate and
with the knowledge so derived from such ref)0>rt, the
Magis-tra~e pr0eed~ to try the offenee in respect M'
t he said }ltop.e tty it could be said that throughout the
fri:al thesaid ptnperty was prti>du:e~d t;.~f'Ote it ot was
wi.thi:tt its :custody through. the inwrmedi~r-~ of the
~u:mpl ainant wb.o had takerl possess1,o.n o f th-e l)top~rfy
Ut1tldet th-e. b:ond exeeured by hiin.
The qnestitln whieh next d:tlls fot comideratibfi
is th~ legality of the interferehce tx~cised by the
tearned sessrons J uage With the ~der -Of .tiisp~siH
p,a,s sed by the learned Ma~isUate. It. is clear ta\V
ttuu if -no offeli'c~ i~ folllld to have bee-fi cenunitted
. in respect bf the ptoptrty:tei~ed l}y the petiee such
ptoperty mwst, in the ()rdinaty oouse; J)e returned t<O
the patty .in Whose po~session it was seiEed ; bui U1i~
.@ee:s not illean thit.t. the Magi~tate .rs pawefles to
~xef'ti~ . .:nis tii~oretioh in the mAtter. He is .ftOt
Mtu1tt to: rettihi .tl\e . ~roperty to a pafty \~fl~
apparently has no fight or tide to the ~a~~ ~r
ex'liftll)h~; , a: persbn t>ft wh&n\ tfte prepetty was
. :. . . . . .. . .. . ..
. " . .. '/ . ~ . . ~. .. - ' .. ~ .. . . { . .. . . . . .
 .BUR.MA LAW REPORTS.

foisted. [See V. K. Vaivapuri Chetti v. Sinniah H .C.

1955
Cherty (1), Lakshmana Dorai and others v. Arunagira
t: Lu MAV.._.
Chetty (2) and floke G-wan v. A-UI:zg Wun Tan (3)]. v.
Now, the question is whether the learned s. Pl'RAN
~J.l\GH AND
Magistrate had, in passing his order as to the ANOTHBR.

disposal of the exhibits in this case, delivered the U AUNG

property to somebody who was nrot,ohviGusly entitled THAGYAW..
J.
to its possession. The apt1licant had the five bales
of cotton yarn in his custody for a matter of half-an-
hour. A.cc0rding to his evidence it was .n<lJ.t he who
was buying the cotton yarn from Puran Singh. It
was Han Sein who was proposin-g to make the
purchase and the sum of K 6,200 given to Han Sein
as advance was in respect of the transaction which
was being entered into between Puran Singh and
Han Sein. The applicant was in the position of a
gratuitous ~ailee in whose favour no right would
appear to have been created in respect of the articles
bailed. The applicant had the cotton yarn in his
custody on Han Sein's behalf and since the .temporary
loan ' the advance he gave
. to Han Sein was cancelled
by him on the seizure of the articles by the police~
he o~vi_ously cannot have any right or title to the
property.
In thes~ circumstances the learned SessionsJudge
would appear to be correct in interfering with the
discretion of the learned Magistrate over the matter
of the disposal of th.e exhibits in this ca~e. The
application in revision will stand dismissed.

'(J) A.i:R .. (1931) Mad~ 17~ . . (2) .4..i,R. (!932} 'Mad~ 4<Js
(3J(1949)'B:L.1~.6'4i. . . .. .. .
 .BURMA LAW REPORTS. [1955

APPELLATE CIVIL .
.,
Before U San Matmg , J.

H.C. u SAN HLAING AND ONE (APPELLANTS)

--
1955
Feb, IS. v.
THE BANK OF CHETINAD (RESPONDENT).*

Accmal of i1ztercst (War-Time Adjustment) Act, 1947, s. 13- Money Lenders-

Must l:e read together.
In enacti ng the Accru:\1 of Interest (War-Time Adjustment) Act, 1947,
the Legislature wa~ fu lly aware of the p rovisions of s. J3 of the Mor:ey
Lenders Act, 1945, and lhlt if the provisions of s. 3 of the 1947 Act were not
meant to bt' ~ead with those llf the Money Lenders Act this intention woaid
have been made clear in the latter enactment. As it is both the enactments
must be read together.
U Paw Tun Aung & Co. v. Aldtd Razuk, (1948) B.L R. 182 ; P. D. Patel
audone v M ssrs. T!te Ce1dral Bauk of Indi a Ltd., ;ivil Revision N o. 73
of 194.~ of the High Court of JlHiicature at Rango,m, :referred to.

Mya Tin for the appellants.

Basu for the respondent.

U _SAN MAUNG, J.-ln Civil Regular Suit No. 5

of 1951 of the Subdivisional Court of Pagan, the
plaintiff-respondent Bank of Chetinad by its Assistant
Manager Chelliah Pillay sued the defendant-appellants
U San Hlaing and Daw Yu for the recovery o~ Rs.
1,134 due on the promissory-note in suit. The
learned Judge .of the Subdivisionai Court applying
the provisions of section 3 of the Accrual of Interest
(War~Time Adjustntent) Act, 1947, gave a d~cree for
only :Rs. 416-14-0. On appeal to the .Dist,r ict Court
.of M)ri.ngyan, the lea!ned Dis'trict Judge held. d~at the .
Civil ~nd ~P{>e~.l No.
128 of 195e. against . the pe!;ree of the -District .
.. court;'Myingyari, in
Civii Appeal No, 5 of -1952.. .:

.. .
1955] BURMA LAW REPORTS. 239.

prov1s1ons of section 3 of the aforesaid Act were H.C.

1955
inapplicable to the case under consideration and
u SAN ..
accordingly gave a decree to the plaintiff as prayed HLAJ'NG
for by him. Hence this appeal by the defendant- AND ONE
fl,
appellants. 9
THE BANK
OF
The facts giving rise to the case are these. On CHETINAD.
the 5th of December 1941, the defendants executed a U SAN
promissory-note, Exhibit 1, in favour of the plaintiff's MAUNG , J
Bank. The loan was for a sum of Rs. 2,000 with
interest. at 1t per cent per mensem. During the
first three months of January, February and March
1942, the defendants paid up Rs. 90. Thereafter the
plaintiff's firm evacuated to India on or about the 19th
March 1942, owing to the outbreak of the II World
War. On the termination of the War in Burma
Chelliah Pillay, the Assistant Manage:r of the
plaintiff's Bank returned to Burma in 1946 and was
able to obtain a pa.yment of Rs. 400 on the 25th
January 1947 towards the interest due on the pro-note.
A new pro-note, Exhibit A, was executed, the
plaintiff having agreed to accept a sum of Rs. 400
only on account of the interest then due which
amounted to Rs. 1,850. After this settlement of
accounts and execution of the n~w pro-note the
Accrual of Interest (War-Time Adjustment) Act,
1947 was published and it came into force on the
25th February 194?.
The question which arose for consideration was
whether the payment of Rs. 490 as interest due for
the period covered by section 3 of this Act should
be taken into ~ccount in giving a decree on the suit
promissory-note. The learned Judge of the Subdivi-
sional Court considered that this amount should be
.deducted from the principal of Rs. 2,000 due on the
.first pro-note, Exhibit 1, that the principal ~ue on
Exhibit A was therefore Rs. 1,513 only a:n.d that
 H:C. oa]culatecl on this basi-s, the amount stifl -remair,ing
!9-5~

.., :{1 ~SAN

to be paid o:a the p ro-note, Exh~b'it A, was otily R-s~
RL""ING 416-14-0. rhe learned District Jud8e, o,n the oHter
i..IN'D ONE
'V.
hand, relying on the abservations of '~U Thaung Sein,.
THE .:. fhNK J. in U Paw Tun Aung & Co. v. Abdul R_azak (1 ),
O'F
GH'E'l'tl\'iAD. considered {hat the payment of Rs. 490 beil'l:g a
U SAN settled transaction taking place before ,rbe Accrual
MAUNG, J.
of Interest (War-Time Adjustment) Act, 1947 came
into force could not be taken into consideration 'i n
the computation of the amount due on the pro-note in
suit, Exhibit A. In Paw Tun Aung"s case (1 supra) U
Thaung Sein,J. had held that Accrual of Interest (War-
Titne Adjustment) Act, 1947, applies only t<i).?~utstand
ing debts and not to settled transactions that are
settled ~before the Act came into force. This
undoubtedly is good law and I may add that my
decision in P. D . .Patel and one v. Messrs. The
Central Bank of India Ltd. (2) was to the same effect.
In Patel'-scase (2) where a suit was filed by M-r. 'P atel
against the Central 'Bank of India Ltd. for
the refund of the interest paid on a loan which
had already been settled, I held that section 3 of
the Act :ctid not contemplate refund of interest
already paid on loans which had been completely
settled before the 25th February 1947 when the Act
caine into force.
However, the question now Jor consideration
is whether in a case like the present the provisions
of section 13 of the . Moi1ey Lenders' Act, 1945
can :bt? read together :with those o f section J' of
the Accrual of IntereSt (War-Tirrie Adjustment)
Ac~, 1947, s~ as
to enable .the Court to reopen
any agreement purporting to close previo~-s
.". (ii tl9~8) ij,T:..;R . : 18i. . ~ . . ..... . ..
1 ~) Gj.Yi\~~ev~ip,t:t No.- ; 7.~ of Wt~ d t;he f1.jgA Q~u.r.t. of .Jq~kaJu,r,e ~t
. Rangoon. . . .
1955] HURMA .LAW RE.PORTS. 241

deali!lgs and to create new obligations for the H.C.

1955
purpose of giving the debtor relief in respect of
interest due for the period mentioned in section U SAN
H LAtl"G
3 of the latter Act. It is an undisputed fact AND O ~E
v.
that Exhibit A was executed in respect of the THE BANK
OF
sum due on the previous promissory-note, C HKTINA D.
Exhibit 1, and that before Exhibit A was executed U SAN
there was an agreement whereby the intere~t due on M A UNG, J.
Exhibit l was settled by payment of Rs. 490. The
argument agtl:inst the reopening of the agreen1ent
under the provisions of section 13 of the Money
Lenders Act, 1945 is that the Accrual of Interest
(War-Tim~ Adjustment) Act, 1947 was never in
contemplation at the time of the enactment of the
Money ~enders Act and that section 13 of the Act
should therefore be applie.d only when prima facie
a debtor has been made liable in respect of interest
in excess of 12 per cent per annum in the case of
secured loan and 18 per cent per annum in-the case of
unsecured Joan. However, I am of the opinion that
in enacting the Accrual of Interest (War-Time Adjust-
ment) Act, 1947, the legislature was fully aware of the
provisions of section 13 of the Money Lenders Act,
1945 and that if the provisions of section 3 of the
1941 Act were not meant to be read with those of the
Money Lender,s Act this intention would have been
made clear in the latter enactment. As it is both the
enactments must be read together and I see no
difficulty w hatsoever i:t;t applying the provisions of
section 3 of the Accrual of Interest (War-Time
Adjustment) Ac~, 1947 to those of section 13 of the
Money Lenders Act, !945.
For these reasons I hold that the learned Judge
of the Subdivision~! Court was right in the decision
arrived a t by him that the sum of- Rs. 487 should be
deducted fr.om the principal of Rs. 2,000 due on the
242 BURMA LAW REPORTS. [1955

H.C. first pro~note, Exhibit l, and that on that basis the

1955
u SAN
amount due to the plaintiff-respondents on the
HLAING pronote, Exhibit A, was only Rs. 416-14-0. In the
AND 8NE
v.
result, the appeal succeeds, the judgment and decree
THE BANK of the District Court of Myingyan appealed against
OF
CfiETINA l). are set aside and those of the tiial Court are restored
USAN
with costs throughout. Advocate's fees in this Court
MAUNG, J five gold tnohurs.
 1955] 3llR!\1A LAW REPORTS . 243

APPELLATE CIVIL.
Before U Sau ltfauuf!, J.

u THA ZAN AND TWO OTHERS (APPELLANTS) H.C.

1955
v.
Mar. 2.
u TUN ZAN AND ONE (RESPONDENTS).*

Tratz.~fer of Property Act, s. 54-Sale of immot:eable property below Rs. 100

in value-Real delivery of possession antl not conslruclive must be
given- if registered, 1zecessity for registration mt1st be deternn'ned by tfle
v al-ue of the frrofrelty uwolvcd a11d uot by consideration mentioned i1~
the de ed.
'When a person already in possession of immoveable property worth
below Rs. 100 purchased lliat property, the Acts and declarations of delivery
of pOSj:P.Ssion must he unequivoc:ll and for tJ1e purpose: of s. 54 of the
Transfer of Property Act, the delivery must be real and that some sort o~
Ctnstructi ve possession is not sufficient.
Mt. Sarja and another v. Mt. Jutsi and a11olher, A.I.R. (1?26) Nag. 93;
Biswanat It Prasad v. C!tandra Narayatt Cltowdltury, 48 Cal. 509-48 Indian
Appeals 127, referred.
The necessity for r egistration n.ust be determined hy the value of llie
property involved and not by the amount mentioned in the deed.
Gopal Das v. Mst. Sal!i1za Bibi 16 LAh. 177, followed .
A point of L~w arising from facts admitted or proved beyond controversy,
th,>ugh not r ais-ed e ither in the trial Court or in the lower appellate Court
can be raised for the first time in second appeal.

Hla Tun Pru for ~he appellants.

Kyin Htone for the respondents.

U SAN MAUNG, J.-In Civil Regular suit No.

5 of 1953 of the Township Court of Kyaikto the
plaintiff-r~spondents U Tun Zan and Daw Hla May
sued the defendant-appellants U Tha Zan,. Ma Hla
Kywe a1,1d M a Sein Shwe for their ejectment from the
garden .Ianq in suit. The plaintiffs' case is that they
* Civi.l 2nctAppeal No. 95 of 1953, against t~e decree of the (U. TuN TIN)
District .Court of Thaton in Civil Ap~al 1\o. 11 of 19.53, ar~sing out
-of.Civii .Regttlar No. Sof 19.S3 of the Township Court of Kyaikto.
r
~
. <
 BURMA LAW REPORtS. [1955

H.c.
19--
are the owners of the suit land having
purchased the
-J~ same on the 29th December, 1951, by a registred deed
u A;:~\~::-; of sale from the owners U Po Thiin (PW 1) and his
o 'rHgHs
v.
wife Ma Ah Ma and that the defendants had
u TUN ZAN trespassed on the suit land and had erected a building
AND )NE. thereon. The first and second defendants U Tha Zan
uSA~
l\1 .\UNG, J.
and Ma Hla l(ywe by their written statement
contended that the suit land belonged to the estate
of the late U Tun and Daw Shwe Thaw, a Bunnese
Buddhist couple, and as such devolved upon their five
surviving sons, na111ely U Chet (DW 2), U Kala, the
defendant U Tha Zan, U Po Mya and U Po Thin
(PW I) on their death. They also contended that
the suit land being undivided inherited property in
which the co-owners had a right of pre-etnption, the
sale by U Po Thin conveyed no title to the plaintiffs.
They also contended that they could not be ejected as
they were in possession of the land as co-owner~
thereof. The third defendant Ma Sein Shwe stated
that she was there with the leave and licence of the
first and second defendants and as such not a
necesssary party to the suit. The plaintiffs in
reply said that they had acquired a valid title from
U Po Thin who had purchased the land from his
. mother Daw Shwe Thaw for a sum of Rs. 95 a few
months before her death, Daw Shwe Thaw being the
sole owner of the land on the death of her husband
UTun.
On the pleadings the trial Court Jramed
issues . as to whether the suit land was purchased
for Rs. 600 by the plaintiffs frotn U Po Thin and his'.
wife, whethe~ it was an undivided inherited property'
of the defendants and .U Po Thin and whether
the land was in .fact. sold by Daw Sliwe Thaw to
her son U Po .Thin. shortly before her death~ .
Qn the . evidence on r~cord . the trial Court came,,
 1955] BURMA LAW REPORTS. 245

to the conclusion that there were valid sales by Daw ik~}

Shwe Thaw to U Po Thin and by U Po Thin to the -
. 'ff
p 1atntl s. I d' 1 d d h I . "ff ' . u
t accor 1ng y ecree t e p mntl s suit At-:o Tw o
THA ZAN

With COStS. OTHERS

v.
On appeal to tlie District Court of Thaton by the u T u N ZA N
defendant-appellants the only point urged in favour AN n o NE.
U SAN
of the appeal was that the sale of the land by i\IAuNa, 1.
Daw Shwe Thaw to U Po Thin not being accom-
panied by delivery of possession was invalid in law.
The learned District Judge after a review of the
evidence bearing on the subject came to the conclusion
that U Po Thin was living with his mother Daw
Shwe Thaw at the time of the alleged transaction
but that there had been such. appropriate declara-
tions and acts as to convert the possession of
U Po Thin as a licensee of his mother to that
of a vendee. He accordingly dismissed the
, defendant-appellants' appeal with costs.
In this seco.qd appeal by the defendants I only
wish to point o-ut that although it is possible for a
person in possession of property to purchase that
property by a delivery of possession the acts and
declarations must be so unequivocal as to make the
delivery a real one. In this connection it is only
necessary to cite the case of 1Wt. Sarja and another
v. Mt. Julsi and another (1) where it was held
following the observations of their Lordships of the
Privy Council in Biswanath Prasad v. Chandra
Narayan Chowdhury (2) that for the purposes of
section 54 of the Transfer of Property Act there must
be a real delivery of property and that some sort of
constructive possession is not sufficient.
However, in this appeal t~ere is something more
fundamental in favour of the appellants. Although
it is not pleaded in the . written statement, there are
(J) A.I.R (1926) Nag. p.93. . (2) 4S Cal. 509-:18 Indian Appeals 127:.
246 BURMA LAW REPORTS. [1955
..
fbs~ facts admitted or proved beyond controversy that the
,. land in suit was worth about Rs. 600 at the time of the
U TH A ZAN
AND Two a11egeo; sa1e by t h e mother to the son. U Po Thin
oTHERs
v.
(PW 1) fro In whom the plaintiff themselves derived
u TuN ZAN their title admitted that at the time of the sale of the
ANDoNE. land to him it was worth Rs. 600. l(o Chan E
M~u~~~ 1 . (PW 4), another witness cited by the plaintiffs, stated
that it was worth Rs. 600 to Rs. 700. The defence
witnesses gave the value as Rs. 400 to Rs. 500. U
Than Nyunt (DW 1), the headmtan of Kyaikto
Village, who wrote the deed of sale and was also
present at its execution, said it was at his advice and
with a view to evade the law relating to registration
of documents that the value of the land was mentioned
as Rs. 95 in the sale deed.
Now, section 54 of the Transfer of Property Act
enacts that in the case of tangible immoveable
property of a value less than one hundred rupees the
transfer n1ay be made either by a registered instrument
or by delivery of the property and that in all other
cases it can only be made by a _registered
instrument. In the case of Gop a! Das v. lv.lst.
Sa kina Bibi (1) it was held that the necessity for
registration must be determined by the value of the
property involved and not by the amount or value of
the consideration stated in the deed. No doubt in
the generality of cases the price mentioned in a deed
of sale will bear a .close relation to the value of the
property sold. However, in a special case like the
. present where the transaction is between mother and ,
son and a property really worth R~. 500 orR~. 600 is
. :purported to be sold for only Rs. 95 probably with a :
. view to evade ~he requirements of the Transfer of ~
Property Act. the price mentioned in the instrumept .;; ~

should be .ignored and the real value of the :property ~

~~--------------------------------~--- ~
(1) 16. Lah. 177 ~~
19551 BURMA LAW REPORTS. 247
should be assessed with a view to consider whether II .C.
1955
the sale should or should not have been made only
UT H A ZAr-..
by a registered instrument. A:'\D T \\'0
Although this point has not been raised either in OTIH:HS
~'.
the trial Courl or in" the lower appellate Court, it is a U T t: :\ ZAN
A:>I D O N E .
point of law arising from facts which have been
U SAN
admitted or proved beyond controversy. There is MAUNG, J,
ample authority for the proposition that such a point
of law can be raised for the first time in second
appeal.
In the result the appeal succeeds, the judgment
and decree of the trial Court for the ejectment of the
defendant-appellants are set aside and the plaintiff's
suit is dismissed with costs throughout, Advocate's fees
in this Court three gold mohurs.
248 BURMA LAW REPORTS. [1955

APPELLATE CRIMINAL.
Before U Cit an T1m Aung, C .J.

H.C. UNION OF BURMA (APPLICANT)

1955
v.
May 3.
MAUNG KY A NYO (RESPONDENT). *
Criminal Procedure Code, s. 439-Exercise of First Class Power by S ecottd
Class Ma.gistralc appointed Subdivisional Magistrate 1111der s. 13,
Criminal Procedure Code-S. 36, Crinu'nal Proccdttre Code--Ex:Pla11ation
to s. 397, C.rimi1~p.l Proculme Code.
The Respondent was sentenced to one year's rigorous Imprisonment
under sub-s. 6 of s. 123, Criminal Procedure Code for failure to give
security for good beh~ viour by the Suhdivisional Magistrate, who was only
. a Second Class Power Magistrate, appointed Subdivisional Magistrate under
s. 13, Criminal Procedure Code.
Can he exercise the powers of a :First Class Magistrate by virtue Of such
appointment?
Held: The moment the President appoints . a Second Class Power
Magistrate to be a Subdivisional Magistrate under s. 13 of the Criminal
Procedure Code. such Magistrate gets all the ordinary powers of that office
conferred by s. 36 of the Criminal Procedure Code and specified in the Third
Schedule.
Held further: Such ptmishment imposed under subs. 6 Of s.123, Criminal
Procedure Code is more preventive than punitive and is not a sentence of
. imprisonment.

U Chit (Government Advocate) for the applicant.

NiL_i.or the respondent.

U CHAN TUN AUNG, C;J. Under section 439 i

of the Criminal Procedure Code this Cqurt has suo f
motu opened a revision proceeding t~ consider thej
legality or otherwise of the sentence .of one year's ~
rigorous imprisonment imposed.:upon the Tespondend
. . . I
.. * Crfrninal Revisio~ No ..l(l8-A of 1954 being Review ofthe orde. the j
Subdiv~sional Magistrate of Syriam., dat~d the 16th day of March 1954 pass~i
in his Criminal Mi~~- 'lYial No, 2 of 19$'1-,
 1955] BURMA LAW REPORTS. 251

APPELLATE CIVIL.

H.C.
A. MUTHIA CHETTIAR (APPELLANT) 1955
v. Oct. 12.

M. R. ARUMUGAN CHETTIAR ~RESPONDENT).*

Appeal under s. 104, steb-s.r t,;Clattse (g)-Ss. 9J al/d Y.'l, Civil 1'1 ocedure Code--
Award of ComPettsation-Order XXXVIII, Rule 1, Civil Procedure Code,
Provisio1M mandatory-Arrest before Judgwent-Order 43, Nule 1, Civil
Procedure Code, appeal agaitzst order passed ttttctcr Order 38, Rnlc 1,
s. 11, Civil Procedure Code, Res judicata- Binding force of consent decrees.
The applicant sued the Respondent tor recovery of a sum of K 5,610 and
llad him arrested before judgment under Order XXXVIII, Ru!P. 1, Civil
Procedure Code.
The Respondent offered to furnish security and accordingly he w:.s
released from custody on his furnishing security.
The suit was eventually decreed on 4th September 1950.
On 6th September 1950, the Respondent filed an application under s. 95,
Civil Procedure Code for compensation from the applicant on lhe ground lhat
the arrest before judgment was applied for on insufficient grourfcls.
The trial Court awarded K 300 to the Respondent as compensation.
On appeal, it was contended by the applicant that the Hespondcnt's
application under s. 95, Civil Procedure Code was not maintainable in law
as he furnished security for his due appearance. in Court instead of showing
cause wby such secur ity should not be furnished by him.
Held: Upholding the contention, '.hat the Respondent not only failed to
~how cause why lte should uot furtish Mcurity f or his due aPP~ftrauce in
:ourt but also off~re.d security for such ap11earance. Thtrdore, the question
l'lhether or not he had been arrested on sufficeint ground is res Judicata and
he same Court, namely, the 2nd J udge of the City Civil Court cannot make
tn order un~er s. 95 for the payment of compensation on the ground th~t the
lrrest of the Respondent had been applied for on insufficient grounds.
The Order Of the trial Court set aside.
Rama Mudati v. Marappa Goundan, A. l.R. (1934) Mad. 638; Ram [{.ir')Jal
Rup Kuari, 6 All. (P:c.) ~1 A.I. 37 ; Hook v. Admintstrator-General of
rettgal an,d others, 48 i.A. 187 ~ [ It Kasarabada Vc~tkatac!talapathi Rap v,
;adiraJtt VcnkatappaY,a and another, 55 Mad. 495, referred to.
For the .bincHng force of consent ordt.rs, reference is made to !
Ch~I Misc. Appeal No. 26 of 1953, ag~inst.the order of the ?nd J~idge
f City Civil Court Of Rangoon in Chit Misc. Appiication No. 181 =of 1950~
ated the 8th Aprill953.

16-B
252 BURMA LAW REPORTS. [1955

H. C. J(a lidas C ha rul!turi v. Prasanlia Kumar /)as, 47 Cal. 446, a n[.l also
1955 ] a go M a hton v. /(ltirodliar R a lll , 2 Pat. 759: Mrs . L.lll .:. Raj/.:tsftc;re Nara in
Singh, 13. Pat. 86; R attLn'lraitt v. Easud eo, 25 Pat. 595 ; Hoji Bibi \', Mollamed
A. MU THI .\ J au1ad [(horasamy and six others , Ci v. 1st Appeal No. 9 1 of 195:?,rc:(crrcd to
C H E'fTIAR
''
M. R ARU-
MUGA N B. K. Sen, Advocate, for the app.ellant.
Ctu:TTIAR.

P. N. Ghosh , Advocate, for the respondent.

U SAN MAUNG, J.-This is an appeal under

clause (g) of ,sub-section 1 of section 104 of the
Civil Procedure Code against the order of the 2nd
Judge of the City Civil Court, Rangoon, dated the
8th of April 1953, awarding a compensation of
Rs. 300 with costs under section 95 of the Civil
Procedure Code to the respondent M. R . Aru1nugan
Chettiar for alleged wrongful arrest. The circmn-
stances giving rise to the order appealed agajnst are
these :
In Civil Regular Suit No. 312 of 1948 of the
City Civil Court, Rangoon, the present appellant
A. Muthia Chettiar sued the respondent M. R. Arun1:u-
gan Chettiar for the recovery of a sum of Rs. 5,610
alleged to be due to him on settletnent of accounts
following a dissolution of partnership. During the
pendency of the suit; the plaintiff filed an application
supported by affidavits.for the arrest of the defendant
M. R . Arumugan Chettiar on the ground that .the
defendant was about to leave .B.urma under circum-
stances affording reasonable probability that .he (the
plaintiff) would thereby be ;o bstructed or delayed :in
the . execution of. the .decree which might be passed
against the defendant. This _application was made.
under the ;p rovisions :of O~der XXXVIII, Rule.: l of .
the Civil Procedure . Code. The plaintiff' .in , his .
affidavit' stated inter alia that . the defend~nt was ,
..about to leave Burma by. the next available .steamer: .
 1955] BO R MA LAVv' REPORTS. 253
sailing fromRangoon to M adras ~ or by air, that he had H.C.
1955
a pass port'":!-~d a permit for the purpose and had
A . M U'l'HIA,.
made arrange1nents already for leaving Burma~ and C HETTIAR
that to the best of his information the defendant v.
l\{. R. ARu-
had transferred his business and stocks and had
u M U GA N
CHET'l'IAR.
collected his outstandings so that his assurance that
he would be back in Burma soon, could not be believed. U SAN
M AU NG, J.
S. S. Solamalai, who also gave an affidavit in support
of the plaintiff's application, stated that he had been
informed by the defendant that a pwssport and a
permit had already been obtained to enable him to go
back to his home in India and that to the best of his
information the defendant had transferred or was
about to transfer his business and stock-in-trade so
that he was not likely to return once he left Burma.
The affidavit of another person, S. Sangalin Thevar,
was however of little consequence. On the strength
of these affidavits, the 2nd Judge of the City Civil
Court (U Shu Maung) who was then trying the
plaintiff's suit issued a warrant for the arrest of the
defendant M. R . Arumugan Chettiar. The defendant
was brought before the Court under arrest on the 7th
March 1948 and on that day he filed a petition in which
he stated, inter alia that he had a good defence to
the suit filed against him by the plaintiff, that he had
not made any arrangements whatsoe:ver to go to India
and he had not even applied for a passport or an
immigration pern1it. However, he did not file any
countei~affidavits to controvert the statements con-
. tained in the affidavits filed by A. Muthia Chettiar
and S. S. Solamalai. . On the contrary, he offered to
furnish. security for his due appearance in Court.
Secuti~y. was duly !urnished the next day and he was
. accordingly released fron1 custody. Subsequently,
after. a protr~cted.. h earing, the suit against him was

~ qecreed . on the 4th September 1950. The appeal

~
 254 BURMA LAW REPORTS. [1955
H.C.
1955
against the judgment and decree was practically
dismissed by this Court on the 6th November 1951
., A. M UTHJA
CHET"f!AI~ in Civil First Appeal No. 69 of 1950.
'!1.
1\1. R. ARU -
On the 6th September 1950, i.e. two days after
MtrOAN the judgment of the City Civil Court was passed
.
CHETTIAH.
against him, the defendant M. R. Arumugan Ch~ttiar
U SAN
MAUNG, J.
filed an application, under section 95 of the Civil
Procedure Code, for con1pensation on the ground
that the plaintiff had applied for his arrest before
judgment on insufficient grounds. In the affidavit in
support of his application M. R. Aru1nugan Chettiar
stated that the allegations made by the plaintiff in
the application for the issue of his warrant of arrest
were false to the plaintiff's knowledge, that he (the
defendant) was carrying on a well establish~'d
business at Rangoon at the relevant time and that
he had not transferred his business nor had collected
all his outstandings, that the allegations that he was
leaving Burma with the intention of defeating or
. delaying the execution of the decree which might be
passed against him was false, that even during the
pendency of the suit he had paid income-tax in the
sum of .Rs. 4,784-14-0 for the period for which he and
the plaintiff were partners and Rs. 955 as income-tax
for the subsequent year and that because of the
warrant of arrest which had been issued at the
instance of the plaintiff he had been kept in custody
from the 4th April 1948 till the lOth April 1948.
Tht:! defendant therefore claimed. Rs. 1,000 as com-
pensation from the plaintiff. The plaintiff in his :;
written objection denied that the allegations made !
py him in his application for . the issue of .warrant :
of arrest, under Order . XXXVIII, .Rule 1, were ~
{alse and pointed out that the defendap.t .was _under
arrest from 8 a.m. on the 7th April '1948 till 3 p.m. on
the 8th April 1948 only: that he had not s}iown any
. 1955] BURMA LAW REPORTS. 255
cat1se why he should not have been arrested before H.C.
1955
judgment, but on the contrary offered to _furnish
security for his due appearance in Court. In these A.CHETTIAR MuTH~A
circumstances, the plaintiff contended that he was M, R.v.ARU-
not liable to pay any compensation to the MuoAN
df{fendant. CIIETTIAR

In the enquiry which followed , the defendant M~u:~~NJ.

M. R. Arumugan Chettiar had to admit that he
intended to leave Burma on or before the 20th of
April 1948 and that he had inserted a notice in a
vernacular paper of the 8th April 1948 requesting all
his creditors to meet him before he left Rangoon.
-He, hoWever, contended that his stock-in-trade at
that time was Rs. 11,000, and that he had never
tried to dispose of them or to collect his outstandings as
alleged by the plaintiff. One witness Kaliappan,
who said that he had been working under M. R.
Arumugan Chettiar at his shop in Phayre Street, gave
supporting evidence. The plaintiff A. Muthia
:Cqettiar, in giving evidence, said that M. R. Arumugan
Chettiar had himself told him that he had obtained
a passport and permit and that his allegations that
-the .defendant had transferred his business and was
~ollecting his outstandings were due to infor11:1ation
given to him by Solamalai and Sangalin. These two
persons he s~id could not be cited as witnesses as
-they_ were away in India. After the enquiry,. , the
-learned _2nd Judge_of the City Civil Cour~ (U Shwe
.Bin) aw~rded Rs, 300 to the defendant -M~ R.
Aru~ugan Chettiar as compensation under section
95 of the ~ivil Procedure Code on the group.d that
:the plai1:1tiff had _obtained . the warrant of arrest o~
. fa'lse
. . averments
. ' to the
. . effect-
. .that the defendant had
.transferred -his business and-stocks and collected his
so
-(;iits.taridings. t hat ther-e w.as little likelihood..-of...hls
i<

returning. to Burma. .:~-.

1~
256 BURMA LAw REPORTS. [195S
H.C. In this appeal by the plaintiff A. Muthia Chettiar
1955
A. MUTIHA
CHETTIAR
.
it is contended ' firstly, that it was established that
the defendant in fact intended to leave Burma at the
v.
M. It ARU time of his arrest and that the plaintiff's allegations
MUGAN
CHETTIAR.
that the defendant was not likely .-to return to Burma,
was made to the best of his information and belief;
U SAN
~AUNG, J. secondly, that the defendant's application under
section 95 of the Civil Procedure Code was not
maintainable as he furnished security for his due
appearance in Court instead of showing cause why
such a security should not be furnished by him. The
ruling of Beasley, C.J., in Rama Mudali v. 1\1.arappa
Goundan (1) was cited in support of this contention.
There the learned Chief Justice observed that where
an attachment before judgment was ordered by the
Court under Order 38, Rule 5 of the Civil Procedure
Code and the property was attached an application
for compensation could not be entertained unless tP.e
order of attachment was set aside.
In our . opinion, this second contention must be
allowed. t<f prevail.
Now, section 94 of the Civil Procedure Code in
so far as is relevant to this case enacts that in :order
to prevent the ends of justice from being defeated the
Court may, if it is so prescribed, issue a warrant to
arrest the defendant and bring him before the Court
to show cause why he should not give security for
his 'appearance and if he fails to comply with a ny
order for security commit him to the civil prison.
Section 95 prescribes, inter alia, . that where i.n any
suit in which an arrest has been . effected under
section 94 it appears to the Court that the arrest was
applied for on insuffiCient grounds the defendant
may a pply t6 the Court, and the Couit ~ay upon
..
(1) A.I..It (1934) Mad. 638.

. :
 1955] BURMA LAW REPORTS. 257

such. application award against the plaintiff com- H.C.

1955
pensation not exceeding Rs. 1,000. .
A. M UTH!A
The provision relating to the arrest before CHETTIAR
v.
judgment is contained in Order XXXVIII, Rule 1 of M . R. A!{t:-
the Civil Procedur~ Code, which says that if the MIJG~~
CHE1'T!AR.
Court is satisfied that the defendant is about to leave
u SAN
Burma under circumstances affording reasonable MAVNG, J.
probability that the plaintiff will or may thereby be
obstructed or delayed in the execution of any decree
that may be passed against the defendant in the suit
it may issue a warrant to arrest the defendant and
bring him before the Court to show cause why he
should not furnish security for his appearance.
Order XXXVIII, Rule 2 makes it mandatory upon
the Court to order the defendant either to deposit
in Court n1oney or other property sufficient to
answer the claim against him or to furnish security
for his due appearance on the defendant failing to show
.cause why he should not furnish security for his due
.appe.arance. The order of the Court is appealable
under Order XLIII, Rule 1 of the Civil Procedure
code.
In the case under appeal, the defendant M. R.
Arumugan Chettiar not only failed to show cause
why he should not furnish security for his due
appearance in Court but also offered security for
such appearance. Therefore, the question whether
or not he had been arrested for sufficient cause is
res judicata an_d the same Court, namely, the 2nd
Judge of the Cify Civil Court cannot make an order
under section 95 for the payment of comp~nsation
on the ground that the arrest of the defendant had
been ~pplied for on insufficient grounds. In Ram
Kirpal v. Rup Kua~i (1) where a Court having
jurisdiction decided in the cop~~e of execution
(i) 6 All. (P.C.) io9-1J A.I. 37.

17 .
258 BURMA LAW REPORTS. [195S
H.C. proceedings that the decree to be executed awarded
1955
mesne profits according to its true construction, -their
A. MUTH!A
" CHETTIAR Lords'hips of the Privy Council held that this decision
v. had become final between the parties not under
1V1. R. ARU
li!UGAN
CHETTIAR.
section 13 of Act X of 1877 t>ut upon the general
principles of law as an interlocutory order in the suit.
U SAN
.MAUNG, ]. This principle was affirmed in a subsequent decision
in Hook v. Administrator-General of Bengal and
others (1) where it was pointed out that section 11 of
the Civil Procedure Code, 1908, was not exhaustive
of the circutnstances in which an issue is res judicata.
In Kasarabada Venkatachalapathi Rap v. Gadiraju
Venkatappayya and another (2) a Bench of the
Madras High Court observed:
" Orders passed in the course of execution proceedings
adjudicating on the rights of the parti~s are res judicata and
could not be called in question by the parties or their
representatives. When once the said orders become final. that
effect could not be sought to be avoided by making allegations
that the previous decisions were wrong on the merits because
full facts were not placed before the Court or that all available
evidence was not let in on the former occasion ; see Ram
Kirpal v. Rup Kuari (3); i\1ungul Pershad Dichit v. Grija Kant
Lahiri (4) and Raja of Ramnad v. Velusami Tevar (5)."
As regards the binding force of consent orders, the
observations in Kalidas Chaudhuri v. Prasanna
Kumar Das (6) seem apposite. In Jago Mahton v.
Khirodhar Ram (7) where the judgment-debtor
object~d to the execution of tht: decree on the ground
that the application was barred .by limitation and the
objection was dismissed in default of the judgment-
debtor ~t was held that the latter was not entitled
in a subsequent application for . execution to object
that the .previous application was time-barred..
(1) 48 I.A. J87. (4) I.L.R. 8 Cal. 51 (P.C.).
(2) S5 Mad .495, (S) L.R. 48 I.A, 45.
..
{3) 6 All._(:P.C.) 269-11 .I.A. 37. (6) 47
. Cal. 446.
(7) 2 Pat. 759.

.. ..
 BURMA LAW REPORTS. 259
T,he decisions in !vlrs. La// v. Rajkishore 1Varain H.C.
1955
Singh 0) and R amnarain v. Basudeo (2) were to
A MuTHIA
the same effect. CHETT IA
In Haji Bibi v .l\rtohamed Jawad Khorasam y and M. R. ARU-
six others (3) where, certain persons who were not MUGAN
CHETTIA.R.
parties to the suit for the administration of an esta te
were ordered to be added as parties in the appeal on u SAN
M AUN G, J.
the ground that they were necessary parties to such a
suit, it was held that some of the parties to the appeal
who failed to appear to contest the application were
debarred from re-agitating the matter at a later stage
of the proceedings on the principles of res judicata
as enunciated in Ram Kirpal v. R up Kuari (4) and
H ook v. Administrator-General of Bengal and others
(5).
Bearing these authorities in mind , we hold that the
application of the defendant M. R. . Arumugan
Chettiar under section 95 of the Civil Procedure Code
is not maintainable in law.
In the result, the appeal succeeds. The or~er of
the learned 2nd Judge of the City Civil Court appealed
against is set aside with costs. Advocate's fees three
gold mo~urs.
U CHAN TUN AUNG, C..J._I agree.

(1) 13 Pat. 86. (3) Civ. 1st." ~ppeal No. 91 of 1952.

(2) 25 Pat . 595. . (4) 6 All. {P.C.) 269-11 I.A. 37.
(5) 48 I.A:187.
260 BURMA LAW REPORTS. [19SS

APPELLATE CRIMINAL.
Before U Cl1an Ttm Autzg, C.l.

H. C. AH TANG (APPLICANT)
1955
v.
June 28.
I. SHAR KYAUNG HOE
2. LEE EE TUCK . ... L R *
3. NGAW HOE LAN (a) ; ( ESPONDENTS) ..
MAUNG KYIN WAN. j
ApjJlic.1iio1 under s. 523, Cri mi11al Procedure Code, before Magistrate hacl
taken cognizance of the case-Omtssion b,l' police to make a report a.~
con!emtla tc:d by s. 523 (1)- E1lquiry by Magis/rate at t h e instance of
Prhate p.uties and 110 1 of lhe police-Ss. 516-A, 517-Proceedings though
irregular not illegal or w i thout jurisdiction.
A first i nfonn:ltion report under s. 420, Penal Code was lodged agai1;st
one Loo ~hein Whet for fraudulently obtaining 1,000 tins Of coconut oil from
T ye Seng & Co. by posing himself as a respresentative of Nam Ch.)llng Co.
-who also lodged a first information report against him for criminal
misappropriation.
The Police seized the tins of oil from the 1st Respondent Shar Kyaung
Hoe.
N o report was made of the seizure to t he Maghtrate as contemplated by
s. 523 (1), Criminal Procedure Code .
. Whilt! the tins were still with the Police and before the two cases agains t
Loo Shein W het were sent up and before he was arrested, three separate
app]ications:-namely'(l) b y Shar Kyaung Hoe, the 1st Respondent. (2) by
Maung Kyin Wan and Lee Tuck. 2nd and 3rd Respondents, representing Nam
Choung Co., and (3) by Ah Tang respresenting Tye Seng & Co., the
applican t, were filed -before the 5th Addition al Magistrate, Rangoon under
s. 523, Criminat Proceclure Code for the return of the tins of oil.
The Magistrate returned the articles to the 1s t Respondent Shar Kyaung
Hoe on security. .
The applicant filed an application in Revision against the order
. Held : 11) It is only at the instance of the police officer who seized the
property under the circumstances set out in s. 5Z3 (1), Criminal Procedure
Code, ca~ a Magistrate pursue the co.Jrse prescribed therein affeclin~ the
dispos:!.l of the prop~rty seized by the police ; (2) It is the d11ty of the police
officer f eizing the property. to report forthwith to the Magistrate concerned
* Crimina.] Revi.sion No. 21 (B) of 1955, being Review of the Order of the
5th ..Additional Magishate.. of R~n~oon. dated the. 27th day.of January 195~
passed
. in his Criminal. Misc.
. Trial
"
N-6
. . ..156' of 1954.
'
w19J5]
' }
BUR~fA LA\V REPORTS. 261
-
....
\'. i1' is ~he July person competent to or dt.:: t he dispos:ll of such rro p<:rty i H.C .
(3) At the <.:< >n c lu~ion ,,f a judicial proceeding whi..:h is neither an enqu iry 1955
;.:.' r.: a tri:d, namely a proceeding in whicll evidence was !:tken in the tlbstnce
AH TANG
d t !c accused under s. 512 of the Criminal Procedure Code, the order of the v.
' ;\bg i~lra te afiecting the disposal of the property c onnected with the case is 1. SH AI<
.". om: made, 11ot under s. 517 but one under s. 523 ; (4) Even if the Magistrate Kv A UN<
::: h;:s ~assed a n order not on the police report but at the instance of one of the HoE ;
. 2. LEE EE
parties, interested in the possession of the property seized by the police, yet TucK;
sacil :!11 order can be considered to have been made under s. .523 <f the 3. NGAW HOE
Criminal Procedure Code; (5) Unless failure of jus tice has been occasioned LAN. (a)
by the Magistrate's order, the Magistrate's order should not be disturbed M AUNG KYI N
Gllulam Ali v. Emperor, {1945) A.I.R. (32) Lah. 47; U Ba Hlamg v. WAN.
Ballabu.~ Soda11i, (1936-47) 14 Ran. I.L.R. 633 ; Maung Po Tu v. The King,
(lQ38) R. L.R. H3 at 147; Maung flan Thein v. The Commissiouer of Police,
Rangoon and two others, (1950) B.L.R. (S.C.) 45, referred to.

Ba Shun, Advocate, for the applicant.

San Thein and Ba Than, Advocates, for the

respondents.

