U Kyaw sold his land to U Aung with a Contract of sale.

After accepting the documents of

title relating to the property.U Aung goes an important trip he will accept the land after he
has arrived from the trip.During that time,U Maung intervenes and tries to passess that
land by illegal means.Who has the duty to custody that land to be intervened by the
other?Answer with revelant provision.(Chapter-3)
Your answer is correct.
U Kyaw has the duty to custody that land not to be intervened by the other.Because U
Maung intervened and tries to possess that land by illegal means.
In given problem,U Kyaw sold his land to U Aung with a Contract of sale.After
accepting the documents of title relating to the property.U Aung goes an important trip he will
accept the land after he has arrived from the trip.During that time,U Maung intervenes and tries
to possess that land by illegal means.
A contract for the sale of immoveable property is a contract that a sale of such property
shall take place on terms settled between the parties.
Rights and liabilities of buyer and seller
S. 55. In the absence of a contract to the contrary, and the seller of immoveable property
respectively are subject to the liabilities and have the rights, mentioned in the rules next
following or such of them as are applicable to the property sold;
(1) The seller is bound
(a) to disclose to the buyer material defect in the property or in the seller's title there to of which
the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care
discover;
(b) to produce to the buyer on his request for examination all documents of title relation to the
property which are in the seller's possession or power;
(c) to answer to the best of his information all relevant questions put to him by the buyer in
respect to the property or the title there to;
(d) on payment or tender of the amount due in respect to the price, to execute a proper
conveyance of the property when the buyer tenders it to him for execution at a proper time and
place;
(e) between the date of the contract of sale and the delivery of the property, to take as much care
of the property and all documents of title relating where to which are in his possession as an
owner of ordinary prudence would take or such property and documents;
(f) to give, on being so required, the buyer, or such person as he directs, such possession of the
property as its nature admits;
(g) to pay all public charges and rent accrued due in respect of the property up to the date of the
sale, the interest on all incumbrances on such property due on such date, and except where the
property is sold subject to incumbrances, to discharge all incumbrances on the property then
existing.
(2) the seller shall be deemed to contract with the buyer that the interest which the seller
professes to transfer to the buyer subsists and that he has power to transfer the same.
 Provided that, the sale is made by a person in a fiduciary character, he shall be deemed to
contract with the buyer that the seller has done no act where by the property is incumbered of
where by he is hindered from transferring it.
Provided that, (a) where the seller retains any part of the property comprised in such
documents, he is entitled to retain them all, and (b) where the whole of such property is sold to
different buyers, the buyer of the lot of greatest value is entitled to such documents. But in case
(a) the seller, and in case (b) the buyer of the lot of greatest value, is bound, upon every
reasonable request by the buyer, or by any of the other buyers, as the case may be, and at the cost
of the person making the request to produce the said documents and furnish such true copies
there of or extracts there from as he may require; and in the meantime, the seller, or the buyer of
the lot of greatest value, as the may be, shall keep the said documents safe, uncancelled and
undefaced, unless prevented from so doing by fire or other inevitable accident.
Conclusion
After accepting the documents of title relating to the property.U Aung goes an important
trip he will accept the land after he has arrived from the trip.During that time,U Maung
intervenes and tries to possess that land by illegal means.In this problem U Kyaw has the duty to
custody that land not to be intervened by the other. He keep the said documents safe, uncancelled
and undefaced, unless prevented from so doing by fire or other inevitable accident.
DL-6105 - AS-2
U Min Min hired U Chit,s firm to cultivate the crops with a contract for lease.But in their
contract,specific time for ending the tenancy was not mentioned.The tenancy began on
14.2.2011.Since U Chit did not have the desire to land his farm for the next year,he gave a
notice to quite that was affixed on the main door of the leases house on 2.8.2011.After six
months,U Min Min prepared to cultivate the rice again instead of removing from the
farm.When U Chit claimed to leave from his farm,he replied that the notice was invalid.
Discuss wheather that valid or not.(Chapter-5)
Your answer is correct.
Yes, the notice was valid because U Chit sent the notice within six months. Although U Chit sent
within six months the notice was invalid. Because he sent the notice by other ways without
witness,I assume .He gave a notice to quit that was affixed on the main door of the leases house
on 2.8.2011. If they contract under section 107,U Chit claimed to leave from his farm end of the
year.Because they was not mentioned ending the tenancy.U Min Min does not prepared to
cultivate the rice.The notice is valid.
In given problem,U Min Min hired U Chit,s farm to cultivate the crops with a contract for
lease.But in their contract,specific time for ending the tenancy was not mentioned.The tenancy
began on 14.2.2011.Since U Chit did not have the desire to land his farm for the next year,he
gave a notice to quit that was affixed on the main door of the leases house on 2.8.2011.After six
months,U Min Min prepared to cultivate the rice again instead of removing from the farm.
 A lease of immoveable property is a transfer of a right to enjoy such property, made for a
certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or
of money, a share of crops, service of any other thing of value, to be rendered, periodically or on
specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
The transferor is called the LESSOR, the transferee is called the LESSEE, the price is called the
PREMIUM, and the money, share, service or other thing is called the RENT.
In the absence of a contract or local law or usage to the contrary, a lease of immoveable
property for agricultural or manufacturing purposes shall be deemed to be a lease from year to
year, terminable, on the part of either lessor or lessee, by six months notice expiring with the end
of a year of the tenancy; and a lease of immoveable property for any other purpose shall be
deemed to be a lease, from month to month, terminable, on the part of either lessor or lessee, by
fifteen days notice, expiring with the end of a month of the tenancy.
Every notice under this section must be in writing, signed by or on behalf of the person
giving it, and tendered or delivered either personally to the party who is intended to be bound by
it, or to one of his family or servants at his residence, or (if such tender or delivery is not
practicable) affixed to a conspicuous part of the property.
According to the provision of section 106 a notice to quit must satisfy the following requisites:
(1) Notice to quit in periodic tenancies.
(2) Form and construction of notice to quit.
(3) Service of notice
In the case of periodic leases, the common law rules as to notice to quit is that reasonable notice
must be given to determine the tenancy.
Agricultural or manufacturing purposes are deemed to be yearly leases; and in the case of yearly
leases a half year's notice to quit at the end of some year of the tenancy has from early times been
held to be sufficient. If the tenancy is a monthly tenancy a notice must give the tenant 15 day's
notice. The section fixes six months for yearly and fifteen days for monthly tenancies created by
implied demise.
Notice to quit may be served. (A) by post or (B) at the residence or (C) by other ways.
Service by Other Ways
If the above mention modes of service fail, personal service may be on the lessor. The
lessor shall be affected by nailing or affixing the notice on the main door of the lessee house.
A lease immoveable property from year to year or for any term exceeding one year or reserving a
yearly rent, can be made only by a registered instrument.
The lessor shall be affected by nailing or affixing the notice on the main door of the lessee house.
In the case of periodic leases, the common law rules as to notice to quit is that reasonable notice
must be given to determine the tenancy.
Conclusion
 Above the mention,the notice is valid.U Chit sent notice to U Min Min after six months
and they was contract. He gave a notice to quite that was affixed on the main door of the leases
house on 2.8.2011.He sent notice by other ways without witness.So the notice was not valid.But
they contract under section 107,U Chit claim to leave from his farm end of year and U Min Min
does not prepare to cultivate the rice.The notice is valid.
DL-6105 - AS-3
Mr.William ,a citizen of China,was married to Ma Thet,a Myanmar girl,and lived in the
Myanmar.He purchased two acres of U Kyaw's land to build a big house for his family.But
he could not afford to continue to be a legal land owner.When his son,U Maung,reached
the age of majority,he applied a grant for such land.Discuss whether U Maung can be
allowed to get the grant or not.(Chapter-3)
Your answer is correct.
No, U Maung cannot be allowed to get the grant.Because Mr.William could not afford to
continue to be a legal land owner and he is a citizen of China. A foreigner shall transfer any
immoveable property by way of sale, purchase, gift, acceptance. (The Transfer of Immoveable
Property Restriction Law 1987)
In given problem, Mr.William ,a citizen of China,was married to Ma Thet,a Myanmar
girl,and lived in the Myanmar.He purchased two acres of U Kyaw's land to build a big house for
his family.But he could not afford to continue to be a legal land owner.When his son,U
Maung,reached the age of majority,he applied a grant for such land.
"Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid or
part-promised. Such transfer, in the case of tangible immoveable property of the value of one
hundred thousand Kyats and upwards, or in the case of reversion or other intangible thing, can be
only by a registered instrument.
A contract for the sale of immoveable property is a contract that a sale of such property
shall take place on terms settled between the parties. It does not, of itself, create any interest in or
change on such property.
According to Restriction relating to Immoveable Property, No person shall transfer any
immoveable property by way of sale, purchase, gift, acceptance of a gift, mortgage, acceptance
of a mortgage, exchange or transfer and acceptance of a transfer by any other means to a
foreigner or a company owned by a foreigner. No foreigner or a company owned by a foreigner
shall transfer any immoveable property by way of sale, purchase, gift, acceptance of a gift,
mortgage, acceptance of a mortgage exchange, or transfer and acceptance of a transfer by any
other means.
Conclusion
According to above the mentions, U Maung cannot be allowed to get the grant. Because
Mr.William ,a citizen of China.
DL-6105 - AS-4
U Kyaw Thar owns a new apartment in Hlaing Township Daw Thu Zar wanted to lease U
Kyaw Thar's apartment to live with her family.But she did not make a lease contract for
such apartment.U Kyaw Thar and Maung Thaw,minor son of Daw Thu Zar made the lease
contract for such apartment.Can Maung Thaw be a valid lessee for renting that
apartment?Discuss.(Chapter-5)
I would like to answer,No,Maung Thaw can not be valid lassee for renting that
apartment.Because he is minor son of Daw Thu Zar.According to Sec: 107 a lease of
immoveable property Acts.
In given problem,U Kyaw Thar owns a new apartment in Hlaing Township.Daw Thu Zar
wanted to lease U Kyaw Thar's apartment to live with her family.But she did not make a lease
contract for such apartment.U Kyaw Thar and Maung Thaw,minor son of Daw Thu Zar made the
lease contract for such apartment.
There must be a lessee, who is capable of taking the thing demised. A lease executed in
favour of a minor is null and void and does not confer any right or title on lease Section 107 does
not apply to transferees. Both the sale to a minor and a mortgage to a minor are valid. But it has
been held that a lease to a minor is void as the lease imports a covenant by a minor to pay rent
and other reciprocal obligations. According to Sec: 107, a lease of immoveable property must be
made by a registered instrument.
This section must be read as supplement to the Registration Act.
Sec: 107 does not lay down that a lease of immoveable property can be made only by a
registered instrument, but it can be made only by a registered instrument in three cases.
(a) a lease from year to year
(ii) a lease for any term exceeding one year and
(iii) a lease reserving a yearly rent.
Maung May and one (appellants) Vs. U Ba Thwe and one (Respondents) 1950 B.L.R. 71.
Held: that a lease is defined in S.105 of the Transfer of Property Act. Under S.107 a lease of
immoveable property from year to year for any term exceeding one year can be made only by a
registered instrument and all other leases of immoveable property may be made either by a
registered instrument or by oral agreement accompanied by delivery of possession.
A lease implies that there should be two parties the lessor and the lessee and the
instrument of lease contains covenants that both the lessor and the lessee agree to. Therefore a
lease can not be affected unless the lessor is a party to the instrument of lease. As Exhibit A in
the case was signed by one party only it can in effect be no more than an agreement to lease.
Conclusion
Above the mentions, Maung Thaw can not be valid lessee for renting that apartment. A
lease to a minor is void as the lease imports a covenant by a minor to pay rent and other
reciprocal obligations.
 Chapter 1
Definitions and Meanings

Contents Pages
1.1 Immovable Property 2
1.2 Attached to the Earth 3
1.3 Notice 8
 2

Definitions and Meanings

1.1 'Immoveable Property'

According to section (3) of the Transfer of Property Act, 'immoveable

property' does not include standing timber, growing crops or grass.

We can find this definition in another Act, that is The Registration Act

in which section 2(6) provides as follows:- "Immoveable property" includes

land, buildings, hereditary allowances, right to ways, lights, ferries, fisheries

or any other benefits to arise out of land and things attached to the earth or

permanently fastened to anything which is attached to the earth but not

standing timber, growing crops nor grass.

(The Registration Act)

 3

1.2 Attached to the Earth S.3

"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;

 4

(c) attach to what is so imbedded for the permanent beneficial

enjoyment of that to which it is attached.

ဂ

In order to determine what is or what is not immoveable property as

result of attachment or annexation to land, two tests have been laid down, (1)

The degree or mode of annexation and (2) the object or purpose of

annexation. The second test is more important for the purpose of annexation

is as long as it lasts.

-
 5

(Mode of Annexation)

(Object of Annextion)

(Standing Timber)

Kapurchand (Myanmar) Ltd vs The Myanmar National

Reforming Company and Others 1955 B. L. R. P. 278 (H.C)

'Petrol pump' whether immoveable property, "Immoveable property"

as defined in S.3 of the General Clauses Act includes "Land, benefits to arise

out of land and things attached to the earth".

1
Kapurchand (Burma) Ltd., V The Burmese National Reforming Co., & others; 1955 R-L. 278 (C.H)
 6

The meaning of the words "things attached to the earth" is also given

in S.3 of the Transfer of Property Act.

(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;

(c) attached to what is so imbedded for the permanent beneficial

enjoyment of that to which it is attached.

The petrol pump is a mechanical device set up on the road-side

pavement for the purpose of retailing petrol under licence.

The conditions of such as licence require that the petrol tank supplying

the whole contrivance, the reservoir of petrol below the surface of the public

pavement 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 licence under which they are permitted to retail petrol by

its use within the limits of the city of Rangoon. This licence together with the

merchanical device by which the licence is worked for profit cannot be

considered to be immoveable property. Thus, it can be seen that nowadays,

petrol pump is an immoveable property.

 7

1
 8

1.3 Notice

(Notice)

Section 3 A person is said to have "notice" of fact, when he actually

knows that fact, or when, but for willful abstention from an inquiry or search
which he ought to have made, or gross negligence, he would have know it.
An actual notice, to constitute a binding notice must be definite
information given by a person interested in the thing in respect of which
notice is issued, for it is settled rule that a person is not bound to attend to
vague rumours statment by mere strangers, and that a notice to be binding
must proceed from some person interested in the thing.
There are 3 kinds of notice namely (1) actual notice (2) constructive
notice and (3) notice to agent.
(1) Actual notice- A person is said to have actual notice of fact when he
actually know it. An actual notice to constitute a binding notice must
be definite information given by person interested in the thing in
respect of which the notice is issued, and it must be given in the same
transaction.
(2) Constructive notice- A person is said to have constructive notice of a
fact when but for (1) wilful abstention from inquiry of search or (11)
gross negligence, he would have known it.
(3) Notice to agent- Operate as constructive notice to the principle. The
principle of this rule is base on the maxium " Qui facit per alium facit
per se" ie he who does by another, does by himself.
 9

(Actual Notice)

(Constructive Notice)

) (Notice to Agent)

Explanation I – Registration is notice

(Registration is Notice)

Where any transaction relating to immoveable property is required by

law to be and has been effected by registered instrument, any person

acquiring such property or any part of, or share or interested in, such property

shall be deemed to have notice of such instrument as from the date of

registration or where the property is not all situated in one sub-district, or

where the registered instrument has been registered under sub-section(2) of

section 30 of the Registration Act, from the earliest date on which any

memorandum of such registered instrument has been filed by any sub-

Registrar within whose sub-district any part of the property which is being

acquired, or of the property where in a share or interest is being acquired, is

situated: provided that : -

 10

(1) the instrument has been registered and its registration

completed in the manner, prescribed by the

Registration Act and the rules made there under,

(2) the instrument or memorandum has been duly entered

or filed, as the case may be, in books kept under

section 51 of that Act, and

 11

(3) the particular regarding the transaction to which the

instrument relates have been correctly entered in the

indexes kept under section 55 of that Act.

(Indexes)

1
R. VAZ V. MONI SINGH A.L.R 1929, Ran. 34.
 12

Explanation II Possession amounts to notice

(Possession Amounts to Notice)

Any person acquiring any immoveable property or any share or

interest in any such property shall be deemed to have notice of the title, if

any, of any person who is for the time being in actual possession thereof.

-
 13

Explanation III Notice to agent

) ((Notice to Agent)

A person shall be deemed to have had notice of any fact if his agent

acquires notice thereof whilst acting on his behalf in the courese of business

to which that act is material.

Provided that, if the agent fraudulently conceals the fact, the principal
shall not be charged with notice there-of as against any person who was a
party to or otherwise congnizant of the fraud.

-
 14

Key Terms

immoveable Property -

attached to the earth -

permanent beneficial -

imbedded

mode of annexation -

notice -

actual notice -

notice to agent -

gross negligence -

possession amounts to notice -

 15

Assigment Questions

1. Explain "Immoveable Property with relevant cases.(1.1)

2. When is a person to be said to have notice of facts regarding

immoveable property?(1.3)

3. Registration is notice, explain.(1.3)

Short Question

1. When is a person said to have notice of a fact?(1.3)

2. Define: "notice" as used in the Transfer of Property Act.(1.3)

 Chapter 2

Transfer of Property by Parties

Contents Pages

2.1 Transfer of property Sec:5 2

2.2 What may be transferred Sec:6 4

2.3 Persons competent to transfer Sec: 7 7

2.4 Operation of transfer Sec: 8 8

2.5 Oral transfer Sec: 9 10

2.6 Transfers by Ostensible Owner Sec: 41 12

2.6.1 Benami Transaction 21

2.7 Transfer of property pending suit relating there to

(Lis-Pendens) Sec: 52 25

2.8 Part performance S.53 (A) 32

2.8.1 Essential Element of Part Performance 36

 2

Transfer of Property by Parties

2.1 Transfer of Property Sec: 5

In the following section "transfer of property" means an act by which a

living person conveys property, in present or in future, to one or more other

living persons, or to himself, and one or more other living persons, and to

transfer property" is to perform such an act.

။ -၅

၊ ၊

In this section "living person" includes a company or association or

body of individuals, whether incorporate or not, but nothing herein contained

shall effect any law for the time being in force relating to transfer of property

to or, by companies, associations or bodies of individuals.

 3

။ ၊

It will be observed from this definition that the term "transfer" is used

in the Act in its widest and most generic sense comprehending all the species

of contract which pass real rights or interests as they are called in the Act, in

property from one person to another. In fact, the essense of the word

"transfer" is to convey and therefore, a transfer of property would include not

only the five specific categories of transfer dealt with in the Act, namely sale,

mortgage, lease, gift and exchange, but any transaction which has the effect

of "conveying" any property or interest therein from one "living" person to

another.

A transfer of property may take place in present or in future, that is to

say, the actual conveyance of the property may take place in present or in

future, but the property itself must be in existence, at least potentially, as the

property of the transferor. The words "in present or future" govern the words

'conveys' and not the words "property". This is indicated by a common

occuring after the word 'property'. Therefore, it is clear that there is nothing

in this section to indicate that future property can be transferred.

။
 4

။ ၊

၍ ။

၍ ။

2.2 What may be transferred Sec: 6

Property of any kind may be transferred, except as otherwise provided

by this Act or by any other law for the time being in force.

။ -၆။

။ -

(a) The chance of an heir-apparent succeeding to an estate, the chance of

relatives obtaining a legacy on the death of a kinsman, or any other mere

possibility of a like nature, cannot be transferred.

။
 5

(b) A mere right of re-entry for breach of condition subsequent cannot be

transferred to any one except the owner of the property affected

thereby.

(c) An easement cannot be transferred apart from dominant heritage.

၍ ။

(d) An interest in property restricted in its enjoyment to the owner

personally cannot be transferred by him.

(dd) A right to future maintenance, in whatsoever manner arising,

secured or determined, cannot be transferred.