U CHAN TUN AUNG, C.J._This application in

revision is against the order of the 5th Additional
Magistrate, Rangoon, who has under section 523 of
the Criminal Procedure Code ordered the return of
some tins of coconut oil seized by the Laiunadaw
police in connection with their First Information
Reports No. 530-A and No. 531-A of 1954 to the 1st
respondent Shar Kyaung Hoe on furnishing security
for K 30,000 with two sureties and for production
of the same when called upon to do so by the
Court.
The circumstances. under which the coconut oil
tins were . seized by the police appear to be as
follows: . Tye Seng & Co. of No. 35 Maung Khine
. Street, by their manager Maung Lye Sein, lodged a
:, report at the Lanll_ladaw ~olice Station on the 15th
;Novetnber 1954 (vide First Information Report
~No. 531-.A of 1954) that 1,000 tins of coconut oil
~valued at K 30 96021 wer~ sold for cash payment to
JN.~n Choung_Co. ; that Loo S_h ein Whet said to be .a
262 BURMA LAW REPORTS. [1955

H.c. representative of the said cotnpany came and took

1955
delivery of the said tins and that when the demand
AH TAN G for payment was 1nade, it was found that the tins of
'IJ.
1. SHAR
~~~
~oE;
.
oil had been taken by fraud as there was no one to
be found in th'e Nam Choung Co., the manager of
2
-f':~K~E the said company having absconded with the maney
3. NGAw HoE of the company. The police opened a case under
LAN (a)
MAUNG KYIN section 42
0 f
o the Pena1 Co d e against
. Loo She1n .
WAN. Whet, but Loo Shein Whet was then said to be
uA;~~~zr>;! absconding. Again, on the 14th November 1954,
Maung Kyin Wan (aJ Ngaw Hoe Lan said to be a
partner of Natn Choung Co. laid a First Information
Report at the Lanmadaw Police Station against Loo
Shein Whet for criminal misappropriation of 1,000 tins
of coconut oil bought on credit in the nan1e of the
partnership from Tye Seng & Co. Accused Loo Shein
Whet, who figured as accused in both the cases, was
arrested about the end of December 1954. In the
n1eantime, however, the police had seized the tins of
oil from certain persons who had bought them from
Shar Kyaung Hoe, the first respondent. While the
tins of oil were in the custody of the police and
before the two cases against Loo Shein Whet were
sent up to the Court for trial and before Loo Shein
Whet was apprehended, three separate applications,
namely :_ (1) by Shar Kyaung Hoe; (2) by Ah Tang
representing Tye Seng & Co.; and (3) by Maung
Kyin Wan and Lee Ee Tuck representing N am
Choung Co. were filed before the 5th Additional
Magistrate for the restoration of the .tins of oil to
the respective applicant under section . 523 of the
.C riminal . Procedure Code.. Thus there was a
triangular contest for the ..restoration of t~ns of oil
before the Magistrate. has actuaJly. taken c~gnizance
of the cases ag8:inst Loq Shein WJ:let.. A~ . afor-esaid,
: the learned 5th' Additional Magistrate in his Criminal
J

i955] BURMA LAW REPORTS . 263

Misxellaneous Proceeding No. 156 of 1954 proceeded H,C.

l~J$5
with the enquiry somewhat elaborately and passed
is
an order against which the present revision being AH ;:.AN<~
filed at the instance of Ah Tang alone, impleading KYAl:NG 1. SH AI{

the other rival claimants as respondents. It will HoE;

2, LEE EE
als_p be noticed that when Ah Tang moved this TreK;
Court in revision, he has obtained an ad i nt~rim H~E r:~'{al
order from U Aung Khine ' J ., directing Shar Kvaung
J
MAt:NG K vrN
WAN
Hoe t.o deposit a sum of K 30 000 representing the -
Price of the tins of oil now in cti'spute. uAUNG,
CHAN C.J.
TuN

The Bailiff of the High Court has reported that

the said sum has been deposited with him since the
25th February 1955. It will thus be seen that the
subject n1atter of the claim for restoration, namely
the oil tins is no n1ore in their original state but
'
cash representing their value has been in the custody
of the bailiff of this Court.
In this revision it is contended on behalf of the
petitioner that the proceeding of the l~arned
Magistrate under section 523, Criminal Procedure
Code is illegal and without jurisdiction, in Mlat it was
initiated. on petitions by private parties, and not on
a report by the police concerned. It is further urged
that even if the cases against Loo Shein Whet were
sent up to him ultimately after the arrest of Loo
Shein Whet, the Magistrate cannot pursue the enquiry
under section 523 of the Criminal Procedure Code,
but that he should have stopped it and taken steps
available either under section 516-A, or section 517 of
the Criminal Procedure Code. On the other hand
on behalf of the respondents, .particularly on behalf
of Shar Kyaung .Hoe who has deposited the sum of
K 30,000 in the High Court; it is.urged in support
of the learned Magistrate's order that in the circum-
stances :obtaining and in view of. the fact that the
Magistr~te has already take~ 90gnizance of the case;
264 BURMA LAW REPORTS. [195S

H .C. and that although the Magistrate's enquiry under

1955
section 523 is somewhat irregular, in that it was not
AH TA:-;(;
'V.
initiated by the police concerned, the irregularity if
1. S H AR any cannot be said to be one which has occasioned
KYAUNG
HOE ; a failure of justice. It is furth~r urged that since
2 LEE EE Shar Kyaung Hoe has already furnished cash security
TucK ;
3. N G A \V as directed by the High Court, the conflicting claims
HoE LA~
(a\ of the parties concerned would not in any way be
MAUNG KYIN
WAN
prejudiced. In Ghulam Ali v. E1nperor (1), under
U C HA N TUN
circumstances almost sin1ilar to those in the present
A UNG , C.J. case a horse was seized from the petitioner by the.
police and the case was sent up for trial; and
without any report tnade by the police as.
contemplated in . section 523 (1) of the Criminal
Procedure Code, the Magistrate concerned, at
the instance of the petitioner (Ghulam Alj) ordered
the handing over of the horse to the petitioner on
security ; and then later, on an application filed by
the respondent the horse was ordered 't o be restored
to the respondent, it was held in revision that the
original .,order passed by the Magistrate could not
have . been one passed under section 517 of the
Criminal Procedure Code, but one which must be
considered to have been made under section 523 of
the Criminal Procedure Code. Blacker, J ., who
disposed of the revision observes:
Even that order [the first order] is not free from
u .

defect. because it would appear from a strict reading of the

section [523. Criminal Procedure Code] that that order should
be passed not on the application of the party but on a report
by the , polic~. It seems to me however, that though there
should have been such a report in this case the absence of it
has not occasioned any failure of justice~ There are therefore
no groun4s for. interference in revision with that ord.e r."
U Ba Hlaing v ~ Ballabux Sodani (2) referred to
by the. learned Magistrate is one where in consequence
(l) (194:>) A.I:R. (32) Lim. p . 47. (2) (193.6-47) 14 Ran. I .L.R. p . 633 .
 t955] BURMA LAW REPORTS. 26$.

of a first information report made to the police of Has;:

1 ,:>:>
criminal breach of trust in respect of certain paddy
. accuse d, ev1'd ence
against an a bscon d1ng was recor de d AH v.lANG ~
by the Magistrate concerned under section 51 2 (l) of ~v~~~~
the Criminal Procedure Code, and the Magistrate 2. HoE; LEE EE
after recording the evidence directed the respondent TucK ;
to deliver the paddy or pay its value to the applicant, ~o~<t~~
it was held that an order affecting the disposal of MAu~~ KYIN
the proper.._ty produced before the Court at the conclu- ~
sion of a proceeding under section 512 (1) of the u cuAI'\ T uN
Criminal Procedure Code is one made under the provi- Aul'\G, c.J.
sions of section 523 of the Code, and not under the
provisions of section 517, and that therefore no appeal
lies against such order to the Sessions Judge. This
case was referred to in Maung PoTu v. The King
(1), wherein Baguley, J., delivering the judgment in
revision points out that there may be judicial pro-
ceedings which are not inquiries or trials, and
property produced before the Court in such judicial
proceedings cannot be dealt with under section 517,
but it must be dealt with under section 523 of the
Criminal.Procedure Code.
In Maung Han Thein v. The Commissioner of
. Police, Rangoon, and two others (2), the Supreme
Court has held that section 523 (1) of the Criminal
Procedure Code makes it mandatory for any police
_officer seizing property under circumstances stated
therein to report forthwith to the Magistrate and the
Magistrate to whom such a report is made is the
only person competent to make such an order that
he thinks fit regarding the disposal of the property
or delivery thereof to the person entitled to the
possessiop..
No other authorities could be cited which have
a direct bearing on the question involved. F~9m

(lj (1938) R.L.R.,
.
p. 143 at. 147. (2) (1950} B:L.R. (S.C.) p . 45.
 266 BURMA LAW REPORTS. [1955
H.C. a careful examination of the decisions quoted a~ove,
1955
the f91lowing principles can be deduced : -
" AH TANG
V (1) It is only at the instance of the police
1. SHAR
KYAUNG
officer who seized the property under
HOE; the circumstances S'et out in section 523
:2. LEE EE
TucK; (1), Criminal Procedure Code, can a
3. NGAW
HOE LAN (a) Magistrate pursue the course prescribed
.MAUNGKYIN
WAN
therein affecting the disposal of the
property seized by the police .
.U CHAN TUN
AUNG, C.J. (2) It is the duty of the police officer seizing
the property to report forthwith to the
Magistrate concerned who is the only
person competent to order the disposal
of such property.
(3) At the conclusion of a judicial proceeding
which is neither an enquiry nor a trial,
namely a proceeding in wpich evidence
was taken in the absence of the accused
under section 512 . of the Crin1inal
Procedure Code, the order of the
Magistrate affecting the disposal of the
property connected with the case is one
. made, riot 1,1nder section 517 of the
Criminal Procedure Code but one under
section 523 of the Criminal Procedure
Code.
.(4) Even if the Magistrate has passed an order
not on .the police report, but at the
instance of one of the parties interested
in the possession of the property seized
by the police, yet such an ord~r can be
considered to have been made ilnder
' . .
section 523 of the Crin1incil Procedure
Code.
(5) . Unless fail'ure of justice has been oocasion-
ed by .the Magis~;r.:.~te's. order, . the
1955] BURMA LAW REPORTS. 267

Magistrate's order should not be H.C.

1(}55
disturbed.
v.
After a careful analysis of the facts and circumstances 1.!{YAUNG
SHAR

obtaining in the p'Tesent case and especially in view HoE:

of, the fact that Shar Kyaung Hoe has, pursuant to }JcEK~E
2

the order of this Court, already kept a cash security H~~ ~:~wca>
of K. 30,000, I do not see how the order of the MAUNG KvrN
Magistrate with regard to the disposal of the oil WA!:
tins, despite certain irreszularities,
...., as pointed out uAUNG,
CHAN C.J.
TuN

above, can really be said to be illegal, and one which

has occasioned a failure of justice. Though the
police has not actually moved the Magistrate initially,
as contemplated in section 523 (1), yet the Magistrate
has taken cognizance of the two cases as against the
same accused when the police sent up for trial at a
later date. The learned Magistrate could have
stopped the proceedings and commenced an enquiry,
either under section 516-A of the Criminal Procedure
Code, or await till the conclusion of the case as
contemplated in section 517. He has chosen neither,
but continued to proceed with the enquiry under
section 523, and ultimately passed an order thereon.
As observed above, the learned Magistrate's action
in that regard might be said .to be somewhat
irregular; but I am unable to subscribe to the view,
having regard to the principles deducible _from the
decisions quoted 3:bove, that the order made by the
Magistrate upder the circumstances of the case was
an illegality. which has occasioned a failure of justice.
In the result therefore, this application is
iismissed. It should however be noted that since
~har Kyaung Hoe, the 1st respondent, has furnished
~ash security of K 30,000 with the bailiff of this Court
ill. lieu .of the restoratioJJ of .the :coconut .oii tins
seized by the police, it is ordered .that the said cash
268 BURMA LAW REPORTS. [ 1955-
H.C . security shall remain in deposit with the bailiff until
. 1955
the fin..al disposal of the criminal cases. now pending
~H TANG
v. before the 5th Additional Magistrate. The.
1. SHAH
KYAU::\G
Magistrate shall at the conclusion of the cases make.
HOE ;
2. LEE EE
appropriate order as to the final clisposal of the cash
TUCK; . security in accordance with the relevant provisiqns. .:
3. NGAW
HOE LAN {a) of law laid down in the Crin1inal Procedure Code.
MAUNGKYIN
VI' AN.

U CHAN TUN
AUNG, C.).
 ' 1955] BURMA LAW REPORTS. 269

APPELLATE CIVIL.
Before U Auug Khi11e, J.
o)

BADRU DUJA (APPELLANT) H.C

1955
v. sept. 15.
MUNSHI NESAR AHMED (RESPONDENT).*
General Power-of-allorney-Autltenticatiou and Registration.
There is no provision of law which requires the general power-of.
a,ttorney to be authenticated as well as registered to render it \alicl. If a party
decides to register the power-of-attorney then, of course, authentication is
required. for the:: purpose of registration and not otherwise.

Ba Shun, Advocate, for the appellant.

Tun JVJ.aung, Advocate, for the respondent.

U AuNG KHINE, J._In Civil Regular Suit No. 1

of 1952 in the Court of the Subdivisional Judge,
Maymyo, the respondent Munshi Nesar Ahmed filed
a suit for the recovery of K 3,325 representu1g arrears
of rent and for the ejectment of the appellant Badru
Duja from the premises known as site No. 3, block
No. 3, Lashio Road, Maymyo.
Prior to the filing of this suit, one Mr. Osmani
claiming
.
to be the agent of Munshi Nesar Ahmed '
presented a n application before the .Controller .of,
Rents, Maymyo, requesting that the standard rent for
the suit. premises may be fixed. The application was
contested by, the appellant Badru Duja. The
.Controller' of Rents, after necessary investigation,
.fixed the standard rent of the suit premises at K 95
per .men:sem.
~ Civil .Misc. Appeai No. 7 of 1953, against t~e. decree of the District
Co11~t
of Mandalay in Civil Appeal No. 18 of 1952, dated the 4th. day of
December 1952. o
270 BURMA LAW REPORTS. [1955.;
H.C. In the trial Court, the appellant raised a quesSion
. 1955
as to the validity of the proceedings before the.
BADRU D UJA
"' v . Controller of Rents. He contended that the applica-
~~~=1 tion made before the Controller of Rents was not by
AH:MF.o . a person who was duly authorized by the respondent
u A u NG Munshi Nesar Ahmed. Mr. Osmani held a docu~.
KaiNE, J. ment,. which is described as a special power-of-
attorney, granted to him by the respondent. The:
learned Subdivisional Judge was of the opinion that
the docun1ent in question is a general power-of-
attorney and that as such it should have borne a
stamp to the value of l( 15 and that it should have
been registered. As the document was neither
stamped correctly nor registered, it was held that it
was not a valid power-of-attorney. Thus the.
application made by Mr. Osmani could not be.
considered to be an application made by an authorized.
agent, and consequently the certificate issued by the
Controll~r of Rents was in turn not a valid one. On.
this ground. the suit was dismissed.
In th~appe'll before the District Court, Mandalay~.
the learned District Judge was not prepared to come.
to the conclusion that the certificate granted by the.
Controller
.
of Rents,
.
Maymyo' was .
on
invalid the
ground that the application for fixation of the standard
rent was made by a person who was not a duly
recognised agent of the appellant. The suit was.
~emanded to the trial Court for disposal according:
to law.
It is against the order of this reinand ,that the:
appellant Badru Duja has now appealed under Order
XLIII, Rule 1 (u) of the Code of Civil Procedure ..
The first point taken up in this appeal is that the
. . learned District Judge fell into an error in thinking:
. that the document' in question 'liad. been admitted in
evidence in the trial Court~ My attention wa~ drawn
t 1.935] BURMA LAW REPORTS. 271:

. to the statement in that Court's judgment to the H.c .

1955
effect that Exhibit D was allowed to be filed for
reference only. It is contended, therefore, that in BAoRuv. DuA
the face of this explicit statement in the judgment it Mr;s,wr
l\ESAR
cannot be said that this document had been admitted AnMEo
in evidence. I have referred to the trial Court's U AU\'G
record and I find on page 1 of the A.A. File the list KHrNE, J.
of documents tendered in evidence. Exhibit D was
shown as a document admitted on 6th May 1952 and
that was the date on which the arguments were heard.
If it was not the intention of the trial Court to
receive this document in evidence it should not have
'
been marked as an exhibit; it should have been filed
in the Process File.
To my mind, it does not affect the case one way
or the other whether the document was admitted or
not. It is the order of the Controller of Rents which
was attacked as being irregular. The power-of-
attorney presented by Mr. Osmani was considered
good enough by the Controller of Rents. No obj:ec-
tion was raised by the appellant then on this question
of validity of the power-of-attorney . filed by
Mr. Osmani. Once the standard rent is fixed under
section 19 of the Urban Rent Control Act ' 1948, ..
the:
party wishing to question the order has to file a
reference before the competent authority under
section 22. Such a reference indeed was made by
.the appellant but it was subsequently withdrawn . .
Now at this stage, I do not think it would be.
requitable to allow the appellant to raise the question
regarding the validity of the power-of-attorney
when he could have done so before the Controller
of Rents. This same question could have been.
also raised in the Court of reference but it was
not so raised and instead, the reference application .
was withdrawn. Now having allowed the order of

:272 BURMA LAW REPORTS. [1955

. H~
1 95 the Controller of Rents to stand all along, it wiJI be
- - unconscionable to permit him now to question the
"13 AT,I~uv.D u JA va 1d of t he order o f th e C ontro11er o f R ents.
1 1ty
~~~1: 1 Coming back to the question of the power -of-
AH )'!En. attorney, I am in entire agreement with the lower
u AuNG appellate Court that there is no provision of law
<KHINE, T which requires the general power-of-attorney to be
authenticated as well as registered to render it valid.
If a party decides to register the power-of-attorney
then, of course, authentication is required for the
purpose of registration and not otherwise. It is not
contended that the respondent Munshi Nesar Ahmed
did not grant the power-of-attorney at all to
Mr. Osmani, the only objection raised being that the
power-of-attorney so granted was not according to
law. The defect, if there be any, is Inerely a .
technical one not affecting the merits of the case.
For all these reasons, I must uphold the judgment .
and decree passed by the lower appellate Court.-
The aP.peal is dismissed with costs .
.
 ?,_,.,
,195 5] BURMA LAW REPORTS. -' ~

ORIGINAL CIVIL.
Before U Aung Tlla Gmw, J

HAJI HABIB PIRMOHAMED (PLAINTIFF) H.C.

195 5
v. Aug. 24.

SEIN MOH Co. (DEFENDANT).*

Linzitatio11 Act, s. 14 (1) .

The plait; tift had sued the defendant In a previo~,;s ca~ e for ejeda.ent and
damages on the ground Lhat th e defendants were his licensees. His suit was
dismissed on the :zround that the defendants were not licensees b.:t sub-
tenar:ts of the plaintiff.
The pl aintiff subsequently. obtained an order c the Msistant Rent
Controller fixing the standard r ent and filed a suit for rent against the
defer.dant on the plea that they a re his tenants fur the period from 11th
March 1950 to 31st December 1953. .
T he plaintiff relies on s. 14 (1) of the Limitation Act for part of the claim
. barred by the Law of limitation.
: . Held : A snit for r ecovery of arrears of r ent is governed by Article 110
: of the Limitaticm Act, and in a suit of this natnre the 'period of limitation
... . Let!ins from the date on which such "arrears become due".
S. 14 (1) of the Limitation Act requires that such a . f orm;t pr.1 ceeding
must be:: founded upon the same cause of action ~,s in the present suit. T he
cause of action set up by the plaintiff in the former wit w~~s a license
w he. eas in the present suit t he cause of action .lleged is one of te nancy.
The two cl:1.irns a re Inconsistent and are founded on different causes of
a cti9n and the plea of exclusion of time cnder s. 14 d the Limitation Act
cannot be sustained.
Ramkrishna Chettiar v. lav11ranza lyer, A.I.R. 11933) Mad. 778; Dondco
Si,;gh v. Sheo Naraitt Sin gh, A.I.R. (19A6) Oudh .155; Hurro Prasad v.
GoPal .Das, 9 Cal. 255; Nadesan Chetiiar v. Shankar an Chetti,,r, 5 Ran. 600.
referred . to.

M. Sulaiman, Advocate, for the plaintiff.

Ba Than, Advocate,
. for the defendant.

U AUNG THAGYAW, J._ The suit is one for

recovery_of K 21 ,89585 as being due for arrears of
rent in respect of Port Commissioners' Godown
: CiYil R egular No~ 67 of 19.5-t. f-

18
 274 BURMA LAW REPORTS. [1955 '

H.C. No. C. 8, Lanmadaw of which the plaintiff beca)lle

" 1955
a tenant by virtue of an instrument of lease dated the
HAJI HABIB
PIRMOH AMED
15th da:Y of March 1949. Some time prior to March
v.
SEIN MOH
1950, the defendants were said to have been permitted
Co. to occupy the said godown as a . sub-tenant of the
U AUNGTHA plaintiff. In Civil Regular Suit No. 1293 of 1950 of
GYAW, J. the City Civil Court of Rangoon, the plaintiff sued
the defendants for ejectment and for damages alleging
that the defendants were mere_ licensees of the
plaintiff. The City Civil Court as well as the High
Court on appeal, held that the defendants were not
licensees but sub-tenants of the plaintiff with the
result that the suit for ejectment failed in both Courts.
Th~ plaintiff thereafter obtained an order of the
Assistant Rent Controller fixing the standard rent of
the pre1nises at K 47750. He now seeks .to recover
from the defendants the sum aforementioned as being .
rent due by them for the period-11th March 1950 to
31st December 1953.
The tenancy alleged by the plainti~ is, however~
denied by~he defendants who further contend thlit
part of the claim for rent is barred by the law of
limitation.
The plaintiff in reply disputes the defendants~
right to .repudiate the .relations4ip of landlord and- .
tenant found against him in the . de~ision of the .
appellate Court.
On these pleadings the following issues were fixed
., by consent :--
1. Are the defendants precluded from denying
the teriancy alleged by the plaintiff by
reason of this Court's judgment in . its
. Civil First Appeal No . .73 ofI952 ?
2~ Is part. of the plaintiff's clai~. bdrred . by
..
limitation?

. ,
 BURMA LAW REPORTS. 275
). What relief, if any, is the plaintiff entitled H.c.
1955
to ?
HAJI HABIB
At the trial the learned Counsel appearing for the Plf<MOHAMED
v.
defendants concedes that in the face of the findings SEIN MOH
Co .
.arrived at by the City "Civil Court and by the High
'Court. in Civil First Appeal No. 73 of 1952, the U AUNGTHA
GYAw, r.
defendants are not entitled to deny the tenancy on
which the claim for rent is now based. The first
issue will accordingly be answered in the affirmative.
On the question of limitation the plaintiff relies
upon the provisions of section 14 (1) of the Limita-
tion Act. This provision reads :
" In computing the period of limitation prescribed for
any suit, the time during which the plaintiff has been prosecu-
ting with due diligence another civil proceeding, whether in a
Court of first instance or in a Court of appeal, against the
defendant, shall be excluded where the proceeding is founded
.upon the same cause of action and is prosecuted in good fa~th
in a Court which, from defect of jurisdiction or other cause of
a like nature, is unable to entertain it.
From the words used in this provision it is difficult
to accede to the view put forward on the plaintiffs
behaif that the time taken by the plaintiff for
prosecuting the former . suit before the City Civil
Court and later, on appeal in the High Court,
should be excluded from computing the period of
limitation in the ~anner urged on his behalf.
It is admitted that a suit for recovery of arrears of
rent is governed by Article 110 of the Limitation Act
and in a suit of this nature the period of limitation
begins fron1 the date on which such " arrears
become due." Ordinarily, if the premises were sub-
let to the .defendants in March 1950 and if the rent .
was payable at the end of the month, the perioq of
three . years prescribed under the aforesaid article
would
.
begin:
. .
from the mo_n th ~f April 1950:
 276 BUl~.t\11-A LAW REPORTS.
H. C . The question then ' is to consider whether~ time
1955
for purposes of computing the period of limitation
HAJI HABIB ' .
., PIRMOH AME: > would cease to run dunng the pendency of the
SEt:MoH litigation which the plaintilf was prosecuting in the
co. City Civil Court and in the I;Iigh Court on appeal.
u AuNsTHA Section 14 (1) of the Lin1itation Act, however:
GYA\v, 1 requires that such a former proceeding mu's t be
founded upon the same cause of action as in th~
present suit. The cause of action set up by the
plaintiff in the former suit was a license wherea~
in the present suit the cause of action alleged i~
one of tenancy.
11;1 Ramkrishna Chettiar v. Javarama Iyer (I) it wa~
held that the reliefs claimed in the two suits should bt
the same to attract the application of section 14 of tht
Limitation Act. The plaintiff is not entitled to appea;
to the provisions of section 14 for the purpose o~
extending the period of limitation where the cause o)
action, set up in the subsequent suit though arisin~
out of the same transaction ' is different. [Sd~
Dond(Jo Singh v. Sheo Narain Singh (2) which dea~
With the case of a landlord who, having without avai.E
tried 'to get his tenants ejected through the Revemi'~
Cot!-rts, subsequently sought their ejectment in a Civ~
Court as trespassers.] '.~
~

. Where a plaintiff wrongly sued the tenant roj

. . Q

~jectn1ent and subsequently claimed the rent accru~~

during the pendency of the first suit, the time spe~
<'l(l,
In the .fi.t st 11nsvccessful sutt could not be allowed ~
.~e deducted under section 14 of. the Limitation_ ~~ .,~
[See Hurro . Prasad . v. Gopal Das (3) ]- A strntl ..
view prev~iled in 1Vadesari Chettiar v. Shankar:
Chettiar (4) where emphasis was laid on the fact tt..J
'
0) A,.I.R. (1933) Mact . 778 . . (3) 9 Cal. 2?S.
(2) }d.R. .{1946) Oud-h 155. (41 5 Rat:t. 600.
 1955] BURMA LAW REPORTS. 277

a subsequent claim made by the plaintiff was on a H.C.

195S
totally distinct cause of action.
. t'ff
Th e p 1atn 1 the present case h ad sued f or PIR)IOH
In HAJ I H ABI B
A\I ED
ejectment in the previous
"
suit on the ground that the sEINv.\I 'JH
defendants were his licensees. He now seeks to c;.
recover rent from the defendants on the plea that u AuNG THA
they are his tenants. The two claims are inconsistent GvAw, J.
and are founded on different causes of action and the
plea of exclusion of time asked for under section 14 of
the Limitation Act cannot therefore be sustained.
The findings of the appellate Court confirming the
decision of the City Civil Court did not create a fresh
:cause of action for the plaintiff's suit. The decision
merely confirmed the existence of the plaintiff's right
:to treat the .defendants as his sub-tenants from the
-d ate on which they went into possessJon of the
.premises. .
Accordingly, the contention raised on the defen-
dants~ b~half must be 1:1pheld and the second issue
-rramed in the suit must be answered in the defen- ~

-dants' favour with the result that there will be a

decree for the plaintiff against the defendants for
three years' rent only ~alculated at the rate fixed in
the Standard Rent Certificate, namely, K 47750,
~mountin~ to a total of K 17,1 90 with propo~tionate
eosts .
.
.
 ..
278 BURMA LAW REPORTS. [19SS

ORIGINAL CIVIL.
Before U Atmg Tha Gyaw, I.

H.C. KAPUR CHAND (BURMA,) LTD. (PLAINTIFF)

1955
v. j
Sept. 1. (

THE BURMESE NATIONAL REFORMING Co.

AND OTHERS ( DEFEND ANTS ) . *

Petrol pump-Whcthe1' immoveable P1operty?

" Immoveable property" as defined in s. 3 of the General Clauses Act
includes" land, benefits to arise out of lnnd and things attached to the earth,
or permanently fastened to anything attached to the earth.''
The meaning of the words "th;n~s attached to t he earth" is gi\ en in ,;;
s. 3 of the Transfer of Property Act:
(a) rooted in the e::lrth as in the case of trees and shrubs ;
( b} imbedded in the earth as in the case of walls or buildings ; or :!
(c) altached to what is so imbedded for the permanent beneficial ,
;~
enjoyment of that to \'l:hi::;h it is attached. :j
The petrol pump is a mere tr.echanical device set up on the road-side ,:
pavement for the purpose of retailing petrol urider a license. \1
The conditions of such a license require that the petrol tank suppiying the ;l
pump should be constructed at a regulated depth beneath the pump. The i
whole contrivance, the reservoir of petrol below the surface of the public. ~
pavementc;and the mechanical pump above, is in the nature of a mere trade ~
fixture. What is of real value to the defendants in the petrol pump is not' ~
the pump itself but the license under whicb they are permitted to retair..J
petrol by its use within the limits of the dty of Rangoon~ This license j
together with the m~chanical de.vice by which the license is worked for ~
profit cannot be cons1dered to be lm.noYeable property. ~
Moreover, the pump can be moved about at convenience. ." j

Such an " attachment is merely for the beneficial enjoyment of the":

chattd itself, even though fixed for the time being so that it may be enjoyed.~
S.P.K.N. Subramanian Firm v. M. Chidambran Servai, A. I.R. (1940)~
Mad. 527. at 529, approved.

V. S. Venkatram, Advocate, for the plaintiff.

T. Wan Hock, Advocate, for the petition~rs.

Po Dan for the defendants.

., '
. ..
u AuNG THA GYAW, J._ln Civil Regular Sui
No. 110 of 1953, the respondent in this mattei
Civil Regular No. llO.of 1953.

.. ;
F.
'1955] BURMA LAW REPORTS. 279

Kaj?urchand {Burma) Ltd., brought a suit against the H.C.

1955
Burmese National Reforming Co. Ltd. and its
P artners for recovery of K 1,53,34816 as being due KAPUR-"
CHAND
under a mortgage of n1oveable properties including <BuRMA)
LTD.
a petrol pump. O'n the application of the plaintiff v.
THE BUR-
an ad interim Receiver was appointed in respect of MEsE NATxo-
the aforesaid properties on the 16th December 1953. =~!G~~~~:~
This order appointing a Receiver was finally . oTHERs.
confirmed on the 14th February 1955. This order U AUKG THA
directed the defendants in the suit to deposit with GYAW J.1

the Official Receiver the sale proceeds realised from

their shops. It would appear that the Civil Supplies
Management Board has been a customer of the
petrol pump which the defendants in the suit were
permitted to n1anage. The Official Receiver
accordingly called upon the Board to settle the
petrol bills due to the Burmese National Reforming
Co. Ltd.
The petitioner R. Lhila had on the 19th Septem-
ber 1952, entered into a partnership with the
defendants for carrying on the petrol pun1p business
of the defendants and had contributed a sum of
K 15,000 to this purpose. He has now come for-
ward with the claim that the order appointing a
Jleceiver in respect of the petrol pump should be
vacated or that in the alternative he, the petitioner,
should be granted leave to file a suit against the
Official Receiver for a declaration of his rights in
respect of the said property. The petitioner has put
forward three grounds in support of his claim. In
the first place, it is contended that the petrol pump
cover~d by the mortgage bond and described .as
moveable property is, in fact, immoveable property
and . consequently' in thy ab~ence of a registered
deed, ren1ains unaffected by the mortgage. .Insisting
that the petrol pump in question IS immoveable
 280 BURMA LAW REPORTS. [1955 <.

H.C. property, it is next contended that as a foreigner che

. 1955
mortga.ge effected in the plaintiff's favour is void in
<KA PUR-
CHAND law, and lastly, the petitioner attacks the mortage ~
.._..
(BuRMA)
LTD.
transaction as being the sale of an import license and
v.
THE BUR
as such is illegal, unlawful and against public policy.
MESE NATxo- "Immoveable property" as defined in section. 3
N~~~f~~~R- of the General Clauses Act includes "land, benetits
ANn oTHERs. to arise out of land and things attached to the earth

u AuNG THA or permanently fastened to anything attached to the

GYAw, J. earth." It is on this definition that the petitioner
has anchored his hopes for the success of his plea.
The meaning of the words " things attached to the
earth " on which the petitioner has so pinned his
faith, is given in section 3 of the Transfer of Property
Act. "Attached to the earth " means: (a) rooted in
the earth as in the case of trees and shrubs ;
~~~

(b) imbedded in the earth as in the case of walls or

buildings ; or ( c ) attached to what is so imbedded
for the permanent beneficial enjoyment of that to
which it is attached. It is seriously contended fo~
the petitioner that because of the fact that the petrol
pump in question has been attached to the petrol
tank underneath, it has become immoveable property.
This contention has no substance whatsoever.
The petrol pump in question is a niere mechanical
device set up on the road-side pavement in front of
the defendants' shop for the purpose of retailing
petrol under a license . . The conditions of such a
license . require that the petrol tank supplying the
pump should be constructed at a regulated depth
beneath the pump. The whole contrivance, the
reservoir of petrol below the s urface of the public
. pavement and the_mechanlcal pump above, is in the
nature of a mere trade. fixture. What is of real value .
. . e . .

to. the defendants in the petrol pump is not th:epump

itself but ~he license un.d~r which they .are permitted
.'

: . . ..
1'955] BURMA LAW REPORTS. 281

to retail petrol by its use within the limits of the H.C.

1955
city of Rangoon. This license together with the
KAPUR-
mechanical device by which the license is worked for CHA :I:U
profit cannot be considered to be immoveable (Bt;R)IA) L TD.
property. The defendants have no interest whatso- THE v.BuR-
ever. in that portion of the public street in which the MESE l\ATJO
pump is attached and moreover, the pump can be NALMINGREFoR- Co.
moved about at the defendants' convenience. Such ANU OTHERS.
an " attachment" in the words used ln S.P.K.N. U AUNGTHA
GYAW, J.
Subramanian Firm v. M. Chidambran Servai ( 1)
"'' is merely for the beneficial enjoyment of the
chattel itself, even though fixed for the time being so
that it may be enjoyed." The chattel referred to
consisted of an oil engine installed as part of a
dnema hall owned by a third party. Due note w~s
taken of the relevant English law on the subject and
the result is further set out in these words : " In
deciding whether or not a transaction relating to an
engine is a transaction relating to immoveable
property, one is entitled, I think, to have reg~rd not
merely to the nature of the attachment by which the
engine is fixed on the ground but also to the circum-
stances in which it came to be fixed, the title of the
person fixing it in the immoveable property and the
-obj~ct of the transaction by which the engine is trans-
-ferred or bound . The object must
from the very circumstances in which the installation
was made be deemed to have been to utilize the
machinery for their own profit so long as they had
the use of the premises and to sell it if and when
their lease terminated." Regard being had to the
circumst~nces in which the petrol pump ~s fixed and
used in this case the attack made on the validity of
the mortg~ge bond in respect of the said pump must .
fail.

(1) .A:I.R. (19-40) Mad. 527 at 52 .'
.282 BURMA LAW REPORTS . [195~

H.C. The further contention that the mortgage tra:nsac-.

195)
tion .amounts to a transfer of an import license
~~~~~- appears to be somewhat far-fetched. The fact that
(BuRMA)
LTD.
the plaintiff in the suit is not a citizen of the Union
t. cannot affect the validity of the ~mortgage bond.
'THE BuR-
MESE NATio- The petitioner has next put forward the plea Jhat
N~N~~~~R- under section 29 of the Partnership Act, the Official
.AND oTHERs. Receiver is entitled to receive only the defendants~

u AuNG THA share of the profits arising out of the partnership

GvAw, I business. This contention also must fail for the
reason that the partnership fonned with the petitioner
commenced n1any months after the mortgage was.
created. There are, therefore no grounds for
'
restraining the Receiver from taking charge of the:
petrol _pump in question. The partnership is of
three years' duration and will terminate within three:
weeks from this date if the petitioner has not
exercised his option of continuing the same for two.
more years as .provided in clause 3 of the partnership
deed. If, on the termination of the partnership, the;
petitioner is entitled to reimbursement of any capital
which he had invested in the business, he is at liberty
to make his claim from the Official Receiver,.if SQ;
advised..
1955] BURMA LAW REPORTS. 283

APPELLATE CIVIL.
Bcfon: U Aung l{hinc, J .

MA NGWE 'SHIN AND ONE (APPELLANTS) H.C.

1955
v.
Sept. 9.
GAUNG BOKE (a) MAUNG LAUNG KY AMAR
AND ONE (RESPONDENTS).*

C<J1Jtract Act, s. 69.

The appell< nts leased otit a piece of land to the respondents at a monthly
rent of K 30. Subsequentlv, the area was occupied by the K.N.D.Os. and the
appellants evacuated to Rangoon.
The appellants sued the respondents fer arrears of rent accrued due
amounting to K 411 during their absence.
The respondents pleaded that they had paid K 360 to the K.N.n.o.
authorities during their occupation, and as such they were entitled to be
reimbursed under s. 69 of the Contract Act.
Held : For the application of 3. 69, Contract Ad, it is essential that
th~re should be-
(i) a person, who is bound by law to make certain payments;
(ii) another person who is interested in such payment being made ; and
(iii) a payment by such last mentioned person .

This section clearly applies to payments made bona fide for the protec-
tion of one's own interests ; if a person, who paid the money was not
actuated by a de,ire to protect his own interest, he certainly cannot make
a claim under the section.
Tbe words "compellable to pay" does not and cannot mean "com_
pellable to pay through fear of physical violence.,, ~nd the words ''bound
l>y law" do not mean " compellable to pay."
Suit decre~d in full with costs in all the Courts.

Tun i\1aung, Advocate, for the appellants.

Tun I~ _Advocate, for the respondents.

U AUNG KHINE, J.-The appellants Ma N gwe

Shin and Ma Mya Shin are the owners of a piece of
land known as Holding No. 27 of 1951-52, measuting
. Ci\il 2nd Appeal No. 51 of 1953, :against the decree of the District
Court of Th::iton, in Civil App~:al No. 15 of 1952, dated the 25th March.
19~3. .
.284 BUR.lv1A LAW REPORTS . [ 1955

;~fs "130 acres in Bilin town. In 1947, the same was

,- leased to the respondents Gaung Boke alias lViaung
M A NGWE
smN AN D
L aung K yamar and Ma San Kym . at a monthly rent
o:.E of Rs. 30. T he respondents ~onstructed a building
GAuNa BoKE on the said land and were still in occupation of the
(a) M AUN G
LAuNa sa1"d premises
wh en t he K .N .D .0 s. occup1ec
. 1 B'l"
11n.
:l{YA~;;. AND As there had been a default made in the payment of
u A uNG rents, the appellants applied to the Assistant Rent
KH INE, J. Controller, Kyaikto, to fix the standard rent. The
standard rent was fixed at Rs. 22-:8-0 per mense1n
and the amount now claimed by the appellants is
Rs. 411.
Soon after the K.N.D.O. occupation of Bilin, the
appellants evacuated to Rangoon. The defence put
up by the respondents in the trial Court wasthat the
relationship of landlord and tenant had ceased from
the time the appellants evacuated to Rangoon and
that to safeguard the suit property, the respondents
had to pay a sum of Rs. 360tothe K.N.D.O. authori-
ties during ..their occupation of .Bilin and as such, the
appellants' were not entitled to the rent in ,question.
Both the two Lower Courts are in agreement that the
tenancy between the parties had not ceased by the
evacuati9n of the appellants to Rangoon. The trial
Court decreed the full amount as claimed by the ..
appellants, but the lower appellate Court held that
as the respondents had paid Rs. 360 to the K.N . D.O~
authorities, to safeguard the interests of the
appellants, under section 69 of the Contract Act,
the respondents were entitled to be reimbursed the
a~ou~t paid _by them. . ..
The only point that calls for determination in
this appeal is whether the applicatio.~} of s~ction 69,
Contract Act . by the lower appellate Court to the
fi:u;ts of ~his c~se is co.rrect pr not. .. For ihe applica-
tion of this se~tiori, it is essentia1 that there should be
 1955] BURMA LAW REPORTS. 285

(i>. a person, who is bound by law to make certain H.C.

11)5:::
payments; (ii) another person, who is interested in .
111
such payment being ....,
made and (iii) a payment by such SHIN A :\<.:.wF
.-\:>:1)

last-mentioned person. The last two ingredients are o~E

v.
certainly present .in the case, but the moot point is GA t:XG Boi\E
(a) .\1.~ l":'\G
w h eth er th e appe11 ants are b oun d b y 1a w to rna ke LAL" 'G
this payment made by the respondents to the K.N.D.O. AND KY.HA~
ONE.
authorities.
.
First of all ' K.N.D.Os. are a band .
of U AUXG
lawless people, who have taken up arms against the KHINE, J.
government. Supposing the money paid in by the
respondents wer.e not paid, what would have been the
result. The land would have been auctioned and
bought by another person, but with the resumption
of the legal government, that transaction would not
be binding upon the appellants, who are the owners
of the land. The property of the appellants is a
piece of land . which could not be removed
in any way. Had the property been a house or any
moveable property, that could be taken away, one
might be constrained to hold that in
order to
preserve the same, money had been peid and it
should be reimbursed. In this case, there has been
no express or tacit understanding between the
parties that the appellants should indemnify the
respondents for any payment made by them during
the period of K.N.D.O. occupation. Again; going
through the evidence of Ma San Kyin, the 2nd
respondent, it does appear that the sole object.in
paying the ground-rent to the K.N.D.O. authorities
- was actuated by a motive solely confined to protect
the interests of the appellants. She stated that they
were afraid that if no . ground-rent was paid, the
property might be put up for auction and to protect
the interest of tht: appellants, the ground-rent was
. paid: This section clearly a_pplies to payments made
bona fic_le for the protectiGn. of one's own interests;
r.
.l ~.
286 BURMA LAW REPORTS. [1955

rfs
9
if a person, who paid the money was not actuat~d
- - .. by a desjre to protect his own interests, he certainly
~~~~"J~~~ cannot make a clain1 under the section. The lower
oNE
v. appellate Court tries to justify the stand it has taken
GAUNGBOKE by saying that the words "bound by law" do not

<ai_~:;:G restrict the section to liabilities created by statute,

!~A~~~. a.n d that as the appellants would undoubtedly be
u AuNG compelled to pay the same had they been present,
KmNE, J. the payment made by the respondents on their
behalf came within section 69 of the Contract Act.
He appears to have beeil led to form his opinion
by construing the words "bound by law" to mean
"compellable to pay. "
A man may be compelled to pay liabilities
created by statute and also liabilities which arise
out of contract. Compellable to pay in this sense
does not and cannot mean " compellable to pay
through fear of physical violence. "
For all these reasons, I am of the optnton
that the construction put by the lower appellate
Court on .,the words "bound by law "appears to
be erroneous. In the result, the appeal is allowed
and the suit of the appellants Ma Ngwe Shin and
Ma Mya Shin are decreed with costs in all the
Courts.
1955] BURMA LAW REPORTS. 287

APPELLATE CIVIL.
Before U Clzan Tun A:t11g, C.J., l! San Maung, I. and U Ba Thomzg, J .

.MRs. M. TR UICTWEIN (a) MA AYE THWE H.C.

1955
(PETITIONER)
Sept. 7.
v.
MR. D. TRUICTWEIN (RESPONDENT).*
!Divorce Act, s. 17-Co,zftrmation of divorce -S. 12, Divorce Act, proof of
absettce of connivance or collusion between the parties.
A divorce proceeding affects the status of the parties, and the necessary
-conditions to justify a decree for dissolution of marriage should be complied
with.
The Divorce Act specific~!Iy lays down that certain facts must be proved
'before a Court has jurisdiction to pass a decree for dissolution of marriage.
S. 12 of the Divorce Act enjoins that the Court must be satisfied of the
absence of connivance or collusion between tlle parties ; and in the absence
of satisfactory proof o such acts required b.v law in support of a petition for
divorce,.it would not be justified in granting a decree for divo,ce.
Ma Maw v. Maung Yan Han; Maung Hla i'rlyint v. Dorotlzy Hla Myint;
Ma Ngwe Aung v. Maung Kyaw Hla Aum, I.L.R. 11 Ran. 68, re{errerl to.
Even though there be a statement that there is no collusion or connivance
between the parties such statement will not absolve the cout from its
duty of ascertaining whether in the circumstances of a particular case there
was no collusion or connivance between them.
Reverend Chit Pe v. Ma Khi1z Seirz and one,. (1951)B.L.R.l31, {ollo"\'ed.

Ba Pe (Government Advocate) as Proctor .

U CHAN TUN AUNG, C. }._The District Judge of
Magwe, sitting at Yenangyaung, has, in his Civil
Regular Suit No.3 of 1954, granted the petition~r the .
decree nisi for dissolution of marriage with the
respondent. The case now comes before us for
~onfirmation under section 17 of the Divorce Act.
We regret that in the present state of the facts appear-
rng on the record, we are not in a position to confirm
the sa~e: . Though we have.nothing to say about the
* Civil .Reference' No. 5 of 1955. against the deere:! of the D.istrict Court
No.
>f Magwe ip' C'ivill~egul:ir Sa.it 3 of 19.S4, d~ted the 2nd nec~mber 1954,
288 BURMA LAW REPORTS. [195S

~-~ form of the petition filed by the petitioner, yet. it is

-. highly desirable that, inasmuch as a divorce proceed-
TR~~~~~~IN ing affects the status of the parties ; the necessary
(a) ~:w~YE conditions to justify a decree for dissolution of
u. marriage should be complied .with. The Divorce
TR!ci~. ~~IN. Act specifically lays down that certain facts must. be.
u CH;\N 'TuN proved before a Court has jurisdiction to pass a decree
AuNG, C.J. for dissolution of marriage. For instance, section 12.
of the Divorce Act enjoins that the Court must be:
satisfied of the absence of connivance or collusion
between the parties ; a,nd it) the absence of satisfac--
tory proof of such facts required by law in support
of a petition for divorce, it Would not be justified
in granting a decree for divorce. (See Ma Maw v ..
Maung Yan Han. liJ.aung Hla Myint v. Dorothy
Hla'Jivi.yint. lv.la Ngwe Aung v.l'daung Kyaw Hla
Aung (1).] .
Now; in the case before -us we ate not at all:'
s:atl~fi.ed whether ther~ is sufficient ~vidence to eha~le:
us to conie to a conclusion that there was neither
connivaM.ce nor collusion between the petitioner and
the respondent. The petition~:r; Mr~ . . Truictwein,
was said to have been married to the respondent Mr ..
Truictwein in the year 1934, both being Christians ..
Two sons and a daughter were born to then1. They
resided at first at Yenangyaung and then moved "'o n
to Lanywa. The respondent was said to have deserted
the petitioner in the year 1946, and thereafter went
and lived with one. Miss. Noreen .
as husband and wife.
The petitioner says that she knew that the respondent
was carrying on with Miss Noreen even before his.
desertion from her. As so.on as she found that her
husband was carrying o~ with Mis~ Noreen she als(}
comn1itted adultery with . one Mr. Gasper. SinCe:
then both the parties : are : leading .adulterous life ..
! . . . . .. .

(1) I.L.R. (Haiigoon S,e ries) Vol. XI, p. 68.

 \ 955] BURMA LAW REPORTS. 289
H .C
.F or .some time the petitioner was living with Mr. 1955
Gasper at Mandalay. Next they went on to Syriam
'
.and th en to Ch auK. Th e respondent, on t he .otoer
I. :\Ji,s. ::'11.
T Rt.: JcTwEx
hand, is said to be living openly with Miss Noreen (a) ~~~o\w~~YE
.as husband and wife i.n Yenangyaung. The petitioner MJ~~- D.
further states in her evidence that it was the respond- TRmcTwr.:IN.
en( who allowed her to go with Mr. Gasper. u c;:N TuN
The respondent did not contest the application AuNG, C.J.
for divorce. He admitted having deserted the
petitioner and then given her permission to marry
whom she liked.
There were two witnesses cited by the petitioner.
These witnesses only spoke about the petitioner and
respondent having married in the year 1934 and separa-
ted in the year 1946. They did not know the reason
why the petitioner and respondent got separated.
No doubt, the petitioner in her petition asserts that
there was no connivance or collusion. The respondent
also averred to the same effect. It would thus appear
that there is nothing before the Court to show beside
the bare assertions of the parties that the ~etitioner
and the 'respondent are not conniving at the adulterous
life they are now leading for so many years. Accord-
ing to petitioner's own showing, the respondent
committed adultery with Miss Noreen in the year
19'46. She committed adultery with Mr. Gasper in
the same year. But neither thought of moving the
Court for dissolution of the marriage until 1954, i.e. 8
'
years later. .This delay in itself is most unsatisfactory
and there.should have been a thorough enquiry into the
mat~er. The explanation given by the petitioner
that she was away in Syriam till 1952 is somewhat
unsatisfactory. Even if she had been away in 1952,
why was there further delay for two years in present-
ing the petition for divorce: There is no explanation
forthcoming in that regard. .....

19
 I
I~

290 BURMA LAW REPORTS. [195-~

I:?
.r.
~
'!

.:.~~
f9~5 In Reverend Chit Pe v. Ma Khin Sein and o~e(lh .,~
MRs. 'M. this Court had pointed out that_ l.
''rRmcTwErN "Even though there be a statement that there is no collus-
(v) MA AYE
THWE 10n
.
or conmvance b etween t h e partles
sue h statement Wl'}} not
v. absolve the Court from its duty of ascertaining whether in the
TR:::~~~~IN. circumstances of. a particular case there was no collusion or .
connivance between them., :~
U CHAN TUN ~
AUNG, C.J. ''
;i
In that case the proceedings were sent back to \
'
;

the lower Court to be re-tried in accordance with '

law. Now, in the present case it is clear that, besides
the bare assertion of the parties, there is nothing
which can satisfy the Court to come to the conclusion
whether there was no connivance or collusion. There
has been a great delay in filing the petition by the
petitioner. The adulterous acts were committed by
both the parties at or about the same time, and yet
none of them had taken steps to petition to Court
for divorce. In view of the circumstances set out
above, we consider that additional evidence is
necessary as to whether the petitioner herself has
not beefl conniving at or in any manner accessory to
the adultery of the respondent; and vice versa. l
We therefore direct that further enquiry be made
and evidence taken in that regard, and after taking
the evidence the records be sent back to this Court
for determination on their merits, under section 17", of
the Divorce Act. .

(l) (1951, B.L.R. p. 131.

 1955] BURMA LAW REPORTS. 291

APPELLATE CIVIL.
Before U Ba Tlzotmg, J.
~

SWEE CHWAN BEE RICE MILL Co. (APPELLANT) H.C.

1955
v. lut~e 13.
SU'K RU NAHAG (RESPONDENT).*
Scconcl appeal-Findings of fact by lower aPPellate Court-Plaintiff'!> failure
to ask defendant for production of account books-- h tfcrcnce by Plaintiff
or the Court.
In second appeal. the findings of f.lct by the lower :.ppelbte Court are
final.
1lfa Pyu v. K. C. Mitra, I. L.R. 6 Ran. p. 586, relied on.
If a plaintiff never asked the defendant for the production of account
b ooks, neither he nor the Court is entitled to draw any inferenc e fo1 non-
production of these account books .
Bitas Kunwar v. Desraj Rajit Singh and otllers, I.L.R. 37 All. p. 667.

N. C. Sen for the appellant.

Messrs P. B. Sen and B. K. Sen for the respondent.

U BA THOUNG, J.-The plaintiff-respondent
Sukru N ahag sued the defendant-appellant Swee
Chwari Bee Co. in Civil Regular Suit No. 1 of 1952
of the Court of the Subdivisional Judge, Bassein, for
reoovery of Rs. 1,500 as damages for breach of a
contract executed between himself and the defendant-
appellant Company. The plaintiff-respondent's case
is that he entered into a contract with the defendant-
appellant Company by executing an agreement Exhibit
" A '' :un4~r which he as a cooly-maist:r:y was to supply
coolies to work in the defendant-appellant's rice mill
from 1st .December 1951 to 31st December 1952; that
"' Chil2nd Appeal No. 29 of 1953, against the decree of the District Court
of Bassein.in Civil Appeal No. 14 of 19a2, dated the lOth February 1953
'

arising out of decree passed in Civil Regular Suit No. 1 of 1952, dated 22nd
.
September195? of the Court of the Subdtvisional Judge, Bassein.
292 BURMA LAW REPORTS. [19~5

H.C. in accordance with the tern1s of the said agreement he

1955
had to deposit Rs. 500 to the defendant-appellant so
S WE E
CH\VAN HEE that 'if any loss is incurred to the defendant-appellant
HicE ;vinL
co. Company due to his inability to supply with sufficient
v. coolies, the amount of loss incurred may be deducted
S U KRU
NAHAG. from that deposit money ; and that under the agree-
U BA ment Exhibit "A ", the rates of payment of cooly
THOUNG, f. wages were to be fixed subsequently as agreed by the
parties. It is alleged by the plaintiti-respondent that
he continued to work with the defendant-appellant
Company up till the 9th December 1952 when he
was suddenly turned out of his job by the defendant-
appellant without any reason whatsoever. He has
also alleged that in order to get sufficient nu1nber
of coolies for the defendant-appellant Company
for the contracted period, he had paid advances
to several persons, and that he had also spent
some amount in buying nece.s sary materials sue~ as
baskets for the coolies for carrying paddy. He has
also asserted that he would get a commission at the
rate of 2 ann as to 4 ann as per 100 baskets of paddy
which were carried by the coolies to the rice mill,
and accordingly he clairned an amount of Rs. 1,500
as follows:
Rs. A.
(1) Amount of deposit 501Y' 0
(2) Amounts given out . for procuring
coolies . . . 325 0
(3) Cost of 138 baskets bought for 't he
coolies : . . 1.89 12
(4) Expenses of ferry fare in bringip.g
coolies to the rice mill . . .. '289 4
(5) Loss .ofcommission on the cooly wages . 196 0
Total. . . . 1,500 0
. .