ဃဃ

(e) A mere right to sue cannot be transferred.

(f) A public office cannot be transferred, nor can the salary of a public

officer, whether before or after it has become payable.

 6

၊ ။

(g) Stipends allowed to military, air-force and civil pensioners of

Government and political pensions cannot be transferred.

၊ ၊

(h) No transfer can be made (1) in sofar as it is opposed to the

nature of the interest affected thereby, or (2) for an unlawful

object or consideration within the meaning of section 23 of

the Contrat Act, or (3) to a person legally disqualified to be

transferee.

၂ ၂

(i) Nothing in this section shall be deemed to authorize

a tenant having an untransferable right of occupancy, or

the farmer of an estate in repect of which default has been

 7

made in paying revenue, to assign his interest as such

tenant or farmer.

2.3 Persons competent to transfer Sec: 7

Every person competent to contract and entitled to

transferable property, or authorized to dispose of transferable

property not his own, is competent to transfer such property either

wholly or in part, and either absolutely or conditionally, in the

circumstances, to the extent and in the manner allowed and

prescribed by any law for the time being in force.

၊ -၇

၊ ၊ ၍

။
 8

2.4 Operation of Transfer (Sec: 8)

Unless a different intention is expressed or necessarily

implied, a transfer of property passes forthwith to the transferee

all the interest which the transfer or is then capable of passing in

the property, and in the legal incidents thereof.

။ -၈

Such incidents include, where the property is land, the

easements annexed thereto, the rents and profits therof accuruing

after transfer, and all things attached to the earth;

 9

၊ ၌

and, where the property is machinery attached to the earth,

the moveable parts thereof and, where the property is a house, the

easement annexed thereto, the rent thereof accuring after the

transfer, and the locks, keys, bars, doors, windows, and all other

things provided for permanent use therewith;

၊ ၊ ၊ ၊

and where the property is a debt or other actionable claim,

the securities thereof (except where they are also for other debts or

claims not transferred to the transferee), but not arrears of interest

accrued before the transfer;

။
 10

and,where the property is money or other property yielding

income, the interest or income thereof accruing after the transfer

takes effect.

2.5 Oral Transfer Sec: 9

။ -၉

A transfer of property may be made without writing in every

case in which writing is not expressly required by law.

 11

Condition Restraining Alienation Sec: 10

။ - ၀

Where the property is transferred subject to a condition or

limitation absolutely restraining the transferee or any person

claiming under him from parting with or disposing of his interest

in the property, the condition or limitation is void, except in the

case of lease where the condition is for the benefit of the lessor or

those claiming under him; Provided that property may be

transferred to for the benefit of a woman (not being a Hindu,

Muhammadan or Buddhist) so that she shall not have power

during her marriage to transfer or charge the same or her

beneficial interest therein.

၊ ၍

။ -

၊
 12

။ ၊ ၊

။
1

၂၆ ။ ၍

2.6 Transfers by Ostensible Owner Sec: 41

၊ -

Where, with the consent, express or implied, of the persons

interested in immoveable property, a person is the ostensible

owner of such property and transfers the same for consideration,

1
Ma Yin Hu and another V Ma Chit May 7 Ran. 306
 13

the transfer shall not be voidable on the ground that the transferor

was not authorized to make it: provided that the transferee, after

taking reasonable care to ascertain that the transferor had power to

make the transfer, has acted in good faith.

(Ostensible

(Co-shar

Where one man allows another to hold himself as the owner

of an astate, and a third person purchases it for value from the

apparent owner in the belief that he is the real owner, the man

who so allows to the other to hold himself shall not be permitted

to recover upon his secret title unless he can over throw that of the

purchaser by showing that either he (purchaser) had a direct

notice, or something which amounted to constructive notice of the

realtitle of that there existed circumstances which ought to have

put him upon an inquiry which, ifprosecuted, would have led to a

discovery of it.
 14

To summarise, therefore, for the application of S.41:

(1) A person must be an ostensible owner of the property.

(2) He must be such owner with the consent express or implied

of the real owner.

(3) The transferee must purchase the property from such

ostensible owner for consideration.

(4) Before taking transfer, the transferee must with reasonable

care, to ascertain that the transferor had power to make the

transfer, in other words he must act in good faith.

(5) The property must be immoveable property.

။
 15

၍ ။

၂ ၌ ။

- ၈

၍ ။

၍ ။

၍ ။

။
 16

1
၂

ဇ ။

ဇ ။

။ ၉ ၈ ဇ

ဇ ၍

Maung Sein Ba Vs Maung Kywe. I.L.R. 12 Ran, 55. In this

case the Appellant-Plaintiff Maung Sein Ba was a minor. He is the

only child of Maung Kywe and Ma Sein Hnya deceased. After Ma

1
Mg Tun Soe V. Mg Chit and two others 1954 R.L.R. 299 (H.C)
 17

Sein Hnya's death, Maung Kywe remarried Ma Shin the second

respondent. Maung Kywe and Ma Shin mortgage to the S.A.R.M

Chettiar firm, the third respondent, certain properties which

originally belonged to Maung Kywe and Ma Sein Hnya. However,

the Trial Court held that section 41 of the Transfer of Property Act

applied as the firm had taken to mortgage in good faith from the

ostensible owners of property.

The High Court also held that although it may be true that

Maung Kywe and Ma Shin may have always been in possession

of the property as owners, this plea of ostensible ownership is the

nature of an exception of the law and therefore the owner was on

it to prevent that the exception applied. In the present case it was

held that the Firm called no evidence at all.

The High Court also held that the Lower Court overlooked

the fact that to bring section 41 into effect the ostensible owner

must be in possession of the property with the consent, express or

implied of some other person interested in the immoveable

property and the child having been at all material time a minor

was incapable of consenting to his father helding himself out as

owner of the property.

 18

- ။

Maung Tun Soe Vs Maung Chit and 2 others, in this case

the plaintiff was one Daw Hmwe. The suit land together with the

house standing thereon was the property of Daw Hmwe and her

deceased husband U Po Hmyar. Maung Chit was the nephew of U

Po Hmyar, deceased. Sometimes after death of U Po Hmyar,

Maung Chit and his wife Ma Thaung were left in possession of

the house. The rents in respect of the house (part of which was

rented) was collected by Maung Chit who paid some to Daw

Hmwe while spending the rest. The house was assessed to

1
Mg Sein Ca V. Mg Kywe and others. I.L.R. 12 Ran 55.
 19

Municipal taxes in the name of U Po Hmyar and the taxes were

paid by Daw Hmwe.

In May 1948 Maung Chit and his wife Ma Thaung sold the

house to the defendant appellant Maung Tun Soe by a registered

deed of sale. This proceeding was a suit for declaration that the

house belong to Daw Hmwe. The Trial Court held that although

the house was the property of the plaintiff Daw Hmwe, she was

stopped from denying that her nephew Maung Chit and his wife

who were in possession of it all the time were the owners. He also

held that section 41 of the Transfer of Property Act applied in

favour of the defendant Maung Tun Soe.

On second appeal the High Court decided that "Looking at

the very deed of sale by which the defendant-appellant Maung

Tun Soe claimed title to the suit property, it is clear that section 41

of the Transfer of Property Act could not be invoked in his favour.

In the deed it is mentioned that the suit land belonged to U Po

Hmyar of whom Maung Chit claimed to be a son and that

property was given by U Po Hmyar and his wife to him as a gift.

In these circunstances and in view of the fact that the house was

still assessed in the name of U Po Hmyar, it was incumbent upon

Maung Tun Soe to make such inquiries as may be necessary to

 20

find out whether there had been a valid gift by U Po Hmyar to his

wife Daw Hmwe. No such inquiry was obviously made and

therefore it cannot be held that the proviso to section 41 of the

Transfer of Property Act has been fulfilled.

1
၂

ဇ ။

ဇ ။

။ ၉ ၈ ဇ

ဇ ၍

1
Mg Tun Soe V. Mg Chit and two others 1954 R.L.R. 299 (H.C)
 21

2.6.1 Benami Transaction

This is an expression to denote transactions for the benefit

not of the persons taking part in the transactions but of the person

or persons as person not mentioned. This type of transactions is

peculiar to our law. A sale is affected in the name of someone

other than the actual purchaser. The vendee mentioned in the deed

of sale is only an ostensible owner but the real owner is the person

who actually advanced money but for some reason did not

disclose his name. The ostensible owner i.e, the fictitious

purchaser is called the benamider. The purchase is termed a

benami purchase. In all benami transactions the real criterion will

be the question "where from the purchase amount came". The

presumption of law is that the person in whose favour the sale as

disclosed by the deed was effected, is proper owner but this

presumption is rebutted by proof that the sale was with the funds

of a real owner or the benefit of the real owner. In all these cases

the proof is on the person stating that the transaction is a benami

one.
 22

(Benami Transcation)

။ -

။ ။

- ၍

၍ (Ostensi
 23

၊ ။ ၍

။
1

၂၀၀၀ -

၍ ။

1
၀ ၉၆၉- ၊ ၊ ၈
 24

၅ ။

။ ၌

2.7 Transfer of property pending suit relating there to

(Lis-Pendens) Sec: 52

During the pendency in any Court having authority in the

Republic of the Union of Myanmar of any suit or proceeding

which is not collusive and in which any right to immoveable

 25

property is directly and specifically in question, the property

cannot be transferred or otherwise dealt with by any party to the

suit or proceeding so as to affect the rights of any other party

thereto under any decree or order which may be made therein,

except under the authority of the Court and on such terms as it

may impose.

-၅၂

(Lis Pendens)

Explanation - For the purposes of the section, the pendency of a

suit or proceeding shall be deemed to commence

from the date of the presentation of the plaint or

the institution of the proceeding in a Court of

competent jurisdiction, and to continue until the

 26

suit or proceeding has been disposed of by final

decree or order and complete satisfaction or

discharge of such decree or order has been

obtained, or has become unobtainable by reason of

the expiration at any period of limitation

prescribed for the execution thereof by any law the

time being in force. S.52 which renders a transfer

of any immoveable property during the pendency

in a competent Court of a suit or any other

proceeding in which any right to such property is

directly or specifically in issue, by any of the

parties to such suit or proceeding, subject to the

decree or order there may ultimately be passed in

such suit or proceeding. The effect of this rule

which is technically called the rule of "lis pendens"

is not invalidate or a avoid the transfer or to

prevent the vesting the title in the transferee, but to

make it subject to the result of the litigation, and

the rule would operate even if the transferee

pendente title (during litigation) had no notice of

 27

the pending suit or proceeding at the time of

transfer.

Where there is a suit or proceeding going on between two

persons with respect to an immoveable property, and one of the

parties thereto sells or otherwise transfers the subject matter of the

litigation, then the rule is, that the transferee will be bound by the

result of the suit of proceeding whether or not be had notice of suit

or proceeding. This rule is known as the rule of lis-pendens. This

rule affects the purchaser not because the pending suit or

proceeding amounts to notice, but because the law does not allow

litigant parties to give to others, pending the litigation, right to the

property in dispute so as to prejudice the other party. Thus the rule

of lis-pendens is based on the necessity for final adjudication; it

aims at the prevention of multiplicity of the suit or proceedings. A

transaction entered into during the pendency of a suit cannot

prejudice the interest of a party to the suit who is not a party to the

transaction. The object of the rule is to protect one of the parties to

a litigation against an act of the other.

၍
 28

The application of the lis-pendens are:-

(1) there must be pendency of suit or proceeding;

(2) the suit or proceeding must be pending into competent court;

(3) the litigation must not be collusive;

(4) a right to immoveable property must be directly and

specifically in question in that litigation;

(5) the property in dispute must not be transferred or otherwise

dealt with by any of the parties to the litigation; and

When all these conditions are fulfilled the doctrine of lis-

pendens will apply, and it will render the alienation subservient to

the ultimate result of the litigation.

။
 29

။
1
Ma Than Vs Maung Ba Gyaw case it was held that the

subject matter of the suit is land and valuation which the plaintiff

puts on the land is disputed and where the proper valuation is after

enquiry found to be beyond the pecuniary limits of the Court in

which the plaint is so presented without under delay, a transfer

made in the interval between the return of the plaint and its

presentation of the Transfer of Property Act.

S. 52 lis-pendens doctrine of "suit or proceeding" when can

be said to be actively prosecuted. Effect of transfer during interval

between return of plaint for presentation in proper Court and its

actual presentation in the Court.

1
I.L.R. 5 (Ran) 101
 30

၅၂

။
3
U Jone Bin and one Vs N.B. Sen Gupta case was held

that the doctrine of lis-pendents as embodied in S.52 of

Transfer of Property Act applies and that second appellant

being a transferee of the suit premises pendente lite was

bound by any legal decision against him transferor, the first

appellant, on the ground that he was not a party thereto.

4
၂ ၊ ၊

၅၂

-၂ - ၂၀၀၀၊ ၊ -၉

၅၂

2
Mg Than V. Mg Ba Cyan. I.L.R. 5 Ran 101.
3
1958. B.L.R. 555
4
U Jone Bin and one V.N.B Sein Gupta 1958 B.L.R. 555 (H.C)
 31

၅၂

၍ ၊

။
 32

၅၂ ။

2.8 Part performance S.53 (A)

Where any person contracts to transfer for consideration any

immoveable property by writing signed by him or on his behalf

from which the terms necessary to constitute the transfer can be

ascertained with reasonable certainty, and the transferee has, in

part performance of the contract, taken possession of the property

or any part thereof, or transferee, being already in possession,

continues in possession in part performance of the contract and

has done some act in furtherance of the contract, and the

transferee has performed or is willing to perform his part of the

contract, then notwithstanding that the contract, though required

to be registered, has not been registered, or, where there is an

instrument of transfer, that the transfer has not been in force, the

transfer or any person claiming under him shall be debarred from

enforcing against the transferee and person claiming under him

any right inrespect of the property of which the transferee has

 33

taken or continued in possession, other than a right expressly by

the terms of the contract.

Provided that nothing in this section shall affect the right of

a transferee for consideration who has no notice of the contract of

the part performance thereof.

The object of this section is to prevent a transferor or his

successor-in-interest from taking any advantage on account of the

non-registration of the document, provided the transferee has

performed his part of the contract and in pursuance thereof, has

taken possession of some immoveable property.

This section does not give the transferee any right on which

he can found a suit as a plaintiff, but only a right which is

available to him as defence in order to protect his possession. It

does not confer any title on the transferee who takes possession in

pursuance of a written, but unregistered contract. Accordingly, he

cannot maintain a suit for declaration of his title or that the

transferor or other person has no title to the property.

။ -၅ -Performance)

၌
 34

- ၅

၉၂၉

။ ၀၀၀၀၀ ၀၀၀၀၀

၍
 35

-၅

Shield) ။

2.8.1 Essential Element of Part Performance

This section can be used only as a shield and not as a sword.

Essentials of this section are,

(1) there must be contract to transfer immoveable property

(2) there should be consideration for contract to transfer,

 36

(3) the contract should be in writing and such writing should be

signed by the contractor himself, or signed on his behalf,

(4) the terms necessary to constitute the transfer must be

ascertainable with reasonable certainty from the contract

itself;

(5) the transferee must have been put into or is already in

possession of the property in part performance of the

contract,

(6) the transferee must have fulfilled or been ready to fulfill his

part of the obligation under the contract.

၂ ။

၅ ။

။
 37

။
1
In the case of Ma Thet Vs Ma Se Mai , where the vendon

gives a receipt for part-payment of the purchase money, which

receipt includes a decription of the land sold, the purchase price

and the fact that property was previously mortgaged to the

purchaser, it is sufficient to satisfy the requirements of section

1
I.L.R. 13 (Ran) 17
 38

53(A) of the Transfer of Property Act, a term of transfer, and the

part-payment in such a case is an act is furtherence of the contract.

2

၊ ။

၊ ၊

၍ ။ ၍ ။

-၅ ။

။
3
Maung Ohn and another Vs Maung Po Kwe and other case,

the mere production of a writing from which can be ascertained

metters referring to a pre-existing oral contract is not sufficient to

come within the protection of S.53 (A) of the Transfer of Property

Act. The contract itself must be in writing, and not a writing

merely referring to some part or parts of a prior oral contract.

2
Ma Thet V. Ma Se Mai 95,13 Ran 17.
3
1938. R.L.R. 692.
 39

1
၂

-၅ ၊

။ ၅

There is a distinction between a writing, which is a reduction

into writing of an oral agreement, which would fail within the

provisions of S.53 (A) and writing in which there is a mere

reference to a previous oral agreement.

2
U Toe Lu Vs u Kyaung Lu and others case it was held that it

will be sufficient for the purpose of S.53 (A) of The Transfer of

Property Act if it can be shown that the mortagee has in part

performance of the contract taken possession of the property.

Possession is said to be of two ways, either actual possession or

possession in law. It may mean physical control sometimes called

defactor possession or detention, or it may mean legal possession

1
Mg Ohn and another V, Mg Po Kwe and others 1938. R.L.R. 692.
2
1953. B.L.R. 11
 40

which may exist with or without defactor possession and with or

without a rightful origin. It may also mean the right to possession,

which may amount to ownership or may be of a company or

special character.
1

-၅ ။

။ ၌

(Defactor or actual possess

-၂ ၂၀၀၀၊ ၊ -၂၇ )

။၂ ၉

1
U Toe Lu V, U Kyaung Lu and two others 1953 B.L.R. 11,
 41

၅ ။
 42

Key Terms

transferred - ။

Contract Act - ဥ ။

untransferable - ။

default - ။

competent to transfer - ။

operation of transfer - ။

oral transfer - ။

ostensible owner -

Benami Transaction -

Lis-Pendens -

part- performance -

voidable - ယ် သ ော

consideration -
 43

ascertain -

good faith -

purchaser - ၀ယ် ယ ူ ေ ူ

transferee -

transferor -

possession -

litigation -
 44

Questions

1. Define transfer of property and explain what kind of

property may be transferred.

2. Discuss transfer by Ostensible Owner with relevant cases.

3. When is a transfer of immoveable property by an

Ostensible Owner valid?

4. What do you understand by "Benami Transaction"?

5. Write briefly on Benami Transaction.

6. What is the effect of a transfer of immoveable property

during pendency of a suit in relating to such property in

a Court of competent jurisdiction?

7. Explain briefly Part Performance as laid down in the

Transfer of Property Act.

8. Under the Transfer of Property Act can part performance

use only as a shield and not as a sword?

9. What persons are competent to transfer the immoveable

property?
 Chapter 3

Sale of Immoveable Property

Contents Pages

3.1 Definition of Sale S.54 2

3.2 Contract for Sale 5

3.3 Rights and liabilities of buyer and seller 7

3.4 The Transfer of Immoveable Property

Restriction Law 1987 18

 2

Sale of Immoveable Property

3.1 Definition of Sale S.54

"Sale" is a transfer of ownership in exchange for a price paid or

promised or part-paid or part-promised.

Such transfer, in the case of tangible immoveable property of the

value of one hundred thousand Kyats and upwards, or in the case of

reversion or other intangible thing, can be only by a registered

instrument.

In the case of tangible immoveable property of a value less than

one hundred thousand Kyats, such transfer may be made either by

registered instrument or by delivery of the property.

Delivery of tangible immoveable property takes place when the

seller places the buyer or such person as he direct in possession of the

property.

။ -၅၄ (Sale)

။
 3

၁ဝဝ၀၀၀ ၁ဝဝ၀၀၀

(Ta le ea le e ) ၄

( e e ) ၄ ၊ ၍

(Intangible Property) ၄

၁ဝဝ၀၀၀ ၍

ဝ ၊ ဝ ၊ ဝ

Essentials of valid sale are;

(1) the seller must be a person competent to transfer,

(2) the buyer must be a person competent to be the transferee,

(3) the subject matter must be transferable immoveable property,

(4) there must be a transfer of ownership,

(5) the transfer must be in exchange for a price,

(6) the price must be paid or promised or part-paid or part-

promised,
 4

(7) there must be a registered conveyance in the case of,

(a) tangible immovable property of value of Kyats 100000 and

upwards or,

(b) a reversion of other intangible things of any value;

(8) in the case of tangible immoveable property of value less than

Kyats 100000 there must either be:

(a) a registered conveyance or,

(b) delivery property.