.The plaintiff-respondent h.as also asserted that he

:sel,it a lawyer's nptice: Exnibit " J " to the defendant-
appellant asking the latter to allow him to . continue
 1955] BURMA LAW REPORTS. 293

his w.ork in accordance with the terms of the agree- H.C.

1955
ment or else to pay damages for breach of contract;
S\\'EE
but the defendant-appellant did not send any reply to CHWA~ BEE
the said notice. RICE \1ILL
co.
The defendant-appellant did not deny about the v.
8UKRU
deed of agreement Exhibit " A " being executed, but NAHAG.
contended that the Exhibit " A " was an inchoate U BA
agreement as the rates of cooly wages were intention- TROUNG, J.
ally left blank to be settled later when the Managing
Proprietor Hone Law, who was away in Rangoon at
the time Exhibit " A " was executed, return from
Rangoon and settle the matter. It was also
contended that the plaintiff-respondent was brought
to Hone Yoke, the younger brother of Hone Law and
was introduced as the cooly-maistry who would take
over the paddy work in the mill from the cooly-maistry
Narainna; that the deposit of Rs. 500 was never
received from the plaintiff-respondent although a
deposit of Rs. 1,500 was made by the cooly-maistry
Narainna, and that it was understood that Narainna
took_ Rs. 500 . from the plaintiff-respondent. The
defendant-appellant also asserted that the plaintiff-
respondent assigned his work to Maung Ohn Maung
for supplying coolie_s to the mill arid; when he lef~
the job, the deposit of Rs. 500 werit to
the credit of
the'" said Maung Ohn Maung. The defendant-
appellant has also asserted that the mill hirers Messrs.
Kalayan Trading Company . was responsible for
payment of cooly wages arid that the ra-tes of wages
given by the Kalayan Trading Company to the coolies
~-- were not the rates that were agre~d h~tween the
l plaintiff-respondent _and the defend~nt-appella~t. ~t
~ .w as also contended that. the depos1t of Rs . .)00 IS
~ recq-v~erable from N arainna, and that. N arainna and
. _Maut:tg- ahu . Maung are necess~~Y _parties
)_~ u~_ t. --.. . ..
the
! .
to

-~ -~ . : . . ...; ... ', .. ' ..:f..:~ .

294 BURMA LAW RE-PORTS. [195~

H.C. The trial Court framed the following issues ~-

-
1955
"'
S WEE
CHWAN BEE
(1) Did Hone Yoke have authority to enter into thE
written agreement mentioned in paragraph 1 of
RICE MILL
Co. the plaint and was the written agreemen1
v. binding on the defendan~t?
SUKRU
N.AHAG. (2) Did the defendant receive the deposit of. Rs. 50(
from the plaintiff ?
U BA
TnoUNG, J. (3) Were the rates of cooly hire fixed subsequently anc
paid by the defendant from time to time up til
9th January 1952? or Are payments for cool)
hire made to the plaintiff by Messrs. Kalayar
Trading Company binding on the defendant ?
(4) Was the plaintiff turned out of his job as alleged b)
him. in paragraph 3 of the plaint ? or Did tlu
plaintiff assign his cooly work to another persor
and is he entitled to recover the deposit amouni
of Rs. 500?
(5) Did the plaintiff suffer any damages and if so, ho"'
much?
(6) To what relief, if any, is the plaintiff entitled ?
The trial Court held that the agreement Exhibi1
.:' A " is binding on the defendant-appellant; that thE
defendant-appellant received the deposit of Rs. 50(
from the plaintiff.;.respondent ; that the payments of
cooly hire made to the plaintiff-respondent by Messrs
Kalayan Trading Cotnpariy are binding on thE
defendant-appellant ; that the plaintifi'-responqenl
was tur.ped out of his job as alleged in paragrapl
3 of the plaint ; and that the plaintiff-respondenl
had suffered damages amounting to . Rs. 1,739-12-{
and gave a decree with costs for that amount.
The defendant-appellant then went up on appea:
to . the District Court of. Bassein and . the lowe1
appellate Court held that the Exhibit " A '' agree-
. men~ is nqt void, and t hat it is binding . on th~
. d~fen~ant-appellant. Tjle lower appellate. Cdur1
. :~dso ;.held . in agreemeiJ.t with
e
the trial Court..that th(
. ~ :.plaintiff-respon:dent was turned out' of his job b y. tht
...
 ;1955] BURMA LA\V REPORTS. 297

Cou,rts must be accepted; besides, I am not prepared H.C.

1955
to interfere on second appeal, the findings of fact by
SWEE
the lower appellate Court. In this connection, I BEE
Cll w A:-;

would point out the ruling in the case of Ma Pyu v. HzcE :\-IILL
Co .
K. C. lvlitra (1) where it has been held that- "-'
Sl:KIW
!\AHAG.
" U:nder the provisions of sections 100, 101, second
appeals lie only if the decision is contrary to law or if the u BA
decision fails to determine some material issue of law or if TIIOU!\G, J.
there is any substantial error or defect in the procedure.
Section 100 says nothing about the findings of fact, concurrent
or otherwise, and therefore the finding of the first appellate
Court upon a question of fact is final, if that Court had
before it evidence in support of the finding, however
unsatisfactory it might be if examined."

I therefore agree that the plaintiff-respondent is

entitled to have damages for breach of the said
agreement Exhibit " A '' by the defendant-appellant.
The trial Court has gone into carefully the evidence
on record regarding the amounts given out by the
plaintiff-respondent for procuring the coolies, the
cost incurred by the plaintiff:.respondent in buying
1naterials such as baskets for the coolies, expenses
for bringing the coolies to the rice mill and the
an1ount of the loss of commission by the plaintiff-
respondent on the cooly wages ; these are all on
fa~ts and the lower appellate Court was in agreement
with these amounts assessed as damages.
Regarding the claim of Rs. 500 alleged to have
. been given as deposit by the plaintiff-respondent to
the defendan:t-appellant Company; I agree with the
finding of the lower appellate Court that it has not
been proved on the part of the plaintiff-respondent
that he had paid this amount to the defendant-
appellant or to any of his agents since he. cannot
produce any receipt in respeCt of the same. It was
,(1) 1.4.R. 6 I~an. p. 586.
 ~2Y8 BURMA LAW REPORTS. [1955
H.C. argued by the learned counsel for the plaintiff-
. 1955
.. respo:pdent in his cross-objection regarding this
. SWEE
<CHWAN BEE amount that the account books kept by the
R ICE MILL
Co. defendant-appellant Company had not been produced,
2/.
SUKRU
and the presun1ption is that if ~hese account books
NAHAG. were produced they would show about the pay111ent
U BA of the sum of Rs. 500; but the plaintiff-respondent
'J.fHOUNG,].
never asked for the production of these account
books, and therefore neither he nor the Court is
entitled to draw any inferen~e for non-production of
these account books. In the case of Bilas Kunwar v.
Desraj Rajit S ingh and others (1) it has been held
that: . {,

. :~
" It is open to a litigant to refrain from producing any
documents which he considers irrelevant ; and if the opposing
litigant is dissatisfied, it is for him to apply for an affidavit
of documents, and he can so obtain inspection and production
of all that appear to him in such affidavit to be relevant and
proper. If he fails to do so, neither he. nor the court at bis
suggestion, is entitled to draw any inference as to the contents
of any such documents. It is for the litigant who desires to .
rely in tl!e contents of documents to put them: in evidence in
the usual and proper '~tay ; if he fails to do so, no infere,:1ce
in his favour can be drawn as to the. eontents of them."
I therefore agree with the. fower appellate .Court
for disallowing the sum of Rs. soo out of the claim
made by the plaintiff-respondent, and in modify!ng
the decree in favour of the plaintiff-respondent for
a slini of Rs. 1,239-12-0 only.
For the reasons stated above, the appeal is
dismissed with costs, and the cross-objection filed by
the plaintiff-respondent is also dismissed wi~h . costs.

(1) I. L.l~. 37 . All. l' 557.

1955] BURMA LAW REPORTS . 299

..

APPELLATE CRIMINAL.
Before U Chan IJ'un A un.g, C. ! ., cmd U Sat: Maung, J.

! "HAK IN L WIN AND TWO OTHERS (APPLICANTS) H.C.

1955
v. Oct. 17.
THE UNION OF BURMA (RESPONDENT).*
'Uniot~ Judiciary Act, s. 5-Ccrt ifica te of fitmss-S. 7. The National Emblems
(Restriction ofDisplay) Act, 195-1- Petitionfvr Transferandtrialof
cases to High Court under s.135 (1) aud (2) oftheConstitution-Dismissal
order, whether" final order" witlti1~ the ambit of clause (a) of s. 5 of
t h~ Union Judiciary Act- Obitum dictum, not a" final decisiou "o1
"fit11f-l order ".
The applicants were prosecuted before the Western Subdivisiona!
Magistrate, R:mgoon under s. 7 of the National Emblems (Restriction of
Display) Act, 1954.
Pending the trial, they applied to the High Court fOr transfer ancl. {or
trial Of their cases in the High Court under s. 136 (2) of the C,mstitution.
Their application was dismissed.
The applicants then made an a pplication under s. 5 of the Cnion
fu.diciary Act, 19-lS for a Cer tificate of fitness to appeal to the Suprenie

Court against the dismis.s al order. urging that the said order tantamounts
to " fin al orde r " w ithin the a mb it of clause (a) uf s. 5 of the Union
Judiciary Act.
Held: An appeal lies to the Supreme Court {rom " final order " of the
Hi gh Court in a criminal cas e which involves the question of constitution
ality of .any legislative en;:ctment.
Observations made ol:itum didtmz cannot be said to be a " fin'a l decision
or final order. "
The only question cc;mcerned was whether the applicants' case was a fit
;ase for tran sfer to the High Court unde.- s. 135 (2) of the Constitution. T he
>rder rejecting the application i s not a fin al order which invol Jes the question
1sto the validity of any Jaw having regard to the provisions Of the Constitution
Nit hin the ambit of clause (a) of s . 5 of the Union Judiciar y Act.
Per U SAN MArTN.G, f. - The High Cour t does not have exclusive original
urisdiction i'1 respect of any case involving a question as to the validity of
.ny !aw having regard to th~ provisi on of the Constitution , except as laid
lowp in subs. (1) of s. 135 of the Constitution of the Union of Burma .
'When a n application for transfer is made under sub- s. (2) of s. 135, what
he J udge has to cons ider in the first place is whether primiS. f acie the case
i:lVolves or is likely to involve such a~question.
Crimiftal Misc.. Applica tion ~o .. zo of 1955. Appli ~tion for a
;ertificate under s. 5 of the Union Judiciary 4-c t.
 300 BURMA LAW REPORTS. [1 953-
H.C. Ii so satisfied, the cr.se has to be transferred and tried in the High c;pun
~ 1955
.. and then and then 0nly can there b~.: a decision of the High Court
r.::garding )he validity of the law sought to be impugned as ag:t!nst the
.THAI<JN
LWIN
provision of the Co11stitution.
AND TWO The order of the Judge refusing to transfer the c ase to the Higl1 Court
OTHEHS cannot be a final order of the High Court.
to.
THE U NI ON
OF B URMA. D r. U E Maung, Advocate, for the applicants.
C. C. Khoo, Advocate and K yaw T haung
(Government Advocate) for the respondent.
U CHAN TuN AUNG, C.J._This is an application
under section 5 of the Union Judiciary Act, 1948,.
for a certificate of fitness to appeal to the Supreme
Court against the order of a single Judge of the High
Court dismissing the application for transfer and trial
in the High Court of criminal cases in which the:
applicants are concerned. .
The applicants are being prosecuted before the.
Western Subdivisional Magistrate, Rangoon, under
section 7 of the National Emblems (Restriction of
Display) Act, 1954. Pending the hearing of .the said
cases the ttpplicants filed a petition in the.High Court
in its .Original Criminal Jurisdiction .in Criminal
Miscellaneous Application No. 2 of 1955 , fo'r the:
transfer and trial in the High Court those . pending
cases by invoking the provisions of section 135 (2) of
the Constitution. The application was .heard by. u
Thaung Sein, J., who by his order, dated the 8th July,:.
1955, dismissed the. application and the concluding
portion of his order reads :
" On the' whole, therefore~ I regret I ain unable to
persua,de myself that this is a fit case for transfer to the High.
Court under section .125 (2) of the Constitution. Accord.ingly
the application shall stand dismissed. "
Dr:. :ti E M~ung appearing for tb.e applicants .h as:
~ow urged before:us that the .order of U Thaung Sein,,
.J . tantamounts to . ~ '' finai. order " ; that . . i~: .. comes.
 1955] BURMA LAW REPORTS . 301

within the ambit of clause (a) of section 5 of the 1-J.C.

195.5 .
Union Judiciary Act, and that it is a fit case
TBAKI~
for issue of a certificate for appeal to the Supreme L\\"IN
Court. Section 5, clause (a) of the Union Judiciary A '>IJ "CWO
OTHERS
Act reads: v.
THE UNION
" Save where an appeal lies to the High Court itself oF BuR)JA.
under the provisions of section 20, an appeal shall lie to the u c;;;;;TuN
Supreme Court from the judgment, decree, or final order of the AUI':G, C.J.
High Court (whether passed before or after the commencement
of the Constitution) in any civil, criminal. or other case. if the
H igh Court certifies (a) that the case involves a question as to
the validity of any law having regard to the provisions of the
Constitution . "