( )

( ) ဝ

( )

(ဃ) ။

( ) ။

( ) ၊

( ) ၁၀၀၀၀၀ ၁၀၀၀၀၀

၍
 5

၄ ၊ ၄

(ဇ) ၁၀၀၀၀၀ ၍

၄ ။

3.2 Contract for Sale

A contract for the sale of immoveable property is a contract that

a sale of such property shall take place on terms settled between the

parties.

It does not, of itself, create any interest in or change on such

property.

(Contract for Sale)

ဝ ဝ

။ ၊
 6

ဝ ၍

၍ ။

A contract of sale does not create any interest in the prope rty in

favour of the purchaser, but a sort of obligation is annexed to the

ownership of property by virtue of such contract. The title in property

can be transferred only by a conveyance and not by mere agreement

between parties.

ဝ ဝ

ဝ ဝ

(Sale ee ) ။

၍ ။

။ - ၊

၊ ။

ဝ ။

။ ဝ

။
 7

3.3 Rights and liabilities of buyer and seller

S. 55. In the absence of a contract to the contrary, and the seller

of immoveable property respectively are subject to the liabilities and

have the rights, mentioned in the rules next following or such of them

as are applicable to the property sold;

ဝ ဝ ။ ၅၅

ဝ ဝ

(1) The seller is bound

(a) to disclose to the buyer material defect in the property or in

the seller's title there to of which the seller is, and the buyer

is not, aware, and which the buyer could not with ordinary

care discover;

( ) ဝ ။

ဝ ဝ ။

။ - ၌

ဝ ဝ ဝ ။

ဝ ။
 8

(b) to produce to the buyer on his request for examination all

documents of title relation to the property which are in the

seller's possession or power;

( )ဝ

(c) to answer to the best of his information all relevant

questions put to him by the buyer in respect to the property

or the title there to;

( ) ၍ဝ

(d) on payment or tender of the amount due in respect to the

price, to execute a proper conveyance of the property when

the buyer tenders it to him for execution at a proper time

and place;

(ဃ) ဝ

(e) between the date of the contract of sale and the delivery of

the property, to take as much care of the property and all

documents of title relating where to which are in his

 9

possession as an owner of ordinary prudence would take or

such property and documents;

( )

(f) to give, on being so required, the buyer, or such person as

he directs, such possession of the property as its nature

admits;

( ) ဝ

၊ ၄ ၊

(g) to pay all public charges and rent accrued due in respect of

the property up to the date of the sale, the interest on all

incumbrances on such property due on such date, and

except where the property is sold subject to incumbrances,

to discharge all incumbrances on the property then existing.

( ) ၍

၄
 10

(2) the seller shall be deemed to contract with the buyer that the

interest which the seller professes to transfer to the buyer

subsists and that he has power to transfer the same.

Provided that, the sale is made by a person in a fiduciary

character, he shall be deemed to contract with the buyer that

the seller has done no act where by the property is incumbered

of where by he is hindered from transferring it.

ဝ ၊

ဝ ။

The benefit of the contract mentioned in this rule shall be

annexed to, and shall go with, the interest of the transferee as

 11

such, and may be enforced by every person in whom that interest

is for the whole or any part there of from time to time vested.

(3) Where the whole of the purchase-money has been paid to the

seller, he is also bound to deliver to the buyer all documents of

title relating to the property which are in the seller's posse ssion

or power.

Provided that, (a) where the seller retains any part of the

property comprised in such documents, he is entitled to retain them

all, and (b) where the whole of such property is sold to different

buyers, the buyer of the lot of greatest value is entitled to such

documents. But in case (a) the seller, and in case (b) the buyer of the

lot of greatest value, is bound, upon every reasonable request by the

buyer, or by any of the other buyers, as the case may be, and at the

cost of the person making the request to produce the said documents
 12

and furnish such true copies there of or extracts there from as he may

require; and in the meantime, the seller, or the buyer of the lot of

greatest value, as the may be, shall keep the said documents safe,

uncancelled and undefaced, unless prevented from so doing by fire or

other inevitable accident.

(၁) ဝ

။(၂) ဝ

၄ ၊

ဝ ၍

(4) The seller is entitled –

(a) to the rents and profits of the property till the ownership

there of passes to the buyer.

 13

(b) where the ownership of the property has passed to the

buyer before payment of the whole of the purchase –

money to a charge upon the property in the hands of the

buyer, any transferee without consideration or any

transferee with notice of the nonpayment, for the amount

of the purchase-money, or any part there of remaining

unpaid, and for interest on such amount or part from the

date on which possession has been delivered.

( ) ဝ

( ) ဝ

ဝ ဝ

ဝ ( )

ဝ ။

(5) The buyer is bound –

(a) to disclose to the seller any fact as to the nature or extent

of the seller's interest in the property of which the buyer is

 14

aware but of which he has reason to believe that the seller

is not aware, and which materially increases the value of

such interest;

(b) to pay or tender, at the time and place of completing the

sale, the purchase-money to the seller or such person as he

directs:

provided that, where the property is sold free from

incumbrances, the buyer may retain out of the purchase

money the amount of any incumbrances on the property

existing at the date of the sale, and shall pay the amount

so retained to the persons entitled thereto;

(c) where the ownership of the property has passed to the

buyer to bear any loss arising from the destruction injury

or decrease in value of the property not caused by the

seller;

(d) where the ownership of the property has passed to the

buyer as between himself and the seller, to pay all public

charges and rent which may become payable in respect of

the property, the principal moneys due on any

incumbrances subject to which the property is sold, and

the interest there on afterwards accruing due.

ဝ ဝ

( )
 15

၍ ဝ ၍

( ။)

ဝ ၄

၊ ဝ ၍

ဝ ဝ

( ) ဝ

ဝ ၄ ။

ဝ ဝ

( ) ဝ

၊ ၊
 16

(ဃ) ဝ

ဝ ။

ဝ ။

(6) The buyer is entitled –

(a) where the ownership of the property has passed to him, to

the benefit of any improvement in, or increase in value of

the property, and to the rents and profits there of;

(b) unless he has improperly declined to accept delivery of the

property, to a charge on the property, as against the seller

and all persons claiming under him, to the extent of the

seller's interest in the property, for the amount of any

purchase money property paid by the buyer in anticipation

of the delivery and for interest on such amount and, when

he properly declines to accept the delivery, also for the

earnest (if any) and for the costs (if any) awarded to him

of a suit to compel specific performances of the contract

or to obtain a decree for its rescission.

 17

( ) ဝ

၊ ၊

( ) ဝ

ဝ ၄

ဝ ( a e) ။

ဝ ။

An omission to make such disclosures as are mentioned in this

section, paragraph (1) clause (a) and paragraph (5) clause (a) is

fraudulent.
 18

3.4 The Transfer of Immoveable Property Restriction Law

1987

(၁၉၈၇)

The Transfer of Immoveable Property Restriction Law, there

are five chapters and nineteen sections. Chapter 1 is Title and

definition, chapter II is Restrictions relating to immoveable property,

chapter III is Registration, chapter IV is penalties and chapter V is

miscellaneous.

Chapter I

(၁)

Title and Definition

1. This Law shall be called the Transfer of Immoveable Property

Restriction Law

၁။

2. The following expressions contained in this Law shall have the

meanings given hereunder:-

 19

(a) State means the Socialist Republic of the Union of

Myanmar.

(b) Foreigner includes the following:-

(1) a person who is not a citizen or an associate or a

naturalized citizen under the Myanmar Citizenship

Law;

(2) a person whose citizenship or associate citizenship

or naturalized citizenship has been terminated or

revoked under the Myanmar Citizenship Law.

(c) Company owned by a foreigner means a company or a

partnership where management and control are not vested

in the hands of the citizens and a company or a

partnership whose major shares are not held by the

citizens;

(c) Immoveable Property means land and benefits arising out

of land, building and things built or imbedded in the

earth and other things attached to the building;

(d) The expressions transfer, loose, sale, gift, mortgage and

exchange of property have the same meanings as are

assigned to them in the Transfer of Property Act;

(e) Gift also includes charity or trust.

၂။

-
 20

( )

( ) ဝ -

(၁)

(၂)

၊ ၊

( )

(ဃ) ၊

၊ ၌

( ) ၊ ၊ ၊ ၊

၊
 21

( )

ဝ ။

Chapter II

(၂)

Restriction relating to Immoveable Property

၍
3. No person shall transfer any immoveable property by way of

sale, purchase, gift, acceptance of a gift, mortgage, acceptance

of a mortgage, exchange or transfer and acceptance of a

transfer by any other means to a foreigner or a company owned

by a foreigner.

၃။ ၊ ၊

၊ဝ ၊ ၊

၊ ၊ ၊

4. No foreigner or a company owned by a foreigner shall transfer

any immoveable property by way of sale, purchase, gift,

acceptance of a gift, mortgage, acceptance of a mortgage

 22

exchange, or transfer and acceptance of a transfer by any other

means.

၄။

၊ဝ ၊ ၊

၊ ၊ ၊

5. No person shall: -

(a) lease to foreigner or a company owned by a

foreigner ;

(b) lease from a foreigner or a company owned by a

foreigner immoveable property for more than a year at a

time.

၅။

၍-

( )

( )

။
 23

6. When a foreigner dies, or when any person leaves Myanmar for

good or is deported, the Ministry concerned may, after scrutiny

case by in respect of the immoveable property owned by that

person, carry out in conformity with the procedures as follow: -

(a) allowing right of inheritance in accordance with laws;

(b) confiscating by the State.

၆။ ၊

ဝ ၍

( ) ၊

( ) ၊

7. If the Ministry concerned decides to allow right of inheritance

under subsection (a) of section 6, and to who should inherit the

immoveable property shall be by consenaus of the heirs or by

the decision of the Court in accordance with the relevant

succession law.

၇။ ၆ ( ) ဝ

:၊

။
 24

Chapter III

(၃)

Registration

8. A foreigner or a company owned by a foreigner shall register in

accordance with the procedures its immoveable property within

the country with the Township Registration Board concerned of

the area where the property is situated.

၈။

9. In respect of any immoveable property owner by a foreigner or

a company owned by a foreigner who is away in a foreign

country prior to the enactment of this law, the person who acts

on his behalf shall register in accordance with the procedures

the said property with Township Registration Board concerned

of the area where the property is situated.

၉။

၍
 25

10. The Township Registration Board shall in investigate with the

procedures if there is any fraud or concealment in the

registration under section 8or section 9.

၁ဝ။ ၈ ၉

Chapter IV

(၄)

Penalties

11. Whoever violates any of the provisions of section 3 or section 4

shall, on conviction be punished with imprisonment for a

minimum term of three years to a maximum term of five years.

In addition, the immoveable property involved in the offence

shall also be confiscated by the State.

၁၁။ ၃ ၄
 26

12. Whoever violates the provisions of section 5 shall, on

conviction be punished with fine, which shall be not less than

three times the amount of rent agreed upon for the entire period

of the lease. In addition, the immoveable property involved in

the offence shall also be confiscated by the State.

၁၂။ ၅

13. Whoever is found to have failed to register immoveable

property under section 8 or section 9, or on enquiry and

examination by the Executive Committee of the Township

People's Council to have acted fraudulently or to have

concealed under section 10 shall, on conviction be punished

with imprisonment for a minimum term of one year to a

maximum term of three years. In addition, the immoveable

property involved in the offence shall also be confiscated by

the State.

၁၃။ ၈ ၉

၁ဝ
 27

Chapter V

(၅)

Miscellaneous

14. Foreign Diplomatic Organizations which have diplomatic

relations with the State, United Nations Organizations, any

other Organizations or person, may be exempted from the

provisions of this law by the Ministry concerned.

၁၄။

၊ ၊

15. The provisions of this Law shall not apply to companies or

Organizations which have been formed under agreement for

common interest with the State.

 28

၁၅။

16. The Ministry assigned by the Council of Ministers shall

scrutinize case by case and give a decision as to whether or not

registration should be permitted for documents in respect of

transfer of immoveable property, which have been submitted

for registration to the office for the Registration of Documents

prior to the enactment of this Law.

၁၆။

၍ ဝ ဝ ဝ

17. In instituting legal proceedings in respect of offences under this

Law, prior section shall be obtained from the Ministry

concerned.

၁၇။ ၍ ၌

ဝ ။

18. In order to carry out the provisions of this law, the Ministry

concerned:-

(a) shall issue necessary provisions, with the approval

of the Government;
 29

(b) may issue necessary orders and directives.

၁၈။

ဝ -

( ) ဝ

( ) ၊ ။

19. The following law and rules are hereby repeated: -

(a) The Transfer of Immoveable Property (Restriction)

Act, 1947;

(b) The Transfer of Immoveable Property (Restriction)

Rules, 1976.

၁၉။

(a) The Transfer of Immoveable Property (Restriction)

Act, 1947;

(b) The Transfer of Immoveable Property (Restriction)

Rules, 1976.

(The Transfer of Immoveable Property Restrictions Act )

(၄ )

1975 B.L.R (C.C) 84

 30

၁၉၄၇ ( )

၊၁၉၅၂ ၊

ဝ ဝ ၊ ဝ

။ ။ ၁၉၄၇ ၊

( ) ၃ ၁၉၅၂

( ) ၁၉၅၂ ၊

၂၇ ။

ဝ ဝ

(၁) ၁၉၅၂ ၂ဝ

( ) ဝ

။ ။

(၁)

ဝ ၁၃

၁၉၅၂ ၃ဝ ဝ ။

၁ ။
 31

၁ ။ ၍

Key Terms

registered instrument -

reversion -
 32

tangible - ၍

intangible - ၍

possession - ဝ

transferable immovable -

property

immoveable -

confiscate -

violate -

restriction -

Questions

1. Define "Sale"!

2. How is a sale made?

3. What are the duties of seller of immoveable property?

 33

4. What is contract for sale?

5. What are the rights and liabilities of a buyer of immoveable

property?

6. Discuss restriction relating to immoveable property under

the Transfer of Immoveable Property Restriction

Law1987.

7. Explain the registration by a foreigner or a company owned

by a foreigner in accordance with the Transfer of

Immoveable Property Restriction Law1987.

 Chapter 4

Mortgage of Immoveable Property

Contents Pages

4.1. Definition of Mortgage, S.58 (a) 3

4.2 Kinds of Mortgage 4

4.2.1 Simple mortgage 5

4.2.2 Mortgage by conditional sale 7

4.2.3 Usufructuary mortgage 12

4.2.4 English mortgage 14

4.2.5 Mortgage by deposite of title-deeds 16

4.2.6 Anomalous mortgage 20

4.3. Rights of mortgagor 21

4.3.1 Right of mortgagor to redeem Sec: 60 21

4.3.2 Obligation to tansfer to third party instead of

re-transference to mortgagor 26

4.3.3 Right to inspection and production of documents 27

4.3.4 Right of redeem separately or simultaneously 28

4.3.5 Right of usufructuary mortgagor to recover 28

possession

4.3.6 Accession to mortgaged property 29

4.3.7 Improvements to mortgaged property 31

4.3.8 Renewal of mortgaged lease 33

4.3.9 Implied contract by mortgagor 34

4.3.10 Mortgagor’s power to lease 37

 2

4.4 Liabilities of mortgagor 39

4.5 Rights of mortgagee 40

4.5.1 Right of foreclosure or sale 40

4.5.2 Right to sue for mortgage-money 43

4.5.3 Power of sale when valid 46

4.5.4 Appointment of receiver 50

4.5.5 Accession to mortgaged property 53

4.5.6 Renewal of mortgaged lease 53

4.5.7 Rights of mortgagee in possession 54

4.5.8 Right of proceeds of revenue sale or compensation 56

On acquisition

4.6. Liabilities of mortgagee 57

 3

Mortgage of Immoveable Property

4.1. Definition of Mortgage, S.58 (a)

-၅၈ (က)

A mortgage is the transfer of an interest in specific immoveable

property for the purpose of securing the payment of money advanced
of to be advanced by way of loan, an existing or future debt, or
performance of an engagement which may give rise to a pecuniary
liability.
The transferor is called mortgagor, the transferee is called a
mortgagee; the principal money and interest of which payment is
secured for the time being are called the mortgage-money, and the
instrument (if any) by which the transfer is effected is called a
mortgage-deed.

(Mortgage)

က က ၊ က

က က ၊ က က ၊

က ကက

က က က ၊

က က

။
 4

က (Mortgagor) က

(Mortgagee) က

က (Mortgage- o e )

က (Mortgage-deed) ၍

က(Mortgage)

က(P edge) က က

က( othecatio ) ။

4.2 Kinds of Mortgage

There are six kinds of mortgage, they are,

1. Simple mortgage S.58 (b)
2. Mortgage by conditional sale S.58 (c)
3. Usufructuary Mortgage S.58 (d)
4. English Mortgage S.58 (e)
5. Mortgage by deposited of title-deeds. 58(f)
6. Anomalous Mortgage S.58 (g)

၆ ။

(၁) က (Simple mortgage)

(၂) က က ၍
 5

(Mortgage by Conditional Sale)

(၃) က

(Usufrctuary Mortgage)

(၄) (English

Mortgage)

(၅) ၍

(Mortgage by deposite of title deeds)

(၆) က (Anomalous

Mortgage)

4.2.1 Simple Mortgage

က

S.58 (b) Where, without delivering possession of the mortgage

property, the mortgagor binds himself personally to pay the mortgage -
money, and agrees, expressly or impliedly, that, in the event of his
failing to pay according to his contract, the mortgage shall have a right
to cause the mortgaged property to be sold and the proceeds of sale to
be applied, so far as may be necessary, in payment of the mortgage -
money, the transaction is called a simple mortgage and the mortgagee
simple mortgagee.

က က က

က က ၍

က က
 6

က က က က

က ။

The characteristics of a simple mortgage are:

(1) The mortgagor undertakes personal liability.

(2) No possession is delivered.
(3) No power of sale out of Court, but a decree for sale of the
mortgaged property must be obtained.
(4) It must be effected by a registered instrument even of the
consideration is below K. 100000/.
(5) There is no foreclosure.

က -

(က) က က

က ။

( ) က က က

( ) က ကက က က က

က က ၍

(ဃ) က ၁၀၀၀၀၀ က က

( ) က ။
 7

။ က ။ က က

က က ၆

၄ က ။

4.2.2 Mortgage by Conditional Sale

က က ၍

S.58 (c) Where the mortgagor ostensibly sells the mortgaged

property on condition that on default of payment of the Mortgage -
Money on a certain date the sale shall become absolute, or
On condition that on such payment being made the sale shall
become void, or
On condition that on such payment being made the buyer shall
transfer the property to the seller, the transaction is called a mortgage
by conditional sale and the mortgagee a mortgagee by conditional sale:
provided that no such transaction shall be deemed to be a mortgage
unless the condition is embodied in the document which effects or
purports to effect the sale.

က က က

က ကက က

၍၄ ။

က က

က ၄ ။
 8

က က

၍ က ၊ က က ၍

က က ၍

က ကက

၄ က ။

The characteristics of a mortgage by conditional sale are:

(1) The mortgagor ostensibly sells the mortgage property.
(2) The condition is that the sale shall be void on such
payment and the property retransferred.
(3) It must be created by one document, and not by two
documents. (one for sale, and another for agreement of
repurchase)
(4) It must be by registered writing if the consideration is K.
100000/- or upward: if less than K.100000/- it may be
effected by delivery of the property or by a registered
instrument.
(5) The remedy of the mortgagee is by foreclosure and not by
sale.
က က ၍

(က) က က

( ) က က က ကက

က ။ က ၍
 9

က က ၍

က က က ။

( ) က ကက ။

က က က ။

။( - ၊

၍ ။)

(ဃ) က ၁၀၀၀၀၀ က ၁၀၀၀၀၀ က

က ။ က ၁၀၀၀၀၀ က က က

၍ ၊ က က က ၍ ။

( ) ။ ။

က က

။ ၄

က က က

။ က က က

။ က က

1
In the case of Mg Aung Thin and one V Bisnath Singh and one
where the transaction effecting or purporting to effect sale and
condition of repurchase are embodied in one document, the transaction
does not, as a result of the provide added by the Amendment Act 1929,
necessarily become a mortgage by conditional sale, irrespective of the

1
1958 B.L.R. 314 (H.C)
 10

intention of the parties. If from the contents of the document, it can be

gathered from its clear express words that intending of the parties was
to effect an outright sale with a condition of repurchase, the deed could
be construed as in outright sale with a condition or repurchase even
through that condition is embodied in one document because the
determining factor in such cases is the intention of parties.
The intention of the parties should be ascertained from the terms
of the document and the surrounding circumstance and the adequacy of
consideration the time given to the vendor to make a repurchase, have
important bearings to truth of the intention of the parties.

2
၂ ( ) ၂”

က က

၁၉၂၉ က

က က

။ က

က က

က က က

။ က

က ကက

။ က

က က

က ။ က က

က က ။

2
Mg Aung Thin and one V. Bisnath Singh and one 1928. B.L.R. 314 (H.C)
 11

က က က

3
In the case of Daw Kyin Pu V U Oha Khin and one where there
was registered deed of sale of certain immoveable property and the
buyer had admitted that she had verbally promised to allow redemption
but such a promise was not embodied in the deeds, and it was intended
that the document embodied a mortgage by conditional sale.
It was held that Section 58(c) of the Transfer of Property Act is a
statutory bar to the deed of sale is question being constructed as a
transaction evidencing a mortgage by conditional sale, not with
standing the verbal agreement to return the property on payment of the
purchase price.

4
က ၂”

က က

၄ က

က က ။ က က

၊ က

က က

က က -၅ ( )

က ။ က

၄ က

3
1963 B.L.R 328 (CC)
4
Daw Kyin Pu V. U Ohn Khin and one, 1963 B.L.R. 328 (C.C)
 12

က က က က ၉၂- က

4.2.3 Usufructuary Mortgage

က က

S.58(d) Where the mortgagor delivers possession or expressly or

by implication binds himself to deliver possession of the mortgaged
property to the mortgagee, and authorizes him to retain such possession
until payment of the mortgage-money, and to receive the rents and
profits accruing from the property or any part of such rents and profits
and to appropriate the same in lieu of interest or in payment of the
mortgage-money, or partly in lieu of interest or partly in payment of
the mortgage-money, the transaction is called an usufructuary
mortgage and the mortgagee an usufrucurary mortgagee.

က က ၍

၍ က က

၍ က က

က က က က

က ကက

က ၊ ၍ က က

က ။
 13

The characteristics of a usufructuary mortgage are:

(1) There is by delivery of possession to the mortgagee.

(2) He is to retain possession until repayment of the money and to
receive the rents and profits accruing from the property or any part of
such rents and profits and to appropriate the same in lieu of interest or
in payment of the mortgage-money, or partly in lieu of interest or
partly in payment of the mortgage-money,
(3) There is redemption when the amount due is personally paid or
discharged by rents and profits received.
(4) If for K.100000/- or upward, it must be registered, if below
K.100000/-. It may be by registered deed or by delivery of the
property.
(5) There is no remedy by sale or foreclosure.

က က ။

(က) က က က က

။ ။

( ) က

က ။

၊ က က ၊

က ၊ က

က က ၊ ။

( ) က က ၊ က

၍ က

၊ က ။
 14

(ဃ) က ၁၀၀၀၀၀ က ၁၀၀၀၀၀ က

( ) က ။ က ။

က က

က ။ က ။ ၄ က

က က ။

က က က က က

4.2.4 English Mortgage

S.58(e) - Where the mortgage binds himself to repay the

mortgage-money on a certain date, and transfers the mortgaged
property absolutely to the mortgagee, but subject to a proviso that he
will re-transfer it to the mortgagor upon payment of the mortgage -
money as agreed, the transaction is called an English mort gage.
က က က

က ၍ က

က က

က က ။

The characteristics of an English mortgage are:-

 15

(1) It is followed by delivery of possession.

(2) There is a personal covenant to pay the amount.
(3) It is effected by absolute transfer of property with provision for
re-transfer in case of repayment of the amount due.
(4) Power of sale out of Court is conferred on certain persons
under certain circumstances.
(5) The remedy is by sale and not by foreclosure.

(က) က ။

( ) က က

က ။

( ) က က

က က က

က က ။

( ဃ) က က က

က ။

( ) က ။ က

က က က

က ။ က ။

က ။

က။ ။ ။
 16

4.2.5 Mortgage by Deposite of Title-deeds

၍

S.58 (f) Where a person delivers to a creditor or his agent

documents of title to immoveable property, with intent to create a
security thereon, the transaction is called a mortgage by deposited of
title-deeds.
က

က ၄ က ၊

က ၍ က

၍ ။

Characteristics of the mortgage by desposite of title-deeds are:-

(1) The mortgage by deposits of title deeds is created.
(2) Delivery of the title deeds to the mortgagee or his agent.
(3) There is no need to deliver the immoveable property.
(4) No registration is necessary even is there is a writing
recording the deposit.
(5) The remedy is by sale and not by foreclosure.

(က)

( ) ၄ က ။

( ) က က ။
 17

(ဃ) က ။

( ) က ။ က

က ။

က ။

။ ။

က- ၍ က

In the case of K.L.C.T Chidambaram Chettyar V Aziz Meath

and others 1938 R.L.R 316 (F.B), in order to create a valid mortgage
by deposit of title-deeds, under S.58 (f) of the Transfer of Property
Act, it is not necessary that the whole, or even the most material o f
the documents of title to the property should be deposited, no that the
documents deposited should show a complete or good title in the
depositor. It is sufficient of the deeds deposited bona fide relate to the
property of are material evidence of title, and are shown to have been
deposited with the intention of creating a security thereon. A deposit
with intention to create a security of deed of grant of land by
Government to the mortgagor's transfer is sufficient to create a
mortgage and this document coupled with the certificate by the
revenue surveyor recording and oral transfer of the land from the
 18

original grantee the mortgagor and a number of tax ticket's showing

revenue being paid by the mortgagor, all go to disclose an apparent
title in the mortgagor's to the land.

K.L.C.T. Chida bara Chettiar V.Aziz Meah a d

5
others” ၍

က က

က ၊ က က

က က ။ က

က က က က က

၍ က

က က

က က

က က က

က က က

6
U Po Nge V V.R.A Veerapa Chettyar case it was held that tax-
tickets and "counterfoils for a license" issued by a Headman under
S.22A of Land and Revenue Act is not such documents of title, the
deposit of which would create a mortgage by deposit of title-deeds.

5
K.I.C.T Chidambaram Chettyar V. Aziz Meah and others. 1938. R.L.R. 316.
6
1952 B.L.R. 108 (S.C)
 19

7
- - - ”

က ၂၂(က) ကက

၊ ၄ က

၍ က ။

Ma Ohn Kyi and five others V Daw Hnin Nwe and there
8
others case it was held that unless there is delivery of title -deeds to
the creditor or his agent at the time of the constitute loan, it would
not constitute, even if other ingredients of the clause (f) S.58 of the
Transfer of Property Act are satisfied, a mortgage by deposit of title-
deeds, and it would not be possible to hold that the loan was secured
as the charge become effect only with the deposit of title of title-
deeds.

9
က ၆ ၄”

က ၄ က

၍ က

၍ က၊

က က ။

7
U Po Nge V. V. R. A Veerappa Chettyar 1958 B.I.R. 108 (S.C)
8
1953 B.L.R 322 (HC)
9
Ma Ohn Kyi and five others V. Daw Hnin New and three others, 1953 B.L.R. 322 (H.C)
 20

4.2.6 Anomalous Mortgage

( က )

Sec. 58 (g): A mortgage which is not simple mortgage, a

mortgage by conditional sale, an usfructuary mortgage, and English
mortgage or a mortgage by deposit of title-deeds within the meaning
of this section is called an anomalous mortgage.

က ၅ က

က က ။

က က က က

က ။ ။ က

က က

က ၍ ။

Characteristics of an anomalous mortgage are: -

(1) Possession may not be delivered.

(2) The remedy is by sale or by foreclosure, if terms of the
mortgage permit it.
(3) If of K.100000/- or upward it must be registered, if below
K.100000/- it may be by registered deed or by delivery of
possession.
 21

4.3. Rights of Mortgagor

4.3.1 Right of Mortgagor to Redeem Sec: 60

။ -၆၀

At any time after the principal money has become due, the
mortgagor has a right, on payment or tender, at a proper time and
place, of the mortgage-money, to require the mortgage (a) to deliver to
the mortgagor the mortgage-deed and all documents relating to the
mortgaged property which are in the possession or power of the
mortgage, (b) where the mortgagee is in possession of the mortgaged
property, to deliver possession thereof to the mortgagor and (c) at the
cost of the mortgagor either to re-transfer the mortgaged property to
him or to such third person as he may direct, or to execute and (where
the mortgage has been effected by a registered instrument) to have
registered an acknowledgment in writing that any right in derogation
of his interest transferred to the mortgagee has been extinguished:
Provided that the right conferred, by this section has not been
extinguished by act of the parties or by decree of a Court.
The right conferred by this section is called a right to redeem and
suit to enforce it is called a suit for redemption.
Nothing in this section shall be deemed to render invalid any
provision to the effect that, if the time fixed for payment of the
principal money has been allowed to pass or no such time has been
fixed, the mortgage shall be entitled to reasonable notice before
payment or tender of such money.
Nothing in this section shall entitle a person interested in a share
only of the mortgaged property to redeem his own share only on
payment of a proportionate part of the amount remaining due on the
 22

mortgage, except only where a mortgagee, or if there are more

mortgagees than one, all such mortgagees, has or have acquired, in
whole or in part, the share of a mortgagor.
က က က က

၊ က

(က) က

က က က

က ။

( ) က ၄ က

က က ။

( ) က ၊

၄ က ။

(ဃ)

က က က ကက

၍ က က က

က ၊ က က က

၊ က ။
 23

က (Right to

Redeem) ၍ က ၊ က

က ( uit for ede tio ) ၍၄ ။

က က က ၍

၊ က ၍ ၊ က

ကက

က က ။

က က က ၍ က

ကက က

- ၊ က ။

က ၊ က ၊ က ၊

က က ၍

က ။ က ၍

က က ၊ က က

။
 24

က က

က ။

က က

(၁) က ၊

က က ။

(၂) က က ။

(၃) က ၊ က

။ (Once a mortgage

always a mertgage)

က က က က

က က က က၊ က

က က

က က က

။ က

က က ၍ က

၊ က ၊ က

၍ ၊

က ။ က ။
 25

က (Close on Redemption)

က က

က က

က က က

က က က က ။

က က က -

(က) က က

က က က။

( ) က

က က

က။

( ) က ၍

၍ ၄ က

က က။

(ဃ) က က

ကက က က က

က။

( ) က

က က ။
 26

4.3.2 Obligation to Tansfer to Third Party Instead of

Re- transference to Mortgagor
S.60 A (1) Where a mortgagor is entitled to redemption, then, on
the fulfilment of any conditions on the fulfilment of which he would be
entitled to require a re-transfer, he may require the mortgagee, instead
of re-transferring the property, to assign the mortgage-debt and transfer
the mortgaged property to such third person as the mortgagor may
direct; and the mortgagee shall be bound to assign and transfer
accordingly.
(2) The rights conferred by this section belong to and may be
enforced by the mortgagor or by any incumbrancer notwithstanding an
intermediate incumbrance; but the requisition of any incumbrancer
shall prevail over a requisition of the motgagor and, as between
incumbrancers; the requisition of a prior incumbrancer shall prevail
over that of a subsequent incumbrancer.
(3) The provisions of this section do not apply in the case of a
mortgagee who is or has been in possession.

။ ၆၀(က)

၁။ က က က က ၍

က က

က ။

က က က ။
 27

၂။ က

။ က

ကက ။ က

က ကက ကက ။

၃။ က က

က ။

4.3.3 Right to Inspection and Production of Documents

က ။ ၆၀ ( )

S.60 (B) A mortgagor, as long as his right of redemption

subsists, shall be entitled at all reasonable times, at his request and at
his own cost, and on payment of the mortgagee's costs and expenses in
this behalf, to inspect and make copies or abstracts of, or extracts from,
documents of title relating to the mortgaged property which are in the
custody or power of the mortgagee.

က က က ကက ၍ က

၊ က က ၊ က က က က

။
 28

4.3.4 Right of Redeem Separately or Simultaneously

၍ က ၊ က ၊

၆၁၊

S.61. A mortgagor, who has executed two or more mortgages in

favour of the same mortgagee shall, in the absence of a contract to the
contrary, when the principal money of any two or more of the
mortgages has become due, be entitled to redeem any one such
mortgage separately, or any two or more of such mortgages together.
က ၍

က က က က က

က က

က က ၍ က ၊

က က ၍

က ။

4.3.5 Right of Usufructuary Mortgagor to Recover Possession

က က

။ -၆၂

S.62. In the case of an usufructuary mortgage, the mortgagor has

a right to recover possession of the property together with the
mortgage-deed and all documents relating to the mortgaged property
which are in the possession or power of the mortgagee, -
(a) Where the mortgagee is authorized to pay himself the
mortgage-money from the rents and profits of the property, when such
money is paid;
 29

(b) Where the mortgagee is authorized to pay himself from

such rents and profits or any part thereof a part only of the mortgage-
money when the term, if any, prescribed for the payment of the
mortgage-money has expired and the mortgagor pays or tenders to the
mortgagee the mortgagee-money or the balance thereof or deposits it in
Court as hereinafter provided.

က က

က က က ၊

၁။

က က ၌ က

၂။ က က

က က

က က က

က က

4.3.6 Accession to Mortgaged Property

။ -၆၃။

S.63. Where mortgaged property in possession of the mortgagee

has, during the continuance of the mortgage, received any accession,
the mortgagor, upon redemption, shall, in the absence of a contract to
the contrary, be entitled as against the mortgagee to such accession.
 30

Where such accession has been acquired at the expense of the

mortgagee, and is capable of separate possession or enjoyment without
detriment to principal property, the mortgagor desiring to take the
accession must pay to the mortgagee the expense of acquiring it. If
such separate possession or enjoyment is not possible, the accession
must be delivered with the property, the mortgagor being liable, in the
case of an acquisition necessary to preserve the property from
destruction, forfeiture or sale, or made will his assent, to pay t he
proper cost thereof, as an addition to the principal money, with interest
at the same rate as is payable in the principal or, where no such rate is
fixed, at the rate of nine percent par annum.
In the case last mentioned the profits, if any, arising fro m the
accession shall be credited to the mortgagor.
Where the mortgage is usufructuary and the accession has been
acquired at the expense of the mortgagee, the profits, if any, arising
from the accession shall in the absence of a contract to the contrary, be
set off against interest, if any payable on the money so expended.
က

က က က

က ။

က က က ၊

က က က

က က က ။ က

က ။ က
 31

က ။

က က က ၊

က က က က ၊

က ကက က က

က က

။ က

က ။

၄ က

က က

က က က

ကက က က

4.3.7 Improvenments to Mortgaged Property

က က

S.63 A. (1): Where mortgaged property in possession of the

mortgagee has during the continuance of the mortgage been improved,
the mortgagor, upon redemption, shall, in the absence of contract to the
contrary, be entitled to the improvement and the mortgagor shall not,
save only in cases provided for in sub-section (2), be liable to pay the
cost thereof.
 32

(2) Where any such improvement was effected at the cost of the
mortgagee and was necessary to preserve the property from destruction
or deterioration or was necessary to prevent the security from
becoming insufficient, or was made in compliance with the lawful
order of any public servant or public authority, the mortgagor shall, in
the absence of a contract to the contrary, be liable to pay the proper
cost thereof as an addition to the principal money with interest at the
same rate as is payable on the principal, or where no such rate is f ixed,
at the rate of nine per cent per annum, and profits, if any accruing by
reason of the improvement shall be credited to the mortgagor.
၁။ က

က က က က က

က က

က က က ။

(၂) က က

က က က က က

၂။ က က က

၍ က

က ၊ က က

က က ၊ က

က က က ၊

က က

က ၊ က က က
 33

၍ က က က က

က ။

က က က

က က ။

က။ ။ က က က ၃ က

(၁) က ။

(၂) က က

(၃) က က

က က ။

4.3.8 Renewal of Mortgaged Lease

က

S.64. Where the mortgaged property is a lease, and the

mortgaged obtains a renewal of the lease, the mortgagor, upon
redemption shall, in the absence of a contract by him to the contrary,
have the benefit of the new lease.

-၆၄ ၍

က ၊ က က
 34

က က

က ။

4.3.9 Implied Contract by Mortgagor

S.65: In the absence of a contract to the contrary, the mortgagor
shall be deemed to contract which the mortgagee –
(a) that the interest which the mortgagor professes to transfer
to the mortgagee subsists, and that the mortgagor has power t o transfer
the same;
(b) that the mortgagor will defend, or if the mortgagee be in
possession of the mortgaged property, enable him to defend, the
mortgagor's title thereto;
(c) that the mortgagor will, so long as the mortgagee is not in
possession of the mortgaged property, pay all public charges accruing
due in respect of the property;
(d) where the mortgaged property is a lease, that the rent
payable under the lease, the conditions contained therein, and the
contracts binding on the lessee have been paid, performed and
observed down to the commencement of the mortgage; and that the
mortgagor will, so long as the security exists and the mortgagee is not
in possession of the mortgaged property, pay the rent reserved by the
lease, or if the lease be renewed, the renewed lease, perform the
conditions contained there in and observe the contracts binding on the
lessee, and indemnify the mortgagee against all claims sustained by
reason of the non payment of the said rent or the non-performance of
non-observance of the said conditions and contracts;
(e) and where the mortgage is a second or subsequent
incumbrance on the property, that the mortgagor will pay the interest
from time to time accruing due on each prior incumbrance as and when
 35

it becomes due, and will at the proper time discharge the principal
money due on such prior incumbrance.
The benefit of the contracts mentioned in this section shall be
annexed to and shall go with the interest of the mortgagee as such, and
may be enforced by every person in whom that interest is for the whole
on any part thereof from time to time vested.
The benefit of the contracts mentioned in this section shall be
annexed to and shall go with the interest of the mortgagee as such, and
may enforced by every person in whom that interest is for the whole on
may part thereof from time to time vested.

က ။ -၆၅

က က က က က က

၁။ က

က က က က ။

၂။ က ကက က

က ၊

က ကက က က

က ။

၃။ က

က၍ က က က

က က ။

၄။
 36

က က ၊

က က က က က ၊

က က က က

က က ၊

က က က က

က က ၊ က က က

က က က

ကက က ၊ က က က ကကက ၊ က

က ကက က က က

က ။

၅။ က က

က က

က က ကက က က

က က

က က ။

က က က

က က ၊
 37

က ၊ က

က က က ။

4.3.10 Mortgagor's power to lease

က က

S. 65(A)
-၆၅ (က)

(1) Subject to the provisions of sub-section (2), a mortgagor,

while lawfully in possession of the mortgaged property,
shall have power to make leases thereof which shall be
binding on the mortgagee.
(2) (a) Every such lease shall be such as would be made in the
ordinary course of management of the property concerned,
and in accordance with any local law, custom or usage.
(b) Every such lease shall reserve the best rent that can
reasonably be obtained, and no premium shall be paid or
promised and no rent shall be payable in advance.
(c) No such lease shall contain a covenant for renewal.
(d) Every such lease shall take effect from a date not later
than six months from the date on which it is made.
(e) In the case of a lease of buildings, whether leased with
or without the land on which they stand, the duration of
the lease shall in no case exceed three years, and the lease
shall contain a covenant for payment of the rent and a
condition of re-entry on the rent not being paid within a
time therein specified.
 38

(3) The provisions of sub-section (1) apply only if and as far as

a contrary intention is not expressed in the mortgage-deed;
and the provisions of sub-section (2) may be varied or
extended by the mortgage-deed and, as so varied and
extended, shall, as far as may be, operate in like manner and
with all like incidents, effects and consequences, as if such
variations or extensions were contained in that sub-section.