From the foregoing provisions of the Union

Judiciary Act, it is quite dear that an appeal lies to
the Supreme Court on a certificate of the High Court
from a " final order " of the High Court in a criminal
. Case which involves the question pf constitutionality
of any Legislative enactment. The question, there-
Jere, for us to determine is whether U Thaung Sein's, J.
Order is a "final order "in the criminal case in question.
U Thaung Sein, J. in rejecting the petitioners'
.application appears to have considered two grounds
. urged in .support of the application for transfer, and
those two grounds obviously appertain 0) to the
.alleged invalidity of section 3 of the National
Emblems (Restriction of Display) Act, 1954, in that
. it was said to be one of '' delegated legislation "
,contravening section 90 of the Constitution, and (2)
the question of " arbitrary discrimination " between .
,citizens of the Union of Burma contravening
,. -fundamental rights guaranteed by section 13 of the
~ {:onstitution. .
~ .. w e have .carefully considered the points raised by
~ the applicants' couns~l, and we find, however,
.~that ~n tlte dis.c~ssiqns the Iear~ed Judge had made
 302 BURMA LAW REPORTS. [195S ,
H.C touching upon the Constitutional questions refet;,red
. 955
to above, he was merely answering the grounds urged
T~~~: by the applicants in support of their application for
~~~;~~o \ transfer. We find that the learned Judge has not
v. 1 made any decision whatsoever which can be said to
THE UNION l .
oF BuRMA. t be a ''final order" so far as 1t relates to the questiOn

u CHAN TuN \\involved in the crimfnal case in which the applicants.

AuNG, C.J. are concerned. It appears to us that the learned.
Judge was merely trying to satisfy himself whether
the criminal cases now pending in the inferior court
involve substantial question of validity of any law
having regard to the provisions . of the Constitution
as envisaged in sub-section (2) of section 135 of the
Constitution. To our mind those observations he
has made touching upon those questions are merely
obiter dictum and they cannot properly be said to be
a " final decision " or " final order " in the said
criminal cases. The concluding portion of his
judgment makes it very clear to us that the learned.
Judge was orily concerned with the question as to,
whether the applicants' case was a fit case for transfer
to the High Court under section 135 (~) of the.
Constitu~ion. In that regard the learned Judge was
satisfied .that it is not a fit case for transfer and
rejected the application. Such a rejection, in our
opinion, is not a final order which involves. .tl!e
question as to the validity of any law having regard
to the provisions of the Constitution within the ambit
of clause (a) of section 5 of the Union Judiciary Act.
The application for issue of a certificate to appeal
to. the Supreme Court shall, therefore, stand rejected.
. . .

CRIMINA-L MISCELLANEOus APPLICATION No:.20oF 19.55.

U SAN MAUNG, ];_I wish to add a re\\. remarks
to the judgment of the rearned Chief Justice with
whom I am in gener~l agreement. _.: .Sub-section (1) of

'.
.J 955] BURMA LAW REPORTS. 30J
section 135 of the Constitution of the Union of Burma H.c.
1955 .
says that the High Court shall have exclusive o.~iginal ..-
jurisdiction (a) in all matters arising under any L\Jr~A~~o~
treaty made by the Union; (b) in all disputes between Two ~THERs.
the Union and a unit or between one unit and THE UNioN.
another; and (C). 1n
sueh o ther
. rna tters, 1'f any, as may OF --
BUR l>!A.

be" defined by law. From this it is clear that the ~;:;,N J.r~
High Court does not have exclusive original jurisdic-
tion in respect of any case involving a question as to
the validity of any law having regard to the provisions
of the Constitution.
However, sub-section (2) of section 135 enacts
that if the High Court is satisfied that a case pending
in any inferior Court involves or is likely to involve
substantially a question of the validity of any law
having regard to the provisions of the Constitution,
the High Co_u rt shall transfer the case to itself for
trial. Therefore, when an application is made to the.
High Court to transfer a case pending in an inferior
Court to itself for trial, what the Judge, who has to
deal with the application, has to consider irr the first
p lace is whether prima facie the case involves or is
likely . to involve such a question. If he is.
so satisfied the case has to be transferred to the High
Court to be tried in the exercise of its original
jurisdiction. Then and then only can there be a.
deCision of the High Court regarding the validity of
the law sought to be impugned as against the provi-
sions of the Constitution. The order of the Judge:
refusing to Transfer the case to the High Court aS:
provided for in sub-section (2) of section 135 of the.
Constitution cannot, therefore, be a final order of the
High Court as to the validity of any law having
regard to the provisions of the Constitution w~thin
the ambit . of clause (a} of section 5 of the Union
JudiciaryAct, 19~8.
 BUR~IA LAW REPORTS. [1955

APPELLATE CRIMINAL.
Before U Ba Thoun~, J.

H.C. UNION OF BURMA (APPLICANT)

1955
.s~pt. zz. v.
RASHIN (RESPONDENT).*
Child under 6 years of agc-Convicti01t under s. 112, Railways Act-Ss . 32
and S3, Pen al Codc-Ss. 12b to 130, Railways Act.
The Respondent, a chi lcl o[ 6 years of age was convicted under s. 112,
Railways Act.
Held: s. 82 of the Penal Code declared that nothing is an offence which
is done by a child: under 7 years Of age and although s. 130 of the i~ailways
Act suspend~ the operation of ss. 82 and 83 Of the Pen-al Code in respect Of
ss. 126 to 129 of the Railways Act, s.l3G of the Raih\'ays Act has no effect
upon offences committed under s. 112 of the said Act.
Held : The immunity Of children under 7 years 1o age from Criminal
liability extencs to offences under any Special or local Law.
The conviction is bad in la,v and is set aside.
The [{ing v. Ba BaSei1t, (19313) l~.L.R. p, 2_27, followed .
..
Applicant : Nil .

.Respondent : Nil.

U BA THOUNG, J.-The respondent Rashiti, who

-is a child of 6 years of age, has been convicted under
:section 112 of the Railways Act _and o~dered to pay
.a fine of K 5 or in default, to undergo 7 days' rigorous
. impris~nment, by the first Additional Magistrate, -:
Nyaunglebin. The conviction being undoubtedly
:against the. provisions of section 82 of the Penal Code, :
the learned Sessions Judge, Pegu, in his Crimii1al 1
" Criminal Revision .No. 97 Of 1955. . '
of
Review Of tll~ order the 1st Addit~orial Magistrate"-'6t NY,aunglebin, dated '
"the l6th day of Febro_ary 1955,j>asse"'d in Criminal Hegular Trial No. 47 .of
.1955, 011 a recommendation ,b y. the.sessions Tudge, Pegu, . in his Criminal
~

:Revision No. 89 ot_ 1955, dated the 20th June 1955. .

0
1955] BURMA LAW REPORTS. 305

Revision No. 89 of 1955 submitted the proceedings H.C.

1955
to this Court with a recommendation to set aside the
U~lONOF
conviction and sentence passed on the respondent. BURMA '

Section 82 of the Penal Code declares that 'll.

R ASH!N.
nothing is an offence which is done by a child under
U BA
7 years of age; a~d although section 130 of the THOUNG,J .

Railways Act suspends the operation of sections 82

and 83 of the Penal Code in respect of sections 126
to 129 of the Railways Act, section 130 of the
Railways Act has no effect upon offences committed
under section 112of the said Act. The conviction of
the respondent is undoubtedly bad in law and it must
be set aside. That the immunity of children under
7 years of age from criminal liability also extends to
offences under any special or local law has been laid
down in the case of The f(ing v. Ba Ba Sein (1).
For the above reasons, I set aside the conviction
and sentence passed on the respondent Rashin and
acquit him. The fine, if paid by him, is to be refunded
back to him.

(1) (1938) R,!..R. p, 227,

20
 306 BURMA LAW REPORTS. [1955.

APPELLATE CRIMINAL.
BcjOt'C U San Maung, I.

H.C. UNION OF BURMA (1\PPLICANT)

1955
Dec. 10. v.
MAUNG KHWE GYI (RESPONDENT).*

Conviction under s. 380, Penal Code by a Secoud Class Power Magistrate-

Case submitted ut1der s. 349 (1) instead of the Proviso to s. 562 (1),
Criminal Procedure Code to the District Magistrate for action 111tder s.
562-Transje1 of case by District Magistrate to Second Additional
Magistrate for dispo sal-Acquittal by Seco11d Addit~onal Magi5/rate-
S. 380, Crinunal Proc6dure Code-Burma Act No. Xlll of 1945.
The Respondent was convicted under s. 380, Penal Code by a Sec.md
Class Power Magistrate, who submitted the case under s. 349 (1), Criminal
Procedure Code to the District Magistrate for release on probation under s.
562.
The District Magistrate transferred the case to the Second AclditioP.al
Magistrate who recalled and examined three prosecution witnesses and
acquitt:!d the Respondent.
On reference, held: (i) Pro:eedin~s should be submitted uader the
Proviso to sub-s. (1) of s. 562 and not 349 (1), Criminal Procedure Code; .
(ii) S. 349 (1) is applicable only to a case where a Magistrate ot the
Second Class is merely of the opinion that the accused is guil!y of the offence
charged but that he ought to receive a punishment different in kind from and
more severe than that which the Magistrate is empowered to inflict. When
the Magistrate considers that a person convicted by him should be released
on probation of good conduct, s. 349 (1) of the Criminal Procedure Code
'' is irrelevant;
(iii) A Magistrate to whom a criminal case has been referred under t"he
pr 0 viso to s. 562 can only dispose Of it in the manner provided by s. 380 and
treat the ac:;used as an alreaciy convicted person. He is not e mpowered to
set as\de the conviction by the referring Magistrate aod acquit him.
Mi Thi Hla v. Mi Kin, 11914-16) 2 U.B.R. 55; MoraZi and six others v.
KitJ!!-Emperor, (1907-08) 4 L.B.R. 277, dissented from ; The Pt,blic
Prosecutor v. Malaipati Gurappa Naidu, I.L.R. 57 Mad. 85 , followed.
* Criminal Revision No. 166 (s) of 1 Y54, bein~ Reference made under
s. 438 of the Criminal Procedure Code by the Sessions Jud~e, Myaungmya, (U
Tin Maung), in his Criminal Revision No. 128 of 1954, dated the 27th August
1954,. with the recommendation that the order dated the' 26th March 195-J of
the 2nd Additional Magistrate, Myaungmya, passed in his Criminal Regular
Trial No.2 of 1954, acquitting the fespondent of an offence under s. 380 of
..
the Pena1 code, may be :s~t.:aside.,
 1955] BURMA LAW REPORT$. 307
(iv) ~.Y the cl el::!li)n oi s. 380, Criminal Procedure Code and inclusion of H.C.
sub-s. (5) h s . .562 b~ Rltr:n:t Act No. XIII of 1945, the .Magistrate to wlll>lll a i9SS
case is st;bmitte.:l under th<: proviso to sub-s. {1) of s. 562 cannot :u:q uit the
UNION
accused. The \July thing lle ca n do is to sentence him or to take such OF BURMA
aprrop riale actio n as provid'ect fe r in s. 562. The inquiry envisaged in tf.
snbs. (5) is to be confined to the expediency or otherwise of rele;tsing th-e MAUNG
offender on prob&.tion Of good conduct or of releasing him aftE:r due I{HWE G YI.
admonition.
O rc.ler of ;\cquittal ::.ct a~ide al!cl case remanded.

Ba Kyaing (Government Advocate) for the

applicant.

Nil for the respondent.

U SAN MAUNG, J._ I have read the order of the

reference of the learned Sessions Judge, Myaungmya,
in his Criminal Revision No. 128 of 1954. It would
appear that in Criminal Regular Trial No. 119 of
1953 of the 1st Additional Magistrate, Labutta, the
respondent Maung Khwe Gyi was convicted by the
Magistrate of an offence punishable under secti~n 380
of the Penal Code. However, the Magistrate, who
was only exercising 2nd class tnagisterial powers, con-
sidered that Maung Khwe Gyi should be released on
probation of good conduct under the provisions of sec-
tion 562 of the Criminal Procedure Code. He therefore
submitted the proceedings to the District Magistrate,
Myaungmya~ and in doing so he purported to act
under section 349 (1) of the Criminal Procedure Code
when in fact he meant to do so under the proviso to
sub-sec~i0n {1) of section 562. Herein lies the
original mistake because section 349 (1) is applicable
. Qnly to .a case where a Magistrate of the seco,nd .or
~ third class is merely of the opinion that the accused is
i mlilty of .the offence charged but that he ought . to

:ceive a .p unishment .different in kind from..and mote

vere_th~n. t~a.t..w.hich the Magis.t:t;.~t.e is empowered
' inflict. ~When the . Magistrate :,considers that a
308 BURMA LAW REPORTS. [1955
H.C. person convicted by him should be released on
. 1955
proba~ion of good conduct, section 349 (1) of the
.. UNION OF
B URMA Criminal Procedure Code is irrelevant.
'lh
MAUNG The case was transferred by the District
KHWE Gvt. Magistrate, Myaungmya, to the 2nd Additional
U SAN Magistrate, Myaungn1ya for disposal although it is not
MAUNG, J. ' '
known under what provision of law the learned
District Magistrate acted in making this transfer.
The 2nd Additional Magistrate, Myaungmya, relying
upon the ruling in the case of ilii Thi Hla v. Mi Kin
(1), recalled three of the prosecution witnesses for
further exatnination by him and subsequently
acquitted Maung Khwe Gyi classifying the case as
"Mistaken." It wouldappearthat inMi Thi Hla v.
Mi Kin's case (1) the learned Judicial Commissioner
of Upper Burma, referring with approval the observa-
tions of Irwin, O.C.J. in Morali and six others v.
King-Emperor (2), held that a Magistrate to whom
proceedings were submitted as provided by section 562
of the Criminal Procedure Code may pass such sentence
or make"'such order, including order of acquittal, as.
might have been passed or made if the case had
originally been heard by him. The decision in Mi
Thi Hla v. Mi Kin's case (1) has however been
dissented from by the Madras High Court in
The Public Prosecutor v. Malaipati Gurappa Naiau
(3), where it was held that a Magistrate to whom a
criminal case has been referred under the proviso to
section 562 of the Criminal Procedure Code can only
c!ispose of it in the manner provided by section 380,.
and that when an accused person comes before a .'
Magistrate under section 380, he can only be treated :
as a convicted.person and the Magistrate acting under 3
that .section is: .not . empowered to set aside the i
(1) (l914-i6) 2 U.B.R. 55. (2) (1907-oS) 4 L.B.R. 277
. . . .(3) LL.R. "57 Mad. ss. ~ .
0
1955] 31l
corlfined to the expediency or otherwise of releasing H.c..
the offender on probation of good condu~t. or of
1955

releasing ~im after due admonition. oFu~~o~f:\

v.
In the result the order of the 2nd Additional '},fAuNG
.
M agxstrate, M yaungmya, acquitting t h e respondent KHWE GYI.

M'aung Khwe Gyi ts set aside and the case is remanded u SAN
MAUNG, J.
to the Ptstrict Magistrate, Myaungmya, for action
according to law in the light of the remarks made
above.
 BURMA LAW'REPOJ.tts. [1955.

APPELLATE CRIMINAL
Before U Ba Thoung, -'

UNION OF
. .
BURMA (APPLICANT)
V'.
Jutte 2.
MAUNG NYUN' (RESPONDENT).*

Unlawf1tZ Association Act, 1908, s. 17 (1)-Btuma Act No.L XI of 1954, the

Unlawful Association (Amendmtmt) Act, 1954-Trial of warrat1t case as a
summons case-Not merely an irregularity bttt att illegality, iucurable
under s. 537, Criminal Procedure Code.
H. eld : The Trial of a warrant case as a summons case is not merely an
irregularity bL1t an illegality, incurable by s. S37 Criminal Procedure Code or
any of the curative provisions of the Code. The i-r-regularity amounts to an .
illegality and vitiates the trial.
SufaZ Golai v. Emperor, A.I.R. (1938) Cal. 20'S; M angi LaZ. v. Emperor,
. A.I.K (32) (19-t5) All. 98, followed.

Ba Gyaw (Government Advocate) for the applicant.

Nil for the respondent.

U BA TROUNG, J.-The respond~ntMaung Nyun

and one Maung Sein Min (a) Sein Maung were
prosecuted under section 17 (1) of the. Unlawful
Association Act, 1908, in the. Colft:t of the 6th
Additional Magistrate, .Mandalay, and. the learned.
Additional Magistrate in his Criminal Trial No. 236.
of 1954 convicte4 them under section 17 (1) of the
said Act and sentenced.them to undergo. 4 months'
rigorous imprisonment each:. It .appears that the
learned Additional Magistrate w~s not aware that the
. provisions of 'Section 17 (1) of the Unlawful
'
* Criminal Revision No. 26 (B) of 1955:, being review: of .the order of the
6th Additional' Magistrate of Mandaiay:dated the 4th ~ay or' December 1954
. passed in Criminal Trial No. 236 of 19~4, as recommended by tl}e Additional
District Magistrate, Mandalay. .. ' . '
f f955] BURMA LAW REPORTS. 313

Assotiation Act, 1908 has been amended vide H.C.

1955
Burma Act No. LXI of 1954 and that the minimum "-
-
UNIONOF <~
sentence to be awarded in such cases is two ye.ars. An BuiqrA.
application for revision against the judgment of the trial f):
M:AuNh
Magistrate was therefore filed by the Court Pro.secuting NvuN:
Inspector in the Court of the Additional District UB~
THOIJNGr f
Magistr8:te, Mandalay. The learned Additional District
Magist;rate in his Criminal Revisio-n No. 57 of 1954 has
made a recommendation that the sentences of 4
months' rigorous imprisonment each, imposed on the
respondent and on Maung Sein Min be enhanced to
two years rigorous imprisonment each, and be has
submitted theproceedings to this Court with the above
recommendation. under section 438 of the Code of
Criminal Procedure, for orders. ~otices were issued
to the respondent as well as to Maung Sein Min, but
the respondent Maung N yun alone was duly served
with notice whereas the notice issued to
Maung Sein Min could not be served. It was therefore.
ordered by this Court that the revision case against
Maung Nyun and Maung Sein Min he splifu p into
two i.e. one against the respondent Maung Nyun
and the other against Maung Sein Min, and that the
hearing of the case against Maung N yun be proceeded
wi,th, whil~ the wvision case against Maung Sein Min
1s to be heard and an order passed after he has been
duly served with notice. Hence the order in this
case' concerns Maung Nyun only. .
The Unlawful Association Act, 1908 has been
. a:r:nended yide the Burma Act No. LXI of 1954. The
: l:lur;~rui.Act No. LXI of 1954 i.e. The UnlawfU;l Associa.-
~ tions (Amendment) Act;. 1954, came into force with
~ effect from the 16th October 1954,'-and as .the com-
1
: missi'on of the offence in the present case was on 2nd

November 1954, the minimum sentence to be awarded

. to 'each . of the accus~d. in o'the .pr-esent case i's' two
. .
314 BURMA LAW REPORTS. [195S
H.C. years. The sentences imposed on the two aceused
~ 1955
by th~ trial Magistrate are therefore illegal. Apart
e UNION OF
-- ~URMA from this, it is found on peruSal of the trial Court
v. proceedings that the case was tried as a summons
MAUNG
NYDN. case and not as a warrant case~ No evidence was
U BA adduced by the prosecution and the trial was held as
T~o;uNG, J.
if it was a summons case and all that the trial Magis-
trate did was that he put the particulats of the offence
to the accused and asked them to plead guilty or not
guilty and he convicted them on their pleading
" Guilty ". The offence committed in the present
case. is liable to punishment with a minimum sentence
of two years' rigorous imprisonment, and therefore it
should not be tried as a summons case, but it should
be tried as a warrant case. Thus the trial itself is
illegal. In the -case of Sufal Golai v. Emperor (1) it
has been held that:
~ ln considering whether the tdal should be in accordance
with the procedure of a summons case or of a warrant case, it
is not pertinent to consider the nature of the offence, but only
the measufe of the punishment which may be inflicted. That
constitutes the deciding factor.
Where therefore in a prosecution under section 46 (a}
Bengal Exci~e Act, it is apparent from the beginnl.ng that the:
accused is liable to imprisonment exeeeding six months by
reason of a previous conviction under the provisions of section
62 of the Act, the proper pro~edure for the Magistrate to adopt
is that laid down for a warrant Case. If in such a case, the.
Magistrate follows the summons case procedure instead of . the.
procedure for warrant case, the irregularity is not a mere
matter of form. The diff~ience between the two forms of
trial is of sufficient importance to leaci to an almost indefeasible
presumption of prejudice to the accused. The- iuegularityis
.of such a .character that it cannot be cured_by section 537-. .
Criminal Procedure Code of any of the other curative -provisions
of the Code . . The. .irregularity amounts to an illegality_ ai:id .;
vitia-t es. .the. trial ,;:. . . . :
__ __
--.:.....--.-'------,._;._ __..;,
~-

: (1) A-.t:.i~..(i9l~) Cal. 20'S,

.
-. -----'---:--.,--...:.--
. ..
;;
,955] BURMA LAW REP0RTS. 315

In the case of Mangi Lal v. Emperor (1), it has H.C.

1955 >

been held that :

tJNJON OF<l
"A warrant case as defined by the Criml.ttal" Procedui'e BURMA
v;
Code is a case r~latirig to an offence punishable with death. MAui4G
transportation or imprisonment for a term exceeding six Nv~.

moJ1ths. An offence under Rule 81 (4), (Defence of India U 'HA

Rules. 1939) is punishable with imprisonment for a term which TROUNG, J~
may extend to three years. Therefore a case relating to an
offence under. Rule 81 (4) would be a warrant case. Ordinarily
such a case could not be tried summarily but under Rule 130
(4) it can be tried summarily but even ,then it has to be tried
in accordance with the provisions of sections 262 to 265,
Criminal Procedure Code. Section 262, Criminal Procedure
Code is an imperative provision and a breach of it is not
merely an irregularity but an illegality. Accordingly where
in a summary trial of a warrant case relating to an offen~e
under Rule 81 (4) the trial was held as if it was a summons
case and all that the Magistrate did was that he put the parti
culars of the offence to the accused as soon as he was brought
before him, asked him to plead guilty or not guilty and
convicted him on his pleading guilty, and no attempt was
made by the prosecution to adduce any evidence of any
kind, the trial is illegal. " ..

It further held that_

. " Even if an application for revision by the accused was
admitted by the High Court -only on the question' of sentence,
the0
High Court is p.ot prevented from considering the case as
a .whole a-nd holding that there is an illegality in the trial and
the ~~nten~es imposed upon the accused."

In the . present case the Additional District

Magistrate has recommended for the enhancement of
the se11tence onlyas he has not noticed the illegality ..
of the trial itself~ but I am not prevented from con-
sidering the case as. a whole and holding that there is
an i~!egality in the trial . and the sentence imposed
upon .the' accu.sed.~ ~
0 .. . ..
. . (l) A:I.R .. (32) (1945) All. 98
..
. '
3f6 BURMA LAW RE.PORTS. t t95S

~
H.C.
195&
For the reasons stated above I set aside the con~
viction and the sentence passed on the respondent
e UNION OF
B URJ\IA Maung Nyun by the 6th Additional Magistrate,
V'.
MAUNG Mandalay, in his Criminial Trial No. 236 of 1954;
N'YUN. and order a re-trial of the case against him.
 J955] ~URMA LAW REPORTS .. 317

APPELLATE CRIMINAL.
Before U Ba Tlroung, J.

uNION OF. BURMA (APPLICANT) H.C.

1955
. v. Oct. 13
AH SHIN AND TWO OTHERS (RESP.ONDENTSJ. *
Excise Act, s, 30 (a)-Acquittal of accused without examining the Complainant
or the Prosecution witnesses as required by s. 214 (1), Cr:minal Procedure
Code, Trial illegal, void and incurable-High Court's power in
revision.
The Respondents were sent U!) under s. 30 (a), Excise Act and theY
plpded not guilty to the charge.
tThe trial Magistrate without examining the Complainant or taking any
. evidence of the prosecution witnesses as required under s. 244 (1), Criminal
Procedure Code acquitted them,
Held: That the acquitt:~l of the Respondent by the trial Magistrate
without examii1ing the Complainant or taking the evidence cf l.he prosecu-
timi witnesses in accordance with s. 244 (1), Criminal Pmcedure Code is
. illegal-an illegality which cannot be cured.
I
Held further : The trial being illegal and void, .the High Court in its
revisional jurisdiction C<'tn .set aside the order of acquittal)
Emperor v. Varadarajula Naidu, 33 C.L.J. 274, Jollow~d.

Ba Ky~ing (Governmep.t Advocate) for the oapplicant.

Ba ll1aung, Advocate, .for the respondents.

U BA THOUNG, J._The three respondents along"

with one Ma Tin Tin was sent up for: trial under
secdon 30 (a) of the Excise Act before the Court of
the 1st ~.Additional Magistrate of Paungde, and the
learn~d t~ial ;Magistrate in his Criminal Regular
Tri~l .No. zo6 of 1954 after explaining the charges to
the. fqur accused, asked them if there were any cause to
. show. why they should not be convicted. Of the four .
{~riminal Revision No. 67 (B) of 1955.
Re\iie.w of the order of' the 1st Additional Magistrate of Paungde, dated
the ~Sth"cl.aY :of December 1954, pass,rd in Criminal Regular Trial No. 206
of. 1954 with the recommendation of the District Magist+ate, Prome
. in Crimina:! Bevision No.. S:> of 1955, ~ated the 25th March 195.5. .
 318 BURMA LAW REPORTS. [195Se
H.C.
1955
accused, Ma Tin Tin pleaded guilty and the lea~ned
trial Magistrate convicted her on her own plea and
UNION <fF
., BuRMA senten-ced her to pay a fine of K 120 or h~ default to
AH s:;N AND undergo 1! nlonths' rigorous imprisonment. The
. Two e~HERs. remaining three accused who are. the respondents in
u RA this case pleaded not guilty, and the learned trial
TaouNG, J. Magistrate without examini11g the con1pla!nant ~or
taking any evidence of the .prosecution witnesses
as required under section 244 '( 1) of the Criminal
Procedure Code acquitted them. Tl1e case was
called on revision by the District Magistrate of Prome
and in his revision case No. 59 of 1955, the learned
District Magistrate has remarked that the acquittal
of the respondents in this case by the trial Magi-
strate without examining the complainant or taking
the evidence of the prosecution witnesses in accor-
dance with section 244 (1) of the Ciiminal Proce-
dure Code is illegal ; and he submitted the proceed:..
ings to this Court with a recommendation to
order retrial of the case.
The :tecommen%tion o.f the District Magistrate
must be accepted. LS6ction 244 ( 1) of the Criminal
Procedure Code clearly lays down that if the accused
does not n1ake an admission of the truth of accusa-
tion the Magistrate should proceed to hear the
complainant (if any)~ and take all such evidence a~
may be produced in support of the . prosecution~
arid also to hear the .accused and take all such
evidence as he produces in his defence. The fact
that the learned trial Magistrate acquitted the respon-
dents. iri this c~se who. had not pleaded guilty to the ,
eharge, .'w ithout exaniining the complainant and taking :
. the evidence of the proscution witnesses : in sup.p ort .
of. ~he _~p11osecution, .is cleady an illeg;~lity . which R~n- . ;
. ~9t, be f.Uf~d <andt the o~d~ of ~cq~~t.~al ~ust there... . ~
fore be .:set astcle~ - ..
' .

. .. '
 J.955 ] BURMA LAW REPORTS. 319

U is contended by the learned counsel for the H. C.

1955
respondents that the order of acquittal could only be
set aside on appeal on behalf of the Government u;~~~AoF"
made under section 417 of the Criminal Procedure Aa s:;N ANo

Code and not by way of revision. His contention Two oTHERs.

~s correct where there is an acquittal after a proper u -BA

trial, but in the present case the trial itself is TnouNa, J;
illegal and void for not complying with the provi-
sions of section 244 (1) of the Criminal Procedure
Code. Such b.eing the case, I am of the opinion
that this Court in its -revisional jurisdiction can set . .

aside the order of acquittal by the trial Magi-

strate, and order a fresh trial.
I am fortified in this view by the ruling laid d0wn
in the case of Emperor v. Varadarajula Naidu {1)
where it has been held that " it is not ope~ to a
Magistrate to acquit an accused person under section
245, Criminal Procedure Code, without examining
the complainant and witnesses produced by him. "
The facts in that case are similar to the present
one, and the High Court in revision set aside the
order of the trial Magistrate and ordered a retrial
.of the case. .
Fo~ the above reasons I set aside the order
. of the 1st Additional Magistrate, Pal:Ingde passed
'i in' his . Criminal
.
Regular Trial No. 206 .
of 1954
' acquitting the respondents Ah Shin, Ma Khin N yunt
f.' an.d Ab Shap, and order a retrial .against therh by
t any other Magistrate as the District Magist~ate
l of ~~<?tne . Il;lay direct..

0 (.1:) 33 C.L.~ 274

 320 BURMA LAW REPORTS. [195S

APPELLATE CRIMINAL.
Before U Sa1z Maung, J .

H.c. UNION OF BURMA } (APPELLANt)

1955
Sept. s.
S. J. TRIVEDI "(APPLIC~NT)
v.
G.M.MEHTA } .
UNION OF BURMA (RESPONDENT).*

Foreig11 E'xchange Regulation Act, 1947-3. 6 (1) and s. 24 (1)-S.

120-B, Penal Code-The term'' accomPlice "-S. 342, sub-s. (1), Cri1nina't
Procedute Code-S. 32 (3), Evidence Act-Guiding PrinciPles rin aPPeals.
against acquittals.
In Criminal Regular Trial No. 27 of 1955 of the Court of the 1st Special
Judge, (S.I.A.B. & B.S.I.A. Act) Rangoon, S. J. Trivedi and G. M. Mehta were
tried under s. 2~ (1) of the Foreign Exchange H.egulation Act, 1947 read with:
s. 120-B of the Penal Code-
S. J. Ti-ivedi was convicted .
":!
. G. M . Mehta was acquitted..
. ...
S. J. Trivedi appealed against his convidiqn and Sentence and the Union.of
Burma appealed against the order of acquittal. :
Both the appeals were heard together. ..,.
Held :The correct proposition of the Law rehl.ting to' what the terri:}::
''accomplice., con11otez is that the term ''accomplice" -signifies a guilty.
associate in <!rime or a person who can be jointly .indicted with the accused iti .
the case. .
Ramswami Goundan v. Emperor, I.L.R. 27 Mad. p . .271 ; Katfash Missir v.
Emperor, A.I.R. (1931) 'Pat. p.lOS.
An Officer of the B.S.I. appointed under Act SO of 1951 is a police Officer
when he investigate's the offences mentioned in Schednle (1) annexed thereto.
The stateuient made to him is not admissible in evidence. S.162 of the
Criminal Procedur~ Code applies to the statement made to him in the course
of investigatibn. . ..:
U Soe Lin v. The Union of Burma, Criminal Revision No. 45-B of 1953,
approved.
~rtlier, the B.S.i. Officer is 3 police Officer within the meaning of that'
term in s. 16? of the Criminal Procedure Code.
Maung San Myin v. King-Emperor, Z:L.R. 7 Ran. 77{; Ah Foong v. 'King-
.Em#r'or, tL.R. 46 Cal. 411 ; Ameen Sharif v. Emperor, I.L.'R. 61 Cal. 607 ;
Nanoo Sh.eiklt Ahmed and another v. Emperor, . I.L.R. 51. Born. (I<'.B.) 78 ;
Bachoo Kandere v. Emperor, A.I.R. (1938) Sindh (F.B.) 1, referred to; Re.
. Somesltwar H.Shelat,A.I.R. (l946) Mad. 430, approved.. .
* Criminal Appeal Nos. 145 anq :t.S.,S of 1955. . Al)p~~l fr~ni the order of the
p.ec.ia.l_J.udge .VU~IA}3 &
BSIA) of Rangoon, dated .the 5t.h day o February
1955 passep in Criminal Regular Trla.I.No. 27 o1953:
. ..<~f.~.:~ . ' .' ..

, .
 BURMA LAW REPORTS. 321
I~s a fundamental pri nciple that in a Criminal trial the burden of proof lies H,C. .
on the prosecution to establi;~h the charge beyond reasonable doubt and that
where an accused person should have been discharged for want of p~imafacie UNIONOF.
ca:;e against h im tl)e Court shoul d not use the evzdence of a co-accl:sed given
---
" 1955

BURMA
under s. 342 (1) of the Code of <..;riminal Procedure to fill up the gaps in the S. J. TRIVEDI.
prosecution. v...
BaPeandonev. The Unum of Bf!-rma, (1950) B.L.R . I78. fcllowed. G. M . MEMTA.
2ut when the prosecution has succeeded in establishing a Prima facie case UNION OF
agains't the accused before the other co-accused was examined on oa!'lt, then BtrRMA.

the evidence of the co-accused may be used against the accused, althougn the
w eight to be givell to this evidence will depend ifl the circumstances of the
case. .
U Saw and nine others v. The Uniote of Burma, 11948) B.L.R. p. 217,
followed.
A stateme11t made by a pers"n which would expose him to a criminal
prosecution is admissible in e vidence under s. 32 (3t of the Evidence Act.
Nga Po Yin v. King-Emperor, (1904-06) 1 U.B .R. p. 3; Mauug Shin and
two others~. The Un'ion of Burma, (1948) B .L.R. p. 425, referred to; Achllailall
v. King-Emperor, 25 Pat. p. 347, dissented from.
I n appeals aga:nst acquittals, the High Court will always give proper
weight and consideration to such matters as-
(1) the views or the trial Judge as to the credibility of the witnesses ;
(2) the presumption of innocence in favo ur of the accused, a presumption
.certainly not weakened by the fact that lle has be en acquitted at his
...
. . trial;
(3) the rightof the accused to the benefit of any doubt ; and .
~ ...:: .. (4) the slowness of an appellate Court in qisturbing a finding of fact
arrived at by a Judge who had the advant-1ge ~f seeing the
:. . . witnesses. .
Sheo SwaruP and others v. King-Emperor, 56 All. p. 645 (P.C.), followed ;
:Emperor v. Nga Mya Maung, A.I.R. (1936) Ran. p. 90: Puran v. The State of
Punjab, A.I.R. (1953) p . 459 (S.C.) ; Chelloor MaTikkal Narayan Ittiravi
Nambudiri v. State of Trar auCbre-Cochin, A.I.R. (1953) f>. 478 (S.C.); Madan
Mohan Singh v. State of Utta Pradeslz, A.I.R. (1954) 631 (S .C. ), referred to.
. .
.Dr. BaHan
. for Union of Burma in Appeal No.. 145.
Mon.. s~~
...
Hline for the appellant in Appeal No~ 15~ .
.
Kyaw Myint and Basu and Venkatram for the
respondent in Appeal No. 145.
.. .
Dr..Ba Han for U nion of Burma in Appeal No. 155.
. .
. . p SAN MAUNG, J .-1~ .Criminal Regular. Trial
' No. 27 of. 19S5 of the Court of the 1st : Special Judge~
l.
(S~A.B ~ BSI Act), . Rangoon, Nigel W~od ~ . (no:~

21
322 BURMA LAW REPORTS. [1955 r

. H.c. deceased), S. J. Trivedi and G. M. Mehta were sentup

l';ISS for trial for being in a: conspiracy to commit offences
' h .
UNION OF
BuRMA pun1s able under section 24 (1) of the Foreign
s. J: TRxvEnr. Exchange Regulation Act, 1947, by making payments
~- rvr. ~:EHTA tp or on credit of persons residing outside Burma in
U~IONo~<' contravention of the provisions of sub-sectio'n 1 .,of
"uRMA. section 6 of this Act. Nigel Wood ended his life by
SAN J
.MuAUNG
1 ,
an over dose of sleeping draught the day after this
case was sent up for trial against him. S. J. Trivedi
was subsequently convicted by the learned trial Judge
of the offences punishable under section. 24 (1) of the
Foreign Exchange Regulation Act, 1947, read wi_th
seption 120-B of the :Penal Code and was s~ntencecl.
to two years' rigorous imprisonment. G .. M. Mehta
was however directed tq be acquitted and released in.
so far as this case was concerned. Trivedi has 1;J.OW
appealed against his conviction and sentence while
the Government.of the Union of Burma has appealed
against the acquittal of G. M. Mehta, and these two
appeals will be dealt with in the same judgment as
they. were practically heard together. .
This .case is . the outcome of the activities of an
. international gang of racketeers ~ealing in the foreign
exchange racket. Modus operandi of the :.r;a~keteer~.
was as follows : .e> .

. There were in England two firms of exporters

known as the Ver~.llam Exporting Co. and the .Hervo
Engineering Co., both sit~ated at No. 38, Bow Lane~
London, E.C. 4. Both these firms . were apparently
. . .. . ,. ::
:.~ '
owned by the same person who signed himself as thg-
sole proprietor qn the bills drawn on .the exporters .
inBurma who were -'t he Burma Engineering SupplJ;
Co. of No. 118; . . Phayre Street, Rangoon, Shan;
. J;,lectrical T.radirig Co.,e Main Roacl, Taunggyi~
Hassanali M~rnioojee.
.. .
&.. Sons,
.
. N.o. . 26 .,B;
.
Road~....,~
Mandalay & . Lower Burma :Electrical Mart, Lowe~
.~ .
..
. .
 :1955] BURMA LAW REPORTS. 323

Main Road~ Moulmein. The same persons were H.c.

1955
employed by both the Verulam Exporting Ce. and ,.
the Hervo Engineering Co. as may be seen from the u~~g~o:
.names appearing in the con1bined certificate of value, s; J,TRrvEnx
--origin and invoice of goods. One Alice Joyce o. M.~il~TA
Wi-lson was supposed to be the Chief Invoice Clerk -tr&~o.N' o)?
. wh'l
i qr both t h ese companies, . b h
1 e a person y t e name
BUR?rf~.
.. ::
of W. Bunce appeared to be a subordinate employe~. M~u!~.NJ:
..A.s regards the Burmese firms of exporters the Burma
.Engineering Supply Co. alone had an office situated
.at Rangoon, while the other associates, namely, Shan
.;Electrical Trading Co., Hassanali Marmoojee & .
:S.ons, and Lower Burma Electrical Mart were al~
fictitious firms having no real address. Correspond'!'
ence 'lpeant for these firms had t~ be sent care. of
.Burma Engineering Supply Co. The brain behind
:the enterprise was one K. L. Gullestad o.f Norway,
now absconding. It was he who had signed himsel~
itS .E. . Madha, Manager of Burma Epgine~ring
Supply Co. in Form A which was th~ form)o(
:appliqation for foreign exchange for the purpose of
paying for goods alleged to have been impC?rted . o~
tq be imported into Bu~ma. Gullestad'~ . associa.t~
. d~ RaJ}goon was . Nigel Wood, ~ t~. !A;ssi$ta.pt ~~:qager
.tu the Tyr.e Department, Harperink Smitii & Co.
.Ltd.,. Rangoon. Nigel Wood .in co~spiracy with
W~ Stickland, now .absconding, ex-_Accountan~ of
Qrindlays Ban~, Rangoon, an4 A. G. Simons, Sec9n4
~-Officer of .the Inward Bills Section, Merca~tile Ban~
. :pf India Ltd., Rangoon, had prior to the establishment
:o_f the :aurma Engit;teering Supply Co .. organised a
.fum known a~ the New B.ur.rna Trading Co. at No; 92
.?agoda Road, Rangoon~ for carrying on activities
::si:mil~r to those of the Burma Engineering Supply Co.
~or his p,~rticipatio_n..in the!' racket, A.. G. Simons was . .
to.nvicted of the offence purijshab~e unqer. se_ction 2~ .
 t
324 BURMA LAW REPORTS. [1955>
.. ~~ , (1) of the Foreign Exchange Regulation Act, ;ead
"UNION
- OF with section 120-B of the Penal Code in Crimina.P
BuRMA Regular Trial No. 28 of 1953 of the same Speciaf
s. J. TRIVEDI Judge and was sentenced to th,_ree years' rigorous:
G. M.~EHTA imprisonment. Maung Toe (PW 2), the main witness
UNIO~OF
BURMA.
for the prosecution in this case, being a persofiaf
U SAN
friend of Stickland was the head . clerk
MAUNG J,
1 of New Burma Trading Co. before its
dissolution, a position similar to that which he.
occupied in the Burma Engineering Supply Co. after
its establishment by Wood a few months after th(}
dissolution of the previous company. S. J. Tri~edi
who was no stranger to Rangoon, having been
employed successively in the firms of Tokersee
Mooljee Co. of Mogul Street, Rangoon, and M. E.
~atel and P. T. Patel of Rangoon, prior to the .
outbreak of the war in 1941, was a close friend of
Gullestad having worked under him as Assistant
Manager of the Shipping Department of Thorensen
&. Co. of.., Bangkok where Gullestad was the General
Manager. Atthe time of the occurrence of this case
both Guiles tad and Trivedi ha:d left that firm;
Gullestad to become the representative of Verulani
Exporting Co. of London and Trivedi to become an
employee of Aryan Trading Co. of Bangkok, .whore
General Manager, M. C. Kothary was the son-in-law
.of one K. M. Mehta, proprietor of Aryan Trading Cor
of Bombay, where Trivedi . had also worked during
the war years. .
" The prosecution case in brief was as follows::
On the 19th September 1953, Gullestad sent a letter, Ex:..
. hibit I, to Trivedi, care of Aryan Trading.Co., Bangkok
.f rom Norway wherein he said that he was bookea...
to leave ~or Rangoon Ol!> the 24th September 1953
. . :. .:.
vta Bombay and that he expected to arrive i~; Rangoon .:
on the 27th .September 1953. He requested Trivedi .:
 BURl\1A LAW REPORTS. 325
-to arrange to send his clothings to R angoon and also H.c.
1955 '
.to give introductions and such information as ~ might
be necessary to make his stay in Rangoon an enjoy- u:~~~~F-1'
.able one. On the 22nd September 1953, i.e. three s. J. TRrvEoz
days after the date <Of Gullestad's letter to Trivedi, G.M.vMERTA
V~rulam Exporting Co. of London wrote to the Burma U NION oF
BuRMA
.'Engineering Supply Co., Rangoon, saying that their
representative Mr. Gullestad was leaving London on MusAN AUNG, 1
'Thursday, the 24th of September via Bombay to
.R angoon that he would arrive at Rangoon on
.Sunday, the 27th, and that one of the represen_tatives
-of Burma Engineering Supply Co. should meet
-Gqllestad at the Mingaladon Airport. Gullestad
was apparently met at the Airport by Nigel Wood,
.Simon and a person by the name of Dick and was
-:taken to the Strand Hotel where he put up from the 27th
$eptemb.er 1953 till the lOth October 1953. On the
28th September 1953, the day after his arrival in
Rangoon, Gullestad sent a telegram, Exhi~it T, to
Trivedi asking him when he would be arriving and
'Trivedi replied the next day that . he would
-be :arriving either on Friday or Saturday
following and that accommodation should be.reserved
for him. Trivedi -in fact arrived at Rangoon on the
.morning of Saturday, the 3rd October 1953 by air
. !rom Bangkok and he was at the Strand Hotel at
;about 11.30 a.m. that day. Gullestad with the help
.of Wood tried to get his own stay in Rangoon extended
:btit no extension beyond the 13th October 1953 was
~anted to. him by the Immigration Department and
he finally left Rangoon on the morning of 11th
October 1953. During his short stay in Rangoop.
.Gullestad with the active assistanc~ of Wood and
Trivedi. dealt with several banks .in Rangoon and
-:received bogus shipping documents to the total value o:D
. ~-_-51 ,196:.t>-7.(K 6;82,61372r from Verulam E)tpoiting
'
326 BURMA LAW. _R E:PORTS. [i95$

H:c. Co. and Hervo Engineering Co. of London ancFwas-

- 1955
_ ., succe~sful in remitting a sum of : 15 ,608-19-9
'' u~~:'M~F (K 2,09,06918). For this purpose Gullestad forged
s. J. TRIVEDI seVeral applications in Form A by signing hilnself in.
G. M.vMEHTA !he name of a fictitious person C. E. Madha, General
UNfoN oF Manager of Burma Engineering Supply Co., acting:
BURMA.
for itself and for its associates. These appliCations.
u SAN
MAUNG J.1
are Exhibits 2H, 21, 2U, 2V, 2W, 2X , 3H-1, , 'JJ-1,. .
3N-l, 3-0-1', 3P:.l', 3T-5, 3T-6, 3U-1 to 3U-4, 4B and
4B-1 to 4B-12. Trivedi's part in the conspiracy was
to supervise the work of Maung Toe (PW 2) in.
depositing money in several banks ii1 Rangoon in.
payment for the bills sent fr:o1n the Veruhim:
Exporting co. and Hervo Engineering Co ~ of London
and t o receive the relevant shipping doc'llments . At .
the time relevant in this case the O~G.L. system 'of
importing' goods into Burma was : in vogue~.
Accordingto this syst~m the importers iti nutnia 'ha'd
to write . to the foreign exporters. for ' the supply of
'goods bn the batiks guaranteeit1.g' paymn( The
'bills and ~he' shipping documents were sent by the
to
foreign exporters the banks iil Burma for collectioh.
of the .mbney from the hnporters and for the deliveiy
'bl' th~ shippirtg docunients to them. The Exchange
Corttrol1)epartmerit
.
of the Union
.
Bank
. '
of 'Butrti'a
c.
had given :general permisSion to all the bahks: Whh
are. authorised dealers in foreign exchange . tb : effect
;tlie teiliittance of the proceeds' of these bills:pr_ov!ded
they -Were 'satisfied with the .'relevant documents sent
~to tliem> The importer who wished to inake ; 'a
:relriiftance for the goods imported had to'. complefe
the form of-application for fore1gn exchange (FonD. A~
!:on the reverse of which .he . had to 'give ah utidet--
be
.i'takin~fthat - 'Customs Bill of.:Entry :would produced
::to the-. U-riion,,n(a.Jik: within: three months from::the
:oate,of ' remi'ttance~ This ._- was for the fnirpose :or
 'a l9S.:,] BURMA LAW REPORTS. 327

chocking whether goods to the value of the amount H.c.

. 1955
rem_1tted from Burma were received. The prosecution _
had established the fact that goods in resp'ect of u~~~rA<'IE'
which foreign exchange had been applied for and s. J. J.'RIVE or
obtained by the Bui'ma Engineering Supply Co. and G~ M._vM~HTA
itS aSSOciateS never arrived and that therefore aa .'IJNIP#.; OF
fr;ud had been committed on the Exchange Control ~u~~A.
'f:i SA~ f.
Departm.e nt of the Union of Bur. rna. As a result MAUNG,
of the prompt action taken by the Controller on
receipt of information from the B.S.I. regarding the
activities of these companies some of the money to be
remitted had been seized.
The case against the respondent G. M . Mehta
. rests mainly upon the evidence of Maung Toe (PW 2),
Kyaw . Myint (PW 6) and Than Tun (PW 10)
corroborated by the circumstantial evidence on record.
The evidence of these witnesses had been rejected by
the learned trial Judge on the ground that .they were
accomplices in the crime for which Trivedi and Mehta
had been charged and that their evidence .relating to
the part taken by Mehta on the 8th .of Ocoober 1953
had been disproved by the fact that only one leather
bag had been . seized by . the B.S.I~ It is .therefore
~ecessary to . scrutinise the evidence of . these . three
witnesses with care with a view torsee . whether the
eviden_ce 'has rightly been rejected by the trial Judge.
. .Maung Toe (PW 2) came to know Stickland, , the
Acc9untant of. Grindlays .Bank when as an employee
oLthe British Burma Filn1 Co., Rangoon, he . -~ad to
.m ake daily visits to that bank for the purpose o_f
depositing nioney. Ultimately, he became so intimate
with Stickland that he called him ..by his . Christian
name of Wesley, while Stickland called him Charlie~
. It. was because of Stickland that. he became head
: .clerk of theN.ew Burma Tntding Co~ situated at Pagoda
. Roa_d, Rangoon,. of whic-4. Wood,was the propri~tor; .
 ~

328 BURMA LAW REPORTS .. [1955/

.. V9rs Wood paid him a monthly salary of Rs. 350 ~'<lnd

" UNioN OF his duty was to receive letters addressed to New
"' BuRMA Burma Trading Co. and those care of that firm and
s. ~~xvEnx to deposit moneys into the banks with a view to take
1
G. M. MEHTA delive!Y of the relevant bills and ghipping documents.
UNION OF
BuRMA. Some time during March 1953 about two days after
u SAN he became an employee of New Burma Trading Co.
MAUNG, J. Wood sent a telephone message to him to come to
the British Council . office. He went there and tnet
G. M. Mehta who was introduced to him by Wood
as Mr. Chatterjee. Mr. Wood took over from Mehta
a leather bag similar to the one exhibited in the case
and instructed him to go to the Mercantile Bank of
India to deposit the money and to take delivery of
certain_bills. He therefore went to the Mercantile
Bank with the leather bag wherein were over
K 10,000 in cash and bank memos. showing the
amount of money to be paid into the bank. He paid
in the wholeamount contained in the bag at the bank.
and in return received some documents which he deli..
vered to Wood at the British CounciL About a week
later he went to the Strand Hotel where he was called
by Wood and there met one Mr. Irani together with.
Wood. Wood gave him a leather bag with money
and instructed him to make payment at the b!lnk
.and to receive the relevant documents. He paio
the money into the bank which he did not remember
and obtained some documents in return. He then
went to the Strand Hotel and there seeing Irani and
Mehta but not Wood gave the bank documents to
Irani. Stickland . returned to England in May 1953
and the business of the New Burma Trading Co. was
.then . wourt.d . up and Maung Toe's services . therein . ;
terminated~ . . ;i
. ; . Al:>out 'urte 1953 Mauftg .Toe interviewed Wood ~
.a~ci.: 3:sk;ed hlni for .a jpb artd in .July 193 Wood ~;

..1
.~
. '.. .
 BURMA LAW REPORTS. 329

off&red the job of a clerk in the Burma Engineering f9~5 ,

Supply Co. at No. 11 8, Phayre Street, Rangoon, .
:adjoirting the Kawthaung Trading Co. At the first u~~t
instance, Maung Toe was the only clerk appointed s. J. TRIVEDI
there. After his appointment he had to carry out G, M.:'IEHTA
th~ _work of furnishing the office and of obtaining ue~O:..i~~
:letter heads and rubber stamps for the Burma
USAN'
.Engineering Supply Co. and its associates. These MAoNG, J.
were done under instructions giyen by Wood. As
.directed by Wood he had to make payments to
Habib Bank, Chinese Overseas Bank and Netherlands
.Bank and to take delivery of t~e relevant bank
documents. - Up to 4th October 1953 he considered
Wood to be the boss of the firm. On that day,
.:however, Wood told him that a new boss had come
~and he would be attending office the next day. On
the 5th October 1953 the appellant Trivedi came to
<the office at about 11 a.m. and asked him if he was
.Maung Toe. At that time Kyaw Myint (PW 6) , who
was emp~oyed as a clerk in place of one Maung
Maung who had .resigned, was also present in the
office. Trivedi took his seat at the manager's tal;>le .
.About 15 minutes later, Trivedi went with Maung
Toe to theN ational Bank of India where he instructed
.Maung Toe to make a deposit in the bank. He gave
.Maung Toe a' leather bag containing cash and a
:bank memo. Maung Toe paid the money into the
National Bank while Trivedi went to the Chartered
B ank.' On his return to the N a.tional Ban}.c Maung
Toe handed over to him the bank documents