(၁) က က

က (၂) က က

။ ။

(၂)(က) က က

( ) က က ။

က က ၊

က ၊ က က ။

( ) က က က

(ဃ) ၍ က

( ) က က က

၊ ၊

က က ။ က
 39

က က

က က

က က က

က က ။

(၃) က က ကက

(၁) က က

။ (၂) က က ။

။ က က

က က က က ။

4.4 Liabilities of Mortgagor

Waste by Mortgagor in Possession

က က ။

S.66. A mortgagor in possession of the mortgaged property is not

liable to the mortgagee for allowing the property to deteriorate; but he
must not commit any act which is destructive or permanently injurious
thereto, if the security is insufficient or will be rendered insufficient by
such act. Explanation: A security is insufficient within of the
mortgaged property exceeds by one-third, or, if consisting of buildings,
exceeds by one-half, the amount for the time being due on the
mortgage.
 40

-၆၆ က က

က က

က ( ) က

က က က ( )

က ။

က။ ။ က

က ၊

က က ၊ က ။

4.5 Rights of Mortgagee

4.5.1 Right of Foreclosure or Sale

က က

S.67. In the absence of a contract to the contrary, the mortgagee has at

any time after the mortgagee money has become due to him, and before a
decree has been made for the redemption of the mortgaged property or the
mortgage-money has been paid or deposited as hereinafter provided, a right to
obtain from the Court a decree that the mortgagor shall be absolutely
debarred of his right to redeem the property, or a decree that the property be
sold.

( -၆၇) က က

က က က၊ က ၊

က က ၊ က
 41

က ၊ က

က ၊

က က

က ။

A suit to obtain a decree that a mortgagor shall be absolutely

debarred of his right to redeem the mortgaged property is called a suit
for foreclosure.

က က ( uit for

orec osure) ။

Nothing in this section shall be deemed –

(a) to authorize any mortgagee, other than a mortgagee by
conditional sale or a mortgagee under an anomalous mortgage by the
terms of which he is entitled to foreclose, to institute a suit for
foreclosure, or an usufructuary mortgagee as such or a mortgagee by
conditional sale as such to institute a suit for sale: or
(b) to authorize a mortgagor who holds the mortgagee's rights as
his trustee or legal representative, and who may sue for a sale of the
property, to institute a suit for foreclosure: or
(c) to authorize the mortgagee of a railway, canal or other work
in the maintenance of which the public are interested, to institute a suit
for foreclosure or sale: or
(d) to authorize a person interested in part only of the mortgage -
money to institute a suit relating only to a corresponding part of the
mortgaged property, unless the mortgagees have, with the consent of
the mortgagor, severed their interests under the mortgage.
 42

က က

(၁) က က

။ က က

က ။

က ။ က က

၍ က

က ။

(၂) က

က ၍ က

၄ က

(၃) ၊ က က

(၄) က က

က က

က ၄ က

။
 43

4.5.2 Right to Sue for Mortgage-money

S. 68(1): The mortgagee has a right to sue for the mortgage-

money in the following cases and others, namely:-
(a) where the mortgagor binds himself to repay the same;
(b) where, by any cause other than the wrongful act or
default of the mortgagor or mortgagee, the mortgaged
property is wholly or partially destroyed or the security
is rendered insufficient with in the meaning of section
66, and the mortgagee has given the mortgagor a
reasonable opportunity of providing further security
enough to render the whole security sufficient, and the
mortgagor has failed to do so;
(c) where the mortgagee is deprived of the whole or part of
his security by or in consequence of the wrongful act or
default of the mortgagor;
(d) where, the mortgagee being entitled to possession of the
mortgaged property, the mortgagor fails to deliver the
same to him, or to secure the possession thereof to him
without disturbance by the mortgager or any person
claiming under a title superior to that of the mortgagor:
Provided that, in the case referred to in clause (a), transferee
from the mortgagor or from his legal representative shall not be liable
to be sued for the mortgage-money.
(2) Where a suit is brought under clause (a) or clause (b) of
sub-section (1), the Court may, at its discretion, stay the suit and all
proceedings therein, notwithstanding any contract to the contrary, until
the mortgagee has exhausted all his available remedies against the
mortgaged property or what remains of it, unless the mortgagee
 44

abandons his security and, if necessary, re-transfers the mortgaged

property.
-၆၈ က

က က ။ က

(၁) က က က

က ။

(၂) ၊

ကက က က

က က ၊ ၆၆

က က ၊ က

က က

၊ က က

ကက က က ။

(၃) ကက က က

က ၊ က

က က က ။

(၄) က က က က

ကက က ၊ က ၊

က ၄ က ၍ က ၊

က က

က က ကက က က
 45

က- (၁) က

၄ က

က က ။

(၁) (၂) ၌

က က က ၊ က ၍

က ၊ က က

က က က

က က

။
10
” က

၊ က က

၊ က ၆၈

က က က

က က က က

၆၈ က ။ က

က က က က

10
၊ ၁၉၆၆ ၊ ၊ ၁၂၈၇
 46

က က က

က ။

4.5.3 Power of Sale When Valid

က

S.69.(1) A mortgagee, or any person acting on his behalf, shall

subject to the provisions of this section, have power to sell or concur in
selling the mortgaged property, or any part thereof, in default of
payment of the mortgage-money, without the intervention of the Court,
in the following cases and in no others, namely: -
(a) Where the mortgage is an English mortgage, and neither the
mortgagor nor the mortgagee is a Hindu, Muhammadan or Buddhist or
a member of any other race, sex, tribe or class from time specified in
this behalf by the President of the Union in the Gazette;
(b) Where a power of sale without the intervention of the Court
is expressly conferred on the mortgagee by the mortgage-deed and the
mortgagee is the Government;
(c) Where a power of sale without the intervention of the Court
is expressly conferred on the mortgagee by the mortgage-deed and the
mortgaged property or any part thereof was, on the date of the
execution of the mortgage-deed, situate within the towns of Rangoon,
Moulmein, Bassein, Akyab or in any other towns or area which the
President of the Union may, by notification in the Gazette, specify in
this behalf.
(2)No Such power shall be exercised unless and until-
(a) notice in writing requiring payment of the principal money
has been served on the mortgagor, or on one several mortgagors,
 47

and default has been made in payment of the principal money, or

of part thereof, for three months after such service: or
(b) some interest under the mortgage amounting at least to five
hundred rupees is in arrear and unpaid for three months after
becoming due.
(3)When a sale has been made in professed exercise of such a
power, the title of the purchaser shall not be impeachable on the
ground that no case had arisen to authorize the sale, or that due notice
was not given, or that the power was otherwise improperly or
irregularly exercised but any person damnified by an unauthorized or
improper or irregular exercise of the power shall have his remedy in
damages against the person exercising the power.
(4) The money which is received by mortgagee, arising from the
sale, after, discharge of prior incumbrances, if any, to which the sale is
not made subject, or after payment into Court under section 57 of a
sum to meet any prior incumbrance, shall in the absence of a contract
to the contrary, be held by him in trust to be applied by him, first, in
payment of all costs, charges and expenses property incurred by him as
incident to the sale of any attempted sale: and secondly, in discharge of
the mortgage-money and other money, if any, due under the mortgage;
and the residue of the money so received shall be paid to the person
entitled to the mortgaged property, or authorized to give rece ipts for
proceeds of the sale thereof.
(5)Nothing in this section or in section 69(A) applies to powers
conferred before the first day of July, 1882.
-၆၉

(၁) က က က က

က ။
 48

(က) ၍

၊ ၊

က က က

က ။

( ) ၍

က က က

က က ။

( ) က က

က ၊ ၊

၊ ၊ က က

က ။

(၂) က က က က

က ။

(က) က က ၊

၄ က က

က က

ကက က ။
 49

( ) က

က က က က

က ။

(၃) က က ၍

က က

က ၊ က ၊

က က

က က က က

က ၊ က

က ၊ က

က က ။

(၄) က က က

က က က ၄ က

က က က က ၄၇

က က က

က က

ကက က

က ။

က ။

က က က က

၊ ။
 50

4.5.4 Appointment of Receiver

S. 69(A) (1) A mortgagee having the right to exercise a power of

sale under section 69 shall, subject to the provisions of sub section
(2), be entitled to appoint, by writing signed by him or on his behalf, a
receiver of the income of the mortgaged property or any part thereof.

၆၉ က

၄ က

က ၍ က

က က ။

(2) Any person who has been named in the mortgage-deed and
is willing and able to act as receiver may be appointed by the
mortgagee.
If no person has been so named, or if all person named are
unable or unwilling to act, or are dead, the mortgagee may appoint any
person to whose appointment the mortgagor agrees; failing such
agreement, the mortgagee shall be entitled to apply to the Court for the
appointment of a receiver, and any person appointed by the mortgagee.
A receiver may at any time be removed by writing signed by or
on behalf of the mortgagee and the mortgagor, or by the Court on
application made by either party and on due cause shown.
A vacancy in the office of receiver may be filled in accordance
with the provisions of the sub-section.
(3) A receiver appointed under the powers conferred by this
section shall be deemed to the agent of the mortgagor; and the
mortgagor shall be solely responsible for the receiver's acts or defaults,
 51

unless the mortgage-deed otherwise provides or unless such acts or

defaults are due to the improper intervention of the mortgagee.
(4) The receiver shall have power to demand and recover all the
income of which he is appointed receiver by suit, execution or
otherwise, in the name either of the mortgagor or of the mortgagee, to
the full extent of the interest which the mortgagor could dispose of,
and to give valid receipts accordingly for the same, and to exercise any
powers which may have been delegated to him by the mortgagee in
accordance with the provisions of this section.
(5) A person paying money to the receiver shall not be
concerned to inquire if the appointment of the receiver was valid or
not.
(6) The receiver shall be entitled to retain out of any money
received by him, for his remuneration, and in satisfaction of all costs,
charges and expenses incurred by him as receiver, a commission at
such rate not exceeding five percent, on the gross amount of all money
received as is so specified, then at the rate of five percent, on that
gross amount, or at such other rate as the Court thinks fit to allow on
application made by him for that purpose.
(7) The receiver shall, if so directed in writing by the
mortgagee, insure to the extent, if any, to which the mortgagee might
have insured, and keep insured against loss or damage by fire, out of
the money received by him, the mortgaged property or any part thereof
being of an insurable nature.
(8) Subject to the provisions of this Act as to the application of
insurance money, the receiver shall apply all money received by him as
follows, namely:-
(i) in discharge of all rents, taxes, land revenue, rates and
outgoings whatever affecting the mortgaged property;
 52

(ii) in keeping down all annual sums or other payments, and the
interest on all principal sums having priority to the mortgage in
right where of he is receiver;
(iii) in payment of his commission, and of the premiums on fire,
life or other insurances, if any, property payable under the
mortgage-deed or under this Act, and the cost of executing
necessary or proper repairs directed in writing by the mortgagee;
(iv) in payment of the interest falling due under the mortgage;
(v) in or towards discharge of the principal; money, if s o
directed in writing by the mortgagee, and shall pay the residue, if
any, of the money received by him to the person who, but for the
receiver, would have been entitled to receive the income of
which he is appointed receiver, or who is otherwise entitled to
the mortgaged property.
(9) The provisions of sub-section (1) apply if and as far as a
contrary intention is not expressed in the mortgage-deed; and the
provisions of sub-sections (3) to (8) inclusive, varied or extended shall,
as far as may be, operate in like manner and with all the like incidents,
effects and consequences, as if such variations or extensions were
contained in the said sub-sections.
(10) Application may be made, without the institution of a suit,
to the Court for its opinion, advice of direction on any present question
respecting the management or administration of the mortgaged
property, other than questions of difficulty or importance not proper in
the opinion of the Court for summary disposal. A copy of such
application shall be served upon, and the hearing thereof may be
attended by, such of the persons interested in the application as the
Court may think.
The costs of every application under this sub-section shall be in
the discretion of the Court,
 53

(11) In this section, "The Court" means the Court which would have
jurisdiction in a suit to enforce the mortgage.

4.5.5 Accession to Mortgaged Property

S.70. If, after the date of a mortgage, any accession is made to
the mortgaged property, the mortgagee, in the absence of a contract to
the contrary, shall, for the purposes of the security, be entitled to such
accession.

။ ၇၀

က က

က က ။

Illustrations
(a) A mortgages to B a certain field bordering on a river.
The field is increased by alluvion. For the purposes of his
security, B is entitled to the increase.
(b) A mortgages a certain plot of building land to B and
afterwards erects a house on the plot. For the purposes of
his security B is entitled to the house as well as the plot.

4.5.6 Renewal of Mortgaged Lease

S.71. When the mortgaged property is a lease and the mortgagor

obtains a renewal of the lease, the mortgagee, in the absence of a
contract to the contrary, shall, for the purposes of the security be
entitled to the new lease.
 54

၇၁

၍ က

က က က က

က က

4.5.7 Rights of Mortgagee in Possession

S.72, A mortgagee may spend such money as is necessary –
(a) * * * *
(b) for the preservation of the mortgaged property from
destruction, forfeiture or sale;
(c) for supporting the mortgagor's title to the property;
(d) for making his own title thereof good against the
mortgagor; and
(e) When the mortgaged property is a renewable lease-hold,
for the renewal of the lease; and may, in the absence of
contract to the contrary, and such money to the principal
money the rate of interest payable on the principal, and
where no such rate is fixed, at the rate of nine percent, per
annum;
Provided that the expenditure of money by the mortgagee under
clause (b) or clause (c) shall not be deemed to be necessary unless the
mortgagor has been called upon and has failed to take proper and
timely steps to preserve the property or to support the title.
Where the property is by its nature insurable, the mortgagee may
also, in the absence of a contract to the contrary, insure and keep
insured against loss or damage by fire the whole or any part of such
property; and the premiums paid for any such insurance shall be added
 55

to the principal money with interest at the same rate as is payable on

the principal money or, where no such rate is fixed, at the rate of nine
per cent per annum. But the amount of such insurance shall not exceed
the amount specified in this behalf in the mortgage-deed or (if no such
amount is therein specified) two-thirds of the amount that would be
required in case of total destruction to reinstate the property insured.
Nothing in this section shall be deemed to authorize the
mortgagee to insure when an insurance of the property is kept up by or
on behalf of the mortgagor to the amount in which the mortgagee is
hereby authorized to insure.

( ) ၇၂။

က က က ။

(က) + + + + + + +

( ) က ၊

က က ။

( ) က က က ။

(ဃ) က က ၍ က

( ) က

။
 56

4.5.8 Right of Proceeds of Revenue Sale or Compensation on

Acquisition

S. 73. (1) Where the mortgaged property of any part thereof or

any interest therein is sold owing to failure to pay arrears of revenue or
other changes of a public nature or rent due in respect of such property,
and such failure did not arise from any default of the mortgagee, the
mortgagee shall be entitled to claim payment of the mortgage-money,
in whole or in part, out of any surplus of the sale proceeds remaining
after payment of the arrears and of all charges and deductions directed
by law.
(2) Where the mortgaged property of any part thereof or any interest
therein is acquired under the Land Acquisition Act, or any other
enactment for the time being in force providing for the compulsory
acquisition of immoveable property, the mortgagee shall be entitled to
claim payment of the mortgage-money, in whole or in part, out of the
amount due to the mortgagor as compensation.
(3) such claims shall prevail against all other claims except those of
prior incumbrancers, and may be enforced notwithstanding that the
principal money on the mortgage has not become due.

က ၍

က ။ -၇၃

ကက က က

က၍ ၊ က

က ကက က က က
 57

က က

က က ၊ ကက

က ၊ ။

က က

က ။

4.6. Liabilities of Mortgagee

(1) Liabilities of mortgagee in possession

S. 76. When, during the continuance of the mortgage, the

mortgagee takes possession of the mortgaged property, –
(a) he must manage the property as a person of ordinary
prudence would manage it if it were his own;
(b) he must use his best endeavours to collect the rents and profits,
thereof;
(c) he must, in the absence of a contract to the contrary, out of the
income of the property pay the Government revenue, all other
charges of a public nature and all rent accruing due in respect
thereof during such possession, and any arrears of rent in default
of payment of which the property may be summarily sold;
(d) he must, in the absence of a contract to the contrary, make
such necessary repairs of the property as he can pay for
out of rents and profits thereof after deducting from such
rents and profits the payments mentioned in clause (c) and
interest on the principal money;
 58

(e) he must not commit any act which is destructive or

permanently injurious to the property;
(f) where he has insured the whole or any part of the property
against loss or damage by fire, he must, in case of such
loss or damage, apply any money which he actually
receives under the policy, or so much thereof as may be
necessary, in reinstating the property, or if the mortgagor
so directs, in reduction or discharge of the mortgage-
money;
(g) he must keep clear, full and accurate an account of all
sums received and spent by him as mortgagee, and at any
time during continuance of the mortgage, give the
mortgagor, at his request and cost, true copies of such
accounts and of the vouchers by which they are supported;
(h) his receipts from the mortgaged property, or where such
property is personally occupied by him, a fair occupation-
rent in respect thereof, shall, after deducting the expenses
property incurred for the management of the property and
the collection of rents and profits and the other expenses
mentioned in clauses (c) and (d), and interest thereon be
debited against him in reduction of the amount (if any)
from time to time due to him on account of interest and, so
far as such receipts exceed any interest due, in reduction or
discharge of the mortgage-money; the surplus, if any, shall
be paid to the mortgagor;
(i) When the mortgagor tenders, or deposits in manner
hereinafter provided, the amount for the time being due on
the mortgage, the mortgagee must, notwithstanding the
provisions in the other clauses of this section, account for
his receipts from the mortgaged property from the date of
 59

the tender or from the earliest time when he could take

such amount out of court, as the case may be, and shall not
be entitled to deduct any amount therefrom on account of
any expenses incurred after such date or time in
connection with the mortgaged property.

က ။ -၇၆

(က) က က

က က ။

( ) က က က

၍ က က ။

( ) က က

က က

က ။

(ဃ) က က

( ) က က

( ) က က

က ။

( ) က က ၊ က က
 60

၊ ကက ၊ က

က ။

က က က

( ) က

က က က

( ) က

က က

က က ၊ ( ) (ဃ) က က

က က က က က

က က ။ ကက

၊ က ။ က

က ။

( ) က က

က က ၍ ၊
 61

က ။၄ က

က က

။
 62

Key Terms

Mortgage -

Mortgagor -

Mortgagee -

Secured -

Mortgage-money -

Mortgage deed -

Simple Mortgage - က

Mortgage by - က က ၍

conditional sale

Usufrctuary Mortgage - က

Anomalous Mortgage - က

Redeem -
 63

Questions

1. Define and explain Mortgage.

2. How many kinds of Mortgage Explain Mortgage by

Conditional Sale and Mortgage by Deposit of Title

Deeds with cases?

3. What are the essentials of Mortgage by Conditional

Sale?

4. What are the characteristic of a mortgage by deposit of

title deeds with cases?

5. Explain usufructuary mortgage.

6. What is the anomalous mortgage?

7. When is a usufructuary mortgagor entitled to recover

possession?