tWhich he had received. . On the next day Trivedi and
.Maung Toe went to the Imperial Bank where Maung
.Toe paid in the deposit as instructed by Trivedi.a:nd
Obtained .some documents which he handed oyer to
Trivedi. :On the 7th October 1953 Trivedi and
.
iMaung ':foe went t9 the Netherlands Bank. and there
 BURMA LAW REPORTS.
fLC~
" 1955
Trivedi paid in a certain sum of money. M~ung
-~ Toe went to another bank, which he did not now-
~.,.,_ .
e U~~R~~F remember, and paid in money and received the:
s. J. Tv RIVEDI
.
relevant bank documents which he handed over to
G. M. MEHTA Trivedi. In the meantime, Maung Toe approached
u~~:M~~ Wood to give him an appointment at Harperjnk
USAN
Smith & Co. Ltd. and received from Wood a.
. ~ .. MAuNG; J. lettr, Exhibit 4D, dated 1st October 1953, appoint-
ing him a clerk/salesman in the Tyre Department
at a salary of K 199 per n1onth with effect from 12th
October 1953.
On the 8th October 1953 the appellant Trivedi
and the respondent Mehta came to the office of Burma.
Engin.eedng Supply Co: at ahout 11 a.m. Ma.nng Toe
introduced Kyaw Myint (PW 6) to them after wishing:
.. : .. ~ .
them. Both Trivedi and Mehtasat at the manager's
table and spoke in Indian language. Each of thein
had a: leather bag with him. .Trivedi took over the:
"leather bag ftom Mehta and gave it to Maung Toe.
"It was the -leather bag exhibited in the case. Ther~
. .....
~

were cash and bank tnemos. in it and Trivecli asked:

Maung Toe to go to the banks named by him and t(}.
take Kyaw Myint along with him. Mau.ng Toe and.
Kyaw Myint first went to .the Chartered Bank where.
Maung Toe paid in the money and left Kyaw M.yirtt-
to receive the bank documents. Maung Toe alone:
went to the Mercantile Bank a:nd there obtained some:
documents after payment of money. He next went.
to the Indian Overseas Bank and paid in money fOr
which he obtained some documents. ' He returned.
tb"' the Chartered Bank with the dDcrtments received.
and the exhibit leather '.bag. At the Chartered Bank.
he sa\v Kyaw Myint under arrest . by U Ating Than.
(PW :l);:an. -offi.cei of the B.S.I. When U Aung Than
. ;asked~ , Mauilg :T oe to : accompany .him. to the :B.S.I..
:{);flice, :Ma.tirt~ Toe told .U Aung Than to etime: wit~
~ 1955] BURMA LAW REPORTS. 33'11

him to the office of the Burma Engineering Supply n-~ .

Co. to interview his boss. U Aung Than then seized -
the leather bag and the documents contained therein u~~~M;f
together with a cash of K 2,200. The documents s. J. TRrvEor~ v
seized were those of Exhibits 3N series, 3-0 series, 3Q G. M. -MEHTA...
series and 3S series_ vide Search List, Exhibit 3M. UN-ro&otB URMA.
About half an hour after their arrival at the office of the U SAN
Bu'rma Engineering Supply Co~ Trivedi arrived .and MAuNG, J.
was interrogated by U Aung Than, who then took
Tdvedi, Maung. Toe and Kyaw Myint to the B.S.!.
office. On the same day Maung Toe went with U
Aung Than to the address given by Trivedi which was
the shop of Jewellers Manila! Virchand in Mogul
Street, _Rangoon. There Maung Toe went up the
house and called the respondent Mehta who was
kn-own t9 him as Chatterjee. Mehta was brought
back to the office of the B.S.I. by U Aung Than.
Kyaw Myint (PW 6) was a school mate of Maung
Toe. Some time in April or May 1953 he secu~ed a
j0b at the New Burma Trading.- Co., Rangoon; as a
~lerk with the help of Maung Toe. His j<1b in that
office was to receive letters addressed to the . New
I

Burma Trading Co. and care of New Burma Trading

.Co: He had- to han:d over all such'lettei's- as were
collected. by him to Maung Toe;who~ in. turn .-made

them over to Wood whom they regardedas their boss.
His salary at the-firm was K ISO and he ..stayed on
till -it :was wound -up. On the 1st October .l9$3 he
obta,ined. a job as a clerk at the Burma, Engineering
:SuppJy Co: at Phayre Street, Rangoon. About 3 or
-'4 days after the lst-October 1953l'rivedi'arrived-and
-too]i -his seat- at the .manager's table. He used to
..
-cotrie ~very morning and sometimes he handed oyer . .
~ .

:cash.- to Maung Toe .1n a leather bag with instruction .

todeposit the. same-at the .6ank.- On:the 8th October
;1953
. :-:tr.i\Ted{ .came
' .
to the office with Mehta.
. -Each
 332 BURMA LAW REPORTS. [1955~

<
H.c.
1955
of them had a leather bag. Maung Toe wished Mehta
. as Chatterjee and introduced him and Than Tun
~u:~~~~F (PW iO) to Mehta. Both Trivedi and Mehta took
.s. J. T'IJRzvEo x their seats at the manager's tabie and Trivedi took
.
.G. M.MEHTA over fro1n Mehta a leather bag which he then gave

u~~:M~~ to Maung Toe with instructions to credit the c~sh

U SAN
into the banks. It was the exhibit leather bag.
MAuNG, J. Maung Toe took Ky~w Myint to the Chartered Bank
where he paid in a certain deposit and left Kyaw
Myint to receive the bank papers. Maung Toe then
went to credit cash into the other banks. While he
was away U Aung Than of the B.S.I. arrived and
asked him if he belonged to the Burma Engineering
Supply Co. He told him that he did belong to that
company. Whereupon, U Aung Tha~ p-ut further .
,': .
questions to him. He s1,1ggested that U Aung Than
should wait until Maung Toe returned. Maung Toe
arrived some time about noon and U Aung Than
spoke to him for a while before taking both of theni
to the .office of the Burma Engineering Supply Co.
Soon ~ftet Trivedi came and .U Aung Than :spoke to
Trivedi. . Thereafter, U Aung Than took T:dvedi,
MaiJ.ng Toe and Kyaw Myint to the B.S.I. office. In
.cross-examination, this witness stated inter alia that
at the tilne of introduction Maung Toe told himtha.t
Mehta (known as Chatterjee) was the manager. A
point on which Maung Toe was Silent.
Than Tun (PW 10) was never employed at th~
office of New Burma Trading Co. He was also a
school mate of Maung Toe and through Maung Toe's .
good offices obtained a job at the office of the Burma:
Engineerin_g Supply Co. on the 1st October 1953 a
monthly salary of K 150. It was also his duty
. r~ceive. letters. addressed to the Burma
Supply . Co. and : those lddressed care . of :B
. E~gin:eer41g . Supply co: These letters h~q .to
Q
 '1955] BURMA LAW REPORTS. 333'.

delivered unopened to Wood through Maung Toe. H.c. .

J1955
On the 3rd October 1953 Trivedi alone ca.me to
oJt
office with a leather bag in his hand. He spoke to UNIONBuRMA

Maung Toe and thereafter he sat at the manager's s. J. TRrVED1

table every day. :rhan Tun saw Trivedi instruct G. M.~EHTAI
Maung Toe to go and deposit cash into the banks on uB~~~~~~
two or three occasions prior to 8th October 1953.
U SAN
On 'the 8th October 1.953 at about 10 or 10.30 a.m. ~A.uNG, J.:
Trivedi came to office with Mehta who was known
as Chatterjee. Each of them had a leather bag with
him. They sat at' the manager's table. Trivedi took
over th~ hand bag from Mehta and gave it to Maung
Toe. He asked Maung Toe to go to the bank and
make payments. Whereupon Maung Toe left i:p. the
company of Kyaw Myibt. Trivedi and Mehta left
the officeabout half an hour later. At .about 11 a.m.
U Aung Than of the B.S.I. came to the office and
asked him where the clerks had gone. Than Tun
. told him. that they were at the banks. Whereupon
U Aung Than and his party left. Than Tun went ' .. 0

fot his 1nea1. On his return at about 1 p:m. he saw

:M:aung Toe and Kyaw Myint together with U Aung .'
Than.on the ground floor ~f the office building~ They
went up to the office to wait for Trivedi who arrived
about 15 minutes later. U Aung Than spoke to
Trivedi and then took all of them to the B.S.I. office.
The learned trial Judge had dubbed all th~se three
Witnesses as accomplices in the criine .committ~d by
Wood, Trivedi and othlrs. It is a matter for con-
sideration w~ether the learned trial Judge's finding
on this point is tenable. In Ramswami Goundan v.
Emperor (l) Subrahmania Ayyar, O.C.~., ob.served
~hat .t;he term" accomp1ice "signifies~ gu.iHy associate
iii'cfimeor a person who can bejointly indicted with
:the accused in the case. This observation which was
0 ..

(1) I.L.R. 27 M:).d. p. 271.

 BURMA LAW REP.< )RTS.

cited with approval in Kailash M issir v. Emperor (1)

must, in 1ny opinion, be regarded as a correct exposi-
tion of the law relating to what the term " accomplice "
: connotes. The question therefor e for consideration
. is whether Maung Toe, K.yaw M: )'int and Than Tun
are accomplices Within the conno tation of that te~m~
No doubt, Maung Toe was intir nate with Stickland,
oneof these associates of W og.c:l ~ in .thy New Burma
Trading Co., and had occupied a position of cortsi..:
derable trust in the New Burma frading <;;o. as well
as in the Burma Engineering Supr Jly Co. subsequently
founded by Wood~ His 4uty ' .vas to receive the
letters addressed to these compaii. 1ies or care of these
companies and also to make .det )osits into the banks
in payments of the bills drawn on these companies.
He was also responsible for procuring the letter .
heads and rubper stamps for the : Burma Engineering
Supply Co. andits associates. H owever; it is 'difficult
to assume that from ttJ,e circurr: tstances disclosed in
the evidence he must have been ' let into the secr~t
regarding' the operation of the for eign exch~nge racket
perpetrated by the Burm:a :.,.h ading Co. and tlie
Burma Engineering Supply Co. It has been contended
that the bills and invoices relatt ~d to the -import- into
.Burma of various kinds of -go; ods such as 'electric
.motors~ sewing machines an: d other kirtds of
machinery, old and new, that :r! lO such machines had
.arrived in Burma those two' ~ companies in which
Maung Toe was concerned did j not have the storage
:space for ~hese machineries: anc i . that Maung T de
.must therefore have known tha t rio such Iilachinerie~ t
wete meant to be ._importe~ , ilito .Burma. As tlt
thai ft'- :p:nis~ b~ pointed out :th: at Maung Toe :.has
ilot . be.~n : sufficiently." lori& in .the employment of-~ithet
New Bur.m. a Tr.ad~ng
.
co-. .
. . or .the. .
: Burma: En.!rliieefin:o
.o .q."tp
.
 1955] BURMA LAW REPORTS. 335-

:Supi5ly Co. to know that the machineries for which H.C.

J955 .
the shipping documents have been received would 8

never arrive and that therefore he was paying moneys U Bl\'ION 0F i

umrA: :
jnto the banks in exchange for spurious documents. s. J. TRIVEDr
Furthermore, it is not absolutely necessary that either. G. M.~MEmrA,
Bu:r;ma Trading Co. or the Burma Engineering Supply UNioN .oR
BURMA~
Co. should have storage space for the machinery to .
be imported into Burma as it is well-known that such MU .SAN!J '
AUNG 1

.machinery could be stored at the godowns of the Port

Commissioners for short periods. Therefore, al-
thqugh I agree that Maung Toe's evidence must be
.scrutinised with care and not acted upon until found
to. be satisfactorily corroborated in view of his
jntimacy with Sti.~kland, I am not prepared to go into
tlie length of holding that h~ was an accomplice. As
for M.aung Kyaw Myint (PW 6) who was only a.
suborqjnate clerk in the offices of the New Burm,~
Trading Co. and the Burma Engineering Supply Co.,
I.espectively, there is no reason for holding that he
was an accomplic.e in the crime merely .because he
~eceived . a .salary of K 150 a month for doing the job,
which he .said he had to do. K 150, .a month, after
.all, is.not such a larg~ sum to receive by a su9,ordinate.
clerk in these days of high cost of living and. it is not
. .n~cessary for the purpose .of a successful manipulation.
.of foreign exchange racket by Wo9d and his associates
that Kyaw Myint should be in the secret. On.the:
'Other hand, for a successful oper.ation of an enterprise
9(t~is.iiat_ure it is ess.ential that as few servants of the
-company as possible .should hav.e any inkli:qg thereof..
' The same observations apply with much added force
to Maung Than Tun wh.owas never employed i9- the
New Burma.Trading Co. and who had only joined the
Bur.ina. Engine~ring Supply.' Co. abou~ a week before
the .arrest of Trivedi on the 8th October 1953~ There
.:fore; the main re'a ion given by the learned trial Judge
i.. . .. .

.
 33'6'. BURMA LAW REPORTS. [195S

.J:I.c.
1955.,
for the rejection of the testimony of Maung Yoe,.
Kyaw. Myint and Than Tun is, in my opinion, quite:
"u~~O:M~F untenable:
,...,. ._.

s. J. TRIVEDI The next reason given by the learned trial Judge

G. M.vMEHTA for discrediting the testimony of these three witnesses.
u~~~~~ is given in a paragraph of his judgment which may.. be,.
conveniently reproduced below :
U SAN
J.
MAUNG,
~'Now. Maung Toe, Kyaw Myint and Than Tun, as also..
Trivedi, have all identified the exhibit zip leather bag as the.
one carried by G. M. Mehta and later given to Maung Toe by
Trivedi with money and connected papers in it. It will be
seen that only one zip bag was seized by U Aung Than from
the possession of Maung Toe at the B.S.I. on the 8th October
1953 under a search list (Exhibit 3M). There was no other
leather bag with Trivedi. Kyaw Myint or Than Tun when they .
were brought to the B.S.I. It was only in the afternoon of the.
, .
8th October 1953, that Senior Investigator U Tun Shwe (P.W.
47) conducted a search in Room No. 104 of the Strand Hoter
occupied by Trivedi, as the result of which another zip bag was.
found containing 4 sets of shipping documents (Exhibits: 3H, 3J ,..
3K and 3L). which are unconnected with the payments mad-e.
by Maung"Toe under instruction from Trivedi on the same ciay
(8_-10-53). This will clearly disprove the evidence unanimouSly
given by Maung Toe, Kyaw Myint. Than Tun. and Trivedi that
there were two leather bags as between Trivedi and Mehta-:
when they arrived at the firm in question. From Trivedi's:
..
evidence, it will be seen that, after departing from G. M. Mehta
at the Union Bank. he went back to his firm. and there hewas,
confronted by U Aung Than. If Trive;d i-had carried a leather.
bag then. it would sound plausible that the other bag seized
from Maung Toe was that of G . M. Mehta. It is abundantly'
clear that there was only one leather bag as between Trivedi
and Mehta when they came together to the office on the &thr
October .1953 and that it was the bag belonging to Trivedi." . -4

: .. .- -.
~

It 'must be rileritioned in this connection that

Trivedi in giving evidence pnder section 342..(1') of the .
.Criminal Procedure .Code on behalf of his own ~fence
ha:s .supported the . testimony .of the above three
 .,
1955] BUR-MA LAW' REPORTSl 331
wit?iesses regarding the fact that on the 8th October Fr.c.
1953, Mehta : had brought with him to the ojfi9e of . --1955-
U NION OP
"

Burma Engineering Supply Co. a leather bag cori:t'ain- B URMA

ing the mo.4eY.and the bank memos. He said : s. J. TRIVEDI
.
"On Thursday, the 8th October 1953, I met
..
Gulle~tad
.1).
G. M.M,BHTA

..at .the dining hall. After breakfast. I went to his 'rotim wi'th -us~~~t
him. I told Gullestad that I would go to the Custom House
for my jewelle~f.p_erioit and then to the air booking office to
arrarige for my visa -back to Bangkok and to reserve my seat.
.o.
At:aboui io .a.m . M. Mehta came to Gullestad with money
ab:o:ut Rs. '! lakh .. Gullestad gave me a list of names of banks
for 'making payment. I then went.to. the Burma Enginee'ring
Supply Co. together with G. M. Mehta. This is the list o'f
nanies .of banks given to me by Gullestad (Exhibit 3R) :. This
is in Gullestad's handwriting. At the B.E.S. Co;, Maung Toe
wished Mehta as Chattajee. Mehta and I sat at one table
with Ma~ng Toe standing by. Maung Toe gave me the
Nationa~ Bank doeument along with 3 unopen covers. I told
Maung Toe to write down the names. o f the banks as
mentioned in Exhibit 3R. I then passed from Me}lta's hand
the money.bag to 'Maung Toe. I ~sked M~mng- Toe to go and
make paymen t to the banks. I had my own zip bag with in.e
.in which I kept my passport and other papers. -.In my bag
were also the National Bank documents and 3 unopened covers.
This is Mehta's bag in which he brought the money (Exhibit
1). Maung Toe left the office to carry out my instructio.n s
with-one of the: office clerks. Mehta and r t~eri wen:t together
to the Custon;t House . I was infoJ;med by the Custom officials
-to -go to the Union Bank for my jewellery permit. We both
then went to the Uni.o n Bank. There-was a big rush. of-pe-ople.
a~_d Mehta suggested that we .should come back later. M~hta
d~parted : me from the Union Bank. I ne~t went to Inder Singh
Air l3ooking Office in Merchant Street.. By that' time, .it was
past 12 noon. The firm people told me that it was too late to
~- get visa and required me to come again on the following
lp:Orning. Then, I went to Maung Toe in ih~ B~E.S. Co; By
the time_. I reached the_office, B.S. I. officers including U Aung
Th~~ were. already there and .I was placed under arrest.
Mau~K, Toe was also there. . ?\bung Toe and I were taken to
the :a.~I. ~ffice. UAung Thaq,interrogated me arid 1gave hi~
the adcftess of G. M. Mehta. I was detained in the B.S.I. In

22
 .B.U .R MA LAW REPORTS. [1955 fl

H.C. the evening. I went with U Aung Than_ to my room iw the

~ 1955
__ ~ Strand Hotel. U Aung Than made a search in my room but
UNroN oF found nothing. In my room. he searched my zip bag and
BuRMA seized the National Bank papers and 3 unopened covers. The
$. J. TRIVEDI
v.. .
stgnature on th"IS searcl1 1"tst (Ex b"b"
1 It 3G) ts
. mme.
. T. h ese are
-G. M. M -EHTA tjle 3 unopened covers seized from my bag (Exhibts 3L-1. 3L-4
(JNJON oF and 3L-6) ;, . .,
BURMA. ~

M~u~t~r. Trivedi has never be.e n cross-examined as to why he

was not in possession of the leather bag which he had
carried in the morning at the time of his second visit
to the office of the Burn1a Engineering. Supply Co.
when he was arrested by U Aung Than. However,
it seems clear to me that during the interval of time
when he parte.d company with Mehta and his second
visit to the Burma Engineering Supply Co. . Triv~di
had found time to visit the Strand _Hotel to deposit
his bag containing among other things the Nation~i
Bank papers, .which had been handed over "to him by.
Mauns. Toe that morning and the three unopened
. covers, Exhibit 3L-1 .addressed to Burma Engineering
Supply eo., Exhibit .3L-4 addressed. to Ha.ssanali
M81rmoojee & Sonsand Exhibit 3L-6 addressed to the
. Shan Ele.ctrical Trading Co. These covers contained
bank memos. r~lating to the bills drawn by Hervo
Engineering Co. and Verulam Exporting Co. on these . ).

firms. According to Trivedi, it was -some time pa~t

noon when he went to Inder Singh A4' BbQking Qffice
in Merchant Street. It was already aboti~ l.lS p.in~
when he arrived at .the Burma Engineering Supply
Co. vide evidence of Than Tun (PW 10). The Strand
Hotel being quite close to Merchant Street where
Inder Singh's .Air. Booking Office is situated it would
. only be a. matter of minutes for Trivedi to. .get .there
..before coming to the office of the Burma Engineering
.. Supply Co. Therefore, tlie -fact that _Trivedi ~s not
. : .: :: i~ p~sse~_sion of a leathe~ _
ljag at .the-time.: o_rhis arrest

.. . ..
$

J955] BURMA LAW REPORTS. 339

~by q Aung Than does not disprove the statement of .. ~51 ,
Maung Toe, Kyaw Myint and Than Tun that one - ..
UNION . OF
.leather bag each was carried by Trivedi and Mehta BuRMA
ihat morning. It is. amply established by the evidence s.J. TRIVEDI
Of U Tun Shwe (PW 47) that aleather bag containing G.M.~~l~'J;'A
:the aforesaid docun1ents was found inside Trivedi's u;~~~1r
:room. at the time of the search that very evening_. vide ___,.
u~
.search list Exhibit 3G. ~AUNG,. 1.
Coinment has been made by the learned trial
.Judge regarding the discrepancy between the evidence
~f Kyaw Myint (PW 6) and Maung Toe (PW 2)
:regarding the .
manner in. which Mehta was introduced
~ .
ito Kyaw Myint. Whereas, according to Maung Toe,
.he merely introduced Mehta to Kyaw Myint as
Chatterjee, Kyaw Myint said that at the time of the
jritroduction Maung Toe told him that Chatterjee was
the manager. However, this discrepancy is not, in my
.Qpinion, so serio'ijs . as to discredit the story of .
Maung. Toe regarding the introduction of Mehta.
:Both Mautig Toe and Kyaw Myint Wel"e giving
~evidence. several months after the alleged incident and
.it is likely t~at Kyaw Myint might have .been under
a mistaken impression that Chatterjee was.introduced
t o him as the manager, Chatterjee being seated at .
. that time with Trivedi at tp.e manager's. table. In
:this. connection it is significant to note . that
Kyaw Myint's story that between the 3rd and . 8th
(October 1953 he merely saw Trivedi coming to take
his seat at the manager's table and talking to the head
tclerk Maui;J,g Toe. He, as a junior clerk, apparently
had rio occasion to talk to Trivedi prior . to 8th .
'October .1953. That seems to be the reason why
Maung Toe stated that 011 the 8th October 1953 when
tfiveQ:j a.n d Chatterjee came together .to the office he
J.ntroduc~.d Kyaw Myint to them (meaning both
rriveqi and Mehta) after wishing them..
. ' .
~
fJ

[1955
" a.c.
1~5-5 "'
In the testimony of U Aung Than .
. (P.W 1) there:
., ~ is one statem~n~ given by hiJTI whi94 i(' aqmissibl~ in
lJJNION OF ..
BuRMA
d b h
~vtdence would ~"Oilsi era ly stre1:1g~ en the prosecu-
s. J. T:.~v-~m tion_ cas~ in so far: as Mehta is cqncern~d. U A~ng~
0 ; w.!Mku_~ Than sa1d : ; . . . , . ~ . , . .. C. . ~)
UNION. OF
BuRMA.
. I. learnt from Maung Toe that one Chatterje_~ n~ct
..
......,_ Qroug_lJ.t money to the firm in the J:l?.Orning for payment intO
u <SAN
M..WNG, . J.
the bank but Trivedi pointed out that it was ~ot 'ciiatterjee.
but Mehta."
.This would corr~borate ~1aung Toe's ~tory tli~t it
W.l:lK M.e hta who brQught the money whiph was:pa~d
inJo the banks that day. . However, in .~my . opinion"!
.this. statement is not adtnissible in evidence as an
. Q.iiice~ of the B.S.I. appointed u.nder Act so. ~f. i951:
.. . )i$._i:a p.oii~e officer when he investigates the offences.
: /~~;~,~mentioned in schedule 1 annexed thereto. .'In the case
;' of.u:'soe Lin .v .. The Union .of !iU:r~a. OJ u Autii
Tha Gyaw, 1., considered that in view of section iT.
qf tb;e B.S.l. Act an investigation officer investigating
:an .offence under the Act is bound by the provisions;
of law contained in section 162 of the Criminal
P.t ocedure Cpde. . Or in oth~;r "o/,Or4s~ section 162 o
the Criminal Procedure Code applies to the st~te~en~
made to him in the course of the . investigation.
_WhHe respectfully. agreeing with the view of _the
learned Judge, i would ~0 further . and say that!h~
B.S.I. officer .must be reg~rded as a police officer
within the meaning of that .t erm in section 162 qf tl;le
Criminal Procedure Code. No doubt,:it wa.s held in
Maung San Myin v. King-Emperor {2) that an Excise.
ofiicer who . had. powers o~ arrest, sea,rch and _the ~
gr~nting of bW. un:der B~rm~ Excise Act V .()f. 1.911.
wa& not a po~ice (i)fficer. so. that admissions made to, '
. him were. riot exciuded by.section 25 of the .E~id~nce. .
.Act. However, this ~ec~sion \Yas tnainly q,ased upo!l -.
Cl) Cr. Rev. No. 45-B of 19S3; (2) I;L,R. 7 Ran. 771.

.....
 > .1955] BURMA LAW REPORTS.

th<s ru!ing ~ti the case of Ah Foong v. King-Emperor . 1~~

(1) whtch w~s subsequently over-ruled by a Full Bench . -
o f the Calcutta High Court in Ameen Sharif v. v;~~~~F

.Emp{!ror a)' .where it was held that an Excise officer s. J;TRiVEDI
who)]). the co~d~ct of an offence agaiilst the Excise, G: M:M~BTA
~x~rc~s~s the p~wers conferred by_ the Code of u~:;.F
Chmtnal Procedure upon an officer 111 charge of a .,.......
police _statio~ 'for. the investigation of cogilizable a J\1;~~~ J;
offence, is a poiice officer within the meaning of
:section 25 of . the Indian Evidence Act. See . also
Nanoo'Sheikh. Ahmed and another v. Emperor; (3)
.:and Ba~hoo Kandere v.' Emperor (4). The case
most nearly in "poirit is tJ;lat decided by the . Madras
High Gourt in re: Someshwar H. She/at (5). There
jt was held that a special officer of the Commerci~l
"Tax Department who had been empowered by the
Governor. under section 12 (3) of the Hoarding and
'Profiteering Prevention Ordinance wa~ a police officer
within the ~eaning and for the purpose of section 162
-of the Criminal Procec_lure Code and section 25 of the
Evidence Act. Sub-section 3 of section 12 of the
- .I

Ordinance reads : . . .. '

. " The Controller General and such .inspectots -~r othe~

~ffic~~s a~ ~ay be .empowered .by the Central or. Provinc::ial
oovernment ' i~ this behalf shall, within the respecti~e areas for
which they are 'appointed, have power to investigate all 'offences
:puni~hable under tliis Or:dinance; and iif conducting any such
.investigation . ~hall, within the said areas. have all -the powers,
duties. privileg~s and lia.bilities. of ~n officer . in charge o( -~
police station .under .the .Code of.. Criminal' Procedure. 18.9S.
when iilve.stigating a cognisable offence within th.e limits of his
. : ".
-station. .. ' ' .
..
These provisions are similar to those contained in
section 17 of Act soof 1951. .
. (1) I.L.R. 46 Cal. 41l. (3) r:L.R. 51 Bom. (F.B.) 78.
-(2;. l.L.R .61 Cal. 607. .. {4) A.I.R..(l938) Sindh (F'.B.) 1,
. . (5) A.I.R (1~46) .:'v!ad. ~30 ..

'. ~ , 1':~.
: . ..
 ..
342 BURMA LAW REPORTS. .
[1955-

H;C.
1955
However, . notwithstanding the fact that the:
" . statement made by Maung Toe to U Aung Tfian
~ u~~;,,f.~F before .. he pointed out Mehta to the investigating
t.'r. TRIVEDI officer is inadmissible in evidence the fact appearing;
G. M. ~EHTA in evidence that Maung Toe took U Aung Than
UNioN o:B'
BURMA.
p.,romptly to the address given by Trivedi and there .
pointed out to Mehta is in corroboration of'
u S AN
MAUNG, J.
Maung Toe's story that it was Mehta who brought. .
the bag containing the money and the bank memos ..
It has been argued on behalf of the respondent Mehta.
that Maung Toe had admitted that ip. the bag contain.-
ing the money and the bank n1emos. there were.-
applications in Fonn A although Maung T~e could:. .
not say for certain whether these applications . were.
Exhibits 2U, 2V, 2W and 2X. Further that if these:
applications which had been signed by Gullestad were~
in ~he bag it stands to reason that the mo~ey . bag~ .
must have been handed over to Gullestad by Mehta, .
and that . Gullesta9- had in turn handed it ov~r tOi
Trivedi : along with the applications in Form A..
However, if the applications in Form. A signed by~
Gullestad were in the bag with bank memos. it : does-
not prove that it was !rivedi who was carrying . the:
bag when he and Mehta came to the office of Burma~
Engineering Supply Co. that morning. A~cording tq
Trivedi, Mehta came to Gullestad at about 10 a.moo .
.with about half a lakh of Kyats. There was nothing:
to prevent Gullestad then to tnake over the applica'"'
tions in Form A to Mehta to be taken to the Burma.
.Engine~ring Supply Co. Admittedly,. Trivedi . had
work to do at tlie Custom House and the .U nion Bank
that morning so there was nothing to prevent Mehta .
. carrying the money bag while Trivedi carried his own:
bag containing his passport and. other papers. :
Besides the evidence of. ~auni Toe, KyawMyint
. and
. .
Than
.
Tun . (PWs 2, 6 and .1 0) .th~re is. a. 6 pi~ce
. . .
of
.

 BURMA _L AW .R.E.P_O_RJ:.S.

cir<iumstantial evidence which tends to connect the H.c.

1955
respondent Mehta with the offence with which he had - ~
been charged. On the 29th of September 1953, ~~R~Ao:
Gullestad signing himself as C. E. Madha, Manager s.J. TRivEor
of . Burma Engine~ring Supply Co., wro~e to the G. M.~EaTA
Manager of the Central Bank of India Ltd., Rangoon, UNION OF
BURMA',
with r~ference to Bills No. F.B.C./322 and 331. In
USA.N
this letter Exhibit 2Z-7 Gullestad said that they had MAUNG, J.-
written to their associates Messrs. Lower Burma
Electric Mart and Messrs. Hassanali Marmooji & Sons
~nform!ng the1n of the arrival of the bills and expected
to receive. a remittance from them in a few days time.
Mehta who had left Burma 'for India for a visit on
the 9tp. June 1.953 arrived at Rangoon on th~ 1st
October 1953 from Bombay via Calcutta and Akyab .
. On that day Gullestad again wrote to the Manager,
Central .Bank of India Ltd. regarding Bills No. F .B.C./,
-322 and 331.. In that letter Exhibit 2Z-8 he said that
ihe :bill' would b_e paid the next morning. However,
the next day, 2nd of October 1953, was a holiday in
Mogul Street market on accou11t of Mahatma. Gandhi's
. -Bir~h.4ay. The bills referred to in these two letters
_were. actually paid on the 3rd October l953_vide
Exhibits 2Z-9 and 2Z-10 forms of applications for
foreign exchange submitted by .Gullestad signing
himself. as C..E. Madha through the Central Bank of
India- Ltd. The connection b~tween Mehta's arrival
and the payment of these bills by Gullestad is
apparent. This . piece of circumstantial evidence
should be considered in conjunction with the fact
that :M:ehta called himself by an assumed name of
~hatterje~ in his dealings with Maung Toe and
others who were not in the conspiracy.
. . ..- A prima facie case_ appears, therefore, to have
been made out against Mehta by the prosecution ~ven
_without .t~kin_g into conV.deration against him the _
 BURMA; LAW REPORTS.

~~ letter Exhibit 3 Z, which was written by the decea.s ed

-
: UNION ElF
W.o od to one 'Mr. Ball, Manager of Harperink
BuRMA Smith"'& Co. Ltd., regarding the adtnissibility and the
.s. J. 'rRxvEo.I
'IJ.
probative value of .
whiCh I shall have more to say
.G.M.MEHTA }ater. . " .
~NJj~:A~F '" After .' charge~ . had . been'': ~rained against ~he
,. ___
USAN
appellant Trivedi and the resp'ondent Mehta, these
. _MJi'i:JN<?, J. aCCUSed gave . evidence On 'behalf .Of their 0Wfi
:de.f.e'nce as provided for in sub-section 0) . of section
:342, Criminal : Procedure Code. As Trivea1~s
evidence iniplicates his co-accused Mehta, I ffiust be
.guided tn this matter by the principles laid down by
!this Court in Ba' Pe and one y. The Union of Burma
~1) . . There it was held that it is a fundamental
.principle that in a criminal trial the burden of. proof
.lies on'. the .prosecution to establish the-' charge:.
'beyond-reasonable ' doubt and that where an _aceuseci
person should have been discharged for .want of
prima facie -case 'against him, the co'urt should not :
:use the evidence of a co-accused' giveil under-section
;342 (1) of the c ode of Criminal Procedure to fill up
the gaps in the prosecution. . However,. in the case
.now .under corisideration fam 'clearly of thb opinion
that the prosecution has succeeded in establishing :a
. przinlr.' facie case against . the respondent Mehta
:before Trivedi was examined on oath~ Therefore as
held in . the case of U Saw and nine others v. .THe
U nzo1i. of .Burma (2), the evid~nce of Trivedi may
;be : used against his co-accused Mehta although the
weight to be -given to this evidence will depend on
the circumstances of -the case.
Trivedi, as already observed above, was employed
in the firm of Aryan Trading Co~, Bombay, during
~he war year~ an(t'one K. M. M-ehta of Bqmbay was
connected with thaf firm~ After the war .he .~-joined :
,~--.-(-1)~
. (1-9-
50-)B-.-L-.R-
.p-.-17-8-.~.-.--~(-2)-(1-94-8-)B-.-
L-: R-.p~
-~~21-7-.-
. ---
 ,=r9SS] BURMA LA\V REPORTS.

thedirm of Aryan Trading Co. , Ba1;1gkok after he ~~~5 .

had left the services of Thorensen &: .Co. of which 1f~~8N
- OF"
Dullestad was . then General .Manager. K. C. BuRuA
Kothary, the General Manager of . t~e Aryan s. J-~~vEDr
Trading Co., Bangk-ok was the son-in:Iaw of K .. M. a:li~~A
:M~hta of Bomhay. According to Trivedi. he had tb uJ~~:
go to Rangoqn from Bangkok by air on Saturday ---- ~
:i he 3rd . October 1953 under instructions from his w~~!.rJ!
.u enerai' Manager K. C. Kotary who ha4 re~eived a
=wire froin Bombay on the 27th .September 195~ . to
~send hiin (Trivedi) to Rangoon. Kothary~s instruc-
tioriv8 to him were to see Manila! Virchand Mehta' at
;the ~ddre~s- given by him in Rangoon. on the 28:th
September he received the wire from .Qiillest.a d
. (Exhibit T) asking when he would .he arriying and
he sent the reply (Exhibit u ). H~ l~ft Bangkok on
~the morning of the 3rd October 1953 and arrived at
the Strand. Hotel at about 1130 a.m: on the same
~ay. . , .H e fqund that no hotel accommodation had
:been reserved for him at the Strand Hotel by
Guilestad. He therefore booked a roqm f-or himself
at thaf. hot.el. At about 12;30 p.m. hecame down
to the bar and there met.Gullestad. He asked him
if he had ~e~n Mehta. On his reply in.the negative,
. -Gtillestad
' . . .informed.... him
. that Mehta had reserved
accomn)odat~on for him at the Orient Hotel.
.~

:-subseqU:eritly . Gullestad gave him Orient Hotel

:;r~servation ticket (Exhibit II) which was dated the
:2nd October 1953 ~ At _about 1 p.m.' Wood came
t'o the Strand Hotel and was introduced to him by
Gullestad. He told Gullestad that .he wanted to
'See Manila! Virchand Mehta in Mogul Street
Accordingly Gullestad and Wood dropped him in
fr.oilt of M. V. Mehta~s shop~ Gullestad told him to
.g o up to Mehta and find out how much m~ney .he
could bring to.. him (9tillestad) on Monday the
346 BURMA LAW REPORTS. [19S$.

~5~ 5th October 1953. He went upstairs and met Mapilar

UNION~F
- Virchand Mehta to whom he introduced himself.,
BuRMA Mehta then introduced hiln (Trivedi) to his son the
s. J. TRxvEm
v.
respondent G. M. Mehta. Manila! Virchand Mehta.
G. M. MEliTA told him in the presence of hi~ .~wn that they were
u~~~~~.F making large payments into the banks and _that he .
U S AN
was called to Rangoon because they were in need .. of
MAUNG, J. a trustworthy man. Mehta asked him to see that
payments were properly made into the banks. He
also asked him where Gullestad was and where he
(Trivedi) was putting up. He told Mehta that he:
was putting up at the Strand Hotel. Mehta advised
him to shift to the Orient Hotel where room had:
been reserved for him. That evening he had dinner
with Mehta and after dinner the respondent G. M.
Mehta took him back to the Strand H<;>tel in a
trishaw. G. M. Mehta also told him that he would
.
come
. ..
to the
. . Strand Hotel with the nioney . ort~ .
Monday to meet Gullestad. It was Sunday .evening.
when he. met Gullestad again at the Strand Hotel.
di~ing h~}l. ~e then told Gullestad thatG. M .. .
Mehta wo'uld be coming to him with mon~y oit
Monday and asked Guiles tad what business he had
to do with the money. In the meantime Wood.
arrived at the hotel and Gullestad and Wood .went
out together telling him that they would meet him
again on Monday when the matter about business:
and money would be explained to him. On.
. Mo.nday the 5th October 1953, Trivedi met
. Gullestad at breakfast. .After breakfast both of
~hem went to Gullestad's room where Gullestad had.
sonie work to do with his papers. At about 10;
a .m., G. M. Me.h ta came to Gullestad's room wita
about half a lakh of money. They were . all in
ten.;.rupee curr~ncy . notoo;. Gullestad . told him
(Trivedi) to go .to ~he Bprma Engineering . Supply
...

BURMA LAW REPORTS. 34T
,195 5]
Co. at No. 118, Phayre Street, Rangoon, where H.c.
1955
he ~would meet Maung Toe. Gullestad also told
UW ON OF
him that he had informed Maung Toe already B uRMA
that he (Trivedi) would be coming with the s. I TvRIVEnr. .
money. Gullestad gave him a leather bag with G. M . M EHTa.
money and alSO a Slip Of p_a per mentioning the U;~~:;,F
nal'nes of the Banks and the amounts to be paid u SAN
in. He instructed him to see that Maung Toe MAuNG, J.
paid in the money to the banks properly without
undue delay. Trivedi then went to a Barr Street
office . with G. M. Mehta to register his arrival.
After registration G . M. Mehta went away while he
went to the Burma Engineering Supply Co. On
;eeing no signboard of the firm on the ground floor
b.e went back to the Strand Hotel to inform
Gullesta~ who then told him that he should go
upstairs where he would find the signboard of the
Burma J;:ngineering Supply Co. and also Maung Toe.
fie 'Yent ba,.ck to the firn1 and me~ Maung Toe on
:he. pavement outside the entrance. Maung Toe
;ailed him .. from
. ...
behind and asked him if he was .
frivedi. They then went Up together; he and
\1aung Tqe sat at one table while the other table
;vas occupied by two clerks. Maung Toe told him
:hat he had been informed by Wood that he
:Trivedi). would be bringing some money. Maung
roe .suggested that they should go together to make
?ayments into the banks. Accordingly, he and
~aung Toe w ent to several banks, p~id the money
tpd got the documents. On arriving back at the
~oteJ, h~ ~ade over all the documents and the ~
>alaiice of money to Gullestad. After lunch that
lay he asked Gullestad what business it was which
~v9~y_ed payments . of money into the banks. ~e
tlso asked Gull~stad how be came to. kriow Manilal
V'irchand
. ~ .
Mehta, a~ M. Mehta
. .
and Wood~
: . . Gullestad
 .. y ' \
~:

'
~

348 BURMA LAW REPORTS. [ 19$5

. ..
H.C.
1955
then infonp.ed him that K. M. Mehta of Bombay~) and
one Irani ha. d met him in Europe and had offered
UNION 't>F
~ ' B uRMA hin1 cr.-Job in R angoon for a couple of months to
' s . J.TRfVEDI work I together with ' Manilal Virchand Mehta of
v . . .
!G. M. M~HTA Rarigoo.n and . Wood. . Gullesta~ also told him that
tJ:~~~~:F :p~d and SeCOlld-hand.machin:erieS Were being import..
ed, th'at documents would be'sent through the banks,
:M~~~~; i. iu1d that Ivr'aniiai Virchand Mehta would arrange the
finance. He also informed him that in the past half
a la.k h of .rupees .had been sw.i ndled by the men in
Rangoon and that he (Trivedi) was speciarly called
to R angoon to safeguard proper payments hito the
banks . 'as a trustworthy man.. . That same eve~ing
Wood and G: M. Mehta arrived af the hotel, Ire
latter. bringing with him about half a lakh of rupees
for . the purpose of opening an account ht ' the
Mercantile Bank in the name of one s. K. Mitra~ .
On~the 6th October 19S3, Trivedi niet Gullestad .it
tli'e ctfning hall at about 9 a.m. After breakfast
Trivedi told Gullesbid. that he had no mind to work
in Rangoon and . that he wish_ed t<? . ret:urn .. ~o
B'a ngkok. G. M. Me hta then came to the : Hot~L
GulfestaCi
- ... .
prevailed
.
upon him
.
to . carry
. -
on tintil
. .
.he
-- .
could return to Bangkok.- Gullestad then gave him
speCimen signature cards .signed S. K~ Mitra "as
. proprietor of the Bi:rrina Engineenng. SupplY. C6.
He asked him to see Mr'. Did( .at the Meicantiie
Bank 'where arrangements b.ad .already bien niad<r .t o
open'. a current account. He gave him' half a 1akh
'o( rupees to . open tp.e . current _ acco.urit and. also
~ another' half a lakh or ' so with bank slips ~0 mat.c:e
. pa.y ments. lie (Trivedi) then ' went to Mercantile
B'ank.. and 'm et Mr: Dick: He p.a id in Inoriey into.
.the Cash Departmen't as instructed by Mr. DiCk vvho '.
. gave' him a ch~que book and a pay-in-slip.- However~ .
.
\. ~
the c .iishier Gopal Krishp.a told 'l~im .that be wish~d
 i9ss] BURMA LAW REPORTS.

to s'ee the proprietor S. K. Mitra. H~ therefore told ~-;

5
him that he would inform S. K. Mitra. He . then =-=
went to the Burm~ Engineering Supply Co. and met t;;~~~~F'
Maung Toe with whom he went to several banks to s.J.. TRJVEI,H1
make payments ... T hereafter, he went to G~ M. G.M."MrtarA.
Mhta's shop }or lunch and there showed him the V~~~z;:-
,Glleque book, etc. of the Mercantile Bank. :He told
u-~.
s~ir
.0 . M. Mehta that the bank wanted to. s.ee .the MAUNG,. l
p.roprietor.of the firm. G. M... Mehta replied. that he
would see Gulles.ta<;l at the hotel in :the evening .
.After ret.urning to .tl;le office and ta.ldng . ovet . the
.4oc~ments and money from .Maung Toe,.. Trive.di

returned to the .:\lotel and .then made o.ve,r a11 the
..1 ,

.documents, cheque book and the balanc~ money to

.Oullestad. He also infonned Gullesta~.. that the
bank wanted to see the pr.oprietor.. In the evening
he n1et Guiles tad again in his room where . Wood
~~d al~~ady. arrived~ . W<:wdtol~l9.'1:l:ll~stad t~at the
.Mercantile Bank would not open the current account
' I .,. , , ' --'

un.less they saw the proprietor S.. K. Mitra. G ..M.

Melita arrived later and had tea with him: On the
7.th ~ October 1953 after breakfast . . he went to
:Gullestad's room anc( Guilestad told him. t.h at the
bank. .would. be returning the' mo~ey to him as the
'
current account could riot be opened without the
' - J

.. ~ppear~nce ., of the proprietor vf .the , :(irm. When

Guliestad said this, A. G. Simons of the Mercantile
.Bank was .in the room having arrived during the
"conv,ersation. Trivedi therefore went to- Mercantile
}:B.arik: . and. received back .:K 19~6-95.11 out of the
'liaif .Iak.h o{ rupees deposited, having utilised the
iilfference ~n settling three or
four bills. Gullestad
)iac( 'also given him ~alf a. l akh rupees . .or of
,thereabout
.. ...made
...
.
'
' '"
payments
. . .
. .. .
. which
. G. M.
tnto
.
.
Mehta.. .. . . . ..
~he . . Netherlands
.. . .. Bank
.
iu~d hrought and he
..
'
with
Maung . Toe. He . told Maung Toe to bring the
... ' ' I ' ' '
.]50 BURMA LAW REPORTS . [1955"'
., H.C. docutuents to the Netherlands Bank where he waited
1955
-- while . Maung Toe went to other banks to make
"u:~o:M~F pay1nents. Maung Toe later came back to him and
s. J. TRivEDI brought the bank papers except those from the
:.n. M.~EHTA National Bank. The documentso which he received
UNION o F from Maung Toe were made over to Gullestad" at
BuRMA.
the Strand Hotel. At that time he told Gullestad
:M~u~~~ J. that he would positively go back to B~n~kok on.
Sunday. Then followed the events of 8th October
1953 which has already been narrated.
If Trivedi's evidence be believed there can be no
doubt whatsoever that the respondent G. M. Mehta
was involved in the conspiracy with which he had
been charged. However the learned trial Judge
rejected Trivedi's evidence as against G. M. Mehta.
on the following grounds : . .
(1) That Trivedi was an accomplice in the crime
committed by Wood, Gullestad. ano
others and that therefore his story should
not be acted upon as against Meht~
without independent corroboration. :.
(2) That until he gave evidence on oath
Trivedi had all along maiptained that
he was innocent of the charge fran1ed :
against him and that therefore Trivedrs
story was in the nature of an after-
thought. .
(3) That Trivedi had not" been frank with the .
. B.S.I. officers regarding the part taken
by . Gullestad .in the foreign exchange
rack~t and that in consequence Gullestad
had been allowed t() escape from Burnia.
Trivedi had . secreted Gu1lestad's letter
from Norway (Exhibit I) and the list
(Exhibit 3R) .of the . bil~s to b~ paid on
the 8th October 1953.:
 !tJ55] BURMA LAW REPORTS. 351
(4) Trivedi produced, for the first time, the .H.c.
1~$
reservation ticket (Exhibit II) when he .._
gave his evidence on the 4th November
1954, thus rendering probable Mehta's s.
story that he lost this ticket while he G.
was in custody along with Trivedi at
the jail.
Trivedi no doubt tried to minimise the part taken
{by hin1 in the conspiracy and said that he only catne
to susp~ct that some thing was wrong when Gullestad
tried to open an account at the Mercantile Bank in
the name of the non-existent proprietor of the Burma
.Engineering Supply Co. by the name of S. I<. Mitra.
ln this connection, I am inclined to agree with the
le.a nied tri~l Judge that Trivedi knew more of the
foreign exchange racket than he chose to tell the
. Court and that when he was arrested on the 8th
. October 1953 his first thoughts were for Gullestad,
his friend, whoni he . allowed to escape by being
?teticent about Gullestad's part in the whole affair.
However, I am not inclined to believe that Tnvedi had
inve.rited the whole story in so far as the respondent
G. M. Mehta and his father Manilal Virchand M ehta
:are concerneq. G. M. Mehta's story in contrast to
that of Trivedi's seems most improbable. According
:to .Qim, he only met Trivedi at the Custom House on
the morning of the 8th OCtober 1953 when he went
to llla~e. enquiries about tariff rates. At the request of
'Trivedi; he a~companied him to the Preventive Sec;.
tion of the Custom House to . declare his gold
:oriiaments and then to the Union Bank for the same
purpose. On that day he went in the company of
Trivedi to the Burma Engineering Supply Co. in
::Phayre Street, Rangoon, where he met Mamig Toe
whom he knew before ana was introduced to I<yaw
Myint anti T~an Tun. He remained in that firm
3$2 B tJR:MA . LA'fV REPORTS .
I - * , * " "

H~c'. for a short time while Trivedi spoke to M_ aung d'oe ..

.. 1.955
- "' Trivedi had a leather bag with him, whereas he
~u~~:._~~F himseif carried no bag at all. Later Trivedi and he
s:J'. T RxvEvl went to the Union Bank for the purpose of making:
G. M. ~EHTA declaration for the jewelleries but owing to a big rush
UNrON: oF at the bank they agreed {O go there again later. ..On.
B URMA.
the same day, U Aung Than of the. B;.S.I. came and.
u SAN arreste.d hin1.
lbUNG.J,. ' .
. On cross-examination, respondent Mehta : saki
that he first came to know Trivedi when he met him
at Bombay in 1947 and that the meeting_at tl:J.e:
Custom House on the 8th October 1953 was his second
meeting with TrivedL At th~t- time he did not even
recognise Trivedi who however remin~e<;i him of their
J?revious acquaintanceship. If that we;re so, it seemS:
to me to be very strange that Mehta would h.av~ g_o~-~
t~ all the trouqle . of . accompanying :Trivedi t:q_tpe:
Union Bank and to the office of the Burma Engil)e~ri.t~'
. Supply -Co. that morning. Stran:ger stilUs the SlJgge~_.:.
tion that Trivedi .would have invented tlie ~tqr:y
regarding G. M: Mehta's complicity in the_conspiraC.y
as it were in. repayment forMehta's actof frien_dline:S.~
in trying to help him . on the morning of ...th. 8Jh
October 1953. Trivedi was examined on oath on the
4th and 5th November 1954 ~hile Mehta was only
examined on oath on the 19th November --195a.;.
.Mehta's witness U Ohn Ghine was examined o~ th~
8 th January 1954.. lti these circun1stances,. s~ethsit.
surprising that the 'respondent Mehta.cited neither his
father Manilai Virchand Mehta to controvert the
evi~ence of Trivedi nor his clerk Kirtilal to ~:ppj;o~t-h(~
.own story that the hotel reservation tic}\et (E~ibit J.H
was. brought by l(irtilai by mistake when h.e ~-04ly
:i.n~tructed : ~irtil~l :t9 re~erye_ a table on the nigh_t .ot
th.e 2nd 9ctober .1953 for tlie purpqse.of ~nt~rt~ining
. Jriends. As if.is, liis ~ory . regarding Hte cban\;e
 1.955]
ll
BURMA LAW REPORTS. 35.3

meeting with Trivedi on the morning of the 8th H.c.

Octo ber 1953 and the loss of the hotel reservation ~
UNioN OF
ticket (Exhibit II) from his pocket while in cnstody BuRMA ..
sounds too thin for acceptance. s. J. TIHVEDI
The learned trial Judge has disbelieved the story G.r/'MEHTA'
regarding responde~t Mehta's appearance at the office UNB1 uRMA.<!.N:. ~
of the Burma Engineering Supply Co. with the money -
U'SAN
bag on the n1orning of the 8th October 1953 on the M AuNG, 1.
ground that even assuming that G. M. Mehta was in
the conspiracy it would be ridiculous to believe that
a man who had all the time remained behind the
scene would be ~o foolish as. to come out on a single
qccasi9n to expose himself to danger in the presence
of the clerical staff of the firm. However although
it is difficult to . say what motive Mehta had in
accompanying Trivedi to the office of the Burma
, . Engineering Supply Co. on t he morning of the 8th
October 1953 it is evident from the facts disclosed in'
~vidence that. wood who was originally in charge of
the Burma Engineering Supply Co. was -not entirely
trusted. on account of some considerable. sum of
. money h aving gone astray, that Trivedi who was
' brought in from Bangkok in substitution for Wood
.was disinclined to stay long at Rangoon and. W.as in
fact due to return to Bangkok very soori. In these
oircumstances Mehta .had probably thought that he
_would, in future, have to supervise the payments into
the banks an<:! had accordingly accompanied Trivedi
to. the o'ffice of the Burma -~ngineering Supply Co.
'on the morniQg of the 8th October i953 . After all
no crime is ever foolproof and it is . the little slips
comq1itted by criminals that have ultimately led to
their downfalL
: .For the reasons giyen above, I am of the opinion
that the-prosecution had.established th~ guiit not only
of the appellant Triv,cdi bq,t also of the respondent

23 .
 354 BURMA LAW REPORTS. [1955 {

H .c. Mehta beyond all reasonable doubt. However before

~ I leave this case I would like to touch upon the iast
" U l'J"ION o f.'
0> B uRMA piece of evidence tendered by the prosecution. It is
s. J, T RxvEm no other than the letter (Exhibit 3Z) alluded to above.
~:M. ~EHTA Regarding ~he admissibility of thi.,s letter in evidence
u~10N o F and the weight to be attached thereto, there can be
u~.~~ honest differences of opinion. In order to appreciate
U S AN
.MAuNG, J. the purport and tenor of this letter, it would be
neces.sary to take into consideration three other letters
(Exhibits 3W, 3X and 3YJ. Exhibit 3W is a letter
dated the 16th October 1953 written by Wood to his
friend Tony. There he tried to maintain that the
foreign exchange racket which was referred to by
Tony as a . " dirty racket " was not so heinous as
. some people might think, that genuine dyes were
being shipped on the "Salween" in April last as
invoiced and that genuine goods would be on the next
~'Pretoria", ''Pretoria" being one of the boats in which
machineries were due to arrive. In the next letter
dated the 17thOctober 1953 which .was addressed to
Mr. Ball,~ Manager of Harperink "Smith & Co. Wood
maintained that .genuine dye-~tuffs wete shipped on
the " Salween " and genuine goods ,would still arrive
though by slow steamers in or~er to evade the condi-
tion regarding the check to be made against the
Customs bill of entry. The next letter to . Mr. Ball.
(Exhibit 3Y) dated the 19th October 1953 is in a
somewhat different strain. wood then seemed .to
realise . that the dyes that came by the ""Salween '~
~a~ scrap and that .therefore t~e Burmese Govern-
. ment had been cheated. He mentioned that he had
informed the B.S.I. about the activities of Gullestad~
He also complained that he had ben let down by
. . . . Stickh:ui:4., former accountant of Grindlays. He
. ., . . . ~nti()ne~ the name of G. R. Irani as being involved
.in:.tJ;ie : c9nspiracy~ In tl}e letter;<Exhibit ~Z) dated
. .1955] BURrviA LAW R EPORTS . 355
th~ 9th November 1953, Wood made a clean breast of H.C.
1955
the part taken by him and others in the conspiracy. ~

He stated inter alia : UN ION Oi

BURMA
"I do not know who the people are in Mogul Street but s. J. TlirvEDI
Gullestad seemed to think that the dealers in Bombay have G. M.:~.EaT.A
associates or the same Co. in Rangoon. In other words tl\e UNION oP
:sam.e syndicate is being used in both places. It is known that ~~~~'
Guiiestad met Mehta in Bombay in order to arrange with U: SA.N
parties there the finance, and that the letter arrived two days MAuNG, J.
>after Gullestad. I only passed small amounts to Maung Toe
.for I was anxious to pay off the outstanding drafts and close
.u p. The values weren't much more than a 1,000 or so.
T his money Gullestad obtained from Mehta in the Strand.
'The Norwegian taxied down to Mogul Street shop of Mehta
:too, in order to fix the cash, Taxi obtained from Strand I
:presume.
.Irani used H.S. & Co. Ltd. as a guarantor in. April with the
'Burmese. Embassy in London so you can see the tie up he had
On me in addition to the 'woodland tag. I did not know that
~uarantor part until he told me in the Immigiation (Foreigners
it'egistration) Barr Street office. Now all this is double proof
agai11st them as are the cables I sent to Ebrahim, etc. and the

_;:If
..,.,.,.
{~~~~~DJ ..
.
,......_..
'::Ito.

/ -s. '
?' BOMBAY ~,
~-- ~----0--:---~-- ...
. ;:o
c :> GRIHJ)lAY
, z ~
. -
':/'i. 0
>
MERC. :;::::'l
- 0
356 BURMA LAW REPORTS. [195S or,

. ~51 boot is on the other foot. A. E. Irani stayed in Bombay t,oo-.

. so the system looks the same and I think he also met Mehta
TJNxoN oF there. At any rate I can tell you that at no time did A . E ..
S.J~;=~~ 01 Irani handle cash himself. He had it all arranged with Mehta
v. an.d. got it off his own dealers.
G. M. MEHT A ., The money is half Iran_i's and half another's. They sendJ
l~NION OF
B URMA. it round the 3 coun.tries and by the time it has returned the
exchange profit i.s approximately 25 . Thus in
April Ir~ni?
M~u::.~ , and partner probably netted about 20.a00 from the ' l4lakh$;'
paid into the banks. .
The London side has all been exposed and Rangoon.
ends at Mehta. The fad that Irani and Gullestad stayed 2:
days each in Bombay and met Mehta is sufficient to link the:.
game up. Indians ran the show in London_lrani is a Parsi-.
and a fellow by the name of A. Merchant managed the;
Verulam office according to Gu~lestad . ''
In the letter Wood asked Mr. Ball to glve an.
extract to the B.S.!. and also to show his letter tOf
the Bfitish Embassy.
Now this letter (Exhibit 3Z} undoubtedly tends t())~
expose Wood: to a criminal prosecution for his,-
con1plicity in . the foreign exchange racket and is:;
therefore ddmissible in evidence under section .32 (:1);
of the Evidence Act. [See als~ Nga Po Yin v. King~~
Emperor (1) and Mauizg Shin and. two others v..
The Union of B1frma (2)]. The_ c,ontrary view in'
Achhailall v. King-Emperor (3) does not appear to
me to be -good law. There .it was held that th~
principle .underlyi~g section 32 (3) of the Evidence
Act, 1872, is that when a person makes a statement.:
rendering . . him ~iable . to criminal . prosecution, the:
statement' is likely to be,.a ttU:e statement and that
..therefore: . a statemetit made by a
perSOl), against:
whom there is already irt existence evidence which.
would lead t~ his .prosec{!tion and conviction, is:
i nadmissible in evidence under the section. The letter
(1) (19Q4..o6) 1 U. J3.R. p. 3: (2) (1948) B.L.R., p. 425.
. . . (3) ' 25 Paf'!,.:P $47, . .
 1955] BURMA LAW REPORTS. 357
(Exhibit 3 Z) had been largely discounted by the learned H.c.
trial Judge on the ground that from its tenor it.appear- 1955 '
-ed that Wood .had no personal knowledge of either the u~~~~!
London or the Rangoon side of the organization and s. J. TRIVEDI
.the Mehta me11tioiled in the letter could .not be said G M v.MEHTA
.t0 be the respondent G. M. Mehta. As to that, it UNioN oF
BURMA.
..appears to me that even if Wood had no per~onal
.knowledge of the fact as to who were the persons M AUNG, .u 8AN1
.organizing the exchange racket in London and in
.Rangoon he had been given certain information
~relating to this racket by Gullestad who was undeniably
the brain behind the enterprise. Furthermore, I
.have little doubt in my mind that the Mehtareferred
to in the letter is the respondent G. M. Mehta who
was admittedly at Bombay just before he came to
R.angoon, who arrived in Rangoon two days after
-Gullestad's arrival and who used to bring money to
:,Wood in connection with the foreign exchange racket.
:aowever, I am not relying on the letter (E~hibit 3Z)
~s ~stablishing the guilt of the respondent Mehta but
.only as a mean of establishing by 'evidettce from . a.
different angle the operation of the foreign ..exchange
.~ac~et- which involved Rarigoon, London .and
~ombay. ~. '
. In so far as the appeal by the Government against
~lie acquittal qf the respondent G. M. Mehta is
concern~d I must be guided by the principles laiq .
. down i.n Sheo Swarup and. others v. King~Emperor.
.(-1). There it was Jtel4 that the .High Court has
f~U power to review at'large the evidence upon which
~he order of acquittal was founded, and to reach the
~onclusion that upon that evidence .the order of
::acquittal should be ~eversed but that in exercising the
:pow:e~ conferred by the .Code, and before reaching
its conqlusion
., . ~ ..
upori fact;-(he High Court should, and
~1) .56. All. p. 64S (.P.C.l.
 ~

358 BURMA LAW REPORTS. [195$

H. c. will, always give proper weight and consideration"' to

1955
.. such matters as (I) the views of the trial Judge as to
l.fNION OF
BuRMA the credibility of the witnesses ; (2) the presumption of
s.J. TRzvsox innocence in favour of the accused, a presumption
v.
G.M. MEHTA certainly not weakened by the fact that he has been
UNION OF
BURMA.
acquitted at his trial ; (3) the right of the accused to
U SA~
the benefit of any doubt; and (4) the slowness of an
MAUNG, J. appellate Court in disturbing a finding of fact arrived.
at by a Judge who had the advantage of seeing the
witnesses. .[See also Emperor v. Nga Mya Maung
0), Puran v. The State of Punjab (2), Chelloor-
1Viankkal Narayan lttiravi Nambudiri v. State of
Travancore-Cochin (3) and Madan Mohan Singh v .
State of Utta Pradesh (4)].
However after a careful consideration and apprisal
of the evidence adduced in the case, I am convinced'
that the learned trial Judge was wrong in having~
acquitted the respondent Mehta and that his finding'
must be reversed.
As re~ards the appellant Trivedi, his real ple8:.
before this Court is for mercy on the ground that he
. only came to know of the co'nspiracy after his
arrival in Rangoon and that in spiteof his reluctanc~
he had been persuaded to carry on by his fonner
superior Gullestad.
I would set aside the order of the 1st Special'
Judge. (SlAB & . BSIA), in Criminal Regular Ttiaf.
No. 27-of 1953 acquitting the respondent G. M. Mehta:.
of the offence punishable under section 24 (1) of the:
Foreign Exchange Regulation Act, 1947' read with
section 120-B of the Pe:oal Code and direct that the
respondent be convicted. of the offenGe aforesaid~
As regards the sentence, considering that even during
the trial of the case Meht.,a had to. be teleased on
.
11) A. I.R.. (1936) Ran., p. 90. (3) A.I.R. (19S3). p~ 4fs (S.c.).
'.
(2) A.I.R. (1953), p. 459 (S.C.). i.4) A 1 R. (1954), p. 637 (S.G.).
1955] BURMA LAW REPORTS. 359

bail .on the ground of ill-health, I consider the ends H.c.

1955
of justice as of mercy would be met if a sentence of
UNION OF
one year's rigorous impnsonment is imposed upon BuRMA
him. He will therefore be sentenced accordint;ly. s..J. TRtvEm
As regards the appellant Trivedi his convictiqn G.M. MEHTA
aad sentence will be confirmed and considering that UNioN BURMA.
oF

his testimony had helped to strengthen the case

11 SAN .
against the co-accused Mehta his sentence will be MAuNG, J.
reduced to 18 months' rigorous imprisonment.
 .. ~

-3(;)0 BURMA LAW REPORTS. [195$

APPELLATE CRIMINAL.
Before IJ Ba Thoung, J .

a.c. ,
1955
u AUNG DWE (APPLICANT)

Sept.Jfi, v.
u CHAN AYE (RESPONDENT).*

Criminal P1ocedttre Code, s. 145 (1), Proviso (I)-Inquiry under sub-s. (4)
mandatory.
It is erroneous to make an order under sub-s. (5) without having ever held
ari. inquiry under sub-s. (4).
An inquiry under sub-s. (4) is mandatory and that is a condition precedent
to the making of an order under sub-s. (6). .
Muhammad Aliyar /1J u!Jamnzed v. Shamsul Hao Pi Z ialdin Shah and others,
A.I.R. (1940J Sindh, p. 33, followed ; Vaidyaunatha lyer and others v.
Suppazu Aurmal and others, 15 Cr. L.J., p. 669, discussed.

San Myint, Advocate, for the applicant.

B. c. a uhoo, Advocate and Ba Kyine (Government -'
Advocate), for the respondent.
U BA TROUNG, J._Thisis an application to revise .
the order of the Eastern Subdivisional Magistrate,
Rangoon, issuing an order under section 145 (4),
proviso 0) of the Criminal Procedure Code to place
the respondent in possession Qf the room in dispute
in House No. 14, Nyeingyan-ye Quetthit, Kemmen-
dine, Rangoon.
The respondent has beeri the tenant of the
applicant in the ~bovementioned house, and on the
1st May 1955 p_e was asked by the applicant to move
out of the suit. premis~s .f or .three ~ays . in order to
enable the applicant to carry out some r~airs to the
. . . .. . . ..

Criminal Revision No. 99 (B) of .1955. Review of the order of the
Eastern Subdivisional Magistrate of Rangoon, diited the 6th day e~f July 1955
passed in Criminal Misc. Trial No. 43 of i.YS5.
 ~ .
1955]- BURMA LAW REPORTS. 361

'building. He moved out from the suit premises on H <;-

5
the 7th May 1955 leaving behind some of his ::_ .., ,
U AUNGDWE
properties in the room. Then on the same day as v.
it was raining, he went back to his room to cover up u CHAN AYE.
the properties left there by him, and the applicant u BA J
not to enter t h e house. H e reported
-told. htm the n~.
matter to the police who advised him to file an
application in Court :under section 145/ 146, Criminal
Proced-qre Code, which he did. The learned Eastern
:Subdivisional Magistrate after examining the
respondent, considered that the dispute between the
i'espondent and the applicant was likely to caus.e a
-breach of the peace and issued an order under
,section 145 (1) of the Criminal Procedure Code calling
upon the parties to put in their written statements in
):espect of their clain1s regarding the question of.
actual possession of the room in dispute. The written
Atatements of the parties were filed, and the learned
Eastern Subdivisional Magistrate without .holding an
'. _enquiry, but relying on the written statetne~ts, issued_
tan. order directing to place the . respondent in
possession of the room in dispute until legally
eviCted.
Now it is contended by the learned counsel for
~he applicant that the learned Magistrate's order was
.passed without jurisdiction as. it was passed without
du.e enquiry by receiving evidence of the parties as
J:equired under sub-section (4) to section 145 of the
.Code of Crhninal Procedure. I. am in agreement
wi_th his contention. Sub-section (4) to section "145
of the Code of Criminal Procedure reads :
. " The Magistrate shall then. without reference to t~e
~erits or .th~aims of any such p~rties to . a right to possess
.the subject ofl .dispute, peruse t.lte .statements so put in, bear the
p arties. re"eive all such eviden~~ ~s may b.e I)roduced by them
}I'espec~ively. consider the effect of suqh_evid~nce_. . take such
162 BURMA LAW REPORTS.
e
~ H.C. further evidence (if any) . as he thinks necessary, and. ir
1955
"' possible, decide whether any and which of the parties was at
l"AuNG DwE the date of the order before. mentioned in such possession of-
cu:~AYE . the said subject."
~ .
U BA
TUOUNG, J.
In the case of Muhammad Aliyar Muhammed
v. Sha1nsul Hao Pi Zialdin Shah and others (1), it
.. has been held that the words of sub-section (4) :
"the Magistrate shall then . . "are mandatory ;.
that the word ' then ' refers to the stage when in
compliance with the order under sub-section (1) the:
parties have put in their written statements and
attended the Court; that on the completion of the:
inquiry under sub-section (4) a final o:r:der under
sub-section (6) must follow, it being obvious that the:
holding of the said inquiry is a condition precedent:
to the making of the order under sub-section (6) ;-.
that it is erroneous to make order under sub-section
(6) without having ever held any inquiry under subC:...
section (4) .
I respectfully agree with the decision in the above;
case that the holding of an inquiry under sub-s~ctiori.
(4) is mandatory and that it is a condition precedent.
to the making of the order under sub-section (6). :
The learned counsel for the respondent contend~
that the High Court should not, in Revision, in~erfere:
with the decision of the Magistrate when sue~ decision.
was made on .the merits after perusal of the written
statements of the parties, and he . cited the case ot
-V aidyaunatha lyer and others v. Suppalu Aurma! and
others (2). In that case the question whether the
holding of an inquiry under sub-section (4) is
mandatory or-not had not been discussed,. and it is.
. to be pointed out that tha.t case was decided in 1914
before the Code of Criminal J?rocedure (Act V of
..
(1) AI.R. (1940) Sindh, P 33. (2)_Vol. XV ~r.L.J., p. 669.
 .
1955]' BURMA LAW REPORTS. 36J.
,
1898) was amended in 1923 by the Criminal Procedure r9~5 .
Code Amendment Act, XVIII of 1923; and the ohange . -
.1n t he erlffilna
. I Procecture c ode A mend ment Act of u AuNG
v. DwE:

1923 regarding sub:section (4) of section 145 is for u c~~YE..

the. words "receive the evidence produced " the word$ T u .~A J
HOU!-tG, ,.
"reGeive all. such evidence as may be produced " were
substituted, and it shows that the Magistrate is now
bound to receive all the evidence produced by the
parties.and has no discretion to refuse any evidence.
The case of Muhammad Aliyar Muham on .the
other hand, is a much later decision made by a Bench
of two Judges and in it, discussion at length w~s made
. regarding the inquiry under sub-section (4) to section
145 of the Criminal Procedure Code.
For the reasons stated above I am of the <?Pinion
~hat the Magistrate has acted without jurisdiction in
~
the present
. case in issuing the order directing to place
the respondent in possession of the room in dispute
without holding an inquiry as required under sub.:..
section. (4) to section 145, Criminal Procedure Code.
~

I therefore set aside the order of the learned Eastern

Subdivisional Magistrate and send the proceedings to
the District Magistrate, Rangoon, with directionsthat
;the case ~e dealt with according to law by any
Magistrate to whoin he may ch?os~ to send it.
:364 BURMA LAW REPORTS. [1955

APPELLATE CRIMINAL.
Before U Ba Thozmg, J.
0

H.C. U NYI MAUNG (APPELLANT}

1955
v.
:SePt.: 22.
UNION OF BURMA (RESPONDENT).*

Charge under s. 409, Petzal Code-Payment of Sales Ta:r.-Dealer itt goods not
an agent of tlte Government-S. 23 (t) (6), General Sales Ta:r. Act, 1949-'-
. Reco71ery of Sale Tax.
Applicant, a dealer in cloths was charged under s. 4J9, Pe:1al Code for
. failure to credit sales Tax to Government. . .
Held: A dealer of goods is not a Government servant and ils such he is
not an agent of the Government. .
There was no provision in the Centra1 Provinces and Berar Sales . Tax:
Act', 1947, whicli constih,:ted a dealer an agent of the Government, and tfiis
decision n1ay be accepted in Burma, as the General Sales Ta:'( Act, 1949;..
(Burma. Act No. 60 of 19.t9) is more or less on the same principl~s as laid
down in the Sale Tax Act of India. .,
: iethalaZ V:irajlal v. Tlie State of Madhya Pradesh; A;I.R. (1953) Nag. 194-,
approved.
The dealer, to !ec0up the sale Ta~ i~creases the price t0 cover the Tax.
and the Sales.Tax becomes merged in the total amount paid bv the purchaser
and the priceso:obtained for selling those goods s~lely b:!hng to the dealer
and ther:efore there Gannot be any entrustment of. Sales Tax to .him by .tb~
Government. .
' The remedythat 'is' open to the Government fot re::overy of Ui.e 'Sales Tax
is py institution of recovery proceedings under s. 23 (1) {6) of tbe Gener~l
Sales Tax, 1949. .
' .. .
W. Kyin Htone, Advocate, for the applicant.
Ba. Kyaing (Government Advocate) for the
. respOndent .
._ U BA THOUNG, J.~The
applicant has .b een char~
.ged under section 409 of the Penal. Code in C!iminal .
Regular
.
Trial No. '578 of 1953 before
.
the Court of... th~.
Criminal Revision No.J.07 (B) of 1955, Review ofthe otder of the stb.
.Additional Magistrate of Rangoon, dated J 8th da) of June~ J95S p~ssed in
Crhn~nl.).l Regular ;frial No. :578 of 195~ on the recommendation Of tEe Se~sion
. Ju~e,, H an~hawaddy and ~ango()n T~wn District., in his. Crim~.al ~evision
No. 30 of 1955,datedthe23rd July I95S.
. 19;)5 l BURMA LA\.V REPORTS .
;;)
. .J 36.5<
5th Additional Magistrate, Rangoon, under the H.c.
1955
following cirumstances :_
The applicant was the manager of a company ;y~:~
known as '' 37 Company " Rangoon, in the year UN~~~ oF
1949-50, and as the tpanager of the said Company B~.
during that perio~, he sold umbrella cloths to. the Q u B~
value of .Rs 1,13,789-2-0 on which sales tax amount- THouN-G,. 1
ing to Rs. 7,111-13-0 were collected. As these sales
tax have not been credited. to the Government, he
has been prosecuted under section 409 of the Penal
Code.
After the framing of charge under section 409,
Penal C<?de against him, the applicant applied for
revision, in the Court of the Sessions Judge, Hantha-
waddy, against the order of the 5th Additional
Magistrate, Rangoon, and the learned Sessions J u~ge
after going. through the proceedings, considered that
the charge against the applicant in this case. under
section 409, Penal Code, is misconceived, and he has .
.submitted the proceedings to this Court .with.. a
rec~mmendation that the charge be quashed .
I accept the recommendation of the Iear.qed .
Sessions Judge. the learned Government Advocate
has rightly conceded in this case that the applicant is.
not a Government servant-but only a dealet of goods .
and as such he is not an agent of the Government.
This is also clear. from the decision in the case of
Jeihalal Vitajlal v. The State of Madhya Pradesh
(i}where it has 'been held that there was no provi-
.sioiliii :the.Central Provinces and Berar Sales 1)x Act,
1'9.47 which constituted a dealer an agent of the
Goyernment, and :this decision may be accepted in
Burm~, as the General Sales Tax Act, 1949 (Burma
A.:ct No. 60 of 1949) is more or less on the same princio:-.
ples as laid down in the Sales Ta.x Acts of Inqia.
1) A.J.R. {19~~ N~g: }-?4.
 fl.

BURMA LAW REPORTS. [1955

" ~-

H.c. The dealer in goods is the person taxed for the

~ ::ss"' . .goods he deals with, and in order to pay the tax levied
... MuAUNG
NYI on his goods, without loss to himself, he increases the
v.
'UNION OF
price of his goods when he sells them to the purchasers,
BuRM A. and the sales tax becon1es merged in the total amount
. u EA P aid by the purchaser. It has oeen held in the case
''l'HouNG, J. of Bata Shoe Co. Ltd. v. Member, Board of Reverbue,
West Bengal (1) that under the Bengal Finance (Sales
Tax) Act, 1941, the sale price will include any amount
charged and realised separately as ''Sales Tax" by the
dealer. Therefore as the goods or the price obtained
for seiling those goods solely belong to the dealer
there cannot be any entrustment of sales tax to him
by the Government. The remedy that is open to the
Government for recovery of the sales tax from the..
dealer if he has not paid the same, is by way of institu-
ting a recovery proceeding against him under section
23 (1) (b) of the General Sales Tax Act, 1949; and it.
may be m:entioned here that such a prqceeding ha~ .
. been opened against the applicant and . two other .
members.of the firm _before the .same Court of the
5th Additional Magistrate, Rangoon, in Criminal
Regular Trial No.7 of 1952'in respect of the same
sales tax in question in the present case, and that
case is still pending. .
It is also apparent from the :statement ~f. the-
applicant in this case in Exhibit' (o) that he did not
deny of having collected sales nix amounting toRs.
7,111-13-0 but h e explained thal .a misunderstanding
bet~een him and some o f 'the directors of the firm
h-ad pr~vented him from handing over the sale
proceeds and the tax collected to. the Company,.
which shows that .there .was no . dishone~t 'intention
on his part .which is an .ess.ential ingredient under
section. 409,. Penal
~ . .
Code.
------,----~---------------'-----------
(I) '53~ c.w.~. p :z7s.
 BURMA LAW REPORTS. 369
U Po Thein and others v. O.A.O.K.R.M. Firm, I.L.R. 5 Ran. 699, affirmed. H .C.
'The defec..ts are fundamental and not merely technical. 1955,
An appella:te Court cannot make an order for payment of a n acLditiona > U TAW
Court Fee where no fees at all has been paid and where the original v.
- court has not decided the question of valuati<n. THE BANKOP
]lfuthu Erul,tppa Pillai and another v. Vu11uku Thatflayya Maistry 1 A.I.R. CHETTt~AD
<( 1917) Lower Burma 179 ,(2), affirmed. LTD., B Y ITS
M~AGER, S~
PermissiOP for payment of an additional Court fee in appeal disalbvrcd. AN.N AMALAI
' C.Hin'TIAR.
Ba Shun, Advocate, for the appellant.

K. R. Venkatram for the respondent.

U AUNG KHINE, J.-This appeal arises out of

Civil Regular Suit No. 7 of 1947 of the District Court
of Mandalay. The plaintiff's case is that he is the
-owner of the land known as Holding No. 24 of
1949-50, Block No. 837 of Shwe-phon-shein Quarter,
measuring roughly about 24 acre. Prior to . the
.outbreak of the second world war, there were standing
.on it a two-storeyed wooden building with corrugated
' iron roofing and a big godown. In respect of these
premises, the defendant was a monthly tenant paying
a rent of Rs. 40 per mensem. When th&\ war broke
.out, the Bank's Branch at Mandalay was closed down
.:and its employees were evacuated to India in March
1942. When the new manager of the Bank returned
"to Mandalay in 1946 after the war, instead of the house
~ and the godown, he found a cinema hall standing on
the old site and it came to his knowledge that some
.o f the materials from the old buUdings were removed
to Shanbw~ Quarter where the defendant U Taw
had put up a residential building. When questioned
about the changes that had taken place, the defendant
. explained that the cinema business was. a very paying
. one and that the construction of. the cinema hall
. was of mutual advantage to both .the plaintiff and
.t he defendant. The defendant agr.eed to compensate
for the ctremoval of certain materiaJs fr.om the old

24
r~ ..
370 BURMA LAW REPORTS.
. H.c. buildings and also agreed to execute a document
_
1955
admitting the pta~niiff's o~nership !o f thy cinema.
~ u TAw hall. He also agreed to take a lease of the cinema
THEE:NKOF hall at a rental of Rs. 200 per mensem. ~ubsequently~
~::.~~~~~s the defendant went ba~k on his words a nd set up
MAN,AGEn,s. his right of ownership to the cinema hall saying that
ANNAMALAI , . ; .. . .. . ,
"CHET'l'IAR.
.. lhere had beeri a contract of sale of the suit land .
u AuNG together with the building standing thereon.
KHrNE."J. The plaintiff pleaded that the defendant's.
possession of the land after April/May . 1942 was
illegal and unlawful. As an alternative, he submitted
that if it is considered that the .defendant was sti}l a
tenant after that period he had renounced his.
character as a lessee by setting cp a contract of sale.
and furthermore by dismantling the house and the
godown, the defendant had rendered the tenancy
imp6ssible and thus he had forfeited the tenancy and
on those grounds he was liable to be ejected. The:
defendant was asked to give up peaceful possession.
of the suit property by 31st March 1947 but he did
not comply with the den1and niade:" The plaintiff
prayed for~ . .
(1) a declaration of his ownership to the cinema.
. hall
.
and. Rs. 10.. 000
~ ~' .
as datnages for . .'

materials removed or in the alternative.

for Rs-~ 25~000 as damages fbr th~
. . . , I

dismantling of the house and godowJ:.

and conversion ofmaterials. . ' . .
(2) eject~11ent of the defetidant" in case if it is:
. .. held .'that he . is . not the owner ' of the
cinema hall ; its deinoiltion.
(3) Rs: 4,660 for mesne: profits-: or. compensa-
. tion . [or . use': and . occupation .of the
p~ytnises and the:.$ite. .
<4) . ~s~ "t-AS.O 'a~ r~nt f.or th.e house and .g odown
~. ; . (. a nd site if the~ defendant c ontinued 'aS.
' . '. ; . . .
~ . .
 BURMA LAW REPORTS. 371
tenant du r ing the period of occupation. i-i .C .
l5) all such other reliefs that the court may 1~~5:'.,.

find the plaintiff is entitled to. 1..' T A \\'

~~ .

(6) costs of .suit. THE B .<!.S K O F

CHE1'T!NA D
In the written statement the defendant admits LTn., 1n: ns
that he ceased to occupy the building and godown M A ~AG:fi;R, s.
ANN'AMALAI
from April 1942 onwards. It is his case that soon C!"iETTL\R.

after Mandalay was occupied by the Japanese, all the U AUNG

KHINE , J.
materials of the building and godown were removed
.and stolen away. Therefore, it was not he who had
<lismantled and detnolished the house and the godown.
He says that the cinema ball belongs to him
exclusively and therefore a suit for a declaration of
title is not maintainable in the circumstances stated by
the plaintiff. He also pleaded that in view of the
provisions in section 16 of the Urban Rent Control
)Act, 1948, the plaintiff's suit for recovery of rent of
the premises and buildings thereon without a
,certificate from the Controller of Rents c:1nnot be
:filed in a Civil Court. ~
The que~tio~. whether the suit was maintainable
Or not in view of the provisions of section 16 of the
Urban Rent Control Act, 1948 was taken up as . a
_preliminary issue. The learned Dist:ri~t Judge
~nswered the question in the affirmative holding that
the provisions of section 16 of the Urban Rent
-~~nitrol Act, 1948 are applicable only in cases . for
recovery of rent which became due after the lith
January 1948, the date on which tl~e Ur~an Reiit
control Act, 1948 came into force. We have referred
i~ s'ection 16 of 1946 Act and also the amending Acts
of 1947 arid we find that the provisions similar . to
..diose of section 16 of 1948 Act had been .there
. *li:~adyin 194:6 A~t. W~ fail _to unders~~n~ .ho~
: the lean\ed... Distrkt Judg could h~ve held that the
: provisions in sectioh 16 (lf 1948 Act are applicable
372 BURMA LAW REPORTS.

H.c.
1955 .
only in cases for recovery which became~ -due after-
,- the 11th January 1948. There is no doubt what-
u 'IJ.TAw soever now that 1948 Act has a retrospective effect
THE BANK oF in view of the fact that the object of the Urban
CHETTINAD "
LTD., BY xTs Rent Control Act was to provide rehef and protec-

~;:!!!~~~ tion to the tenants. [See Tai Chuan & Co. v. ChQn
CHETl'~AR. Seng Cheong (1)].
u AuNG In this case the plaintiff had asked for several
1
KHINE, reliefs including one for recovery of rents unpaid.

It is therefore doubtful .whether it would be justifiable:

to disn1iss this suit outright Inerely because the plaint
was not accompanied by a certificate from the:
Controller of Rents. In any case, the lower Court
had disallowed the claim for rents.
On evidence there can be no doubt that the:
defendant did dismantle the old buildings on the:
suit land and constructed the cinen1a hall with the
old materials and whatever extra materials ther~
were they were removed to Shanbwe Quarter by him ..
On these flndings, the learned District Judge declared
the plaintiff to be the owner of the cinema hall and
that he was also entitled to possession thereof.
It is this part of the judgment that has been:
severely attacked by the appellant. The learned
Advocate for the appellant contended that the lowe:r
Court had fallen into grave error by giving the.
respondent a declaration he had sought for in spite
of the fact thathe had not paid any court-fees for
such declaration:. Secondly, although the respondent
had not asked for possession of the cinema hall, the
lower Court had granted a decree Jor possession of
the same. On the first point we wo11ld hold that as;
the . respond~nt' had paid higher .c~:mrt-fees for th~
amount Claimed .as an alt~rnative, that is in respect
of the damages assesse<!- at . Rs. 25,0~0, ~e do n9~
(1) (1949) B.L.R. 86 . (S.CJ.
 BURMA LAW REPORTS. 37~

thiflk a separate court-fees for such a declaration H.c.

' 1955 ..
should be insisted. .. u TAW
We find, however, much force in the second v.-"
. .
o bJectwn~ . N o c ourt can g1ve
. a p 1a1nb
. 'ff any re1'1e f THEBANS:OF
CHETTlNAo

which he has not specifically asked for nor can it t~~~:;n, 1i.
make out a case for the plaintiff different fro1n what ANNAMALAt
CHETTIAR.
he has set out 1n the pla1nt. [See A. S. P. S. K. R.
Karuppan Chettyar and one v. A. Chokkaling'am U ..AuNG
!rHINE, J.
Chettiar (1)]. It is abundantly clear that possession
of the cinema hall was not asked for from the fact that
no ad valorem court-fees had been paid on the value
of the suit premises. The lower Court was therefore
clearly wrong to pass a decree declaring that the
plaintHf was the owner of the cinema hall and that
he was also entitled to possession thereof.
Furthermore, it has been the case of the defen-
dant all along that the plaintiff's claim for declaration
is not maintainable in the circumstances disclosed in
the case. The relationship of landlord and tenant
between the parties had ceased with the advent of
the Japanese war some thne in March 1942. By the
operation of the Monthly Leases (Termination) Act,
1946 (Burma Act No. XLIX of 1946) the appellant's
possession of the property was that of a trespasser
.and it is clear that a suit for declaration alone
without a prayer for consequential relief is clearly
not admissible under section 42 of the Specific
Relief Act.
Section 42 of the Specific Relief Act is exhaus-
tive. of the cases in which a decree merely declara-
~ory can be made, and the Courts have no power to
make such a decree independently of that section ..
[See P. C. Thevar v. V. Samban and otizers (2)]. It
follows therefore that proviso to section 42 of the
. .
.( I) (1949) B.L.R. p. 46 (S.C.l.
be
specific Relief Act must .adhered to strictly. and that
{21 J.L.R. Ran. Vol. 6. p. 188.
 "~~
.374 BURMA LAW REPORTS. f195$'J
.~
) . -~

- H.c.
1955.
its provisions are paramount and the consequences of .,
non-compliance with them cannot be avoided. The
U TAW
v. respon dent ha d notice o f the objection raised in the
-r~!F:~~~:A~F lower Court but he paid no heedJo it and persisted
Lrl)., BY rrs in continuing with the suit as framed originally.
MANAGER, s. H d h
ANNAMALAI a e as ked f or permiSSion . . f rom t h..e 1ower c ofirt
CHET;rAR. for amending the plaint, there certainly would not

u AuN<f have been any objection raise.d. In Chokalingape-

KHrNE ].
shana 1Vaicker v. Achivar and others (1), the plaintiff
sued on a sta1np of Rs. 10 for a declaration of his
title to land worth Rs. 19,000 in the possession of the
defendant, it was held in that case that the suit could
not be maintained and that the plaintiff was not
entitied to put in ad~ltiorial Statnp on the plaint and
convert his suit to c;>Iie for posse~sion . . Even in suits
un-d er Order 21, Rule 63 of the Civil Procedure Code,
the p_laintiff's suit, if it is. a suit for decHiration, would
~e barred by the proviso to section 42 of the Specifit
Relief Act if he is al::Ie to seek further relief than a
mere decJanition and omits to do so, [See U Po
Th(dJ~ and others v~ O.A.O.i<.!R.lYJ. Finn {2)].
The learned Advocate for the _r~spondent say,s
that no objection was ra~sed in the lower Court on
the poin.t but . it . is clear from paragraph 9 of. the
written statement that the appellant had stated that-
the SUit for mere declaration is hOt Inaintainable in
the circumstances disclosed iii the plai~t.: Ther~
was no effective reply to this . . Tl;le lea~ned Advocate
for tlie resppnderit also contends that the ~uit should
not be dismissed merely on a teclifllcal defect ville
.8eciion 99 of tlie Civil Protedure Code and th<it he
~hou1~. b~ aliowed to pay the requisite to'urt-f~es at
this 'Stage . ! .
.. . : .-.rhe
~. . 1;- ..
~-.~ef~ts
. ..
.. ~te.. frin~amental
. . .
"l , :
~tid .1i-9t
..
merely
~ ;.

techiucal.: Therefor~ the., petmiSion sbugJlt for to

. (H .I.L.R. 1 Mad. p. 40. {2) i:L.R. S ~an. p; 699. .
. 1?55j~ BURMA LAW REPORTS. 375
'.
pay an additional court-fee here in appeal cannot be H.C.
1955
allo<ved. In Muthu Erulappa Pillai and another v.
Vunuku Th'athayya ]VJ.aistry (0, it was held that an u ;.,Aw
appellate Court cannot make an order for payment THE BA::-:'< tn
CHETT!~' AD
of an additional court-fee where no fee at all has LTD., BY ns.
MANAGERS
been paid and where the original Court has no~ ANNAMAL.u
decided the question of valuation. CHETTIA~<
For these reasons, we are of the opinion that tpe KHJNE
u AuNG , J.
suit as framed by the respondent in the lower Court
was clearly no_t Inaintainable Under the proviso to
section 42 of th~ Specific Relief Act.
. The lower Court has appointed a Commissioner
to find out what were the materials removed by the
appellant to ,bis house out of the materials obtained
by dismantling the buildings in suit, and their value
and also as to the amount the resoondent is entitled
~ ; .&.

to as mesne profits or compensation for use and

occupation of the premises from May 1946 to May
i947. The .order rehiting to the appointment of the
Commissioner for the purposes mentioned above
wiU. have to be vacated also in view of our decision
that
) .. the suit is not maintainable.
' :.

In the result the appeal is allowed .and the
judginent and decree passed by the lower Court are
~.et aside atid the plaintiff's suit is dismissed with
cpsts throughout. . . . ,'
U BA Tl:IOUNG, J.-I agree.

tll A.l R (1917) .Lower Hurma 179.. 12) .

 .~

376 BURMA LAW REPORTS. . [19SS.

APPELLATE CRIMINAL ...

Before U Ba TJ;oung, J.

H.C.
1955
u THA PE (APPLICANT)

.June 2.
v.
u THEIN NWE (RESPONDENT)

Prosecution under s. 468, Penal Code against Village Headman -Gerzcral

Village Proceed.ngs opened by Deputy C01nmissioner t hrou.gh Township
Officer-Direct complaint-S. 195 (1) (c) not aPPlicable a~ Deputy
Co1nmissioner acting in Village Proceedings is 11ot a Cottrt-S. 28, Bur111a
Village Act-Satlcfwn reqtttrcd to prosecute V1llage Headman for acts
done in discharge of /tis official duties.
Respondent, a Villager petitioned( against the applicant for an offence
under s. 468, .Penal Code to the Deputy Commissioner, Pegu, who opened
General Village Proceedings through the Township Officer.
On the Township Officer's report, the Deputy Commissioner directed
that the Respondent could file a d.irect complaint and he did so.
The trial Court dismissed the complaint for want of sanction under s. 195
(1) (c), Criminal Procedure Code and discharged the applicant.
Thereupon the I'espondent filed an application in revision against tlfe
order of discharge before the Session Court wherein the applicant raised two
objections, vie,-That the complaint was :
(~) barred by s. 19S (I) (c), Criminal Procednre Code and
{2) not maintainable for want of De;mty Commissioner's sanction under
s. ::?8, Burma Village Act.
The sessions Court set aside the order of discharge on ground No. (1}
alone withoutgoing into ground No. (2) and ordered a re-trial.
The applicant then filed an application in revision against the order for
re-trial. .,..
Held: Neither the Deputy Commissioner, nor the Township Officer in
General Village Proceedings acted as a '' Court " within the meaning of
s. 195 {1) {c) o{ the Criminal Procedure Code.
Chotalal Maltlzuradas, 22 Bom. 936/939; Mahabaleswarappa v.
GoPalswami, 3o Cr. L. J. 895; Hari Churan v. Kanshiki, 4t C.W.N.
'530 (537), referred to. .
Held further: Sanction from the Deputy .Commissioner under s. 28 of the
Btama Village Act is essential to prosecute a Village Headman for Commis-
sion of alleged offences in the discharge of his official duties.
11-Jaun:g Po Thit v. Maung Pyu, I.L.R. 8 Ran. f.54,followed.
Order for re-trial set aside,
*Criminal Revision No. I69.(B)of 1954, being Review of the order of the
. Se~sions Judge of P.egu, cJated lhe 11th day of July 19S4 passed in Criminal
Revision No. 89 of 195-l:
r-
~--:-( 195~] BURMA LAW REPORTS. 377

T wn A1a[Jng, Advocate, for the applicant. H.C.

1955
Li TH.;l.~E
Ba Kyine (Government Advocate) for the 1/.

respondent. u THEil\
N WE.

U BA THOliNG, J._ This is an application to revise

the order of the Sessions Judge, Pegu, passed in his
Criminal Revision No. 89 of 1954 setting aside' the
order of discharge of the applicant U Tha Pe by the
8th Additional Special Power Magistrate, Pegu, in
Criminal Regular Trial No. 78 of 1953. The
applicant was prosecuted in the latter Court under
section 468, Penal Code on a direct complaint filed by
the respondent U Thein Nwe under the following
circumstances :_
The applicant is the headn1an of Kyaikme
village who has to issue a certificate to every bona fide
o cultivator residing within his jurisdiction who wishes to

sell his paddy through rice traders and n1illers to the

State Agricultural Marketing Board. Rice traders and
millers buy paddy for the State AgriculturarMarketing
Board from the cultivators who could produce bona
fide cultivator's -certificate. This procedure was
adopted to prevent the underhand dealings by the
~ middle men in the purchase of paddy by the State
Agricultural Marketing Board, and with a view that
tlie cultivators who sell their paddy get the full price
paid by the Government through its agents, the State
Agricultural Marketing Board. The village headman
therefore has to issue a bona fide cultivator's certi-
. ficate to every cultivator residing in his jurisdiction
who wishes to sell paddy. The headman and the
. cultivator concerned have to put their signatures on
.: the . bona fide cultivator's certificate. Now it
happened that during the 1952-53 paddy season, many
. .cultivat&rs of Kyaikn1e village were unable to obtain _
.. .

25
 BlJRM.A LAW REPQRTS. .[ 1955.,

~ ,c . cultivator's. c.ertificates from their headmau who is .the

. 19'55 . . . c
applicant in this case. The aprlicant.told them that
\! .T HA PE
"-.'!' no more certificates would be available as all have
.U. THEIN
::~~E:
been issued. The cultivators numbyring 39 who
failed to obtain their certificates ,from the applicant
U BA
THOUNG 1 J. t'hen applied .to the Deputy Commissioner, Pegu, to
enquire into the . matter against the applicant. The
Deputy Commissioner then opened a General Village
P-roceeding No. 300 of 1953. and ordered the Township
Officer, Thanatpin, to enquire into the n1atter. The
Township Officer in his enquiry found that although
17 villagers had never received cultivator's certifi-
cates_the counterfoils of the certificates which were
supposed to have been issued to the1n bore their
signatures and as these villagers denied the signatures
to be theirs, it appears that the applicant was :disposing
.these certificates illegitimately by forging the signatur~s
.qf~h9.se. '.17 vilLa:gers on the cultivator's certific~~es!li:
. . ...... t l i . . : . J ' . ~ .~ . , ,J

.a;Jiid._r <!: , ~~port was accordingly 1nade to .the Deputy

. Cpmrnissioner. The Deputy Commissioner . ~hyn
..in;~ormed "'these villagers that they could . pr~ce.ed
.ag~inst the applicant U Tha Pe in a Court .of. :Law
fqr fo~gery, and the resp.o ndent has thus filed .a dif.~ct
.,c,(?n1.plaint . against the applicant . under . section .46:~'
.Pen:a l .Code as stated above in the Court of the .8th
. .Addltio~al Magistrate . Pegu. . It . was contended by
,< ~ . : l.;. I ._,t : - ' , ' -

:}PK : app~ic~p.t iq t~at Court- that the .direct cqtJ]pl~t

-~~~yg gy ;tl;l~J:e.sRot?:dent was ba.rred.i und~r se~tipt1: l9;5
::U;l:(q}p(t4~ ; ~<;>,qe of (;rimjp~l Procedure, and the
Jea;rp~.~.Jrfal :Magistrate. a~cepted that coQtention:~A4
,. , ' ' . .. . . .. ....... ') . . ... . .... , . ' .I

;!9;i:~~~Jg~,~ tp~ applic~t:U Tl1.~ P~ : . The .r.esP,op.g~p.t

~~V; T,P,~iiJ; ( N~Y. t.J;leJ:l :appl~(14J9 . the.. Se.s.sion~ . CouJ:ti J,o
rf'fVJ~u Jl:\~<.i<?r4~~ ; of discQ.arge. : .: :- In t.Jl~ Covt:t. o~ J;h,e
"~ ~es,~i()p;s J *gg_e, lL.T ha ;E.>e ~Q9t~n~ed., . .fi~stly . ;that ~:-,~~'
!lf>,~~~g r;~?.Yilla.ge. headmaP.t c<?idd!;noLpe prose.~utt}d
1 ~Wh4~?"qt1tJw, .: ~(lqct~~~ .of..:t.Pe ~puty Co111tnissip~~r
 BURMA LAW REPORTS. 379

but it appears that this contention was abandoned H.C.

1955
and the learned Sessions Judge did not go into this
UTH-~
question. The other contention raised before the V.
U TH EIN
Sessions Judge was that the direct co1nplaint filed Nv..E.
was barred under section 195 0) (c) of the Code qf U .BA
Criminal Procedure. Section 195 (l) (c) of the Code THOUNG, J.
of Criminal Procedure provides : .,
" No Court shall take cognizance of any offence
described in section 463 or punishable under
section 471, section 475 or section 476 of the
same Code, when such offence is alleged to
have been committed by a party to any
proceeding in auy Court in respect of a
document produced or given in evidence in
such proceeding, except on the complaint in
writing of such Court, or of some other Court
to which such Court is subordinate.,

oThe : learned Sessions Judge went into this ,question

a-ncr-relying on the case of Chota/at Mathuradas (1)
-where-it has been held that "An Assistant CoHector 0

:in holding a Departinental .enquiry into the alleged

. misconduct - of . a subordinate is-not:a . C0urt ",held
-~ that the Deputy Commissioner, Pegu,, in opening the
IMtid:village proceeding had not acted--as a Court, nor
.;the inquiry :before the -Township Officer, Thanatpin,
.'dduldi_.. ever be regarded as a proceeding before a
Court, and therefore section 195 (1) (c) of the Code of
1~~ri~~~al ;P,~?9e4.u~~ _h~d no appli9a~i~n in ~~~ present
: c~s~.l .an<f'tli'~t the . d.i:J;ect compl,aw.t. ,filed,. in it .was
:~ ~competeP.( , ...rhe . Iearn~4 se$_slo:Qs _.JiJqg_e .. h.as .. also
;!.quoted: ihe :cases ,of iMahabaleswq.rapp.a . Gopal- v.:..
:> iswturit(2}, - and ..,Hizri Charan v . .-Kanshiki- = (3) which
. ~i\'ppor_i : his' vi~w. .. I' co_n.s ider the vi~~ takenby ;~he
Hf~&ril~ttsessiolisJudg~ iliat. tlie Depiit:); .Co-miDi~.~i~~~~,
-----------------....:. .:.:...
~ --- ;:__
-(J:) -~2 Bom; 936 (939}.
...-. ...: o . (2) 36 Cr.L.J. 895.
(3)r44 .C.W.N. 530.('537J; 1 .
380 BURMA tAW REPORtS.
H.C. Pegu, in opening a village proceeding had mot acted as
. 1955

~....,'[HA PE
a Court and that the inquiry held by the Township
v. Officer could not be regarded as a proceeding before
U THEIN
NwE. a Court, is correct. The Deputy Comtnissioner had
U BA
to open the said village pro~ceeding so that an
THOUNG, J. enquiry be made regarding the misconduct allege<;!
ag[:tinst the headman and accordingly he ordered the
Township Officer to hold that inquiry. In the
inquiry proceedings before the Township Officer also,
the witnesses were not examined on oath. This
indicates that neither the Deputy Commissioner,
Pegu, nor the Township Officer, Thanatpin, had
acted as a Court. The learned Sessions Judge was
therefore correct in holding that section 195 (1) (c)
of the Code of Criminal Procedure is not applicable
to the present case.
It is now contended by the learned counsel for
the applicant that the applicant, being a village-
headman, could not be ptosecuted without the sanction
of the peputy Co1nn1issioner, and that the
prosecution by the respondent U Thein N we is vitiated
for want of sanction from the Deputy Commissioner,
:Pegu. The learned Sessions Judge has not considered
this question because it was not urged before him; but
it cannot be said that this contention is unten.abl~~
In the case of Maung Po Thit v. Maung Pyu (1),
ithas been held that :
" Where a complaint for an offence under th~ Penal
Code is filed against a vlllage headman in respect'~o:f acts
which are punishable also under theBurma Village Act. the
Magistrate must reject the complaint if the compla~nant
has not obtained author.ity from 'the Deputy Commissioner as
required by section 28 of th~ Burma Vilhtge Act. The
Magistrate sh~u'ld not himsel~ take any steps to . obtain such
sanction..
..
(I) I.L.H. 8 ~n. p. -654,
 1 ~. 55] BURMA LAW REPORTS. 381
, The Deputy Commissioner should not specify the H .C.
1955
section of the , Penal Code which is applicable. but should
merely authorize the prosecution in respect of the acts
concerned."
U

u
THA P E
'IJ.
THJ~I N
NwE.
--
The complaint filed by the respondent U Thein Nwe U BA
agai.nst the applicant in this case is for an offence under THOUNG, J.
section, ~68, Penal Code, and in view of the ruling
laid doW'"n in the above case, sanction from the Deputy
Commissioner, Pegu, under section 28 of the Burma
Village Act is required to prosecute the applicant who
is a village headman. Section 28 of the Village Act
lays down that "no complaint against a Headman
shall be entertained by any Court unless
the prosecution is instituted by order of, or under
authority from, the Deputy Commissioner." The
allegation against the applicant is that he had forged
the signatures of the cultivators on the .cultivator's
. certificates and sold theni to others. The applicant
as
. the headman
. has to issue cultivator's
. certificates
to the cultivators within his jurisdiction who wish to
sell paddy to the Government, and so the offence
a~leged against him if comn1itted must be deemed to
have been committed in the discharge of his official
duties. I therefore accept the contention made by
t4e learned counsel for the applicant that sanction
from the Deputy Commissioner, Pegu, is required
in this .ca~e to prosecute the applicant.
For the reasons stated above I set aside the
order passed by the Sessions Judge Pegu, in his
. '
Criminal Revision No. 89 of "1954 dated the 17th
July 1954, and order that the applicant be discharged
in Criminal Regular Trial No ~ 78 of 1953 of the
Court of the 8th Additional Special Power Magistrate,
Pegu.
~ Q

G.O.B.C.P.C -No. 10, H.C.R., 11-12-57-1,750-.IX

 INDEX

PAGE
ACTS;

ACCRUA.L .OF' INTEREST (WAR-TIME) ADJUSTMENT AcT.

BURMA ACT No. XIII OF 1945.
BURMA LAWS ACT.
- --VILLAGE AcT.
CtTY CtVJL CouRT AcT.
CIVIL PROCEDURE CODE.
CONTRACT ACT.
CONSTITUTION OF BURl>fA,
CRI.MIN AL PROCED.U RE CODE.
DISPOSAL OF TENANCY ACT AND RULBS.
DIVORCE ACT.
EVIDE~CE ACT.
EXCISE ACT,
FOREIG~ EXCHANGE REGULATION ACT, 1947,
FORRIGNE,RS REGisTRATION ACT AND HULES.
GENERAL CtA.usEs AcT.
--SA~Es TAX AcT.
HIGH TREASON ACT.
LIMITATION AqT.
MONEYLEND~~s' Ac'l'.
~

MONTHLY LEASES (TEHMI~ATION) AcT, 1946.

P ENAL Cop~.
RAIL~AYS ACT.
RENT CoNTROL .ORDER
)
No. 1, 1945.
SPECIFIC HELIEF Acr..
SUPPRESSION o.F ~ORRUPTIO~ AcT.
TR . n~s~ER oF .PROPERTY AcT.
- -- - lMMOV~ ..\BLE PROPZRTY {RESTRICTION) AcT,
THE..~ATJONAL .EMBLEMS (RESTRICTION ()F D ISPLAY) AcT, .l 954.
UNION fUDICJARY A~r.
URBAN .RENT CONTROL ACT.
AccE.PTANCE BY couRT oF QEFICIT counrFEE- EFFEC'( oP. .
" ACCOMPLICE "-MEANING OF .... ... .
-- 70
320
' AccRU.AL OF I N'iEREST ( WAR-TIME ADTUS.TMENT) ACT, 1947,s. 13-,-
.. : ltfotrey Le11ders Act .....Must be read together. I n enacting
. the 'Accrual o'{ I nterest '(WarTime} Adjustment Act, the
'Le~islature was f\lllY aware of the provisions of s. 13 of the
.. Money .L'enders Act, 1945, ancPthat if the provisions of s. 3 of
the l9A7 Act, 'Yere not mea.nt to be read with those of theMoney
L::ric:Iers Act tlfi~ i~tention ~ou1a have bee~ made clea r in the
 XXIV GENERAL INDEX

I'
latter enactment. As it is both the e:1actments must be, read
together. U Paw Tun Armg & Co. v A-rduJ Razak, (1948) B.L.R.
182 ; P. D. Patel and one v. Messrs, The Central Bank of India
Ltd., Civil Revision No. 73 of 1948 of the High C'ourt, referred,

U SAN HLAING AND ONE 'V. THE BANK OF C!JETINAD 238

ACQ.l!ITTAL OF ACCUSED WITHOUT EXAMINING COMPLAINANT OR
PROSECUTION WITNESSES-',t'RIAL VoiD AND JNCURABLE 317

AMENDMENT OF PLEADI.NGS-WHEN AND IN WHAT CIRCUMSTANCES