8. Can a simple or a usufructuary Mortgagee sue for

foreclosure or sale?
 Chapter 5

Lease of Immoveable Property

Contents Pages
5.1 Lease (Sec: 105) 2

5.2 Essentials of Lease 3

5.3 Distinction between a sale, a lease and a mortgage 6

5.4 Notice to Quit 8

5.4.1 Notice to quit in periodic tenancies 8

5.4.2 Form and construction of notice to quit 11

5.4.3 Service of Notice 17

5.5 Sec: 107 Leases how made 19

5.6 Sec: 108 - Rights and liabilities of the lessor and

the lessee 22

5.6.1 Rights and liabilities of the lessor 22

5.6.2 Rights and liabilities of the lessee 24

 2

Lease of Immoveable Property

ပ ပ

5.1 Lease (Sec: 105)

A lease of immoveable property is a transfer of a right to

enjoy such property, made for a certain time, express or implied,
or in perpetuity, in consideration of a price paid or promised, or
of money, a share of crops, service of any other thing of value, to
be rendered, periodically or on specified occasions to the
transferor by the transferee, who accepts the transfer on such
terms.
The transferor is called the LESSOR, the transferee is
called the LESSEE, the price is called the PREMIUM, and the
money, share, service or other thing is called the RENT.

ပဒ -၁၀၅ (Lease)

ပ ပ ပ ပ တ

ပ န တပ န တ ဖ တ န န န

ဖ ၊ တ တထ န တ ဖ ၊ ပ ၊ ပ

၊ ပ တ တနဖ တ ဖ ပ

ပ ပ ပ ၏ တ တ

တ တ တ တ န တ တ

ထ တ န ပ ပ ပ ပ

တ ။
 3

ပ ပ ထ (Lessor) ၊ ပ

(Lessee) ၊ န

န (Premium) ၊ တ ပ ပ ၊ ပ

တ တန ( e t) ၍ ။

5.2 Essentials of Lease

(1)There must be a lessor, who is able to make the lease. The
lessor must be an absolute owner or competency to grant a lease
depends upon competency to transfer under Sec: 7. In othe r words the
lessor must be competent to contract and have title or authority.
(2) There must be a lessee, who is capable of taking the thing
demised.
A lease executed in favour of a minor is null and void and does
not confer any right or title on lease Section 107 does not apply to
transferees. Both the sale to a minor and a mortgage to a minor are
valid. But it has been held that a lease to a minor is void as the lease
imports a covenant by a minor to pay rent and other reciprocal
obligations.
(3)The subject-matter of a lease must be immoveable property as
defined in section 3.
The subject-matter is therefore not only land and minerals and
building but also benefits to arise out of land such as fisheries, ferries,
market dues.......etc......
(4)A lease is not a mere contract but is a transfer of an interest in
that property. The estate transferred to the lease is called the leasehold.
The estate remaining in the lessor is called the reversion.
(5)The leases recognized by this section are leases for a certain
time, periodic leases, and leases in perpetuity.
 4

Leases for a certain time may be defined either by express or

implied.
Periodic leases are tenancies from year to year or from month to
month. The period may be a year, a quarter, a month or even a week,
and the mode in which the rent is reserved may afford a presumption as
to the period of the lease.
Leases in perpetuity are either by an express grant or by a
presumed grant. Such leases are generally agricultural leases.
(6)Consideration may be paid or promised. It is money or
money's worth, such as, a share of crops, services or any other thing of
value.
The consideration is either premium or rent of forming part of
the consideration of the lease or nature of rent.
(7)There must be an acceptance of the thing demised, and of the
estate by the lessee.
(8) According to Sec: 107, a lease of immoveable property must
be made by a registered instrument.

န ပ

(၁) ထ ပ ပ န

ပ ပ ပ ပ နပ တ

ဏ ။

(၂) ပ နတ ပ ပ

န ။

တ ပ
 5

ပ ပ ။

ပဒ -၁၀၇ ထ

ပ ပ န ပ ။

(၃) ပ ပ ဖ ။

(၄) ပ ၏ ပ ပ ဖ ။

(၅) န တ တ တ

တ တ တ န တ ဖ ၊

ထ တန တ ဖ ။

(၆) န န (Premium)

( e t) တ န

ဖ ။

တ ။။ န

တ ထ

တ ပ ဖ ။

န တ တတ ဒ တ ပ

(၇) ပ ။

(၈) ပ ပဒ ၁၀၇ပ ပ န တ

ပ ပ ။
 6

5.3 Distinction between a Sale, a Lease and a Mortgage

A sale is a transfer of ownership in exchange for a price paid or
promised.
A lease is a transfer of a right to enjoy immoveable property
made only consideration of a price.
A mortgage is the transfer of an interest in specific immoveable
property for the purpose of securing the payment of money advanced
or to be advanced.

Sec: 106-Duration of Certain Leases in Absence of Written

Contract or Local Usage
ပ တ ဓ ထ တ

တ ပ ။ ပဒ -၁၀၆

In the absence of a contract or local law or usage to the contrary,

a lease of immoveable property for agricultural or manufacturing
purposes shall be deemed to be a lease from year to year, terminable,
on the part of either lessor or lessee, by six months notice expiring
with the end of a year of the tenancy; and a lease of immoveable
property for any other purpose shall be deemed to be a lease, from
month to month, terminable, on the part of either lessor or lessee, by
fifteen days notice, expiring with the end of a month of the tenancy.
Every notice under this section must be in writing, signed by or
on behalf of the person giving it, and tendered or delivered either
personally to the party who is intended to be bound by it, or to one of
his family or servants at his residence, or (if such tender or delivery is
not practicable) affixed to a conspicuous part of the property.
 7

န ပ တ ဒ ပ ဒ

တဓ ထ -

ပ န တ ဖ ၊ န ထတ ပ န တ ဖ ၊

ပ ပ တ ပ တ

ဖ ။ ထ ၊

၊ န တ ပ န

န န ၆ တ တ ပ

တ တ ။

တ ပ ပ တ

ပတ ဖ ။ ထ ၊

၊ န

တ ပ န န န ၁၅ တ တ ပ

တ တ ။

ပဒ ပ တ ဖ ပ တ

ပ တ ဖ ၊၄ တ ဖ ၊ တ ထ၍ တ

န န ထ တ ဖ ၊ တ ၄ ဖ

တ၄ ၏ တ တ၄ ဖ

ပ ပ ။ ပ ပ န ဖ ပ ၌

န တ ထ တ ပထ ။
 8

5.4 Notice to Quit

ထတ တ

According to the provision of section 106 a notice to quit must

satisfy the following requisites:
(1) Notice to quit in periodic tenancies.
(2) Form and construction of notice to quit.
(3) Service of notice

ပ ပ ၌ ထ

ထတ ပ ပဒ -၁၀၆ ပ ပ န

တ ပ ။ ထတ တ တ န -

(၁) တ တ ပ ။

(၂) တ တ ပ ။

(၃) တ ပ ပန ။

တတ တ တပ ဖ ။

5.4.1 Notice to Quit in Periodic Tenancies

In the case of periodic leases, the common law rules as to notice
to quit is that reasonable notice must be given to determine the
tenancy.
 9

(A) Length of Notice

Agricultural or manufacturing purposes are deemed to be yearly

leases; and in the case of yearly leases a half year's notice to quit at the
end of some year of the tenancy has from early times been held to be
sufficient. If the tenancy is a monthly tenancy a notice must give the
tenant 15 day's notice. The section fixes six months for yearly a nd
fifteen days for monthly tenancies created by implied demise.

(B) Calendar
If a tenancy from year to year or month to month on the basis of
year or month calculated according to Myanmar Calendar, it should be
calculated according to that calendar. If a tenancy is regulated by the
British Calendar, a notice calculated according to the British
Calendar .

(C) Date of Expiry of Notice

The notice must expire with the end of a year or a month of the
tenancy. It should expire on the last day of that period. Th us, if the
tenancy is monthly tenancy beginning with the first day of each,
th
month, a notice by the tenant on the 9 of June that he would leave in
a month time is invalid. For although it gave more than 15 days notice
it did not terminated the tenancy at the end of the month.
th
For Example: a monthly tenancy beginning on the 6 of each
th
month with rent payable on the 5 of the next month a notice to quit
th
given on the 30 June for the end of July was invalid as it did not
expire on the last day of the period of the tenancy.
The date of expiry of tenancy depends upon the date of its
commencement and that again depends upon whether the lease is
expressed to begin from or on a certain day.
 10

15-days notice means 15 clear days. If service of notice made by

post, it must not count to the postal date but to the date of the notice
has been delivered.
th th
So that a notice to quit on the 30 of a month served on the 15
of a month is inadequate. But the notice may be in excess of fifteen
days at the pleasure of the lessor. In the case of a monthly tenancy a
notice of two months instead of fifteen days has been held to be valid.

တ တ ပ

( ) ပ နတ တ တ ပတ

ဖ ပ

န ၆ တ ၍ တ ပ ။

ပ တ တ ပတ

ဖ ပ န ၁၅-

တ ၍ တ ပ ။

( ) ဖ ၊ ဖ ၊ န

ပ ဒန ပ တ ၍ န တ ။

ပပ ဒန ပ တ ၍ ပ တ

( ) တ န

၁၅ တ ၍ တ ပ န ၏

တ ပ ၁၅ ။ ၍ တ

ပပ တ ထ န တ ပ န

တ တ ။
 11

1
“ န ဖန ” ထတ ပ ပ ပ

ဒပဒ ၁၀၆ တ ပဒ ၂ပဒ ၍ ဖ ပပ

၍ ဓပ န ဖ ပ။ တ ပ

န ၁၅ တ ၍ တ ။ ထ န တ

ပ ပ ပ ပဒ ၏ ပဒ ၂ တ ပ တ

န ပ ပ ။ ထ ၁၉၅၄

၁၂ န ဖ တ တ ထ ထ

၁၇ န ဖ ပ ပ ပ ဒပဒ ၁၀၆၊

ပဒ ၁ တ ပ ပ န ၁၅ တ တ

ပ တ တ တ

ဖ ဖတ ။

5.4.2 Form and Constuction of Notice to Quit

ထတ တ တ ပ

A notice to determine a lease must be as follows;

(A) It should be in writing.

It should be tendered or delivered to the addressee.

( ) န ပ ပ န န ဖ ပ ။

Abdul Bari Vs S.M Abowath 1950 B.L.R (H.C) 401

Held: The dispatch of a notice under S: 106.

1
န ဖန ၁၉၆၀ ၊ ၊တ ၁၀၅။
 12

Transfer of Property Act and S.11(1)(a) of the Urban Rent

Control Act,1948 by registered post to a person at a wrong address will

not raise any presumption of service. The burden of proof is on the

party asserting to show that in spite of a wrong address being given on

the notice; it was in fact delivered to the defendant. The service of

notice under the above section is a condition precedent to the filing of

an ejectment suit.
2
“Abdul Barl S.M, Abowath” ထတ ပ ပ

ပ ဒပဒ -၁ ၆ ပ ပ ပ ဒပဒ -

၁၁(၁) ( ) တ တ တပ တ ၍ ပပ တ

ပ ၍ပ တ တ ။ ပ န

တ ထ ပ ။

ပ တ ပ ။ ထ

န တ ပပ ထ န

ဖတ ။

S.L Barua Vs S.M Abowath 1950 B.L.R (H.C)404

The appellant was the tenant of the house No.489-c, Prome

Road, belongs to the Respondent. In the notice served on the tenant to
determine the tenancy, the number of the house was given as 489 and
not 489-c and the receipt of the notice were admitted. It was contended
that notice was invalid owing to mention of the wrong number. Held
that the notice was good and effective in law. The test of sufficiency of

2
Abdul Bari V.S.M. Abowath, 1952, B.L.R. 401 (H.C)
 13

notice is what it would mean to the tenant conversant with all the facts
and circumstances and not what they would mean to a stranger.

3
“S.L. Baru a S.M. Abowath” ထတ ပ တ

၄၈၉( )တ နထ ထ န

တ ပ တ ၄ တ တ-၄၈၉( )

ပ ၄၈၉ ပ တပ ပ ပ ပ ။ ပ တ

န ။ တ န

တ ပ န

န ဖ ။ တ ပ ဒ ထ န တ

ဖတ ။

(B) It should state definitely the proper time for the

determination of the contract and should expire with the end of the
year or month of the tenancy, as the case may be.

( ) န န န န ဖ ပ ။
4
“ တ ပ ၂” ထတ ဖ ၁၃၂၀

တ န ၁၂ န တ တ တ

ပ တ ဖ ပထ ။ “၁၃၂၃ န န န ၁၂ န

နတ နထ ပ ဖ ထ

ပ ။” ဖ န ဖ န ၁၂ န

တ ၁၃၂၃ န န န ၁၁ န န န၌

3
S.L. Barua V.S.M. Abowath, 1952, B.L.R. 404 (H.C)
4
တ ပ ၂၊ ၁၉၆၃၊ ၊ ၊တ ၁၀၂၇။
 14

န ။ထ တ ၁၃၂၃ ၊န န

န ၁၂ ၊ နတ နထ ပထ ဖ ပ

ပ ၊ ပ ဒပဒ ၁၀၆ ပ” ဖတ ။

(C) The notice must be definite. It must be explicit and positive.

( ) တ ထ ပ န တ ဖ ပ ။

U Sein Win (Appellant) Vs U Mya Than (Respondent) 1959

B.L.R P 229 (H.C)

In a notice sent by the respondent to the appellant it was

mentioned that five months rent at the rate of K.100 per mensum from
December 1955 to April 1956 was in arrears, that legal action would be
st
taken against the appellant if he continued his stay bey ond the 1 June
1956 without settling the arrears of rent and that the notice was given
under sec: 106 of the Transfer of Property Act. It was contended that as
there was no express mention in the notice that the lease was to expire
at the end of May 1956 and that as there was no demand in the notice
requiring the appellant to vacate, the notice was not one determining
the lease.
Held that the notice was not effective in law.

5
“ န န” ထတ တ တ တ

ပ၁၀၀ န ၁၉၅၅ ဒ ၁၉၅၆ ပ ထ ၅-

တ န ။ န ပ ပ ၁၉၅၆- န ၁

န၍ နထ တ တ

5
U Sein Win V.U Mya Than 1959 B.L.R 229 (H.C)
 15

တ ထ ပ ပ ပ ဒ ပဒ -၁၀၆

တ ပ ။ ၁၉၅၆ နတ န

တ တ ပ တ ၊ ထ န တ

ပ တ ထ တ

ပ တ တ ဖတ ။

(D) The notice must be clear and unambiguous so that the tenant may
safely and unhesitatingly act upon it. But it does not need to be word
with the accuracy of a plea.

(ဃ) တ တ တ ဖ ပ ။ ပ

တ န ။

Ko Ba Shin and one (Appellants) Vs. Daw Khin

(Respondent) 1958 B.L.R 288 (H.C)

Where it is contended that a notice to quit in Burmese containing

the words 1957 is invalid as calling upon the tenants the quit on or
st st
before the 31 March 1957 and not on the 31 March 1957, in view of
the provisions of S-106 of the Transfer of Property Act. Held: that the
st
notice in effect was a notice to quit on the expiry of the 31 March
1957, and that even if it can be construed as notice to quit on or before
st
the 31 March 1957 and it would still be a valid notice.

6
“ ပ၂ ဒ ” ထတ “၁၉၇၅ ၊ တ ၃၁

န ထ ပ တ ပ န ပ ထ

” ထတ တ တ ၊

6
Ko Ba Shin and one V. Daw Khin 1958 B.L.R. 288 (H.C)
 16

ပ ပ ပ ဒပဒ ၁၀၆ ၁၉၅၇

တ ၃၁ နတ ထ တ ၁၉၅၇ တ

၃၁ ၊ တ ၄ တ ထ ဖ ။

ပ ပ ပ ဒ ပဒ ၁၀၆ ပပ တ

တ ဖ ပ ။ တ တ တ

န ပ ဖတ ။

Notice issued under S.106 of the Transfer of Property Act should

be constructed strictly but this does not necessarily mean that they
should be worded with the accuracy of a plea in a civil suit.

(E) It must give the tenant a notice of ejectment or the tenant must
vacate the house (land) by the time specified;
( ) တ ပပ န ဖ ပ ။

တ န

န တ ၁၅ တ တ တ ဖ

တ တ ပပ န ဖ ပ န ထ ။

(F) It must state that if the tenant occupy are not vacated within the
specified date, a file of suit against the tenant;
( ) ဖတ တ ပ ။

တ န န ထ ၍ ပ ပ

၊ န ပ ပပ ဖ ပ ။

(G) It should be signed by or on behalf of the person giving it.

( ) ထ တ၄ ၏ တ

ထ ။
 17

5.4.3 Service of Notice

တ ပ ပန

Notice to quit may be served. (A) by post or (B) at the residence

or (C) by other ways.

တ ပ ပန ပ တ ။၎ တ
( ) တ တ ပပ ၊( ) တ ပ
( ) န ဖ ပ တဖ ။

(A) Service by Post

Notice may be sent registered post, the post office being a

recognized agent for the transmission of letters.
The presumption that a notice sent by post was duly served is not
a conclusive presumption of law, it is merely a presumption of fact.
Before the presumption of due service can be applied, it is necessary to
prove that the notice was sent in a cover which was properly addressed.

( ) တ တ ပပ

တ န ၁၅ တ ၍

န တ ပ န တ

။ တ ပပ တ တ န တ ပ တ

န တ ပ ဖ တ တ

ထ ပထ တ န ပ ။ထ ပ ပ

န န ပ၍ ပ တ ပ ပ ပ ။

တ ပပ တပတ ၍ပ ၊ တ
 18

ပ တပ ဖ ပ ။ ပ န န တပ၍ တပတ ပ တ ပ

ပ၍ပ ပ ပ ၄ ဖ

ဖ ။

Mullaiya Vs D.M. Molakchang 1953 B.L.R 285

Held: Where a notice is required by law to be sent by post, it is
deemed in law to have been effected, if it is dispatched by pre-paid
registered post, containing the proper address of the person to whom it
is sent.

7
“Mualla a D.M.Molakcha d” ထတ ပ ဒ

တ တ ပပ တ တ ပ ထ

၄ ၏ ပ န ၍ တ ပ ပ ပ တ

တ ပ ပ ပ ပ ဒပဒ ၁၀၆

ပ န ပ ပ တ ဖတ

(B) Service at Residence

Service at residence is affected by delivery to a servant or a

member of the other party's family. Under the section such service is
equivalent to service on the party himself. The words "or to one of his
family or servants at his resident" provide an alternative mode of
service, and not available only of personal service is impossible.

7
Mullaiya V.D.M M…. 1958 R.L.R. 285.
 19

( ) တ ပ

တ ပပ တ ဖ ၄

တ ဖ ၏ တ ဖ ၄ ၄ ၏

တ ဖ ၄ ဖ ၏ ဖ

ပ ပ ။

(C) Service by Other Ways

If the above mention modes of service fail, personal service may
be on the lessor. The lessor shall be affected by nailing or affixing the
notice on the main door of the lessee house .
( ) န ဖ ပ

တ ပပ တ တ ပပ တ

န ပ ပ ( ပ ပ )

ဖ ၍ ပ ၏ န တ

( ပ - တ တ ) တ ပထ ဖ တ

ပ ။

5.5 Sec: 107 Leases How Made

A lease immoveable property from year to year or for any term

exceeding one year or reserving a yearly rent, can be made only by a
registered instrument.
All other leases of immoveable property may be made either by a
registered instrument or by oral agreement accompanied by delivery of
possession.
Where a lease of immoveable property is made by a registered
instrument, such instrument or, where there are more instrument that
 20

one, each such instrument shall be executed by both the lesso r and the
lessee:
Provided that the President of the Union may from time to time,
by notification in the Gazette, direct that leases of immoveable
property, other than leases from year to year, or for any term exceeding
one year or reserving a yearly rent, or any class of such leases may be
made by unregistered instrument or by oral agreement without delivery
of possession.