, P.eRYJISSIBLE 81
APPEAL UNDER S. 104, SUB-S. 1, CLAUSE (gl-Ss. 9'4 a11d 95, Civil
Procedure Code-Awaui 11f Compensation- 01 del' XXJ.(VIII, Rule 1,
Civil Proced11re Code, provisions mmidatory--A rrcst before .
lttdgment-Ordcr43, Rule 1, Crvil Procedttre Code, appealagamsf
order passed under Order 38, Rule 1, ~. 11, Civil ProeednreCode,
Res judicata-Bindi11g force of co11sml du;rees. The applicant
sued the Respondent fur recovery of a sum of K 5,610 and had
him arrested before judgment under Order !XXXVIII), Rule 1,
Civil Proc-edure Code. The Respondent offered to1ur.nish s:ecurHy
and accordingly he was released from custody on his furnishing
security. The suit was eventually decreed on 4th September! 950.
On 6th September Jl.iSO, the Respondent filed an application under
s. 95, ('ivi! Prucedure Coc'e for compensation from the applicant on
the ground that the arrest before judgment was applied for on
insuffident grounds. The trial Court awar-ded K 300 to' the
Respondent as compeusafion. On apppeal, it was c,,ntended by
the applicant that the Respondent's applicati'on under t~. 9S, Civil
Procedure Code was not maintainable in law as he furnished
s ecurity for his due appearance in Court instead of showing cau.s e
why such security should not be furnis bed by him; Held :
Upholding the contention, that the R~spondent not OrlY failed t()
show cause Pwhy he s!tould m>t furt&islt securitY for his due .
appearance in Court but also offered security forsueh appearance:.
Therefore, the question whether or not be had been arreS1ed on
sufficient ground is res judicata and the same Court, namely, the
2nd Judge of the City Civil Court-cannot make an order under s. 95
for the payment of compensation on the ground that the arrest of
the Respondent had been applied for on insufficient .grounds. The
Order of the trial Court set aside. Rama Mudali v. Marapp
GoutJdau, A.I.R. (1934) Mad. 638, followed. Ranz Kirpal v. llup
Kuari, 6 AU. fP.C.) 269=11 A.L 37; Hook v. Ad111inistrator-
General of Bengal and others, 48 I.A. 187; ln Kasarabadq,
Venkatachfi-lapatlti Rap v. Gadiraju Venkatappayya and anot1te.f,
ss Map. 495, referred to, l"or the binding force of consent orders;
reference 'is made tip to : KaUdar Cllaudkuri v. Prasanna Kumar -
Das, 47 Cal. 446 and also !ago Maltton v. Kltirodhar Ram, 2 Pat.
759; Mrs. Lall v. ' Rail"shore Narain Singlt, 13 .. Pat. 86;
Ramnarain v. Basudeo, 25 Pat S95; Ha#Bibiv.!/6ltamedJawad..
Kkorasamy and #x others, Civ. 1st Appeal No. 91 of 195~,
refe:rr..ed .to.

:A. MpTiiiA GHETTIAR 'V.

APPEAL AGAINST AC~UITTAL-GENERAL
...
r.~
M; R. ARUMUGAN CHETTIA:R . .
PR.INCIPLES ~F ~ :
t

APPLICATION B~ JuDGMENT:-DEBT~R FO!t> oRDRR . TO .P.AY' DECRETAL.
AMOUNT ;BY INSTALI\fEN TS- LIMITATION ACT, 'S, 'S~APPLICABlL.lTY .
OF . . . .... ~ . . ...
.
 GENERAL INDEX XXV
PAGE

APPLICATIO ~ UNDER s. 14 (1), URBAN RENT CONTROL ACT, 1948, P'OR

RESCISSION OF DECREE-S. 11 (1) (d) as a shield by landlord-
Controller'S Ctt'tiftcute U1tder s. 14-A wwecessary. The Res-
pondentsobtained a decree for ejectment and {or K 545 as arrears
Of rent against the appellant who made an application under s. 14
(1) Of the Urban RenJ Control Actfor the resc.i ssion Of the Decree.
Respondents opposed the appli.:ation vn the ground that the land
was required by U1em bon,2 fide or their own occupation. Tri;~.l
Court.,held that'the landlord cvuld invokes. .11 (I} (4} of the Urban
Rent Control Act as a ~hield in a case where the tenant applied
for rescission of an ejectment decree, which finding was.
upheld by the lower appellate .Co!Jrt. On s.e cond appeal it
.Wa!$ contended by the appellant that in the absence of a
Controller's Certificate under s. 14-A, the provi5ion of s. ll 11}
(d) could not be used as a shield. Held: S. 1-l-A Of the Urban
. Rent Control Act is explicit,in that the Certificate mentioned
, therein is reqJired only when ti1e landlord files a suit for the
ejectment Of a tenant or a person permitted to occupy under tt. 12
(a) on. the ground specified in cla:1ses (dJ, (e) or (f) of s. 11 or
clause (c) Of s. p. When the provisions of cl.auses (d), 'e) or(/) of
a. 11 are invoked as a shield to al' application under s. 14 ;J , such
a Certifieatc is not necessary. Tai Cltuan & Co. v. Chan Seng
Cheong, (1949) B.L.R. 89, followed; U Ko.Yin v. Daw Hla May,
. Speci!ll Civil Appeal No.1 of 1949. High Court.
MAUNG CHIT PE fl, U K'UW SHEIN AND DAW PAW ... 199
APPLICATION UNDER S, 523, CRBUNAL PROCEDURE COD'E SE~"ORE
.. MAGfSTRA'IE HAD TAKEN COGNIZANCE OF THE CASE-Omission by
f>olice to make a report as coutemplated by .~. SZ3 (!1-Enquiry
by Mag_istrate at the iustance of Private parties atld trot of the
. police~Ss. 516-A, 517 -Proi:iedings thO'r~gh.. irregular not illegal
. or wlhout justification. A first information report under s. 420,
Penal Code was lodged against one Loo Shein Whet for
. fraudulently obtaining 1,000 tins of coconut oil from Ty~ Seng &
Co. by posing himself as a representative of N :1m Choung Co.-
' who .a lso lodged a first information report against him {or
crirriinal misapprqpriation. The police seize~ ~he tins of oil from
the 1st Rc;spondent Shar l{yaung Hoe. No report was mad~ of the -
seizut:e to the Magistrate as contemplated by s. 523 . (1), Cr\minal
Procedure Code, While the tins were still with the police and
l;iefore the two cas.es against Loo Shein Vlhet were sent up and
before:he was arrested, three se.parate applications, viz.~by Sh~r
Kyaung Hoe, the 1st respondent by Maung Kyin \V~n and Lee
'Tuck, 2nd and 3rd respondentsrepresenting Nam Choung Co., and
by Ah Tang representing Ty!! Seng & Co. the applicant, were filed
btfore the ~th Additional Magistrate, Rangoon, under s. :5~3,
Criminal Procedure Code, for: .the ~;etjlTtl of the tins of oil. The
Ma~istrate returned the articles to the 1st reSpondent SharKyaung
Hoe on se.::urity. The applican~ filed an. application tor revision
against the .order. Held: (1) It i~. only at the instanpe oft he police
officer who sei:ted.the. property under the circumstances set out in
s. 523 (1), eriminal Pro~edure Code, can a Magistrate p urspe the
.course prescribed tP,erei~ affecting the disposal of the property
seized by the pol~ce ; (2) It is the duty of the police offic~r seizing
the property to report.forthwith to the Magistrat~ concerned who
is the only per~c;>n ?t:>xnpete~t t? ?~der the disposal ?fsuch property;
. (31 A~ th~. conclustoOSof a Judtcta~ proceeding whtch is n either an
enquiry nor a trial, namely a j?)rocceding in.which eviqence ~a~ .
: iaken in the.absence of the accused under s. 512 of the Criminal .,
:~rooedur.e Code, the.orde.r of ~&e Magistrat~ aff~cting the disposal

,4
xxvi GENERAL INDEX

PAG&<$
of the property connected with the case is one made, not under.- s.
517 but one tmder s. 523 (4). Even if the Magistrate has passed
an order not on the pollee repor t but at the instance of.one of the
parties interested in the possession Of the property seized by the
police, yet such an order ~an be considered to have been made
under.s. 523 of the Criminal Procedure Code ; (5) Upless failure of
ju~tice has been occasiotJ.ed by the Magistrate's order, the
Magistrate's order should.- not be disturbed. Ghtl-lam Ali v.
Emperorf (19451 A.I.R. (32) Lah. 47: U Ba Hlaing v. BaZlabu.x
Sodani, (1936-47) 14 Ran. I.L.R. 633 ; Maunf{ PoTu v. The Kmg,
(1933) R.L.R.143 at 147 ~Maung Han Thein,.. The Commt"ssioner
of Police, Rangoon and two 'others, (1950) B.L.R. (S.C.) 45,
referred to.
AH TANG v. SHAR KYAUNG HOE AND TWO OTHERS 260
"ATTACHED TO THE EARTH" -MEANING OF 278
Autrefois Acqurt 195
A.utre jois convict ']'
B.S.I. OFFICER IS POLICE OFFICER WITHIN MEANING oF S. 162,
EVIDENCE AcT 320
"BONAFIDE" MEANING OF-REFERENCE TO CONTEXT NECESSARY 53-
" BUILDING OR BUILDINGS"- WHETHER CONFINED TO RESIDENTIAL OR
DW ELLING HOUSES ONLY ... 53
BURDEN OF PROOF- IF ACCUSED PERSON GIVES AN EXPLANATION
WHICH MAY BE REASONABLY l'RUE, EVEN THOUGH IT IS ~OT
BELIEVED BY THE COURT, HE IS ENT!TLED TO AN ACQUI'ITAL 175
:BURMA LAWS ACT, s.13 21!
BURMESE Bt'DDHlST COUP LE-NOT AGENT FOR EACH OTHER 44
- - - - - - - --WIFE CANNOT FILE SUIT FOR POSSESSION OF
PROPERTY SOOO TO HUSBAND WITHoUT JOINfNG HIM AS CO-
PLAINTIFF 44
BURMESE BUDl?JUST LAw-PARTITION ON REr,:fARRIAGE OF SURVIViNG
PARENT BY CHJLUREN OF FIRST MARRI.AG!E ... 227
CHARGE UNDER~- 409, PENAL CoDE-Payment of Salts Tax-Dealer
in goods not an agent of the Governme~t- S. 23 (1) (6), General
Sal6S tax Act, 19'1'1-Recovery of Sale Tax. Applicant,a ~ dealer
in cloths was charged t1nder s. 409, Penal Code for failure to
credit Sale!. Tax to Government. Held: A dealer of. goods is .not
a Government servant and as st:ch, he is not an agent of the
Government. There was no pr.ovision in the Central Provinces
and Berar Sales Tax Act, 1947, which constituted a dealer an
agent oi the Gover nment, and this decision may be accepted in .
Burma, as.the General Sales T:\X Act, 1949 (Burn1a Act No. 60 of
1949) is more or less on the same prinCiples as laid down in the
Sale Tax Act of India. Jethalal Virajlal v. Tht. State of Madh1a
Pradesh, A.l.~. (1953)' Nag. 194, apprpved. The dealer, to
recoup tp.e Sale Tax increases the price to cover the Tax, and the
Sales T~x becomes merged .in the total amount paid by the
purchaser and the price so obtained {or selling those .goods
solely b~long to the dealer and therefore there cannot be :ilny
entrusfr,-ienfo{SalesTax to him by the Government. The Femedy
that is open to the GOvernment for recovery of the Salcis Tax is
. by institution o{i'-eyovery proceedings ~nder s. 23 (1) (6) of tlie
Ge11era-~. Sal~s Tax, 1949.
U NYI .:MAUNG v. THE UNIO~ OF BURMA . . 364'-
 GENERAL INDEX xxvu
PAGE

CHILD UNDER 6 YEARS OF AGE-conviction und.:r s. 112, Rail~ays

Act -Ss. 82 and 83, Peual Code-Ss. 126 to 130, Ralhtays Act.
The Respondent, a child of 6 years of age was convicted under
s. 112, Railways Act. Held: S. 82 of the Penal COde declared
that nothing is an offence which is done by a child under 7 years
of age and although s. 130 of the Railways Act suspends the
operation of ss. 82 and 83 of the Pen:ll Code in respect 0f s~. 126 to
129 of the Railways Act, s, 130 of the Railways Act has no effect
upon .offences committed under s. 112 of the said Act. Held:
The immunity of children under 7 years of .age from Criminal ..
liability extends to offences under any Special or local Law.
The conviction i& bad in law and is setaside. The K,ng v. Ba Ba
Seiff, (1938) R.L.R. p. 227, f9Y,owed,
THE UNION OF BURMA fl. RASHIN 304
CtnCUMSTANTIAL EVIDENcE-MUST BE CO:.CSISTENT-EVERY PIECE OF
EVIDENCE WHICH MAKES A CHAIN MUST BE RECORO.ED-
FAILURB OF ONE LINK DESTROYS THB CHAIN 146
CIVIL PnOCEOURE CODE, SS. 11, 94, 95, 104, 0. 28, r.l, 0. 43, r. 1.
0. 38, r . 1 251
- - - 0. 21,r.~3 363.
CIVIL PROCEDUI<E ConE, s. ' 47-" Representative "-Third Party
obtaining occupafio11 of pyemises dur~ng pendency of lihgation
in rrsPcct of it-Suit by third party against la11dlord decrte-
holder tJn t maintaiuable. Jleld: A third person who has
stepped into the shoes of the tenant' judgment-debtor and
occupied the premises in the course of the execution of the
ejectment decree against the latter "an be taken as representa tive
of the parties as contemplated in s. 4 7 of the Civil Procedure
Code, and as such representative is barred from bringillg a suit
against the landlord decree-holder. Islzat~ CTtUnder Sarkar
and o11e v. Be-ni Madh11b Sirbr, I.L.R. 24 Cal. 62, followed.
Held also: A landlord d~ree-holder can avail himself the or
provisions of Order XXI , Rules 97 and 98, Civil Procedure Code
when obstructed by a stranger to the suit for possession of the
pr~mises. Balm Safarmal Tibrewala , . G. !of. Latimonr, (1948)
B.L.R. 113, referred to.

MAUNG TIN W A v. S. E . I. DAWOODJEE .4.;\D ONE 120

CiVIL PROCEDURE CoDE, 0.1, R. 3, AND s. 146.. 143-
CIVIL PROCEDURE CODE, s.lOQ;-D/fference between clatlse (a) and .
c~use (d)- Value of aPPeal, below and_above Rs.SOO- Question of
law and question of fad, what is, t.o bring s. 100, sub-s. 1,
clause (a) into operatio1~. Held: :As the value of the appeal does
not exceed Rs. 500, the appellant can only succeed if he can
. bring his appeal within the -am~it of clause (a\., sub-s. 1 of s.
100 of the Civil Procedl\teCOde, that is to say, unless he could
show that the decision is contrary to : law or to some usage
having the force of law. \!"here the value of the S.Jbject-matter
exceeds Rs. 500, however c lause (d) of sub-s. 1 of s. 100 as . .
inserted by Burma Act No. 17 of ~ 945 . is applicable and the
~econd appeal can be treated as~ it were an appeal against the :
decree in an original suit. Held also; .Questlon.s of law and of
fact 3iC somethnes difficult to4disentangle. The pl'op.er legal
effect of a pr.o~ed fact is essentially . a question o.f la~, but the . :
 GENER:AL .lNDEX .

c.
PAGJt
question .}Vhether the fact has been proved whe: ' evidence for.and
against ~as been properly admitted is n c-cessarily a pure
ques~ion - of (~ct. Najar Chandra Pal v. Si :tkur. and. others,
45 . I.A,, .P 183 ; Wal~ Mohammad and vth. ,rs v. Mohammad
Baklzsh and others, 57 I.A. 91; Durga Chr:nu (rain v. l atcahtr
Sing}~ Choudhri, L . R. 17 I. A. 122, .127; Mido ta'Pur Zamindary
eo. v. U-mf:J Charan Mandal,-23 Cal. W. N. 13: l, foll<iw~d.
USA~ PE 'lJ. MA THIN ~YI AND ONE 137"
CiVIL ~oc~DURE CoDE_
, s. 109 59
_ _ _....:.,__ _ _ _ _ s. 115
49
- - - - - - - - - s. 149 70
ORJ?ER I 1 RULE 10 110
0RDB~ VI, RULES 4 ANI' s 116
---...,..-- - - - - - ORDER XX, RuLE 11 49
ORDER XXI, RULES 9:, ' AND 98 120
---...,..-.........-~--- O'RDER . XLI, R ,ULES 1. I AND 32 94
cxvu;
~
PR'O CEDURil:' CODE,
. better
0 RDER . VI, Rut.ES 4 .A.ti:
particulars -Frau.d. a11d colluston,
11 5-Further and
alle-gations of-
Arbitral ion proceeding-l1tterlocutory order. ' l'e1Jisiott of, whett
j u:.tsfied. Held: Where charges of fraud or misconduct against
the oth.er party have been -alleged, the tribw 1al which is called
upon to decide such issues should C G mpel that litigant
to f!lace on record precise and spe~ifi_ c details of these
charges . A charge of fr~ud m ust be s Jbstantially proved
as laid ; when one kind of fraud is cha;r' ged, . another kind
canriot on .failure of pr0of be substi: t u.ted for .it. John
Wallingford v. Mutual Society, 5 A.C. 697 Bharat -Dhanrra
Syndicate u Barish Chatzdra:_, A:.I.H. (19371 (P.C.J 146; Abdul
Hosse'n Zt:mail Abadi v. Charles Agtre~ T~ trner, 1l Born. 620
{f'.C.); referred to. Balaji Va~a4 ~Ji r ;ol'{te v. GangatiJ:ar
Ramkrishtra Krtlkarni, 32 Born. 25'5, .-refen ed to. Held also:
The High Court will revis~ an interloc~tot:: r orqer only when
irre'rilediable .injury will be done and a mtsca.. rriage of justice will
.ensue ifthe ~ourt heldf~s h_a n.d. Mah;011~ea, ! Chootoo and others
v. Abdrd H(r.nud Khan and others, 11 Ran. 3' , foU .,-~ved.
M.C.T. CHIDAMBAR,AM ~HET'l'YARBY A,GE ::-:T K.~.M. MUTHIAH
AcHARI AND siX v. V.L.S. Cuoco .<.INGAM ' CHETTYAR
AND FIVE -- ~ ... 11.6
C1v1L PRocEDURE cqoE, OR.n ER xx. RQ'I.'E n 2)-Limitation Act,
Article 175-Applicati:m by i:lldgntent~ebw r for order. to Pay
decretal amount by instalment s-Limifa~ioJ 1 Act, s. 5, ,_pplica:.. .. ,
bilit.y of-lnterferepce inredsiotr, whe-n -ju. $lifted. Held: ~. 5
of the Limitation Act does not apply to-appl jcations governedby
Article 175. of the Act such as tJ;te present a pplication for ai)
order to pay a decretal amount br instal~ nts filed six .months
affei .the- decree had been passed. Ma N. nw Naw a11d one v.
V .E.S.S.M. Somasutrdran C~tly, l.L.R. 2 ~ ~n 655; KaliPrasad
Tewari -v. Parme'shu.,ar Prasad Marwari, .. A.l R. \1929) All.-127;
B. Naratam -Das v. B. Bhagwan. Dass, A,l R. 11934) All; 314;
A.R,K.N. Ramttnathan Chettyar v, .Baldat_ Singh, A.I.R::(1933)
Ran. uo; Veerayya v. Sreesailam, Atl R: (!. <J28) Mad:556; Ram
Raj'Dassundhiv.- Mt:UmraJi and another; A.I,-R. h926) All. 345,
re{ei:red :to. Hel{l tdso: The powers of th~ : .H;igh Court node~.
25 of the ,City Civit Court Act are m
. .~:
0

:.reb wider than those

 GENERAL INDEX XXIX

PAG~

exercisable under s . 1 J 5 of the CiYil Procedure Code, and the

High Court can interfere in revision where the City Civil Court
has ent~rtained an . application clearly beyond the p<.:riod
prescribed by limitation. Ma Than Yin 1 . Tau Kheat KllenR (a)
Tan Kert Sein, (1951) B.L.R. 161, distinguished. Siva Dass Dey
v. Ashabiatrd one, I.L.R. 3 Ran. 471, followed.
DAW SAW v. L. RA)1ANATHAN CHETTIAR ... ... 49
' ClTY CIVIL COURT ACT, S. 25 49
CLAIM FOR REPAIRS VOLUNTARILY CARRIED OUT BY TENANT-
IRRECOVERABLE ... : 20~

CLAIM OF MOHAMM~DAN HEI-R:_WHETHER DEFEATED BY BUDDHIST

FATHER WHO DIED .BEFORE ACCRUAL OF RIGHT ... 21
C~MPLAINT 0 PE~JURY--DUTY O.F OFFl~ER. MAKING IT 1
"
CoMPLAI.NT DRAFTED .BY LAWYER LAil..l BEFORE CouRT-Processut:der
: s. 3~7, Penal Co~e issued-:-,~ccused c~a,rgcd und~r. ss; ~52\ '!48 arrfl.
506, Penal Cl)de, ttltimately acquitted-Criminal Procedure Code,
s. 250-Complainant called upcn by Court to.show cause against
paymeut of comPensatiQII-Crimina1 .ProcC{fttre Code, s. 4 7.6-
Prosecul iim of comflainai;t under Pcual Code s. 211, l111it a'on by
acquitted accused-Complaitit by Co1irt, requiremen ls. Held :
When compfaints under s. 476 are made, the officer making them .
must slate the t.vidence on which he rt:lies, otherwise . the
Magistrate to \vhcm the case is referred has no means of ascertain-
. ing what the evldence is on whic!t ll~e prosecution .i s based:.
Similarly a Civil Court is bound to set forth the specificassignme11t .
of perjury; failu.r e to do so is a _materianrregularity within the
meaning of s. 115, Civil Procedure Code. Shankar S..::tlt.Ji v.
Emperor; A.l.R. (1930) Oudh 404; Emperor v. Kashi Slzukul aru~ ..
another, I.L.R. 38 All. 695, followed. Held .a2so : Failure of a .
corripl;1inant to prove his case may -result in the acq~ittal of tpe
accused but if will not by itself warrant his prosecution for
bringing a {al~e case: Jinilal Mandal v. Chandardeo Prasadand .
others, A.l.R. (1941) Pat. 420, followed . Held further: Inordinate
delay in making application for action under s. 476, Criminal
Procedt.:re Code, as well as where there is no reasonable probabi-
lity of a conviGtion, and where the application is ~1ad~ not in the
interests of justice but to satisfy a private grudge, are grounds
for the Court to reject such an application. Hwe Eye Haitt v. The
King, (1948) B.L. R. 40, followed . . '

ABDUL SALAM. v. THE UNION OF BURMA 1

CoNSENT DECREE-COURT UNDER S. 14 (1), URBAN RENT CoNTROL ACT
liAS DISCRETION TO PASS SUCH ORDER AS IT THINKS FIT ' 14
CONSTITUTION, s. 135 (,1) AND (2) 299'
CONTRACT ACT, s. 24 . 211
- - - s. 56 : 3'3
CONTRACT A.cT, s. 69-The appellants leased out a piece of land to the
Respondents at a monthly rent of K 30. Subse-}t:ently. the area
was occupied by the K.N.D.Os. aud the appellants evacuated t o .
Rangoon. . The appellants saed the Respondents for arrears of
re~t accn:ed due amounting t~ K _411 dQring their absence. The,
 GENERAL INDEX

PA.Gfi..
Respondents pleaded that they had paid R: 360 to the K.N.D)) .
authoritie~ during their occupation, and as such they were
entitled to be reimbursed under s. 69 of the Contract Act. Held :
For the application of s . 69, Contract Act, it is essential that there
sho~ld be: (i) a person, who is bound by law to m alfe certain.
payments; (ii) another person who is inter ested in such payment
being made and (iii) a payment by such last mentioned person.
T2lis.section clearly applies to payments m i de bona. fide for the
protection of one's own interest, if a person, who paid the money
was" not actuated by a desire to protect his own interests, he
certainly cannot make a claim under the Section. The words
"compellable to pay .. does not ana cannot mean , , compellable to
pay through fear of physical violence" and the words'' bound by
law "do not mean "comeellable to pay". Suit decreed in full
with. ~osts in all t,h~ Courts.

MA NGWE SHIN AND ONE fl. GAUNG BOKI:: (a) MAUNG LAUNG
KYAMAR AND ONE 283
CON1.RACT AcT,
.
s . 202
.
..
.
~
130
CONVICTION UNDER S. 302 (1) {b), PENAL CODY.- Circumstantial e'Vidence
--Na.t ure, quantum and burden of proof. Held : In a
case of circumstantial evidence, the fail ure of one link destroys
the chain so that it is Of the utmost importance to get on the record
every piece of evidence which makes a chain. Sheo Narqin Singh
v. Ern peror, (1920) 58 Indian Cases, 457, followed. Held further :
Circumstantial evidence must be consistent, and consistent only
witb the guilt of the accused, the inculpatory facts must be
incompatible witn the innocence of the accused and incapable of
explanation upon any other reasonable hypothesis than that of his
guilt. If the evidence is co.n sistent with any other rational
exrlanation, then there. is an eleinent of doubt of .which the
accused must l;le given tht! beneijt. BastJngouda Yamanappa v.
Emperor, A.I.R (1941) Born: 139 ;Pir Hasan Din v. Emperor,
A.I.R .- llY43) Lab. 56 ; Sher Mo/iamed .v. EmPeror, A.I.R. (1945).
L'ah. 27 ~ Ram Kala v. EmPeror, A I.R. (1946) All. .191 ; },faung
Maung Gyi v. The Union of Burma, Criminal Appeal No. 452 of
1954 (H.C.), affirmed. Held further: A Judge is bound
to ask himself whether there is any rational explanation of the
evidence and such a reasonable explanation should not be
rejected because it was not offered by the accused. Basatr.gouda
Yamanappa v. EmPeror, A.I.R. (1941) Born. 139, followed.
Held further : An accused person owes no duty to anybody and
the burden of proving his guilt remains throughout the trial with
the prosecution who must prove such guilt beyond all reasonable
doubt. Sein Hla v. The Uniott of .Burma, {1951) B.L.R. 289,
foHowed~ . .

BENJAMIN XAVIER (alias) MAUNG TIN WIN 'IJ. THE UNION OF

BURMA .
~... 146
ONVIC'rlON UNDER s. 380, PENAL CoDE BY A SECOND CLASS POWER
MAGISTRATE-'Case submitted under s.
349 . (1), instead
of under tlte proviso to s. 56Z .(1), Criminal Procedure
Code to the District Ma~istrtite for action under s.
562-Transferof-case by District Magistrflte to SeciJnd Additio114l
Magastrate for disposal-Acquittal., by Second Af!dilional
Magistrate-s. 380, Criminal Procedure. Code-Burma Act No.
XIII of 1945. The Responder;t was.convicted . under s. 380,>
 GENERAL INDEX xxxi
PAGE
Penal <:ode by a Second Class Power Magistrate, who s ubmitted
the case under s. 349 (I), Criminal Pro~edure Code to the District
M3gistrate for release on probation under s. 562: The District
Magistr;tte transferred the case to the Second Additional Magistrate
who recalled and examined three prosecution witnesses and
acquitted the RespQndent. On reference, held : (i) Proceedings
should be submitted under the pro\"iso to sub-s. (1) of s. 562 and
not under s. 349 (1), Criminal Procedure Code; {ii) s. 349 (1) is
applicable only to a case where a Magistrate of th e Second crass
is merely of the opinion that the accused is guilty of the offence
charged but that he ought to receive a punishment different in kincl
:from and more severe than that which the Magistrate is
empowered to inflict. When the Magistrate considers that a
:person convicted by him should be relea~ed on probation of good
conduct, s. 349(1) of the Criminal Procedure Code is irrelevant ;
{iii) A Magistrate to whom a criminal case has been referred
under the proviso to se:ction 562 can only dispose of .it in the
manner provided by s. 380, Criminal Procedure Code and
treat the accused as an already convicted person. He is not
empowered to set aside the conviction by the referring Magis! rate
and acquit him. Mi Thi Hla v. Mi Kin, (1914-JN} 2 U B.R. 55 ;
Morali and six others v. King-Emperor, (1907-08) 4 L.B.R.
277, dissenkd from ; The Public Prosecutor v. Malaipat i
GurappaNaidu, I.L.R. 57 Mad.85,followeci. (iv) BythedeJetion
of s. 380, Criminal Procedure Code and inclusion of sub-s. (5) in
'!i, 562, by Burma Act XIII Of 1945, the Magistrate to whom a case
is submitted under the proviso to sub-s. (1) of s. 562 canno~acq uit
the accused. The only thing he can do is to sentence him or to
take such appropriate action as provid.ed for in s . 562. The
inquiry envisaged in sub-s . (S) is to be confined to the expeditncy
or. otherwise ol releasing the offender on probation of good
conduct or of releasing him after due admonition. Order of
acquittal set aside and case remanded.
THE UNiON OF BURMA v. MAUNG .KHW;E GYI
CRIMINAL PROCEDURE CODE, SS. 13, 36,397,439
- -
306
248
ss. 13, 562 ... .... 178
s. 123 (6) . .... ... 248
s. 145 (4) .... 360

.CRIMINAL PROCEDURE CO DE, s. 145 (4), PROVISO (1)-lnquirY under

sub-s. t4) mandatory. It is erroneJus to make an order under
sub-s. (5) without having ever held an inquiry under sub-s. (4). An
inquiry under sub-s. (4) is mandatory and that is a condition
precedent to the making of an order under sub-s.(6). Muhammad
Aliyar Muhammed, v. Shamsul Hao Pi Zialdin Slzah aud others,
A.I.R. (1940) Sindh, p. 33, followed; Vaidyaunatha Iyer and
others v. "SuPPalu Aurmal and others, 15 C~. L.J. 669, discussed.
U AUNG DWE v. U CHAN AYE ... 360

~RIMINAL PROCEPURE CODE, SS. 162, 342 {1) 320

s. 195 _.,. 376
ss. ~34, 235, 23~ & 239 184
- - - - - s. 244 (1) .. , 317
 xxxn GENERAL IND'EX

PAG~

CRIMINAL PROCEDURE CODE, SS. 250,476 t

4,.

. ..:.....:.____ ss. 349 (1}, 380, 562 306

- -.,---:;--.- - - - s. 403 7,195
----~----'--- s. 403 (1) .
\'J . .,
~ ...
181
CRIMINAL PROCEDURE CoDE, s. 439-::-,E.xercise of first class power. by
Second Class Power Magistro t e appoin~ed Subdivisional Magistrate
under s. 13, Criminal Procedure Code.-...-S. 36, Crimittal Procedure
Cocf'~ExpZmia.tion to $. 397; Crimina'l Procedure Code. The
respondent was' sentenced to .o ne year's rigorous imprisonment
under sub-s. 6 of s. 123, Criminal Pro.c.e dure Code for failure to
give security for g~od behaviour by the.SubdiVisional Magistrate;
wh~hw.as ohly a Second 'Class Power l\1agistrate, appointed
Subdi;v.isi0nal Magistrate' under s .) 3, Criminal I>rocedure Code.
Can he exercise the powers. o(a F.i rst Class Magistrilf.eby virtue
of such appointment?. Held: ; The moment the President
appoints .a S.econd Class .Power Magistrate to be a Subdivi~iona1
Magist.rat~ . t . nd~r s . 13 pf tlw Crimina~ Procedure Code1 such ..
Magis~rate gets' -all the ordinary powers of. that office conferred.by
s. 36 of the Criminat Procedure Code ~nd SJ~ecified hi the Third
Schedule: : HtJtd further: SuCh punishment i'mpo~>ed . unc!er
sub-s .1,2-3; Crir.ninal Procedure Code 'i s ~ore preventive thah
punitivearid is' not a. se~tence ofimprisQrim.cnt:
': tJN-xoN
. oF su'RM-A
. v. MAuN.G
. KYA., N'Yo .' 248'
CRIMINAL PROCEDURE CODE. ss. 516-A,. 517,.523 ... 26()' <.
_ ___.._ __.._ __.,_ _ _ ss. s t7.(t), 523 (1} 232'
s. 537 .., 184
CRIMINAL PROCEDbRE CoDE,.S. 562 (1 )-Rrlease on probation of .good
a>nahct-'' In~tead of'' other Pu1zisltment. Held: An order of
. . relea~e on probation of good conduct can: be pa~sed under s. 562
(i); Criminal Procedure Code only instead of sentencing a convic-
ted offe11der to-punishmerrt;
..,
'
128:
' : ~
CRIMINAL REVISION BY PRIVATE PERSON-Et~ftancement of sente1U:e,
Held: There isnothing in the Cfimlnal Pr.ocedure Code 'which
either expressly or impliedly prevents the High Court from
enhancing a s-entence ~t the instance of a private person.
"
MA.uNG Pu A~m MAU NG TrN MAUNG v. MAUNG KYr MAtiNG :~Nn
MAUNG KYIN .PO 20l
DEALER iN, GOODS-NOT A GOVERNMENT AGENT .,.. 364
DECREE-EXECUTING OF-ORIGINAL DECREE MERGED INTO APPELLATE
.. ~ u~~ . .
'DECREE OF SUBORm~ATE CouR:r...:...Time fixed .for paym~1tt of certain
sum:of mt1ney- Liability for tlon-compliance-Appeal, whether .
li'f!le /ixedfor p~yment enlarged-Di/ferrnce between t1,e effect of
~n- appeal .'Sfimmarily dismissed a11d _ of an appeal -gi1,1rng
Judgm,-:trt and dect-ee cotTji.rmihg that of trial Court. Plaintiffs
sued defendant fOr ejectn:~!lt f.rom howse an<t. obtaineq ,j,u,ligme~
 GE!'i13RAL INDEX xxxur

.
provideg they pa}' Rs. 600 within one month on failure of
PAGE;

which suit will stand dismissed. District Court confirmed the

judgment and conditional payment on appeal; second appeal
summarily dismi~sed by High Court. Plaintiffs then made the
payment Within a tr.onth c'f the High Court's order; the trial Court
declined to accept it and disrr.i~sed the suit. Plaintiffs applied for
revision of the order: High Court on a review of the twelve
authorities cited. Htld: If a decree in which time is gi\en for
payment of money is confinncd on arpcal it h:~s the effect of
extending the time fixed under the decree thus confirmed so that
time would run from the date of the decree confirming it .
However, where an appeal is dismissed under Order XLI, Rule
11, Civil Procedure Code, the decree appealed from cannot be
taken to have been confirmed U!'lfh!r Rule 32 so that dismissal of
the appeal leaves the decree untotiched. Ramaswan!i Ki:Jna v.
Sundara Kona , J.L.R. 31 Mad. 28; DauZat and Jagji'E:an v.
Bhukandas Ma11ekclzand, I.L.R. l l B om. 172; Satwaii Balajiraw
Deshanrukhv SakltarlalAtmaramshet,J .L.R.39 Bom. 175;Daftal-
raya Vit hal Garwara v. Wasudeo Amtnt Gatgate and otheYs,
I.L.R. 47 Born. 956: Bhola Nat h Bhuttarclznrjce-v. Kanti Chunara
Bhut/archar;ee, I. L.R. 25 Cal. 311; 8apu v. Vajt z. J.t.R: 21
Bom. 543: Noor Ali Cltowdhuri v. Koni Meah and others, I~L.R.
13 Cal. '0; Nam Narain Singh v. Lala Rog!ltlnatlt Sahai, J..L.R.
28 Cat. 257: 'Ba<at1ta Kumar Ada'!i v, Radlta RaniDasi and
a1tother, A.I.R. (19221 Cal. 329; Lala Gobind Prasadv~ Lnla
Jugdap Saltay, I.L.R. 4 Pat. 345; Pa11clw Salttt v, Muhanrmad
Yakub and olh.rs, A. I . R. (1927) Pat. 345; Gltanslzyam Lai v .
Ram Narian, I. L. H. 31 All. 379, referred to.

MAUNG CHIT MAUNG AND ONE '11. DAW SAW 94-

" DEFE~DANT "-DEFINITION OF 143
DEFICIT COURT FEES-PAYMENT RE'LATES BACK TO PRESENTATION OF
. REVIEW APPLICATION ~" ... .

D ELAY I N COMPLAINING UN-DER S. 476, CRIMINAL PROCEDURE CODE-

APPLICATION ... ...

MAY BE A GOOD GROUND FOR COURT TO 'REJECT SUCH AN
t:
- - - i N APPf.ICATION FILED BY DEPENDANT-NOT MATERIAL 123-
DISMISSAL ORD!.R-V\.HETHER "FINAL ORDER" W ITHIN AMBIT OF S. 5,
UNION JUDICIA RY ACT ,,, ..

DrspOSAL oF TENANCIES AcT, 1948-Village Agricultural Conrmit-

tee- Expression" final" in Rule 8 13) of the Disposal of
Tenancies .Rules. 1949, when aPPlies-Suit for injunction against
Village Agricult-ural Committee, whether lies. Held: By the
proviso to s . 3 of the Disposal of Tenancies Act, 1948, a suit can
be maintaiped in a Civil Court for the purpose of as~ertaining
whether a Village Agricultural Committee or a District Agricultural
.Committee has juri!' diction to deal with a mat~er which it has
decided~ Held also: The expr~~sion " final ., in Rule 8 (3) of the
Dispo~al Of Tenancies R ules, 19~9 will apply only to a mat~er
over which ~e Village Agricultural Committee or the District
Agricultural Committee has jurisdiction directly or incidentally
fo deal with or pass orders therein. Tlte Secreta1y of Stote v.
Fnltamidan'!lissa Begum attd,qJhers, I.L.R. 17 Cal. 590, fo1lowed .
.(tMAUNG CI:JAW v. MA AYE.,MA AND THREE OTHE,RS
:xxxiv GE~'BRAL INDEX

PA~E

DIVORCE AcT, s; 17-Confirmation of divorce-=$. 12, Divorce Act,

Proof o:f absence of com~ivance or collusion between the parties.
A divorce proceeding affects the status of the parties, and the
necessary.conditions to jpstify a decree for dissolution of marriage
should be complied with. The Divorce Act specifically lays
down that certain facts must be proved before a Court has
jurisdiction to pass a decree for dissolution of marriage. S. 12 of
"the Divorce Act enjoins that ttAe Court must be satisfied of the
absence.of connivance or collusion between the parties ; and in
the abseuce of satisfactory proof of such acts required by law in
support of a petition for divorce, it would not be justified in
granting a decree for. divorce. Ma Maw v. Maung Yan Han;
Maung lila Myint v. Dorothy fila Myiut ; Ma Ngwe Aung v.
Maung Kyaw lila Aung, I.L.R. 11 Ran. 68, referred to. Even
though there be a statement that there is no collusion or
connivance between the parties such statement will not absolve
the court from its duty of ascertaining whether in the
circumstances of a particular case there was no collusion or
counivance between them. Rev.erend Chit Pe v. Ma Kltin Sein
a1td om, (1951) ,B.I.;,.R. p. 131, followed,
. MRS. M. TRUICTWEI~ (a) l\1A AYE THWE v. MR. D. TRtticT~
WEIN 2~

EJECTMENT . SUIT-APPlication by sttb-tet~ant to bt 'added as

Party~Relatio1tship be.tween landlord and ' sub~tenant
Neiessary party, circumstances when sub'-tenant becomes one.
Held : Under the Urban Rent Control ~ct, 1948 a 'sub~tenant is
a tenant only in relation to the tenant-in-chief and he is not a
tenant to . the superior' landlord, . the owner of the premises.
Baban v. Champabai, I.L.R. (1949) Nag. 432 ; Makhan Lal Kela
and another v. GirdltariLal aud another, A.I.R. (1952) All. 421:
Ramkisse11d-as rzrzd another v . Binjraj Cllowdltury and anoth~r,
I.L.R. 50 C~. 419, referred to. Held: When a landlord who
has obtained a. decree for ejectm~nt against his tenant and is
resisted by a third party who was not a party to the proce'edings,
the landlord can avail himself of the provisions of Order XXI,
Rules 97 and 98 of the Civil Procedure Code. Babu Safarmal
.Tibrewala v. G. M. Latinzour.. (1948) B.L.R~. 113, followe~,
s~ Periayya v. Kyaw L'eong To1zg Society, (1947) B.L.R. 190,
dissented from. Messrs. lmporter.s and Manufacturers Ltd. v.
Pheroze Framroze 'TaraPoreu!ala and others, A.I.R. (1953) (S.C.)
India 73, followed.. He'ld further ;'In a suit for ejectment based
upon the f~ct of tl:ter.e being a~.rears of rent, the landlord must
not only aver but must also .Prove that there ljad been in fact
arrears of rent. As a sub-tenant is bound by the decr~e against
the tenant he is vita.lly interested in seeing that there is no
collusion betweep the landlord and the tenant : accordingly,
a sub-tenant is not only a proper party but on,e the court should
add as a party defendant under Order f, Rule 10 (2), Civil
Procedure Code. Jatindra Mohan Das v. Khitpatinath Mitra
and another, 84 C.L J. 263 ; Rajani Kanto Das v. Daval Chand
De and others, A.I.R. (L95()) Cal. 244, distinguished. Bacha Shan
$under Kuer " Balgobind Singlt, I.L.R: 10 Pat. 90,Jollowed.

M .A KYIN TIN 'II. BANU N ANIG~M JAMNADASS FIRM AND .ONE ito
EviDENCE oF co~A:ccusED...:...WHETHER IT~~AY BE. USED To FILL UP
GAPS IN PROSECUTION EVIDENCE 321
- - ACT, s. 32 i3) 320
 GENERAL INDEX XXXV

PAGE

.:EVIDENCE ACT, s. 92-Colls/ rl!clwll of words " betweelt the pari ies to
any sucTi' inst rumcu! . '' T l>e words refer to the persons who. on
the one side atd the o<her c::tme togeH1erto make the contr:d or
disposition <..f prope.-:y and would not apply to questions raised
between the parties on the one side only of a deecl. It will in no
way preve11t parties on one side of a deed to show by parol
evidence their mutual re~ations, the o::e with the other so that
it is open to one of the t\vo persons in whuse favour a detd of sale
is purported to be executed to prove by parol evidence in a suit by
him against the other that tl.e defendant was not a real but a
nominal party only to the purchase. Ma Aye Tin v. Dati.! Tlzatzt,
A.I.R. (1941) Ran. 99 (not the Eame as officially rep01 teet in 1940
R.L.R. 831); MtllChand and at~other v. Madlzo Ram, 10 All.
421 ; Shamsh-ul-Jahan Begam and a1tot1ter v. Ahmed Wali
Khan, 25 All. 337, followed; Maung Tun Gyaw v. Maung Po
Shwe, 11 L.B.R. 351, referrtd ; Maftammad Sultan lrfohirlen
Ahmed Ansari v. Amlltul la~al, A.I.R. (1927) Mad. 1102;
Lakshmana Sahu v. M. Simachala Patra, A.I.R. (1941) Pat. 211,
followed.

KORBAN ALI v. ZoRA BIBI 168

1EXECUTION OF D'RCREES OF ORIGINAL AND OF APPELLATE COURTS-

Time fixed/or paymuu~f money. It is a {nndamental tdnciple
of law that when the appellate Court makes a .decree, the decree
Of the 9riginal Court is mergeq in that of the superior Court and
it is the latter decree alone that can be executed. It is also
settled law that when a time is fixed fOr payment by the dec.ree
of the lower Court, and the decree is affirmed on appeal, tre
decree capable of execution is that of the appellate Court .
Saiyid Jow11l Hussain v. Gendnn Singh and othen, A.I.R. (1926)
(P:C.) 93; S.M. Hashim v. J .A.. Martin, 4 Ran. 562; Ram Charan
v. Laklzi Kant, (1871) 7 B.L.R. 704; Cltanshyam I.al v. Ram
Narain, (1909) I.L.R. Vol. 31, All. 379; Ramaswam Kone "
Sundara Kone, !1907) I.L.R. Vol. 31, Mad. 28; Satwaji
Balajiray Deshamukh v. Saklzarlal Atmaramslu:t, (1914) I.L.R.
Vol. ~9, Bom. 175; Darubhai Mithabhai v. Bee/tar Desai, (1925)
Born. 270; Satwaji B.ala}irav Desllamukh. v. Sakharlal Atmaram-
shet, (19241 I.L.n. 4 Pat. 378; Panchu Sahu v. Multammed
Yakub and others, (1927) ,A.I.R. Pat. 345; Noor A It Chowdhuri
v. Koni Meah and others, (18$6) I.L. R. 13 Ca1.13' ; Nom Narain
Singh v. Lala Rotltu1:ath Sahai, (18951 l.L.R. 22 Cal. 467 ;
Rup Chand at~ otlzers v. Sltamsh-ul-Jahan, i1889l I.L.R. 11
All. 467; Mftung Ch1t Maung and one v. Daw Saw, Civil
. Revision No. 56 Of 1952 of High_Co.urt, approved.

U ]ONE BIN v. N. B. SEN GUPTA . 218

iEXCISE Ac:r, s. 30 (a)-Acquittal of accused without examining
. the Complainant or the prosecution witnesses as required by s.
244 (1), Criminal Procedure Code, Trial illegal, void and
incurabl'e- High Court's Power tn revisioll, The Respondents
were sent up under .s . 30 (a), Excise. Act and they pleaded n ot
guilty to the charge. The trial Magistrate without examining
the Complainant or taking any. ~vidence of tb'e prosecution
witnesses as required under s. 244 (l ), Criminal Proced .lTe Code
acquitted them. Held; That the acquittal of the Respondent
by the t.ial Magistrate without examining the Complaif'anl or
takinl the evidence of the prosecution witntsses in accordance
witll s. 244 (1), Criminal Proce?lure
. Code is
.
illegal
' . -an. illegality
 GENERAL INDEX

PAGE..
G

which cannot be cured. lleldfurther: The trial being illegal

and voi(l, the High Court in its revisional jurisdiction can set
asid~ the order of acquittal., Emperor v. Varadarafttla Naidu,
33 C.L.J. 274, followed.
UNION OF BURMA v. AH SHIN AND TWO OTHE RS... 31i
" .
Ex"J;;ENsiON TO iiousE-UNAUTHORISED-BELONGS TO LESSOR 75~
FAILURE OF COMPLAI~ANT TO PROVE HIS CASE....... DOES NOT BY ITSELF
WARRANT HIS P ROSECU.T ION FQR BRINGING 'A FALSE CASE 1
,,
, , "FINAL"; MEANING oF:..-IN RULE 8 (3) OF DISPOSAL OF TENANCY . .
RULES .. . . 89-

FOREIGNERS REGiSTRATION ACT (BURMA -ACT No. 7 of 1940), S. 5-

Failt~re to registcr 1111der RegistMtion .of Forei{!.net'S : Rul-es,
1148- Exemption Order No. 4; dated 'tire 1(1th December 1948--
Foreigner in tlte .s'ertiice of the Uniott. Held: By.Act 35 of 1952;
the Inland Water Transport Board is an o!"ganization of U1e
Government : the applicant is in the service of the Board aud
_. l ther.e fore of the.Union Government, and~ as. such, he is :exempt
from the provisions relating to the registration of foreigners
cont!l~ned in the Registration of : l'~oreigners Rules, 1948. ;. . .~.:

~AW'LI jANNA v. THE UNiON OF BuRllf.(

. . !
63:
' . . .
FOREIGN ExCHANGE RJ!:GULATION ACT1 1947-S. 6 {1) and s. 2'{ {1)-
S. 1Zb-B, Pen.tl Cede-The . term ''accomPlice -$. 3'/2, sub-
s. (1), Criminal Procedure Code..,;_S. 32 (3) Evidence Act -G.uidin:g.
princ~ples 1.n appeals against acquittals. In the Court of the 1st
Spec'ial Judge, (S.l.A.B. & B.S. I.A. Act) Rangoon, S. ]; .Tihedi
:G.
and ,M .. M.ehta :~vere tried prider :;;,. ~4 .(I.) of the . F<iJreign.
Exchange Regulation Act, 1947 read with s .120B of the ~en,al
Code. S . .J .eTrivedi was convicted. G. Ivi. Mehta was acq~~ttted.
S. T:.Tiivedi appealed -a.gainst _his convi~tion and Sentenceai:Hi tlie
Union of Burma appealed against the order of acquittal. Both
the appe~ls 't'._'ere hearq togethe_r . Held : . The correct propos~
tion of . the ,Ja;v relating . to what the term .' \ accomplice "
conR.otes is thaf the term '" accomplice;, s'ignifies a .g qilty .
associate in crime or.a person who can be jointly indicted with
the ' accu'sed in the'' case. Ramswami Goundan . v. EmPeror I .
I."J:..R. 17 Mad. P, 271; Kaiiash Missir v . .I~mPeror, _ A.I.R.
(1931) Pat.. 105. An Officer of the B.S.I. appomted under A~t
SO.of 1951 i~ a . polic~ Officer when he .investigates the offenc-es
mentior.ed in Schedule (1) annexed thereto. The Statep1_e nt
.made to him is not admissible in evidence. S. Hi~ of the
Criminal Procedure Code applies. to the statement .made. t-o.
~ him in the course of investigation. U Soe -Liti v. Tlte
Union of Burma, Criminal Revision No. 45-B . Of 1953,
approved. Further, the B:'l.I. Officer is a t'olice Officer
within the mear.ing Of that term in s. l62 of the Criminal
Procedure Code. Mau11g Satz Myin v. King-E;mperor, I.L.R.
7 Ran. 771 ; Aft Foong v. King-Emperor, I.L.R. 46 Cal. 411 ;
Ameen Sharif v. Emperor, I.L.R. 61 Cal. 607 ; Nanoo Sheikh
.4hmcd and another v. Ernteror, I.L.R. 51 Born. (F.B.) 78 ~
Bachoo Kandere v. Emperor, A.I.~. (1938) Sindh (F.B.) 1,
. referrectto; Re. Somesltwar. H. Shelat, A.I.R. ,(1946) Mad. "430;
. approved. if is a fundamental _prillciple that in a Criminal
trial the burden of proof lies on the vrosecution to establi.s h the
charge beyond r-easonable doubt apd that where an accus.ed:
 GENERAL INDEX :xxxvii

PAGE
person should have been discharged for want Of Prime? facie
case against him the Court should not use the evidence 'of a
co-accused given under s. 342 (1) of the Code of Criminal
Procedure to fill up the g:trs in the prosecution. Ba Pc and one
v. The Unio1t of Burma, (1950) B.L.R.l78, followed. But when
the posecutiori has succeeded in establishing a primii facie
case ajlainst the dCCLSed befvre the other co-accused was
examined on oath, then the eddence of the co-accused mav be
used against the accused, although the weight to be given to this
eviden-::e will depend in the circumstances Of the case. U Saw
.and nine others v. The Union of Burma,(l948) B.L.R. 217, '
followed. A statement !Dade by a person which wouhl expose
him to a criminal prosecutiun is admissible in evidence under s.
32 (3) of the EYidence Act. Nga Po Yin v. Ki1~g-EmPeror,
(1904-06) 1 U.B.R. 3; Maung Shin and two othei'S v. The
Union of Burma, 11948) B.L.R. 425, referred to; Achhailall v~
King-EmPeror, 25 Pat. 347,.di!'sented from. In appeals against
a.c quittals, the High Court will always give proper weight and
consideration to such matters as : (f) the views of the trial J ndge
as to the credibility of the witnesses ; (2) the presumption of
innqtence in favour of the accused, a pn:sumption certainly not
weakened by the fact that he has been acquitted at his trial;
(3) the right of the accused to the benefit of any doubt ; and
(4) the slowness of an appellate Court in disturbing a finding
of fact arrived at by a Judge who had the advantage of seeing
the witnesses. Slreo S1varup and others v. Ki1~g-Emperor, 46
All. 645 (P.C.), followed; Emperor v. Nga Mya Maung, A.I.R.
(1936) Ran. 90; Puran v. Tlze State of Punjab, A.I.R. (1953) 459
(S.C.) ; Chelloor Mankkal Narayan lttiravi Nambudiri v. State of
Travancore-Cochin, A.I.R. C1953) 478 {S.C.) ; Madan Mohan Singh
v: State of Utta Pradesh, A.I.R. (1954) 637 (S.C.), referred to.
THE UNION OF BURMA G.M. MEHTA
1. a 320
S, J. TRIVEDI THE UNION OF BUfOIA

FRAUD AND COLLUSION-ALLEGATION OF-MUST BE SUBSTANTIALLY

PROVED AS LAID 116

FRUSTRATION OF CONTRACT-WHEN Al'PLICABLE TO LEASES 33

GENERAL POWER-0F-ATTORNEY-Authenticatio1J and Registra-
ticm. There is no provision of law which requires the general ,
power-of-attorney to be authenticated as well as registered
to render it valid. If a party decides to register the. power-
of-attorney then, of course, authentication: is required foi the
purpose of. registration a nd not othe.rwise.
BAJ:?RU DUJA v. MUNSHI NESAR AHMED . 269
'GENERAL SALES TAX ACT, 1949, s. 23 (1} 364

liiGH TRE~SON ACT, s. 3 (1)-Waging war ag(zimt Govermitent,

continuing offence-Comn~unitY of Purpose atzd ccntinuity of
adion-Con'l!iction in //tree separate trials for three distinct
offences-One consolidated trial only necessary-Criminal
Pt:ocedure :code, s. 403-Autre fois convict. Held : As there
. was communityof purpose and continuity of action in the three
incidents which formed fl).e !nbje~t of the three separate trials,
al16he accused shou}j have ~een tried in one case of the offence
punishable under s. 3 (1} of the High Treason Act, {or the offence
 xxxviii GENERAL lND.EX.

of waging war against the Government is a continuing offence.

Gam Mttllu Dora (a) Mallayya v. King-Emperor, 49 Mad . 74,
foHowed. Held also: As the accused ha\e been convicted in one
trial _and the sentences having been confirmed. the convictions
and sentences in the other two trials are ~et aside on the principle
of autrefois convict as embodied in s. 403, Criminal Procedure
{;ode.

Bo Oo SEIN AND FOUR OTHERS v. THE UNION OF BURMA f

'' I~MO'II'EABLE P!<OPERTY ' -DEFINlTION OF 278-
INJUNCTION AGAINST VILLAGE AGRICULTURAL COMMITTEE-WHETHER
WITUU ~

ISSUE OF CERTIFICATE FOR LEAVE TO APPEAL TO THE SUPREME

COURT - 59
JOINDER OF CHARGES UNDER A SPECIAL LAW WITH A CHARGE UNDER
PENAL CoDE-TRIAL VITIATED 184
JUDGMENT BASED ON COMPARISON OF SIGNATURES IN FOREIGN
LANGUAGE-WHETHER SOUND 66-
JURISDICTION OF MAGISTRATE RE. PROPERTY SEIZED BY POLICE IN CASE
TAKEN COGNIZANCE OF BY HIM 23Z

LEASE oF HOUSE-Term 3 years-No written instru;,ze11t--Transfer

ss.
of ProPerty Act, 106 and 107-oral agreement with. delivery of
Possession of premises, vaZ.:Z'd lease constituted-Mesne profits, suit
for, maintai1zability of. Held : S. 107 Of th_e Tr<!nsfer of
Property Act is clear that a lease of immoveable property
can be effected by an oral agreement accompanied by delivery
of possessionpand as a month's rt:nt- had been paid, a monthly
tenancy has been created by implication o law urider s. 106 "o f
the Transfer of Property Act. _ Chttni Lal Dutt and others v,
Got>iram Bhotica; (1927) A.I.R. Cal. 275 ; Cal~J+tta La11ding &
Shipping Co. v. Victor Oil Co. Ltd., {1944) A.I.R. Cal. 84; Ram
Kumar Das v. Jagdish Chandra Deo and others, 11952) A.I.R.
Vol. 39 (S.C.) 23, followed. Held also : As a monthly tenancy
has been constituted, the defendants codd not. be said to be
trespassers a-gainst whom a suit tor mesne profits {or use and
occupation would lie.
. .
MRs. D. RAEBURN v. MRs M. JOHNSTON AND oNE ... 103-
- . LIFE INSURANCE POLICIES TAKEN OUT BY A BURMESE BUDDHIST HUSBAND
., DURING COVERTURE W!TH HIS FIRST WIFE-Remarriage on death
of first wife-Claims l:etween the children by his first wife and
the second wife on his death_:_Money due.im Policy not Iettetpwa
property of the husband and his first wife-Issue of joint letters
of administration to rival claimants _not de_sirab!e. A Burmese .
Buddhist husband took out three life insurance policies during
the life-finie of his first wife. On her death he remarried a
second wife and later he died. _ The cqildren by. his first wife _
' applied for letters of administration claiming the money as the.
lettetpwa proper.ty of their parents. The seeond wife also filed
a cross application for lt,':tters of adrp.init;tration. The trial C<f~urt :
granted joint letters of administration. On appeal it was heid
mone~ due on life insurance policy is ,it.lid either at matur~ty .or
 GENERAL INDEX. XXXIX

PAGE

on the death Of the insured. Therei,;re the monev due on the

polici~s ca.nnot be the lel!d tu_,1 rr)pe:ty of the husband and ~is
first wife. It is most incon -_c:nicnt for tile parties who.are at
loggerheads with eat'h o ther to be granted a joint letters Of
adminisfration.
DAw CHIT NGWE v~ ::\lA t:XG THE IX AI~G AWD o THERs 157
LIMITATION AcT, S. 5 49>
S. 5 DOES NOT APPLY TO APPLICATIONS GOVERNED
BY ART. 175 OF THAT ACT ... 49-
1ST ScHEDtJLE, ART. 173 70
ART. 175 4~

LIMITATION-Review of judg'ment, time taken tlP in-Sub.sequent

appeal, teriod of limitation permissible-Article 173, First
Sc/zedttle, Limifatiot~ Act-Ret;iew aPPlication, deficit Court-
fees.:....uate of payment oj proper Court-fees relates back to date
of p,esentation. Held : The Allahabad decision in I.L.R. 12
All. 57 that time taken up in disposal of an application for review
with deficit Court-fees cannot be excluded has been super$eded
by s. 149 of the Civil Procedure Code. Acceptance of the deficit
Court-fees b y the Court has the :same effect and fun.;t:: a:; if the
fees had been paid in the first instance. Held also : Time
occupied by an application in good faith for re,iew, although
made upon a mistaken view of the law, should be deemed as
adcied to the period allowed for presenting an appeal. (, Pyi1l
Nya and another v, Maung Tun and another, P.J. L.B. 515 :
Brt-1 Indar Singh v. Kanshi Ram a11d another, 44 I.A. 21~ : Devi
Das v. Bushahr Sanglz, A.I.R (1953) Himachal Pradesh 110,
followed. Held further: There is no authority for the proposi-
tion that the period of YO da.ys under Article 173, First Sehedule,
Limitation Act should also be exd uded in computing the period Of
limitation for the present appeal.
KO SAW M AUNG v. AYlN Ku AND THREE OTHERS

LIMITATION AcT, s. 14 (1) .-The plaintiff had sued the defendant in a

previous case for ejectment and damages on the ground that the
defendants were his licensees. His suit was dismissed on the