ပ ပ န။ ပဒ -၁၀၇

ပ ပ တ ပတ ၍

တတ ထ ပ၍ တ န တ တ၍

တပ တ ပဖ ပ ပ ။

ပ ပ တပတ ပဖ တ

၄ ၊ ပ တ ပတ ထ ပပ ပတ တ ထ

တ ထ ။

န ပနတ တ န

ထ ၍ ပ တ ၊ တ

တ ထ ပ၍ တ န န တ တ၍

တ တ ပ

န ဖ တ တ ပတ ပ တ

ဖ ဖ ၊ပ ပ ပပ တ တဖ ဖ ပ ပ

ထတ ပန ။
 21

General: - This section must be read as supplement to the

Registration Act.
Sec: 107 does not lay down that a lease of immoveable property
can be made only by a registered instrument, but it can be made only
by a registered instrument in three cases.
(a) a lease from year to year
(ii) a lease for any term exceeding one year and
(iii) a lease reserving a yearly rent.
Maung May and one (appellants) Vs. U Ba Thwe and one
(Respondents) 1950 B.L.R. 71.
Held: that a lease is defined in S.105 of the Transfer of Property
Act. Under S.107 a lease of immoveable property from year to year for
any term exceeding one year can be made only by a registered
instrument and all other leases of immoveable property may be made
either by a registered instrument or by oral agreement accompanied by
delivery of possession.
A lease implies that there should be two parties the lessor and
the lessee and the instrument of lease contains covenants that both the
lessor and the lessee agree to. Therefore a lease can not be affected
unless the lessor is a party to the instrument of lease. As Exhibit A in
the case was signed by one party only it can in effect be no more than
an agreement to lease.

8
“ ပ၂ ၂” ထတ တ

ထ ၍ ။ ပတ

ထ တ ပ ။ထ

ထ ပတ ပ ဖ

8
Mg Maw and one V.U Ba Thwe and one 1950 B.L.R. 71
 22

တ တ တ တ ထ ဖ

၄ န တ ထ ပ၍ ဖ ဖတ ။

5.6 Sec: 108 - Rights and Liabilities of the Lessor and the

Lessee

ထ တ၏တ န

ပဒ -၁၀၈

In the absence of a contract or local usage to the contrary, the

lessor and the lessee of immoveable property, as against one another
respectively, possess the rights and are subject to the liabilities
mentioned in the rules next following , or such of them as are
applicable to the property leased: -

န န ပ ၊ ဓ ထ တ

တ ပ ပ ထ

တတ ပတ န ပန န

5.6.1 Rights and Liabilities of the Lessor

ထ ၏တ န

(a) Disclosure of material defect

 23

The lessor is bound to disclose to the lessee any material defect

in the property, with reference to its intended use of which the former
is and the latter is not, aware of and which the latter could not with
ordinary case discover;

( ) ပ ပ ပ ၍

ထ ၊ န တဖ

တ ထ ပ ၏ တ ထ

ထတ ဖ ပ နတ န ။

(b) Delivery of Possession

The lessor is bound on lessee's request to put him on possession

of the property;

9
“ ဒ န ဒ တ တတ” ထတ ပ ပ

ပ ဒပဒ ၁၀၈တ ဖ ပပ ထ ၏တ န

န ထ ပ ပ ပ

ပ တ တထ န

တ ပ ပ ထ န တပ

တ ဖတ ။

“ န( ၄ ၏
10
တ န)” ထတ ပ တ ပ

ပ ပ ပ ပ ပ တ

9
Daw Khin Khin Sein V, Dr. Y.C, Gulati 1963 B.L.R. 328(C.C)
10
န( ၄ ၏ တ န ၊ ၊တ ၁၁၄၇၊ ၁၉၆၆
 24

ဖ ဖ ။ပ ပ ပ ပ ဒပဒ -

၁၀၈ ( ) ပ ပ ပ န

တ န ။ ပ ပ ပ

ပ နဖ ပ နတ န

တ၊ ပ န တ န ပ

။ ထတ ပ န ဖတ

(c) Quiet possession

The lessor shall be deemed to contract with the lessee
that, if the latter pays the rent reserved by the lease and
performs the contract binding on the lessee, he may hold the
property during the time limited by the lease without
interruption:
( ) ပ၍ န

န တ ပ န

ထ ပ တ ။

5.6.2 Rights and liabilities of the lessee

၏တ န

(d) Accession

If during the continuance of the lease any accession is made to

the property, such accession shall be deemed to be comprised in the
lease:
 25

(ဃ) တ ဖ န ပ တ တ တ တ ပ ဖ ထန

တ ပ ဖ ထန တ ပ

တ ။

(e) Destruction of leasehold property

If by fire, tempest, or flood, or violence of an army or of a mob,
or other irresistible force, any material part of the property be wholly
destroyed or rendered substantially and permanently unfit for the
purposes for which it was let, the lease shall, at the option of the
lessee, be void:
Provided that, if the injury be occasioned by the wrongful
act or default of the lessee, he shall not be entitled to avail
himself of the benefit of this provision:

( ) ပ တ ဓ ဖ ပ ၊ နတ

၊ ၊ တပ တ တ ဓ

( တ) တ တ

ပ တ

ဖ ၊

ပ ပ ပ ပ ။

ပ ၏ တ တ ပ

တ ပပ ဖ

ပ ပ ။
 26

11
“ ပ၂ န ပ ၃” ထတ ပ

ပ ပ ဒပဒ -၁၀၈( ) ပ န ဖ

ထ ဖ ပ ဖ

တ ဖ ဖတ ။

(f) Repairs

If the lessor neglects to make within a reasonable time after

notice, any repairs which he is bound to make to the property, the
lessee may make the same himself, and deduct the expense of such
repairs with interest from the rent or otherwise recover it from the
lessor;

( ) ပ တ ပ နတ န ပ န

ပ တ န တ ထ ပ

ပ ၍ န တ တ ထ

တ ။ တ ထ ထ န ဖ

တ ။

N.B Sen Gupta Vs U Jone Bin 1951 B.L.R 77 (H.C)

Held: It is elementary that for a tenant to enjoy a property of the
nature let out to the Appellant in this case some kind of a roof is an
absolute necessity. As the Appellant was in any circumstance entitled
to a roof of some sort in his part of the building, the failure of the
Respondent to put up one in conformity with the Building Bye -laws of
the Municipally was a clear breach of his legal duty which he owed to
his tenant.

11
ပ ၂ န ပ ၃။ ၁၉၆၂ ၊ ၊ထ၊ ၄၃၅။
 27

12
“ (န) တ(ပ)တ ” ထတ

တ နထ ပ တ တ ။

တ ပ န ပ ပ ဒ ပ

နတ န ။ ပ န ပ

ပ ဒ တ န ပပ ။

တ ပ န တ တ ထ ထ

ဖတ ။

(g) Payment of lessee

If the lessor neglects to make any payment which he is bound to
make, and which, if not made by him, is recoverable from, the lessee or
against the property the lessee may make such payment himself, and
deduct it with interest from the rent, or otherwise recover it from the
lessor;

( ) ထ တ တ ပ န ပ ပပ

ပ ထ ၊ပ

တ ပ ပ တ

ထ ပ ပ တ တ ။ တ

ထ ထ န ဖ တ ။

(h) Removal of fixtures

The lessee may remove, at any time during the continuance of
the lease, all things which he has attached to the earth provided he
leaves the property in the state in which he received it:

12
N.B Sein Gupta V.U Jone Bin 1951 B.L.R. 77 (H.C)
 28

( ) ပ ပ

န တ တ ပထ

ပ ။ ပ တ ။
13
“ ( ) ( ) ( ) န န ( )”

ထတ န န ၍ တ

၊ န ဒ ထဓ ၊

တ န

ဖ န ပတ ထ ပ တ ပထ

တ ပ ထ

ဖ ပ ” ဖတ ။

(i) Emblements
When a lease of uncertain duration determines by any means
except the fault of the lessee, he or his legal representat ive is entitled
to all the crops planted or sown by the lessee, and growing upon the
property when the lease determines, and to free ingress and egress to
gather and carry them.

( ) န န တပ ၇ တ ၏ ပ

တပ နတ

ပ တ ပ ထ ပ န

တ ဖ ၄ ၏တ

ဖ ၊ ။၄ ပ ၍

13
( ) ( ) ၊ ( ) န န ( )၊ ၁၉၆၂၊ ၊ ၊ထ ၄၂၅ (တ ပ)
 29

နပ တ တ ပ ထ ။

(j) Lessee's right of transfer

The lessee may transfer absolutely or by way of mortgage or
sub-lease the whole or any part of his interest in the property and any
transferee of such interest or part may again transfer it. The lessee
shall not, by reason only of such transfer, cease to be subject to any of
the liabilities attacking to the lease.

( ) ပ တ

ဖ ၊ တ တ ဖ ပ ၊

ပ ဖ ၊တ ထ ဖ

ပ ပ ။ ဖ တ တ

ဖ ၊ ပ ထပ ပ ပ ။

ပ ပ

တ န န တ န တ ။

Nothing in this clause shall be deemed to authorize a tenant

having an untransferable right of occupancy, the former of an estate in

respect of which default has been made in paying revenue, to assign

his interest as such tenant, farmer or lessee;

တ တ န ၍ နထ န ပ

ပ တ နထ ၊ နထ နပ

တ ထန ပ တ တ ထ နထ ၊

ထန ပ ဖ ပ ပ

။
 30

(k) Similar to the lessor's duty in clause (a)

The lessee is bound to disclose to the lessor any fact as to the
nature or extent of the interest which the lessee is about to take, of
which the lessee is, and the lessor is not aware, and which materially
increases the value of such interest;

( ) ပ တ ပ
ဖ ၍ ၊ တ ပ ၏ တန
တတ ဖ ၍
ထ ထ
ပ နတ န ။

(l) Payment of rent

The lessee is bound to pay or lender, at the proper time and place, the
premium of rent to the lessor or his agent in this behalf;

(ဌ) ထ ဖ ၄ ၏

ဖ တ န၊ တ န တ

န တ ပ နတ န ။

(m) Keeping and restoring the lease whole property

The lessee is bound to keep and on the termination of the lease,
to restore, the property in as good condition as it was in at the time
when he was put in possession, subject only to the changes caused by
reasonable wear and tear or irresistible force, and to allow the lessor
and his agents, at all reasonable times during the term, to enter upon
the property, and inspect the condition therefore, and give or leave
notice of any defect in such condition; and when such defect has been
caused by any act or default on the part of the lessee, his servants or
 31

agents, he is bound to make it good within three months after such

notice has been given or left;

(ဍ) ဖ ၊

တ တ ဖ န ပ တ ပ ၊ပ

တ ပ ပ န န တ

၍ တ ၄ ၏ န တ ပန ပ

ပ နတ န ။ ထပ ထ ၄ ၏

တ ဖ န တ နတ ပ

န ပ၍ ပ ပ ၍

တ ပ ပ ။ ပ ၄ ၏

တ ၏ ပ ပ တပ ဖ

တ ပ၃ တ ပ ပ ပ နတ န

(m) Lessor's title to be protected

If the lessee becomes aware of any proceeding to recover the
property of any part thereof, or of any encroachment made upon, or
any interference with the lessor's rights concerning such property, he is
bound to give, with reasonable diligence notice thereof to the lessor.

(ဎ) ပ ဖ ၊ တ တ ဖ န
၄ ၊ ၄ ပ ပ ၍ ထ ၏
န ၄ ၊
၄ ၊ တ ထတ
၍ ထ ။
 32

(n) Mode of lessee's use of the property

The lessee may use the property and its products (if any) as a
person of ordinary prudence would use than if they were his own; but
the most not use, or permit another to use, the property for a purpose
other than that for which it was leased, or fell timber pull down or
damage buildings, work mines or quarries not open when the lease was
granted, or commit any other act which is destructive or permanently
injurious thereto;

(ဏ) ပ တ ထပ ဖ ထန

န ၏ ပ ပ ဖ ပ

ပ ။ ပ

ပ တ ပ ၊

ပ ၊ တ ၊ ၊ ဖ ၊

ထ တ ဖ ပ တတ

တ ဖ ၊ တပ ပ တ ထ

န န ပ ပ ။

(o) Erection of permanent structure

He must not, without the lessor's consent, erect on the property
any permanent structure, except for agricultural purpose;

(တ) ထ ၏ တ ပပ ပ

တ ပ န တ တ ပ တ

ပ ။
 33

Maung Khin Maung Vs Daw Hla Yin and one (1948) B.L.R.
481
st
The plaintiff 1 respondent granted lease of a piece of land and a
dry duck to remain in force till repair of a motor launch is completed.
The defe da ts appellants gave back possession of the dry dock but
not of the piece of land on which they put up a permanent building,
pulling down the hut which was there. In a suit for ejectment the
defendants appellants claimed there were separate leases for the land
and the dock and that the defendants-appellants put up the building
with plaintiff 1st respondent's permission. The trial Court held that the
st
plaintiff 1 respondent was not entitled to eject the permanent
structure demolished.
Held on Appeal: That under ss. 11 (a) of the Urban Rent Control
Act the obligations of the tenancy implied there in under s.108, clauses
(o) and (p), of the Transfer of Property Act had been broken by the
tenants and the lease had been terminated in accordance with law under
st
s.111 (h) of the Transfer of Property Act and the plaintiff-1
nd
respondent was entitled to eject the appellant and 2 respondent.
Decree made for ejectment and for removal of the permanent structure.

14
“ ဒ ” ထတ တ ပ

တ ပ န တ တ ပ

။ တ ပ တ ဖ ပ

။ ပ ပ

ပန ပ ၊ တ ပ ၏ ပ ပ

ဖ ပ ထ န တ

14
Mg Khin Maung V. Daw Hla Yin 1948 B.L.B. 481 (H.C)
 34

ပ တ တ တ ပ ၏ ပ

ပ ပ ပ ဒ

ပဒ ၁၀၈ (ဏ) (တ) တ ဖ ဖ ပဒ ၁၁၁ ( )

နတ ပ တ

ဖ ပ ထ န ဖတ ။

Loung E Say (a) Leong E Kyain (Appellant) Vs Daw Khin

Kyi & Five others (Respondent) 1958 B.L.R P.504 (C.C)
Transfer of property Act S.108 (p) Permanent structure.
Partitions made in a building which is secured by means of
screws and which are detachable and moveable are not permanent
structures within the meaning of S.108 (p) of the Transfer of Property
Act.

15
“ ဒ ပ ၆” ထတ တ

တ တထ ပ တ ပ န တ

ဖ ဖတ ။

Tan Heng Soo (Appellant) Vs Aun Ku Khing(a) U Sein & one

(Resp) 1964. B.L.R (C.C) 79
Where there is satisfactory evidence to show that there is a local
usage enabling tenants to erect lofts inside the rooms tenanted by there
without the express consent of the landlord concerned, Section 108 (o)
and (p) of the Transfer of Property Act cannot operate in favour of the
landlords.

15
Loung E Say (a) Leong E Kyan V. Daw Khin Kyi and 5 others 504 (H.C) ၊ ၊ထ ၁၉၅၀
 35

16
“တန န ( ) တပ ” ထတ

ထ ပ န ထတ ထပ ၏ ပ ပ

ပ ပ ဓ ထတ ပ ပ ပ ဒ ပဒ

၁၀၀ (ဏ) (တ)တ ပ

ဖတ ။

U Maung Gale (appellant) Vs Madan Gopal Bagla and

one (respondents) 1964 B.L.R 834 (C.C)
Transfer of Property Act S.108 (o) & (p) permanent structure
what is Res judicata in an ejectment suit for breach of obligation of
tenancy when arises.
The plaintiffs (who were land lords) had obtained a permanent
injunction against the defendants (who are tenants) in a previous suit,
as it was held therein that the replacement of mud and plank walls by
brick nogging walls amounted to the erection of a permanent structure,
and in the absence of permission by the plaintiffs, the defendant had
contravened the provision of S.108 (p) of the Transfer of Property Act.
The plaintiff subsequently field another suit for ejectment of the
defendant for breach of obligation of tenancy under Sec.108 (q) & (p)
of the said Act, and the same controversy arose therein.
Held: the matter is res-judicata in the subsequent suit.

17
“ ဒန ပ ( ) ” ထတ

တ ထ ၏ န

တဖ ပ ပ ပ ပ ပ ဒ

ပဒ ၁ ၈ (တ) တ ပထ ဖ ၍

16
Tan Heng Soo V. Aun Ku Khing (a) U Sein and one 1964 (C.C) ၊ ၊ထ ၇၉
17
U Maung Gale V. Madan Gopal Bagla and one 1964. B.L.R. 834. (C.C)
 36

တ န တ ထတ ။

၄ န တ ပဒ ၁၀၈(ဏ) (တ)

ပ န ဖ ထ န တ

တ ၏ပ ပ တ ပ

ပ န ပ ပ ။ ပ န တ တ

ပ တ ဖတ ပ ပ ဖ ၍ တ တ ဖန န

ပ ဖတ ။
18
“ ဒ န” ထတ တ

တ ဖ ပထ

တ ဖ နဖ န ပ ပထ

နတ န ဖ ပ န ပ ပ ဖ ပထ ဖ ပ

န တ နထ န ဖ ပ ပ ဖ

တ ။ထ ပ ထ ပ ပထ နဖ န

ထ န တ ဏ န ပ ပ ပထ

တပ န တ ပပ ပ

ဖ ပ ထ ။ ထ တ

ပ ဖ ဖတ ။

(o) Restoration of possession

On the determination of the lease, the lessee is bound to put the
lessor into possession.

18
- ဒ န ၁၉၆၅၊ ၊ ၊ထ၊ ၄၀၆။
 37

(ထ) န ထ
ပ ပန ပ ။

ပ၁ ဏ ပ ၂ (၁၉၉၈၊ တ ၊ -၁၉၁)
တ တ ပ ပ ပ ပ ဒပ ဒ ၁ ၈( )
၁၉၆ ပ ပ ပ ပ ဒ
ပ ဒ -၁၁တ ပ ၏ တ
တ ပ န၏ ပ
ထ ပ ပ တ န
ဖ ဖ ဖ ပ ပ ။
ထ ဖတ ၏ တ
ထ ပ ပ ၌ တ
တ ပ ပ ပ ပ ဒပ ဒ ၁ ၈
( ) ထ တ န ဖ ဖ ထ
ဖ ။
၏ တ ပ
ထ ပ တ
ပ တ ပ။ ပ ပ ဖ ။
တ ပ တ
န ။ ပ ပ
တ ၊ ပ ဖ
ပ ပ ပ ပ ဒပ ဒ ၁ ၈(တ)
ပ ပ န ဖတ ။
ဒ (၁၉၉၉၊ တ ၊ ၂၁၆) တ ပ
ပ ပ ဒပ ဒ ၁ ၈တ န န ပ
တ ဒ ဓ ထ ပ ပ
ထ တ တ တ ၌
တ န ပန န ထ
ဖ ပ န ထ ။
 38

ပ ဒပ ဒ ၁ ၈(တ) ထ ၏ တ
( တ) ဒ ဓ ထ ထ
ပ ပ ၌ တ ပ ပ။
ထ ၏ တ တ
ဒ ဓ ထ ပပ
ထ တ န ဖ ဖ ထ
ဖ ။
တ ပ ဖတ ဒ
၏ တ ပ တ
ထပ ပ ဓ ထ ဖ
ထပ ပ ပ ပ ပ ဒ
ပ ဒ ၁ ၈(တ) တ န ဖ ဖ ဖတ
။

Key Terms

lease -

lessor - ထ
 39

lessee -

notice to quit - ထတ တ

periodic tenancies -

length of notice -

တ တ ပ

expiry of notice - တ တ

tenancy -

service of notice - တ ပ ပန

service by post - တ တ ပပ

service at residence - တ ပ

service by other ways - န ဖ ပ

possession -

Questions

1. What do you understand a lease of immoveable property?

 40

2. State briefly in what ways a lease can be terminated under the

Transfer of Property Act.

3. What are the essentials of a lease of immoveable

property?

4. Explain what is meant by "a lease of immoveable property"

5. Explain the essentials of a lease.

6. Briefly explain the principles relating to a valid notice to quit.

7. What are the essentials of a valid notice to quit under the

Transfer of Property Act?