ground that the .defendants were not licensees but subtenants o
the plaintiff. The plaintiff subsequently, obtained an order of the
Assistant Rent Controller fixing the standard rent and filed a suit
for rent against the 'd~fendant on the plea th'a t they are his tenants
{or the period from 11th March 1950 to $1st December 1953. The
plaintiff relies on~. 14 (!) of the Liniltation Act for part of the
claim.barred by the Law of limitation . .Held: A suitfor recovery
of arrears o rent is governed by Article 110 of the Limitation
Act, and in a suit of this nature the period of limitation begins
rom the date on which such "arrears become due '. S. 14 (!}
of the Limitation Act requires that such a former proceeding
must be. founded upon the same cause of action as in the
present suit. The cause of action set up by the plaintiff in
the former suit was a license whereas in the present suit the
cau:;e ~~faction alleged is one o t~nancy. The two claims are
inconsistent and are founded og different causes of action and
the plea of exclusion of time under s. 14 of the Limitation Act
cannot) be sus.tained. Ramkrishfla Cltettiar. v. Javarama. 1yer~
~1 GENERAL INDEX
PA~

A.I.R. (1933) Mad. 778 ; Dondoo Singlt v. Sheo Narain Si:ngh,

A.I.R. (i946) Oudh 155 ; Burro Prasad v. Gopal Das. 9 Cal.
255; Nadesan Chettiar v. Shankaran Chettiar, 5 Ran. 600,
referred to.
<
HAJI HABIB PIRMOHAMED V. SEIN MOH CQ,. . 273
LIffATlON AcT, ARTICLES 164, 181-S. 2-Definit~on ~/"Defendant."
Order 1, Rule 3 and s. 146, Civil Procedure Code. The
de.finition of the word "defendant " in s. 2 of the Limitation Act
is {lot meant to beexhaust!ve, but inclndes within its ambit the
meaning assigoed to it in the Civil.Procedure Code, except when
otherwise provided by the Cod.e or by any law for the time
being in force. S. Venkatasubbaiver v. S. Krish11amurthy, 38
Mad. 442, relied on. U E Maung v. P.A.R.P. Chett~ar Firm, 6
Ran. 494, distinguished.
ANNAMAL v. V .K.L. CHETTY AR FIRM ... 143

MAHOMEDAN, DEVOLUTIO~ OF ESTATE OF-Governed by Mahomcdan

L<tw-Burnza Laws Act, s.13-Rigltt of successiou,.wllen accrues
-Couvert to Mahomedatt teligion, position of, in respect to
succession-RePresentation., Principle of, 1tot l'ecognised-Succcss-
iou determined by indePendent right-Claim of Mahomedanheir,
whether df./eated by Buddhist father who died before nccrual of
right. Held: Mahomedan Law will apply in respect of the estate
of a person who was a Mahomedan at the time of his death, vide
s. 13; burma Law,; Act. C.V.N.C.T. Chedambaram Chetty.w v.
Ma Nyein Me tl1td others, {1928) l.L.R; 6 Ran. 243,, followed.
lield: The estate of a deceased Mahomedan devolves upon his
heirs only at the time,of his death and not earlier, see ss. 41, SZ
and 56 of Mulla"s Principles of Mahomedan Law. lleld: A
person may be a Mahomedan either by birth or by conver::ion ;
after the co~version, he is on the same footing as a natural born
Mahqmedan under Mahomedan Law. Mitar Sen Stnglt v.
Maqbul Hasan Kit an a11d others, 57 I.A. 313 A.I.R. (P .C.) (1930}
p. 251 at 253, followed. Held also: A person acquires a share
under Mahomedan l-aw on his or h.er Qwn independent rjght
Which ~comes into existence only at the time of the death of the
deceased; the principle of repr~sentation is foreign to tl)e
Maho.rnedan Law of inheritance. Jaffri . Begam v. Amir
Muham ma.d Khan, l.L.R. 7 All. 822, followed Held lastly: As
the claimant's father was already dc;ad at the time when the righ~ .
to su~cession accrued, ti:J.e fact that he was a Buddhist and could
not claim any share in the estate is immateri.al as the nature of
the claim can only be ascertaine<l when the right accrued.
DAw Pu v. AHMED ISMAIL ~EMA AND FIFTEEN oTHERS 21
'MISJOINDER OF CHARGES ' 1S4
MONEY LENDERS .ACT, S. 9-:-Registratton as Mo1zey lender need 110t
Preccd~ ir~stitutum of suit. H.e could filea: suit b~fore getting .
himself registered as a money lender and the registration need
not prec~de filing )f. such a suit. s. 9 of the Money Lenders Act
enacts tha~ .no Court shall pass a decree on a suit by a money
lender fqr th,e recQvery .of ~ loan unless the money lender is
regist~ret'l .tindex; the Act. and the regi~tration is in force. It does .
nofS~y that nO'"': Court shall entertain a suit by t~e money lender
IUlll<;:ss t~e moQey ender had registered hi~self under th~ ~ct.
164
 GENERAL INDEX xli

PAGE
MO:'\E\" L EN !lJ,RS :\ CT, ~- 9 164
- - - s . 13 238
MONEY !.E:\1>:.11 CA~ FU.F. sr.;tT HEF,lRE REGISTEIHNG Hnrseu AS SUCII 164
' - -- UUR t.l!\ LIFE INSURA~CE POLICIES :\Or /effcfpwn I'ROPEI~'I'Y
OF THE Ht.:SUA~l> AX !;.l WIH~ IN Bt:IO!ESE BUDDHIST LAW 157
MONEV-l. E~OERS ACT , s. 15 . 81
MORTGAGOR AND ;\JORTC;AGF.E--!a:LATI<I:'\S!l!P OF AGE:\CY 130
MUTWER- 130DY t:~FOD~D-STHQ:'\GEST E\"I. ; J'~CF; POSS!lll.l' OF l'AC'I'
OF MGROER FSSl,XTI .\L 1 $9
NEGOT!Alll.E I :\STHt::\ll N'f-WHETHER IT IS TA({EN AS SOlE CONSIDER
AT! ON FOR LO AN OR MERELY AS COLLATEI~AI, SECURITY 81
NOTICE- ARSENCE OF-TO OETERMI!\E LE;\SE 75
OFFENCE~ UNDI!R1WO lliFFERENT PRNALSTATUI"ES-S,395, J>en11l Code
-S. 17 (1), Utdawful Associa! ions Act-MisjJi11der of clw,~cs-Ss.
233, 234, 235, 2,.(1, n11d 239, Crimi11al Procedure Code-E/ft!ct otJ
legality of f rial-Acquittal ttudcr tile Specinl A ct ctrtmot
cure tile illegality. The appellant was .::onvictcd under s. 395,
Penal Code and s. 17 {l) of the Unlawful Associations Act.
Joinder of charges under a spedal Jaw with a charge under the
Penal Cocle has vitiated the trial as being in violation of s. 235,
Crimmal P1ocedure Code, e!>pecially in the absence of
a pproximity in time the unity or purpose and continuity of action.
The two criminal acts are not r~lated in point of purpose as cause
and effect cr as principal and subsidiary acts so as to comtitutc
one continuous act. Raj Kislzore-Teuari and otlters v. El/lpcror,
A.f.R ( 1949) All. 139, referred to. Held: There was a misjo-
inder of charges. If a mandatory provision of the Code has bc~n
infringed in framing the charge, the Court must of necessity . be
held to have failed in administering justice to the a..::cused. The
trial is bad and no question of curing an irrcgularit~ aris(S
under s. 537, Crin.inal Procedure Code. K. Ramarajtt Tevan
andnnothe1 v. Emj>e1or, A. I.R. (19.i0) M.1cl. 857 at858; N.A: .
Subramania. Iycrv. Emperor, (1902) 25 Mad. 61 1; Abdul Rah111an
v. EmPeror, S.Ran . S.> (P.C.); Sein Hln v, li11iJnoj Burma, B ..L .- R.
(1951) 289; Babulal CIIOUklta!Ji v. King-Emperor, I.L.R. (1938)
Cal. (P.C) ?.95 ; Pulukuri Koltaya v. KingEmperor, I.L;R.
(1 94 ~} Mad. (P.C.) 1"; Re:c v. Daya Sha11ker Jaitly, I.L.R. (1950)
All.-1256 at 1274, rererred: The acquittal of the appellant on the
charge under the Special Act cannot cure this illegality,
irrespective of the question wi<ether there was any actual
prejudice to the accused or not. J .ri Shgl~ a11cl otllt rs v. Emperor,
A.I.R. ( 1918) Lah. 148, referred. Retrial or'lered.
MAUKG BA CHOKE (alias) Boa THAN-MAl'\.I v . THE UNroN OF
BuRMA 184
PAROL EVIDENCE ADMISSIBLE TO PROVE MU TUAL RELATIONS
BF.TWEEN PAnTIES TO A DEEU OF SALE 168
PARTIAL REDEMPTION-SU IT FOR-PRIOR SUIT FOR PART11'ION NOT
NECESSARY 160
PART ITION ON REMARRIAGE OF SURVIVING PARENT BY-CHILDREN OF THE
FIRST MARRIAGE. field : It is only on the remarriage of the
su;vhing parent and nol before, that the ri{Jht of.children oi Ih e
first marriage to claim a partition of property . arises. They
collectively acquire a vested inle~cst in the joint property Of the
marri~e to the extent of the dec~ased parenl';s share
-which is one half. P.K.A.C.T. Chocka/ingam Clletty v.
Yau11g Ni and others, 6 L~ B .R. 170 ; Mauug Po Kill and two

s
xlii GENERAL INDEX

PAGe

oilters v. Mau11g Shwe Bya, 1 Ra11. 405; Mauug Scik Kau1;1g v.

Maung J?o Nyein, 1 L.B.R. 23 at 28 ; lltaung Sh-we Ywet and
others v. Maun g Tttn Sl:ein, 11 L.B.R. 199; Ma E Mya and
another v. U Pe Lay and others, 3 Ran. 281 at 287 ; Shwe Po
v. "Maung Bei11, (1914) 8 L.B.R. 115; Maung Po Kin and one v.
Maung.Tun Yin and two, 4 Ran. 207; Mauug St'i:cr Ba v. Ma.ung
f.Ywe and others, 12 Ran. SS, referred.
U LWIN v. MAUNG TIN AUNG 227
PENAL ConE, ss. 34, 302 {1) (b), 364, 365 189
ss. 82, 83 304
s. 120-B 320
ss. 211, 307, 352, 448, 506 1
s. 302 (1) (b} 146
s. 380 306
---s.395 ... 184
s. 409 364
- - - - - s s . 409,409/411 195
8.411 i81
s. 420 260
- - - s . 452 178
s.468 376
----s.537 312
PENAL ConE, ss. 364, 302 (1) (b), 34-AbscJJCe of m11rd.ere./ bodY-
Strongest possible evidence of factum of murders essential-
0/fim~..e w .u.:r s. 364, wluJtt arises-S . .'~65, Penal Code. Where the
body of the p@rson said to have bem murdered is noiforthcoming,
stronges~ possible evidence as n:sp<ct the factum of murder at
the hand of the accused concerned is essential. Adu S.%ikdar v.
Queen-En;press, (1885) I. L.R. 11 Cal. 635 ; Bhandlm and another
v. Kmg-Emperor, (1924) A.I.R. 11 All. 6'62; Azam Alt v. Emperor,
A.I.R. (1929) All. 710 at 717, rt:ferred. The offence under s. 364
of the Penal Code arises only when the prosecution establishes
the kidnapping of the person concerned with a view to that
person being murdered or put in danger of being mudered. In
the absence of such facts, the offence of mere kidnapring cannot
fall within the purview of the said section. Maung Han and
otht-r, v. The King, (194/J R.L.R. 371, referred to. Ccnviction
altet ed.to one tntder s. 365, Penal Code.
MAUNG :BA HTU (a11a~) NGA HTu AND NGA MAUNG (alias)
MAUNG MAU!.'(G -t. THF. UNION OF BURMA 18')
PENAL COD!';, s. 406-Accused's exf?ltwation, reaso1wble {hougft
incredible-Burden of Proof. The Complainant proseeuted U1e
appellant under s. 406, Penal Code in respect of collections of
money entrusted to him on behalf of the Sri Peria Palayatham-
mam Temple. .:The appellant's defence was that the money
received was spe~t in defrayin-g the e~penses of a festival .belcl in
connection with the Temple.' A Complaint was Iodgcd .. atid
subsequently the appellant produced the accotints before the
Receiver o'f the Temple and its properti.es. Being .diss:ltisfiecl, the
Receiv~r filed a civil suit in the Rangoon City Civil Court.-which
was $till. pending . In the tneantiir.6l appellant was convicte
 GENERAL INDEX xliii

PAGE

and scnt<:ncc<l to 6 months' ri~orrms i;n rr:, . ll" ' c nt. Held. Oil
aPPeal : Il cannot be said that the :tc~_ . unl s .:o::J:tc ~d by ap p ellant
ns to ho w he l1ad spent the mone\ e;:t:. st ~.: <.l to ~li m is unr~ asnn
able. If an accused person giyc;; :;a c:~:pla 11 a :ion which may ~
reasonably be true,cYe;~ tho;tgll it is t:<> t be-:i.::.-..:d by the Comt,
he is entitled to an acquittal, bccau:;-;: i n ::uch ..:i :cumstar.ces the
Olllt S of proving his guilt ha:; n;r i'~cn dis..:hurg<:rl. App..::JI:mt
acquitted. Robert Stuart Wa!/.:hoP.: \'. I::mpaor, (1934) I.L.R.
Vol. 61, Cal 169, followed.
M. MuTIIIAH SEi-iVAI ::. THE L'xioi'\ oF BvH;\IA 175
I'El'IAL CooE, ss. 40~ . 4 11-Scisttre of f;ropcrl yflud /11e rclJ:rtl of same
by Police to complaintl1'Lt-Froviso los. 523 (1), Crimiual l'rocc-
dttre Code-Abseucc of record of l11e existence or disposal of the
exhibits iH the case-The properly so disposed of sftllwitltin the
jurisdiction of the ll1agislralc-S. 517 (1), Crimi1lfll Procedu1e
Code subject to final orders of tile Magi~trate, whether under s.
517 01' s. 523. Crimin al P1'ocedure Code-Exhibits lt1oug h not
Prt1duced bef ore Court, drett~cd to be Prodttccd-Magi~t1ate's full
discretion of disPosal inspite c>/ the settled law tllctt J>rl#rty
must be retu rned to the Possessio1l of t he PerSOil from ~~hom ti 'lllaS
seizc:d. The complainant Golyan Brothers prosecuted the
respondents under ss. 408 and 411, Penal Code, resrecti,ely in
respect of five bales of cotton yarn . The P ;.>lice seized the bales
from the arp!icant and reh;rned them to the complainant on
execution c. a tond under the proriso to s. 523 11), Criminal
P rocedure Code. Apparently the exhibits were e r er procluct:d
in Court , nor was there any mention of their existence or disposal
recorded in the proceedings. On acquittal the Magistrate ordered
the n:turn of the exhibits to the applicant from whose possession
they were fi rst seized by the police and this order was set aside
by the Sessions J udge. The applicant filed an app!:ication in
revision. Held : (i) The return of the exhibits to the coniflljl.inant
on the execution of a bond is subject to the final orders of the
Magistrate, whether under s. 517 or 523, Criminal Procedure
Code ; Iii) the p~operty so disposed of by police did not cease to
be within the jurisdiction of the Magistrate who had taken
cogni~ance of the property. The term of s. 517 (1) of the Code
would not exclude such property from the Magistrate's jurisdic-
tion ; (iii) the Magistrate to whom a report under s. 523 of the
Code is made is the only person competent t o make :;uch order
as he thinks fit regarding the disposal of the property seized b y
the Police ; llfatmJ! Han T hei n v. The Commissio11c:r of Poliu,
Ra~tgoott, (1950) B.L.R. 45, followed ; (iv) where the seizure was
reported by the Police to the Magistrate and with the knowlect,~e
so derived from such report, the Magistrate proceeded tr) try the
offence in respect of the said property it cou ld be said Utat
t hroughout the trial the said proper ty was p~oduced before it or
was within its ct:stody through the intermediary of th-e
Complainant who had taken possession of the property under the
bond executed by him; (v) a Magistrate has full discretion in the
matter Of disposal though ordinarily the property seized must be
returned to the party from whom it was seized. He is not bound
to return it to a party who apparently has no ri~ht or title t o
same. V. K. Vaiv otmri C!Jetli v. Sirmiah Clretty, A.I.R. (19 31)
Mad. 17 ; lloke Gwan v. Au11g Wrm Tatt, (1949) B.L.R. 647,
referred to. The appl icant ha\ no right or title to the property.
The ~pplication in revision is <tismissed.
U Lu MAW 'V. S. PURAN SINGH AND HAN SEIN ' 232
xiiv GENERAL INDEX

PAGE
"
PENA r. Co or:~ s. 411-S. -!OJ (1), Crill/iJt<ll h .ccdure Cod<'-A:\Pclhwt
i n tossession of 3 Pairs of C<lr-rint;s a11d uJi.,f watch, one pair of
ear-rings being Iter own-Com:icted 1111der s. 411, Penal Code in
res,pect of 01z,; pair of ear-rings a11d a wrist wt~'clz-Appclll
dismissed. Appellant was ag:ain tricd and COI'IJ ictcd t:I:der s.
411, Penal Code in respect of the other p;tir of ear-rings by lh<:
Court of Special Judge. Held: In the alm.:nce of proof that the
articles in the two cases were received by aprellant on different
dates, the dishonest receipt of these arti<.les hy the appeJJ;mt is a
single offence under s. 411, Penal C..)(le . Conviction set aside
under, s. 403 (1), Criminal Procedure Code. Ga11eslt Sa!;u v.
EtnPercr, L.R. VoL 50, Cal. SC::4-L.R. Vol. 3. Pat. 503, followed.
MA THAN MAY (alias) MA YIN 1\JAY v. T!:E UNION OF
BUHMA l Sl
PENAL Co DE, s. 452-CrimitLal Procedure Code, s. 562. The applic;mt
was convicted uuder s. 4j2, Penal Code by a Second Class Puwcr
Magistrate who sub:nitted the case under the proviso to s. 56'~
sub-s. (I) to the Subdivision! Magistrate ror release on proba~
tiou of good conduct. The Subdivisional M;tgistrate himsdi was
only a Third Class Power Magistrate, not having been appoh1ted
under s. 13 of the Criminal Pn>ccdure G.ldc. The Subdivisional
Magistrate ordered the Respondent to be n:Iea:-ed on his execut-
ing a bond for J{ 100 with two sureties in like amount or in
d<-fanlt ther-eof, to undergo 6 lliOHlln; rigorous m:prisonmenl.
Held : The order for imprisonment in def;:ult is wrong. The
proper course is for the Magistrate to ascertain before passing an
order under s. 562, whether the accuscf.! is Illwly to be able to
give security immt:diately or withi11 a reasonable time and if he
fails to give security .within a reasonable time, the Magistrate
should pass sentence which should ordinarily he a nominal one.
King~Empercr. v. 1im Gaung, 3 L.B.R. 2, followed ; Nasu Meah
v. King-E mPe,or, 2 Ran. 360, referred to. Hetd further : The
order of the. Subdivisional Magistrate is void as having been
made without j.u :isdiction. It is not imperative on the High
Court to set aside every void order, unless the a!_!grieved person
move the Court to do so. King-Emjero1 v. Ba Pe, 4 L .B-.R. 143,
rderred ; King-E1nperor v, Tlta Byaw, 4 L.B.l~. 315 ; Po Mya v.
Kiug-Emt>ercr, 7 L.B.R. 272, con-pared.
MA l\1"YA TIN v. THE 'CNION oF BuRMA 178
PERSoNAL COVENANT TO HEPAY LOA~ A~O ; IMPLE MORTGAGE BY
FOREIGNER . OF IM.II<IOVEABLE PROPEHTY-COVEI\AN1' SEPARABLE
AND ENFORCEABLE .. 211
PETROL PUMP-W!Letlter imtiiiYveable Property ? " Immovrable pro-
perty" as defined in s. 3 of the General Clauses Act iucludes
"land, benefits to arise out of land and things attached to the
earth, or permanently fastened to anythi.ng attached to the ear:th ".
The meaning of the words" things attached to the earth '.'is given
in s. 3 of f.lle Transfer of Property Act: (a) rootea in the earth
as in the case of !rees and shrtibs; or (b) imbedded in the earth as
in the case of walls of buildings ; or (c) attached to what is so
imbedded for the permanent beneficial enjoyment of that tl>
which it is .attached. The. .petiQI pump is a . mere me<;:hanic.:al
device set . up -on . the ro::d~side p;wement for the purpose of
retail'ing. petrol .ui1der . a license. .'~1e conditions of such a
license require that the p~trol tank supplying the pump shonl'lt.
be constructed at a regulate'd depth ~eneath the pump. The-
. whole contrivance, the . reservoir of petrol ue.Iow the surface
 GENERAL INDEX xlv
f'A G E

of the pul .t i~ p.t . c:!!l<:t! t and th~..: mcchanictl pumr above, is in I h.:
nalure of a lll ~h ~~ . ,: ~ ;i ~:l<: rt. . \\'hat i:-: l i r~..::tl \aLuc h> lite
dcfendnn!!:: in t li <: p..:: r .i rump j,. n<)t i h .: J'llillp itself hut tlw
license tttHkr \\ :,i,il tli;;\ a;-,_. pe miu~-d t > r<:tail po..:tml by
its u se withia t L ~ ~in . i\s cf \b ~ ..:ilY o i hanf!' ": ~. Thi:; lkcnsc
together with ~h.: n:<.:cll:;ni-.::tl dt.:vitc by \\'1;ic:t ih<.: li.:cnse is
w ork ed for t'totil cantwt be con:;it!crcd 10 bc immoYcablc property.
J\forC(l\'er, lhc ru:np c:tn h; !HoJ\'O:d abo:tl a t l"OliVenience. St:ch
an "atta,llm(;!t t is merely f,n the benclidal enjoyment of lhc' .
.c..>itatle::l itself, even though fixed for lhe time bc:in.!,! S.> lhat it may
- be cnjQyc:cl. S .l'.l(.N. Subramauian Firm \'. llf. Chid,mtbrmt
StNiat, A.I.R (HHO) Mad. 527 at 529, approved .
.ftl{AP URCHAND (BURMA) LTD. v. THE BuRMESE N ATIONAL
R EFORMIN G Co. AND OHIEHS ... 278
P ow.enoF- L\T-roaNEY-AUl'fiENTICATION Ai:\D l.:r-:GJsTnATION 2o9
PRODUCTION OF ACCOUNT llOOKS-UNA~KEO FOI~ ilY PI.AIN1'1FF IN
' S'UIT- NO 1:-IFI!RENCI! CA:-1 llE UI!AWN oil NoN-l'!W!H.;CTION 29 1

PROMISSORY NOTE, SUIT 0~-MOIJCY Lcmlcrs' Act, s. 15-Anlt:da/i-Jp,,

effect of -A 1/icndme1/t of plaiul, ?\lien and in w/Ja f cirwmst auccs
~missible -Negotiable instrument, wile/her i ! is lake1t ns sole
consideration for loan or me1cly ns c,lft.leral sccurft~, fer
1'C/>.tYmwt-Normal and prima facie iufucncc . Held:S. 15 of
the Money Lenders' Act, 1945 is explicit that a promisl:Ory-note
on which the cl:tte pf execution is stated incor rectly shall be void.
Walter Mitchell v. A. k . Tetment, 52 Cal. 677, referred to. lleltl
also: An amendment of the p!eadit!g,; can be a llowed at any stage
Of the prcceedings where the sole result of a refusal would he to
force the plaintiff to another suit; but where the effect of the
amendment would be to take away from the de fend~.nt n legal
r ight which has accrued to him by l<~pse of time th e llmcndment
ou~ht to be refused. Mauug Sltwe Myat v. Maung Po Sin nmt
one, I. L.R 3 Ran. l 83 ; Krishna Prasad Siuglz a1f(i one v. ]Jfa Aye
a1~d ollzers, I.L.R. I 4 Ran . 38,;; Cha1an Das v. Amir Kit an, J.L.H.
48 Cal. 110; Rmun.dralliOltan Tagorc v. T(ashebclzaudra CJ,anda,
I.L.R. 61 Cal. 433, referred to H eid ft~rlliu: ,i\.h cn a promhsory-
not e has been lost the plaintiff can rdy upo n the orig inal
consideration when it has been taken ;~ s a collater a l security for
repayment oft he loan which is a normalnnd prit111l facie inference,
b a t wlten the ncgoti,lble instrument itself is the consideration for
the loan the lender is restrided to his rights under the negotiable
instrument by which he must stimd or fall Puta1ta Reetza
Sanmmtl1a1J and mwlltcr v . Pana L atta l'almtiappa , (1913) I.A .
1~2; Marmg Chit nud a!tOlltcr v. Roshan N.M.A. Kareem Oomer
& Co., I; L,R.12 Ran. 500; E Yaratzdotze v. TelL Lu Pe, (1950)
B.L.R.- (S.C.) 239, referred to.

LAL BIHARI JADO r. HAtUDUTT PAN DAY 81

PROO F -NAT UREt QUAN T~ M 1 A:-.D BURDEN OF . .. 146
PROPERTY SEIZED BY P OLICE-RETURN OF THE SAME . 232

PROSECUTION UNDE!l S. 468, PENAL CODE AGAINST VIL LAGE HEAU-

MAN-Ge1teral Village . Procefdings c-PctLcd by Deputy Commis-
sioner t hrortglt Township Officer~Direct complafnt-S. 195 (I)
(c) (lOt aPflicable as . OcPut_y, Commissiottcr act in.~ i1t v illage
Proceedi1zgs is ttot a Court-S. 28. Burma Village Act-sauction
1equir!Jd to pros~cute. villtl'ge head't!tait for acts do1le in discltargc
xlvi GENERAL INDEX

PAGE

of his oJjicial duties. nespondent , a villa!fcr petitioned against

the applicant for an offence uncler s. 468, Penal Code to the
DePvuly Ccmmissioner, Pegu, who opened General Village
Proceedings through the Townsl' ip Officer. On the Township
Officer's report, the Deputy Commissit:>ner ctir'ectecl that the
fiesponclent could file a direct complaint and he did so. The
trial Conrt dismissed the complaint for want of sanction under
s. 195 (1) (c), Criminal Procedure Code <mel discharged the
applJcant. Thereupon the respondent filed an application in
revision against the order of discharge before the Sessions Court,
wherein the applicant raised two objections, viz. That the com-
plaint w~ts (I) barred by s.19S (1) (c), Criminal Procedure Code and
(2) not maintainable for want of Deputy Commissioner's sanction
tmder s. 28, Bt\rma Village Act. The Sessions Court set aside the
order of discharge on ground No. l alone without going into grout<d
No.2 and ordered a retrial. Applicant then filed an application
in revision against lhe order for retrial. Held: Neither the
Deputy Commissioner, nor the Township Officer in General
Village Proceedings acted as a "Court" within the meaning
of s. 195 (1) (c), of the Criminal Procedure Code. Cltotalal
Mallhu radas, 22 Bom. 936/939 ; Malta[aleswarappa v.
Gopalswami, 36 Ct.L.J. 895 ; l!ari C!taran v. Kanshi.~i ,44
C.W.N. 530 (537), referred to. Held fu rl her :Sanction from the
Deputy Commissioner under s. 23 of the Burma Village Act
is essential to prosecute a village headman for commi$sion of
alleged offences in the discharge of his official duties. Maung
Po Thil v. Mauug Pyu, I.L.R. 8 Ran. 654, followed. Order for
retrial set aside.
U THA PE V. U THEIN NWE 376
RAILWAYS AcT, S~. 112, 126-130 .. 304
REGISTRATION OF SALE OF IMMOVEABLE PROPERTY-REAL VALUE
OF PROPERTY SHOULD BE ASSESSED-NOT PURPORTED VALUE .. , 243
RELEA~E ON PROBATION OF GO.O!J CONDUCT "INSTEAD OF" OTHEH
PUl'i:ISHMENT 128
RELIEF MUST .BE SPECIFICALLY ASKED FOR-COURT CANNOT SPELL OUT
A NEW CASE D.IFI.<'J!;RF.N'),' FROM PLAINT 368
RENT CoNTROL ORDER No. 1 of 1945, s. 6-Claim for repairs
voluntarily carried out by tenant, unrecoverable. Everyone has
a right to waive and to agree to waive the advantage of a law or
rule m1.de solely fOr the benefit and protection of the individual
in his private capacity, which mav be dispensed with without
. infringing any public right or public policy. Salelt Ebrahint v.
Cowasjee, A.l.R. {1924) Cal. 57, distinguished ; S. Raja Cltelty
.and atzolher v. Jagannatlladas Govindas and others, A.I.R. (37)
(1950) Mad. ~84, affirmed. Under the Assam Urban Areas Rent
Control Act, 1949. A tenant can contract himself out 9 the
privilege a1Iowed to him. Satish Chandra Ray Cllattdhury v.
Bin:ralenduSen and atrother, A.I.R. (38) (1951) Assam 27, referred
lo. A tenant cannot be reimbursed {or repairs done voluntarily
to premises on the .ground that the Landlord has benefited by -the
said ~;~pairs. . .
N; K. VAIDYO v. MA THAN _K HIN AND MA MYA THAN
~

RENT PAID TO K.N.D.O. INSURGENTS-W.IiETHERS. 69, CO.NTR ..\CT.

:ACT APPLIES

. 206.

283

. .
 GENERAL I NDEX xlvii

PAGF.
,.
"I~F.PHESEN,TATI\'F: "-Tfl!RD PARTY OBTAIN!~<: OCCl1P ,\'riON OF
p Rg:'>f!SES DUU:\G PEXDE~CY OF LITIGATION IN RFSI'F.CT OF fT 120
HEVIE\V OF JtiD~)IF;~T-TDIE TAKE IN - QUESTION OF T.nll'fATION 70
RIGHT TO \\'AIVE AD\'ANTA(;f:; OF I.A\\' OR Rti!.E :\lAUE SOLELY FOR
BENEFIT A:\D PROTJ!CTIO~ OF 1:-<ll!VIDtiAL I:-> ill$ PRI\'ATE CAPACITY
'
206
SALE OF HOUSE A:\D SITE BY REGISTERED DEEI)-AIJ:'>lJSSIIHLI1'Y OF
EVIDE~CE TO PRO\'! Tf~AN5ACTION A i\IOifi'GAGE ... 44
- - - PROPERTY-CONDITJO:\S REQUISITE FoR F:XERCISE OF RIGHT
OF SALE BY :\IOI(TGAGEE ... 130
--- IM~WVEABLE PROPERTY BELOW K. 100 IN VAT.UE-RF.AL
DELIVERY OF POSSESSION AN D t-:OT CONSTIWCTIVE Mt'ST DE GIVE!-: 243

SANCTION-Acquiltal tmder s. t;09 , t;0 9/114, Pctwl Code for waul of-
Subsequent PI'OSCettfiol/. 1111der s. 'f ll) (d) 1cad witli s. 4 (2) of tile
Su pp,essilm of Corrupt ion Act, 1948 with satzcfion -APPltt:abilit y
of PrinciPle of autrefois acquit-S. 403, Crimiual Procedure Code.
The applicants who are police officers were prose:uted under s.
409, 409/114, Penal Code and were acquitted for want of sanction.
They were subsequently prosecuted with sanction and charJ!ed
under s. 4 (1) (d) and s. 4 {2), Suppression of Corruption Act, 1948.
On an application to quash the charge on the principle of autrefo. s
flcquit. Held: The former trial was no bar to the subsequ~nt
trial under s. 403, sub-s. (2) of the Criminal Procedure Code.
Maung Po Chit aud .Oile v. The Union of Bt,rma, (1948) B.L .R:
175, followed; Palan.i Gou1zdan and another v. Emperor, A .I.R
(1925) Mad. 711 ; Emperor v. Mumwo, A.I.R. (1933) Oudh 470,
r eferred.
MAUNG BAZAN AND U PE KHI N v THE Uz.no~ oF l3URMA 195

SANCTION REQUIRED FOR PIWSECUTION OF VI LLAGJ! IIEA!)MA~ FOR

ACTS DONE IN DISCHARGE OF OFFICIAL DUTIES 376
SECOND APPEAL- Findings of fact l.y lower appellate Court-Plain-
tiff's failure to ask defe11dant for productio1~ of accou11t books-
Inference by Plaintiff or tlte Court . In second appeal, findings of
f:t<. t by the lower appellate Court arc final Ma Pyu v. K. C. Mitra,
I L.R. 6 Ran. 586, relied on. If a plaintiff never asked the
defendant for tht! production of account books, neither he nor the
Cout is entitled to dr~w any inference for non-production of
these account books. Bilas Kuuwar v. Desraj Rajit Singh and
others, I.L.R. 37 All. 557.
SWEE CHWA~ BEE RrcE MILL co. v. SuKRu N .\ HAG 291
SECONDCLASS POWER MAGISTRATE-APPOINTED SUBDIVJSTONAL
M AGI.S'l"R ATE UNDER . s . 13, C~IMlNAL PRO~EDURE CODE- SUCH
MAGISTRATE GETS ALL ORDI NARY POWERS OE THAT OFFICE
CONFERRim BY s. 36, CtUMl::i!AL PROCEDURE CODE AND sPECIFIED
IN THE THIRD SCHEDULE 248
SEPARATE TRIALS-CO~VICTIONS UNDER-ONLY ONE CO:"SOLIDATED
TRIAL NECESSARY 7
SI~fPLE MORTGAGE-Waiver of sec?jrit y.:_Suit Otl personal cotlenant
to repay-S. 3, Transfer of Immoveable Property (Restriction)
Act, ~47-Separafion of Perso'fVll covetza11tfrom the mortgage-
S, 21, Contract A.ct . The appellant mortgageq his immov~able
 xi viii GENERAL INDEX

PAGE,.

property to the respondent chettiar, a foreign-e r, who subsequently

filed a sim1.1e monc.:y suit basing his claim on the personal covenant
of the ddend:mt to repay the loan. The r~espondent's suit was
decreed by the trial Court and confirmed by the lower appellate
Co: ; r~ . On second appeal, it was contended that the suit
transaction was initially void bdng in direct contr;wentiou <if s,
3 {J tbe Transfer of Immoveable Property (Restriction} Act, 1947,
as the personal covenant to repay cannot be sc:p.trated from the
mortgage Held : The contract in this appeal is in two distinct
parts : (i) the personal covenant to repay the money was the first
agreement and (ii) to proceed ag:linst the mortgaged property
was the second agreement. The sec,)nd agreement is a sub-
sidiary agreemrnt to be enforced only if the first agreement was
110t fulfilled. The first consideration, that is , the loan is a go0d
one, and :~n agreeiL<::nt to repay a good loan is clearly enforceable
and this good consi<1eration 1111 st remain unaffected by the
disability in the secotld part of the contract imposed by the
Transfer of Immoveable Property [Restrictk>n) Act. ll ar P1asad
Tewmi v. Sileo GolJind Teuad, A.I. H. (1922) All. 134 ; 11 . P~
JosePh v . E. H. Joseph, A.I.R. (1926) Ran. 186; and Moltam+natl
Muzaffar Husain v. M,1dad Al'i, A I.R. (193 1) Oudh 309, distin-
guished. J arb011dha11 v. Badri Narain and .:.11usammat Ram Rati,
45 I.L.R. 621 ; Mohammed Shakur v. Gopi, 35 Indian Cases,
202 ; Moltanrmacl J(ftalilur Rahman Khan v. Mohammed
Jl1w:amn:ililullah Kha11, 33 A.T.R. All. 466 : DiP Nari.w Singh
v. Nagesltar Prasad aud another, 52 I.L.R All. 338, follov\ed
S. SABIR HUSSAIN v. R. M. L. l~A~IANATHAN CHETTI \R 217
SPECIFIC REUEF AcT, S. 42 368
STATEMENT MADE TO B.S.!. OFFICER NOT ADMISSIBLE IN E.VIDENCE ... 320
SOB-TENANT--'-RELATiON WITH LA~lll.ORD-WHEN BECOMES NECESSARY
PARTY IN EJEC'JMENT SUIT 11
SUIT FOR EVICTIO~ -WRITTEN N01tCE-NECFSSLTY OF

- - DETEf~MINATION OF 0::-.T POfNT Nor RAISED SPECfFICALJX IN

PLEADINGS--NO-T PERMISSIBLE . : 33
SUIT ON PROMlSSOR:Y-NOTE-Sgnature of deje11da11l ill foreign
langUage-Judgment based on comparison of signatures by
Judge, wheth-er sound. Held: Though the signatures on the pro-
note, the written statement and the power of attorney are ,similar,
it is unsatisf:lclory and dangerous to stake a decision in a case
where there is a direct ccmflict of testimony between partie~ as to
general character of a signature, on the corr ect determination of
the genuinenc:ss of the signature by mere comparison with :the
admitted ;;ignatures, especially witho1l the aid in evidence of
micros~opic enlargements or any expert advice, Kessarbai v.
Jethabltai I ivan, A. I. I<. (1928) (P.C.) 277; Rudragouda
Venkangoudn Patil '-' Rasangouda Danapfagouda Patil, A.LH.
(1938) nom; 257., referred to.
K . LUCHANNA 'IJ. BABOORAM BY AGENT CHAKRAPAN 66
SOPPRESSION' OF CotmUPTION AcT, s . 4 (1) (d; &s. 4 12) . .. 195
.
TIME FIXEO FOR PAYMENT OF . CERT.A IN sm,.f.s OF JI-IO~EY-~T.IARILt1'Y
FOR NON-COMPLIANC.E . 94
TRANSFER oF PRoPERTY Act, s. 3. ., .. 2i8
 xlix

..
TRANSFER QF PROPERTY AcT, ss. 53-A, & 58 (c:
PAGE
44-
s.54 243
- - - - - - -- - - s. 60 160
s. 69 (2! (a) & (b)

130
- - - - ss. 106 & 107 103-
--- ---------------s.106 3~.
- - -- - - -- - - s lll .(g) & (h) ... 75
TRANSFER OF PROPERTY AcT, S. 53-A-S. 58, clause (C) as amended by
Ame1tding Act 20 of 1929--Sal~. hottse and site, by registered
deed-Contemporaneous agreement for resale--Evidence, admis
sibility of, to prove transaction a mortgage-HusbatJd of plaintiff,
whereabouts unkmrwn, 110t joined as party-Burmese Buddhist
couple, not agent for each other-Co-owne1ship, extent of rights
to Prope,ty. Held: By proviso to cia se (c) of s. 58 of the
'fransfer Of Property Act inserted by Amending Act 20 of 1929 no
~"idence is admissible to prove a sal~ of house and site by
registered deed was converted into a mo:-!ga~e b} an agreement
fer resale executed contemporaneously. S. 53-A, Transfer of
Prvperty Act cannot be relied uron as a defence. Maung Shwe
Phooand eight others v. MauaR Tun Shi11 and three others, 5 Ran .
644, referred to. Held: A Burmtse Buddhist wife ha:; a vested
interest in property acquired by her husband but she is not a co-
owner in the sense that during the subsistence of the marriage
she can claim partition of the property. There is no presumption
de facto. or de jure that a Burmese Buddhist co:1ple living
together are authorized agents for each other. A Burmese Bud-
dhist wife car.not file a suit for possession of propertv s~ld to her
husband wiU10ut joining her hl!Sbi:md as co-plaintiff in the suit.
N.A.V.R. Chettyar Firm v. Matmg Tlw11 Daing, 9 Ran 524,
referred to.

D AW SAR YI v, 1\L\ THAN YIN 44

TRANSFER OF PROPERTY AcT, s , 54-Sale of immoveable: property below

K 10(/ w valtte.:..:..;Real delivery of possession n11d not co1rstructve
must be giveT- lf registe1 cd necessity for ,-~gist1a/iM must be
determined by . valu~ . of property i1ttolvcd and 1101 by t Tte
con.;ideratioJ~ mentioned w the deed. V'Vhen a person already in
possession of immoveable property worth below K 100 purchased
that property the acts and dedarations of delhery of possession
must be unequivocal and .for the purpose of s. 54 Of the T ransfer of
Property Act, the delivery must be Feat and that some sort of Cl)n
strllctive possession is not sufficient. Mt. Sarja t~tzd anot herv. !Jf t .
Julsi and auother, !L l .R. (1926) NaJ?;. 93; Biswa,zath Prasad v.
Chandra. Nllrayan Cho-wdhury, 4H Cal , 509-48. Jnc~lian Appeals
127, referred. The necessi!y for registration must be determined
by the value of t he property involved and net by the amount
mentioned i n the deed .Gotal Das v. Mst, Snkiua Bibi, 16 Lah.
177, followe d . A point of Ia~ arising from facts admitted or

.
proved beyond COJ:ltroversy, tho~gh not rai!'ed either in the trial
CQurt or in the lower apptll!te Court C<tn be raised 'for the
first.tin.le in second appeal..,
. . .
.

b THA Z~N ~~n ~wo ~THERs v. U TuN Z AN A ND ON E

..

~-1-3

l>
1 GENERAL INDEX
- f ..

t PAGE
TRANSFER oF PJWPERTY ACT, s. 60-Surt for Parlial redemption-
. Prior Sliit for PMt it ion not uecessary~ W /z rn all/ h-e 11ecessar y
parties are ftlly imPleaded it~ the suit. When a mortgagee
acquires a portion of the mortgaged property by inheritance the
prvvisions of the' last parngraph (If s. 60 of the Transfer of Property
Act are applicable so as to.allow redemption Of '<'l portion only of
Jhc mort~aged property. Hanrida Bibi v. Ahmed Husain, 31 All .
335 : Zafar Ahsan v. Zttbaida Kltnttmr, A. l. H. (192-J) All. 604,
followed. Suit for partial redemption is a combination Of a suit
for redemption ann a suit for contribution ; a decree for redemp-
tiO;l on payment of proportionate share of the mortgaged money
::an be given 'v\rhen all the partie:> interested in the redemption
are represente<J.. Thillai Clietti v. Rama11afha A.vvan, 20
Mad. 295. distingt.ished.
DAW SAUNG AN D FOUR OTHERS V , MA THAN AND NIN E OTH.EPS 160
TRA~SFER OF PROPERTY ACT, S. 69 (2) {a' .ANO (b) - Mortgagora11d
morfgagee-Rel.atiotzs!tip of a gl'1tCy-Sale of property, conditions
requisite for exercise of right of sale by mortgagee-Three months'
Notice, inzPeratit:e-/lfutzicipal taxes in drrears-Agreement
empowering mortgagee to sell it~ t /lat event irrevocable7 Cotzl-ract
Act, s. 202. Held: The provisions of s. 69 (2) (a) of the Transfer
of Property Act are imperative and the three months period
prO\ided therein cr\nnol be curtailed by agreemen t between the
parties that when the mortgagor is in arrears in respect of pay-
ment of :nterest or Municipal taxes the property mortgageq may
be sold by the mortgagee' without the in't erveution of the Cou1 t.
Babau11ya Mohid~n ShaP.kar and others v. Jeltangir Dinshaw
Belgaum Wallalt, A.l.R. (1941} Bom. 339, followed!. : Held also:
Under s. 69 (21 lb) cf the Transfer of Property Act ~nterest
amounting to at least Rs. 500 must be in arrears before the
right of sale of property can be exercised. Held further: Where
a party conte\}ds t hat the provisions of s. 69, Transfer of Property
Act restricts t he power of the par ties to enter. into a contract, the
burden . is on hir;n to show that restriction. The law permits the
greate st of freedom Of contract between adult parties, and an
agreement so mad<> is irrevocable under s. 202 of the Contract
Act. !Jfulraj TTirji v. Nainmal ..PrataPmal and others, A.I.R.
(1942) Bom. 46; followed.

U MIN SEIN tt, MOHAMED SHAJI'l AND ONE 130 (I

UNION jUDICIARY AcT, s. 5-Certificate of filness-S. 7., The National

Etnblems{Restriction of Display) Act, 1954, petition f or Transfer
and trial of cases to Hig/z Cout'l under s. 135 (1 ) and (2) of the
Constitution-Dismissal order, whetlter "final order" withi1t the
ambit of clause (a) of s. 5 of tlze Union Judiciary A.ct-Obitum
dictum, not a "fittal deci#on' or ''final order: The applicants
were prosecuted before the Western Subdivisional Magistrate,
Rangoon under s . 7 of the .Kational Emblems ( R~trlction c.f
Display) A.ct, 1954 . Pending the trial, they applied to t ile High
Court for transfer and for trial of t heir cases in the High Court
under s. 136 (2) of the Co'lstitution. Their application was
dismis~ed . . The applicants then m ade au applic ati,.m tinder s. 5
of tJ?.e {Jnion Judiciary A.ct, 1948 for a Cer~ificate of fitness to
appeal to t he S.upreme C'ou rt against the dismissal order, u~ging
that the said order tantamounts to "firial order" within the
ambit of Glause {a) of s. 5 of the U'filon Jud,i<:iar y A:Ct. . Held~
An appealli~s to the Supreme Court f rom ".final order~ of tlf'
High Court in a: criminal case whieh in \'olves the qu~stion of
. . . ..
 GENERAL INDEX li
PAGE

constit .tionality of auy Jegislathe enactment. Obsen-ations

made obiter dictum cannot be said to be a "nual decision <ft" final
order." The only question concerned was whether the applicants'
case was~a fit case for transfer to the High Court und~:r s .135 (2)
of the Constitution. The order rejecting t11e application ts not l
fir.al order which~ n\ohes the question as to the Yalidity of allY'
law ha\'ing reg:ud to the prO\ ision~ of the Co,..stitution within
the ambit vf clause(a) nf s. :. of the Unio:1 J:tclici:.uy .-\d. Per
U SA~ :\!AUNG, J.-The High Court does not have exclusive
original jurisdiction in resp::ct of an~ case invoh in~ a
question as to the validity of any law hadng rcgard to the p (f.
visi;)ns of the Constitution, except as laid down in sub-s.
(1) of s. 135 of the Constitution of the Union of Bnrma. \Vhen
an application for transfer is made und r sub-s. (2) of s. 135,
what I he J udge has to consider in the first place is whether
Prima facie the c:1se involves or is likely to inYolve such a ques-
tion. H so satisfied, the case h.'\s to be transfered and tned in
the High Court, and then and then only can there be a decision
of the High Court regarding the Yalidity Of the bw s:>ught to be
imp ~tgned as against the provisions of the .Constitution. The
order of the Judge refusing to t.r ansfer the cast: to the High
Court c:tnnot be a final order of the High Court.
THAKIN LWI:-< A':'\DTWO OTHERS 'V. THE U~ION OF BURMA ... 299
CNION JUDICIARY Ac1', s. 5 (b; ..1.~0 (c)-Issue of cettijicate for leave
.to appeal to the SuPreme Coud-Civil Procedure Code, s. 109 (c)
-Unio1t of Bt~rma (AdaptatiotJ of Laws) Order, 1948. Held:
An application for the issue of a certifi(" ate to appeal to the
Supreme Court will not lie tmder clause;> (b) and (c) of s. 5 of the
Union Judiciary Act in that the judgment and decree against
which the appeal is to be laid was nc)t in respect of or related to a
subject matter the value of which is Rs. 10,000 or more. Held also:
S. 109 of the Civil Procedure Code as modified by ij1e Union of
Emma (Adaptation .of Laws) Ordt:r, 1948 w:ls an earlier tegisla-
tiou as far as the Union Judiciary Act is conc~ rned, and the
plain mea11ing of the latter determines the application oninflu-
enced b.- the consideration whether s. 109, Civil Procedore Code
has been repealed. Sei Cheng v. U Tll eit~, (. 9~81 B.L.R.
600, referred to.
HAJI ABDUL SHAKOOR KHA~ v. THE BURMA PuBLISHERs
Ll'O., RANGOON 59
UNI ON OF BURMA (AOAI!TATION OF LAWs) ORDER, 1948 59
UNLAWFUL AssOCIATIONS AI>T 1 s. 1_7 (1) 184
UNLAWFUL ASSOCIATION AcT, 1908, s. 17 (lJ'"-Burma Act LXI of
1954-Tfte Unlawful Associations (Amendme1~t) Act, 19$4-Trial
of~(arrant case a.s asummo:ts case-Not merely an irregularity
but at~ illega~ity incttrable under s. 537, Criminal Procedure
Code. Ileld: The trial of a warrant case as a s . mmons case is
not merely an -irregularity bJt an illegality, incurable .by s.537,
,. Criminal Procedure Code or any of the curative provision:> of the
-. Code. The irregularity am::mnts to an illegality and vit.iates the
trial. Su!al Golai-v. Emperor, A.I.R. (1938) Cal. 205 -; Mangi
Lal v. Efnperor, A.I.R. (3?) (1945) All. 98, followed.
tlNION OF BURMA v. M'Af1NG N'YDN . 312
:..' URBA~.ENTCo~R~L AcT, ss.M. (1) Cdf& :14 P>
- .... . 1"99
Iii GENERAL .tNDEX

PAGE

tJRBAN RENT ~JSTROL AcT , S. 11 (1) (a) ~~

s. l l (1) d} 53
-~- s.14(1i <1; 14-
URBAN~REl\T CoNTROL ACT, s.ll (1) (a -Transfer of Property Act, s.
111 (g) (h)-House, sttif for declaration of ownership and Posses-
sion- Absence of tzotice in writit:g to determine lease-
UnauMzorised extension to house not made specific ground for
eviction. Held : Though the house was extended .tl considerable
cost as it was u nauthorised, the extended building must be
declared to be the property of the lessor . Fakier Chan v. Kewal
Ram and atJotlier, (19 121 16 I.C. 633, followed . Held: I n the
absence of a notice in writing b y the lessor t o t .e lessee
to determine the le.tse, tl:e lessor cannot sue for and obtain
possession of the lea~ ed house. Held also : As it was not
made a basic g10uncl fo r ejectment the unauthorised extension
to the buildinl.'! cannot be invoked as ground under s. 111 (h)
of the Tral'sfer of Propert y Act for termination l f the lease
and ejectment oi the lessee. Maung K!tin Naung v . Daw Hla
Yin and one, 11948) B .L . R. 481, discussed.
KlM SOON AND ONE BY AGENT CHI:-1 K A:\1 v. CHIN HWET (a)
MAUNG SEIN . . 75
URBAN RENT CoNTROL AcT,s. 11 111 (n}- Transfer of ProPerty Act,
s. 106-Lease of rooms- Suit for eviction-Written 11otice , ueces-
sity of-:- Contract Act, s. 56- Frustration, when aPPltcable to
leases-Suit, determinutiou of, on point not raised speczfically in
pleadtngs, not permissible. Held: As a valid leCISe was adltu itfed,
possession of the suit premises can be obtained by filing a s uit
under s. 11 (1) ~f the Urban Rent Control Act after notice .under
s.106, Transfer of Prorerty Act. T. H.Khan v . Dawood Yusoof
Abowatlt and other s, (19471 RL.R. 354; Sahu Anan.tSarupv.
S. Taiyab Hasau, A.I .R. .(1943) All. 279, refe rred to Held al:;o:
It isonlv under \ ery special circumstances that the doctrine of
frustration applies to leases. OccupJ.tion of a town by insur;.:ents
is only a temporary phase not comparable to occup;ttion .by
enemy force~, in which event the doctrine can be invoked,
K. M. Modi v. Mohamn1ed Sidd,ique and one, ( 1947) R.L.R. 423;
Rangoon Teteph.o.ne Co. Ltd. v. Union of Bur.ma, ( 1948) B.L.R
527, followed . Held furt her: A party should be allowed to
win or lose 011.a cas e set :Out in h~s pleading and it is not the
function of a trial or an appellate Court to make out a case
different f rom the one set o ut. A S.P S.K~ R. Karuppan Chettyar v.
A. Cltokalingam Chettyar, (1949), B.L .R. 46, referred to.

DAw, Pu. v: K o DoN 3S

URBAN RE:Nl' CONTROL AcT, s. 11 (1) (di-Expres~iOit" building or

builaittgs " whether conftmd to reside11tial or dwelling houses
only- Expressiol: bo,,t} fide "-Di'edning of, by reference to
context. Held: There is nothing in clause (dJ of s. 11 (1) of
the Urban R:nt Contr ol 'Act w hich wou!;i defin.itely sugg~st that
the building must ncc<ssarily ~e a cl\vel ling house or a place of
rest and abode. S in Tek v, La'kha11y Brothers, Civil l st.Appeal
No. 19of 1951 (H.C.) ; Richards v. Sw'lw sea. lmPrQVemctit and
Tramways ~o . ( ll\78)~ .~ .0. 425; Ko Walz Nah v. Ko Tun ein
a mltwoothers;-(1 951}1 B>L.R 188, fd!lowed. . Bcld -also: -The
expression bo71a fide'' in darse (dJ of s. 11 :(1) of the Urban
 GENERAL INDEX liii
PAGE

Re,. l Contrc l :\ci will h a \e t.; te read i:' tit.: , ._. n:<.:-:t in \\'hie!:.
that ~xp ressi<J !l appears t c .'bt<d n i1s rt <<l n;<: .tn'n g . C. Ah Fvung
(a) Cfto-;;. Fu ng Ma v. K. Mc1 ~:i!1E al Kak,1 ,1 :;/. f ~o d.'i d ' S , [1950)
B.L. R. 346. follow ed.

D.1.w THEIN KHt.N , ., .\BDt.:L JABBER A:\V OJS'E .. 53

URI~AN "'
R E;-;T CO:\TRoL AcT, s. 14 (1)-Comprolllise decrce-l'ayme11t
of future rents, whether c1n order wit/tit~ ambit of section-
Discretion of Court, e:~.tent of, under s. 14. Held: S. 14 (1) of
the Urban Rent Control Act makes no ptovision for the payment
of future rents, and the stipulation for the payment Of fuhm:: rents
in the consent decree must be considered to be a matter extr:!n-
eOllS to the purpose Of s. 14. Bhc:gce Ram v. U BaSo alldone,(l949}
B.L.H. 565, iollowed. Held c1lso: An order passed under s. 14
11) , Urban Rent Control Act is appealable both on fact and law
vide s . 15, but no appeal lies against a consent decree vide s. 96 of
the Cidl Procedure Code. Where a compromise petiti011 is filed
the Court has no alternative except to pass a decree in terms of
the compromise, but the Com t under .s. 14 (1) of the Urbail Reut.
Control Act has a discretion to pass such order as it might
think fit and reasonable. In re South Americatzand Me:~:iwnCo.,
( 1895) 1 Ch. D. 37 ; Neale v. Gordo11 Lennox, (1902) A C. 465, dis-
tinguished. Ht:Zd furt Iter: S. 14 (1), Urban Rent Control Act con-
fers a distin~tive rigJ1t upon 1h~ judgment-debtor, and a heavier
burden than that provided by the section cannot be imposed upon
him.

CHA~DRADH AN SINGH v. KISllORE CHAND MINHAS 14

URBAN RENT CoNTROL ACT, 1948, S. 16-Jts object-Relief must be

sPecificallY asked for-Court cannot .$pell out a new case different
f rom the plaint- Monthly Leases (Termination) Act , 1946(Burma
Act No. XL I X/46.).:--S. 42, Specific Relief Act, Provrso-
Consequet~tial Relief - Payment of additional COrt Fees before
aPPellate Court-order 21, Rule 63', Civil Procedure Code. The
Urban Rent. Control Act, 1948 has a retrospective effect in view
of the fact that the object of the Act was to provide relief and
protection to the tenants. Tai Chuan & Co. v. Chan Seng Cheong,
(1949) B. L.I~. 86 (S.C.), referred to. No Cou'rt can gite a plaintiff
any relief which he has n ot specifically asked for nor can it make
out a case for the plaintiff. different from what be has set out ill
. the plaint. A.S.P.S.K.R. KaruPPan Clteltyarand OJte v. Clzokkalin-
. gam Chelliar, (1949) B.L R 46 (S.C.), followed. S. 42 of the
Specific Relief Act is exhaustive of the cases iu which a decree
merely decl.tralory can be mad'e, and the Courts h.a ve no power
to make~uch a decree independently of that section. P. C. Thetar
v. Samban a11d others, I.L.R. Ran. Vol. 6, 188, referred to.
Proviso to s. 42 of the Specific Relief Act must be adhered to
strictly and that its provisio!:s are paramount and the co.nse-
quences of non-compliance with.them cannot be avoided. In a
suit for a bare dedar ation of title to land in the possession of the
de[endant, the plaintiff is not entitled to convert his sttit to one for
possession by payment of additional Court l''ces. Chokalit'-
gapes'zana Na.icker v. Achivar a~td others, I.L.R. 1 Mad. 40,
.affinne1. Even in suits under Order 21, Rule 63, Civil Procedure
Code, th e plaiutiff's.suit for bare declaration would be barred by
the Proviso to s. 42 of the Specific Relief Act if lse is abl e to seek
further relief than a mere declaration and omits t.l do so.
U Po T!tein and others I . O.A;p.K.R.M. Firm, UJ.R. 5 Ra,n. 699,

.7
 liv GENERAL INDEX

affirmed. Tht cldl cts are fundamental and not m~rely techni!al.
An appellate Court cannot make an oz:der for payi~ent ot an
additioJ;~al Court Fee where no fees at all has been paid and
where the original Court has riot d~cided the q~testion vf
valuation. lrlutltu Erulq.pp.z Pillai a1Jd anolher v. Vunuku
Th.,athayya Maistry, A.I.R. (1917 Lower Burrria 179 (2), affi~ed.
Permission for payment of an additional Coul-1 fee in appeal
disallowed.
U TAW v. THE BANK OF CHETTINAD LTD,, BY ITS MANAGER,
S. ANNAMALAI CHE'fTIAR 36-8
.,_ VALUE"bF APPEAL-BELOW K 500 13-]
""WAGING WAR AGAINST GOVERNMENT 7
WARRANT CASE "fRIED AS SUMMONS C-\SE-NOT MERE IRI~EGUI.ARITY
BUT ILLEGALITY INCURABLE UNDER s. 537, C RU!INAL PROCEDURE
CODE . . 312

WJ.TNESSES-EX,\MINATION BY COMMISSION . .. 123

WITNESSES IN INDIA-Issue of comm~ss1on for examination of-
A,pplication filed by defendant tJOI same as one ftted by. plaintiff-
DelaY immateriul-Revision of order .refusing application-:
S. 115, Civil Procedure Code atJd s: 25, City Civil Cotlrl Act_.
is
Held: Delay not material in considering. t-he issue Of a C9mrr.is-
sion for tl}e examination of a defendant. Failure 'to distingui.sh
between applications for the issu~ of a commission on the part
of t_he plaintiff at~d of the defendant is an . .irregular exercise of
jurisdiction for which the High Com t .can .interfere in revision.
1ag anrJat-ha Sastrt v. Sar.afh ambal A mmal and two otJt.e,-s,-.1. L.R.
46 Mad. 574 ; M.Palaniappa Chcttiar .v. Naray.fma.n . Chettiar,
A.LR (1946} Mad. 331,.referred to . Raiagopalf4 Pillai.v, Kasi~.is:"_
va.,.athan Ch_ettiat, I.L.R. (1933) M?d. 705, followed. Bt:ld
"further : Assuming that the High Court cannot int~rfere in
. _revision agaiifsfan interlccutory order of the - subordina.t~ Court
'relating to the issue of a commissi.o.n under s. 115 of the Cidl
Procedure Code, the High Court can db so nnder s. 25 of-the City
Civil Court Act. Ma Tltt~1z J'iiJ v. Tmt Keat Khetf{!.,:. (a) . Tan
"Keit Scin, (1951} b.L.R. 161, referred to. -~:."$

P. A.- M. ABDUL .KADER AND 'fEN OTHERS s.

v. M. M. M!)FHDF.EN
. . F)RM 8Y PROPRrET?R S. i\IL :NAG<?OR MEERA A~?: S 1~-?-THEltS.,
1