8. If you are a lessor who intends to send a notice to quit to your

lessee by post, what period of notice would you give, and

what other form and construction, should you observe?

9. According to the Transfer of Property Act, Section 107, how can

a lease be made?

10. What are the rights and liabilities of the lessor?

11. Discuss briefly the rights and liabilities of the lessee?

12. How and to whom should an application for a grant or lease of land

be made?

13. What are the conditions as to terminating a lease?

 Chapter 6

Exchange
Contents Pages

6. Exchange (Sec: 118) 2

6.1. Definition 2

6.2. Sec: 119 Right of party deprived of thing

received in exchange 4

6.3. Sec: 120 Right and liabilities of parties 5

 2

Exchange

6. Exchange (Sec: 118)

Sec: 118 provide that:
When two persons mutually transfer the ownership of one thing for the
ownship of another, either thing or both things being money only, the
transaction is called an "exchange".
A transfer of property in completion of an exchange can be made
only in manner provided for the transfer of such property by sale.

။ -၁၁၈

၊ ၊

6.1. Definition
The definition of exchange is not limited to immoveable
property. If one of the items transferred is money, the transaction is not
an exchange but sale, for price is money only. But money in one form
may be exchanged for money to another form.

။
 3

- ။

။ ။

၊ ၊

Mode of Transfer
Where the exchange is of moveable things mere delivery i s
enough to complete the transfer. Where it is of immoveable things or
where one of the items is immoveable, and the value of any one of such
properties is of K.100000 or more.

၁၀၀၀၀၀ ၁၀၀၀၀၀

၁၀၀၀၀၀

၊ ၊

။
 4

The provisions of Sec: 54 will be applicable. And that transfer

will be completed only by a registered instrument. In the case of
immoveable property exchange is usually made by mutual conveyance.

- ၅၄ ၁ ၀၀၀

၁ ၀၀၀

၄ ၊

(Intangiable ၄

။ ၁ ၀၀၀

၊ ၊

6.2. Sec: 119 Right of Party Deprived of Thing Received in

Exchange
In the absence of a contract to the contrary, the party deprived of

the thing or part there of he has received in exchange, by reasons of

any defect in the title of the other party, is entitled at his option to

compensation , or to the return of the things transferred by him.

 5

Remedy: Each party warrants his title to the property give in

exchange. If a party is deprived of the whole or part of the exchanged

property by reason of any defect of title, he has two remedies;

(1) He may either cancel the contract or get back the property
(or)
(2) He may obtain compensation in damages for the loss caused
to him.

၂။

၁၁၉

၊ ၊

၊ ၊

6.3. Sec: 120 Right and Liabilities of Parties

Save as otherwise provided in this chapter, each party has the
rights, and is subject to the liabilities of a seller as to that which he
gives, and has the rights, and is subject to the liabilities of a buyer as
to that which he takes.
 6

The rights and liabilities of the parties to and exchange are the
same as those of the seller and the buyer of immoveable property, of if
the subject of the exchange is moveable property, or if the subject of
the exchange is moveable property, of goods. Therefore, where the
properties are immoveable Sec: 55 of the Transfer of Property Act will
determine the rights and liabilities of the parties, and where they are
moveable, the Sale of Goods Act, 1930, will apply as far as
practicable.

၃။

-၁၂၀

။
 7

Key Terms

exchange -

mutually -

deprived -

exchange of money -

damages -
 8

Questions

1. What is the definition of exchange?

2. What is the right of party deprived of thing received in

exchange?

3. What are the rights and liabilities of the parties to an

exchange?
 Chapter 7

Gift

Contents Pages

7.1 Gift (Sec.122) 2

7.2 Transfer how effect (Sec. 123) 5

7.3. Gift of existing and future property (Sec. 124) 9

7.4. Gift is several of whom on does not accept (Sec.125) 10

7.5. When gift may be suspended or revoked. (Sec 126) 10

7.6. Onerous gift (Sec: 127) 13

 2

Gift

7.1 Gift (Sec.122)

Gift is transfer of certain existing moveable or immoveable

property made voluntarily and without consideration, by one person,

called the donor, to another, called the donee, and accepted by or

behalf of the donee.

Such acceptance must be made during the lifetime of the donor,

and while he as still capable of giving.

If the donee dies before acceptance, the gift is void.

။ ၁၂၂

၊၄

(Donor) (Done

။
 3

The essential elements of gift are: -

(1) There should be a donor and a donee;

(2) The subject of gift must be a certain existing

property, moveable or immoveable;

(3) The gift should be made voluntarily and without

consideration;

(4) There should be a transfer on the part of donor;

(5) There should be acceptance by or on behalf of the

donee;

(6) The transfer of gift must be made only in accordance

with the requirements of section 123.

(၁ ။

(၂

(၃

(၄ ။

(၅ ၄

။
 4

(၆

။ ။

(၇

၁၀၀၀၀၀

၂ ၍ ။

(၈

၊ ။

(၄

(၂ ၇ ၊ ၁၈၉

-၁၂၂

။
 5

7.2 Transfer How Effect (Sec. 123)

Such delivery may be made in the same way as goods sold may

be delivered.

In the case of a gift of immoveable property (whatever may be

the value of property), the instrument of gift must be signed by or

behalf of the donor and attested by at least two witnesse s and it must

be registered. Delivery of possession is not at all essential.

In the case of a gift of moveable property it may be conveyed

either by a deed executed, attested and registered as in the case of

immoveable property or by delivery of possession. Here registration is

equivalent to delivery.

For the purpose of making a gift of immoveable property the

transfer must be affected (whatever be the value of the property) by a

registered instrument signed by or on behalf of the donor, and attested

at least by two witnesses.

 6

For the purpose of making a gift of moveable property the

transfer may be effected either by a registered instrument as a foresaid

or by delivery.

။ -၁၂၃။

၊ ၄ ၍

၄ ၊ ၄

၂(

(၂ ၊ ၊ ၇၃

၁၂၃

၍ ၂
 7

၊ ၊

(၁ ၂ ။

(၂ ၌

၊ ၊

(၃ ။

၃
 8

Difference as to the made of transfer of immoveable property

by sale & gift;

(1) In the case of a sale of tangible immoveable property of

the value of Ks. 100000 and upwards of must be made by a registered

instrument, and in the case of tangible immoveable property of a value

less than Ks. 100000, if may be made, either by a registered instrument

or by delivery of the property.

၁၀၀၀၀၀

၁၀၀၀၀၀ ။

၁၀၀၀၀၀

၊ ၊

Where as in the case of a gift of immoveable property, it must be

made by a registered instrument irrespective of its value.

။
 9

(2) In the case of a sale, attestation by at least two witnesses is

not compulsory, where as it is compulsory in the case of a gift.

၊ ၄ ၍

7.3. Gift of Existing and Future Property (Sec. 124)

A gift comprising both existing and future property is void as to

the latter.

Principle: Existing property can only be the subject of gift, future

property not in existence at the time of the gift cannot form the valid

subject of a gift. A gift of future property is a mere promise which

cannot be enforced and is therefore void. When a gift rests merely in

promise of unfulfilled intention, it is incomplete and imperfect, and the

court will not compel the intending donor, or those claiming under

him, to complete and perfect it.

။( ၁၂၄
 10

7.4. Gift is Several of Whom on Does Not Accept (Sec.125)

A gift of a thing to two or more donees, of whom one does

accept it, is void as to the interest which he would have taken had the

accepted.

Principle: Gift is and act by which anything is transferred voluntarily

form the grantor to the grantee, with the full intentions that the thing

shall not return to the donor. But a man cannot be compelled to take

what he does not desire to accept. Every gift is personal to the donee

and if the donee refuses to accept, the gift to him is void:

။( ၁၂၅

။ ။ ၊ ၊

၍ ။

7.5. When Gift may be Suspended or Revoked. (Sec 126)

The donor and donee may agree that on the happening of any

specified event which does not depend on the will of the donor a gift

shall be suspected or revoked, but a gift which the parties agree shall

be revocable wholly or in part, at the mere will of the donor is void

wholly or in part, as the case may be.

 11

A gift may also be revoked in any of the cases (save want or

failure of consideration) in which, if it were a contract, it might be

rescinded.

Save as aforesaid, a gift cannot be revoked.

Nothing contained in the section shall be deemed to effect the

right of transferees for consideration without notice.

၊ ၁၂၆

၊ ၊

။
 12

Illustrations:

(a) A gives a field to B, reserving to himself, with B's assent, the

right to take back the field in case B and his descendants die

before A. B dies without descendants in A's life time. A may

take back the field.

(b) A gives a lakh of kyats to B, reserving to himself, with B's

assent, the right to take back at pleasure kyats ten thousand out

of the lakh. The gift holds good as to Ks. 90,000 but is void as to

Ks. 10,000 which continue to belong to A.

။ ။ ။

။ ။

။
 13

7.6. Onerous Gift (Sec: 127)

Where a gift is in the form of a single transfer to the same person

of several his of which one is and the other are, not burdened by an

obligation the donee can take nothing by the gift unless he accepts it

fully.

။ -၁၂၇

Illustration:

A gives to B a plot of land and one house (which is mortgage

property) in the form of a single transfer B must accept the whole (the

land and the house) or reject them altogether. He is not allowed to take

that which is for his benefit and reject what is burdened wi th an

obligation.

Where a gift is in the form of two or more separate and

independent transfers to the same person of several things, the donee is

at liberty to accept one of them and refuse the others, although the

former may be beneficial and the latter onerous.

Illustration:
 14

A give to B a plot of land one house (which is mortgage

property) as a separate and independent transaction B can refuse to

accept the house and accept the land. In this case, the gift is separable

the donee may elect to accept what he pleases and refuse the others.

A donee not competent to contract and accepting property

burdened by and obligation is not bound by his acceptance. But if, after

becoming competent to contract, and being aware of the obligations, he

retains the property given, he becomes so bound.

။ ။

( ၍

။ ၍ ။

။ ။

၍ ။

။
 15

။ ။ ၄

။ ၄

Universal Donee (Sec: 128)

Subject to the provisions of section 127, where a gift consists of

donor's whole property, the donee is personally liable for all the debts

due by the donor at the time of the gift to the extent of the property

comprised therein.

။ -၁၂၈

၁၂၇ ၍

။ ။ ၄

-၁၂၇ ။ ။

။
 16

Saving of Donation Mortis Cause and Mohammedans Law

(Sec. 129)

Nothing in this chapter relates to gifts of moveable property

made in contemplation if death, or shall be deemed to effect any rule

of Mohammedans law or, save as provided by section 123, any rule of

Hindu or Buddhist law.

This section excludes gift of moveable property made in

contemplation of death from the operation of this chapter. It also lies

down that any rule of Mohammodans law would not be affected by

this chapter. Under Mohammedans law a gift is not valid under it is

accompanied by delivery of possession: registration is not necessary.

Under the Transfer of Property Act, want of delivery of possession

may be cured, by registration. But under the Mohammedan s law, even

if the gift is registered, it is not complete if delivery of possession is

not handed over to the donee. This section shall not over -rule any

Mohammedans law if found contrary to the provisions laid down in

this chapter.

။ -၁၂၉

၍ ၊

။။

။
 17

၁၀၀၀၀၀ ၁၀၀၀၀၀

။
 18

Key Terms

gift -

voluntarily -

consideration -

donor -

donee -

existing property -

moveable -

immoveable -

acceptance -

on behalf of the done -

ယ်စား

requirement -
 19

Questions

1. What is a gift? What are the essentials for a valid gift of

immoveable property under The Transfer of Property Act?

2. Is a registered instrument necessary for a gift of immoveable

property? Discuss.

3. Is a gift transfer of property?

4. Can you give moveable property in the same way as immoveable

property?

5. What kind of gift is void?

6. What is the difference between the transfer of immoveable

property by "Sale and Gift"?

7. How may a gift be revoked?

 Chapter 8

The Urban Rent Control Act, 1960

Contents Pages

8.1 Extend to the Areas in the Urban Rent Control Act 3

8.2 Definitions 7

၈.၃။ စ ည င စ င

င င ည စ ၁၂) 15

၈.၄။ င စ င င

င င ၁၃) 39

၈.၅။ င င င စ င

င ည စ ။ ၁၄) 42

၈.၆။ င င စ ၁၆) 46

၈.၇။ င စင

င ည စ ၂၇) 49

၈.၈။ စင ငင ဆ င 63
 2

The Urban Rent Control Act, 1960

၁၉၆ ည စ ဆင င

င င င ည

စစ ဆ ည ဆ ၊

၊ စ ည ၍

ည ည င င င ဆ

င င ည။

င ၁၉၄၆ စ ဆင င

ည။၁၉၄၇ စ င၄င ငဆင ည စ

ည။ စ ဆ ၁၉၄၆ စ ဆင င

င ငဆင ည စ င င ၁၉၄၈ စ

ဆင င ည။င

စ စ ည စ ဆ င

၄င စ ည။

င ဆ ည ည

င ည ငင င င ည င

ည။ င င ည ည

၁၉၄၈ စ ၁၉၅၉ စ င၍ ဆ

ည။ ဆ ၁၉၅၉ စ င ဆ

၁၉၆ ည စ ဆင င
 3

င ည။၁၉၆ ည စ ဆင င

ည င စ ည

င င င င ည စ ည င

ည။ င စည င

င င စည င င ဆင င

ဆ င ည။ ဆ င င ဆင င

ည ည င

ဆ င စ ည။ ဆင င

ည စည င င ည

စည င ည ညဆ ည င

ည။ စည င ည ဆင

င င ဆ င င

ည ည င ၍ ဆ င စ ည။

8.1 Extend to the Areas in the Urban Rent Control Act

In Urban Rent Control Act, 1960, S „ 1 (2), Subject to the provisions

of section 3, it shall extend to all urban areas in the Union of Burma.

၁၉၆ ည စ ဆင င

၁ ၂) င ၃ င ဆ င စ ည

ငစ ငင င ဆင စ ည

ည။
 4

Section - 3 (1) The President of the Union may, by notification,

exempt from the operation of this Act or any portion therefore any such area

or class of premises as may be specified in such notification and may

subsequently cancel or [….] such notification.

၃။ ၁) ငင ည င စ ၍

င စ င ည စ

စ စ င စ စ၊ စစ စ င စ

စ၊ ဆင င င င င ည င င င ည

င စ င ည။ ည င င

ည။

Section - 3 (2) If any question arises whether any premises come

within an urban area of within any area or class of premises exempted from

the operation of the Act by notification under subsection (1), the decision of

the President of the Union on such question shall be final.

၂) စ စ ည င င၊ င ည

င ဆင င ၁) င စ ၍

င င ည စ စ စ

င င၊ င င ငစ ၍

ငင ဆ ည ည စ စ ည။

Section - 3 (3) Nothing in sections 9, 11 or 12 of this Act shall apply

to any premises providing board as well as lodging for its tenants which the

President of the Union shall, by notification, declare to be primarily intended

for the accommodation of travelers.

 5

၃) င င င င စ

စ စ ငင င စ င

ည ည ည ည စ စ

င င စ ၉၊၁၂၊ ည ၁၂

ည ည င ဆင င စ ။

ညစ င ) င င င ၁၉၉၈၊

စ၊ စ -၁၅၈) င င င ည ညစ င

ည င င ည ည င ညဆ စ

င င ည စ င င

ည င စ င စ ည။ င စ

င ည င င ဆ

င ည င င စ ဆ င ။

င င ည င င စ စ င င

ညစ င ညစ င ည

စ င စ င င င င

၁၉၆ ည စ ဆင င ၂ ဆ)

ညစ င ည င စ င ငင ။

င ညစ င ) စ

၍ င င

ည င ည င င င
 6

ဆ ည။

င ၍ င င

စ င င င င င

စဆ ည ဆငဆင စ င ည။

Section „ 2 h) “urban area” includes the City of Rangoon,

and any area declared to be a Municipality under Chapter II of the

Municipal Act, any area declared to be a notified area under

section 246 of the said Act, a Cantonment as defined in the

Cantonments Act, any area notified as a town under the Towns

Act and any other area, which the President may, by notification,

declare to be an urban area for the purposes of this Act.

၂။ ဇ) ဆ ညစ င ည င၊

စ ၂ စ ည ည

ည င၊ ဆ ၂၄၆ ည ၍

င စ င ည ည င၊

င ည ည င၊

၍ ည ည င၊ စ

င ၍ ငင င စ င ည

ည င င ည။
 7

8.2 Definitions

င င

Section -2 of this Act, unless there is anything repugnant in

the subject or context,:

-၂။ င င င စ စ၊

စ င စ စ ဆ င င.....

a) “City of Rangoon” means the City of Rangoon as

described in Schedule VI to the City of Rangoon Municipal

Act as amended from time to time;

) ဆ ည စ င ည

စ ဇ ၆ င

ဆ ည။

b) “Controller” means the Controller of Rents appointed

under this Act;

) ဆ ည ညင

ဆ ည။

c) “landlord” means any person for the time being entitled

to receive rent in respect of any premises, whether on

his own account or on account or on behalf or for the

benefit of any other person, or as trustee, guardian or

 8

receiver for any other person, [or who would so receive the

rent or be entitled to receive the rent, if the premises were let

to a tenant,] and includes a legal representative, as defined in

the Code of Civil Procedure, and a tenant who sublets any

premises and every person from time to time deriving title

under a landlord; Repealed Laws 1169

(ဂ) ငဆ ည စ စ၊ စ စ စ၊

စ စ စ စ၊ စ စ စ၊

စ ည

ည စည င စ စ၊ စ ငစ ၍

စ င င ည စ

င င ငင ည စ

ည င ဆ ည။

စ င င ၌ ည

င စ ည င၊ စ စ စဆင

င င ည င စ င

စဆင ဆင ဆင င င ည။

d) “premises” means :

(i) any land on which a building has been erected and any

building or part of a building let [or occupied or intended to

be let or occupied] separately for any purpose whatever,

 9

including a stall let for the retail sale of goods in a market or

any other building, and any land, furniture or fixture let

together with such building or part of a building;

ဃ) စ ဆ ည ...

၁) ဆ ဆ ည ည င၊ ည

ည စ ဆ င ည၊ ည

င ည၊ ည င ည င၊

င ည င၊ ည ည ဆ ၊

ည ဆ စ င စ ည

ငဆ ည။ စ င ဈ ည

ဆ စ င စည င

င ည ဈ ဆ င၊ င ဆ ၊ ည

ဆ စ င င င ည ၊

င ဂ ည ဆင ည စည

ည င ည။

(ii) any land let [or occupied or intended to be let or

occupied] separately for any purpose whatsoever; and land

let [or occupied or intended to be let or occupied] separately

for any purpose whatever;

၂) ည ည စ ဆ င ည ည

င ည င၊ င ည
 10

င၊ ည ည ဆ ည။

e) “prescribed” means prescribed by rules made under this Act;

င) ညဆ ည ည ည င

ည ဆ ည။

(f) “standard rent” in relation to any premises means:

စ) စ ငစ ၍ စင ဆ ည

င ဆ ည။

(I) in the cases specified in section 19 the rent fixed by

the Controlled, subject to any order of the Chief Judge

of the City Civil Court of Rangoon in respect of the

City of Rangoon or to any order of the Judge

prescribed under section 22, in respect of any other

urban area;

၁) ၂၇၌ ည စ င

င ဆ င စ စ စ၊

၃၂ ည င

ဆ င စ စ၊

င ။
 11

(II) in all other cases:

(A)The rent at which the premises were let on the first

day of September 1939;

(၂) စ င --

) စ ၁၉၃၉ စစ င ၁ ၌

င င ။

(B) where the premises were not let on the first day of

September 1939, the rent at which they were let

before that date;

( ) စ ၁၉၃၉ စစ င ၁ ၌ င

င င င စ င

င ။

(c) Where the premises were first let after the first

day of September 1939 and before the first day of

January 1941 the rent at which they were first let;

ဂ) စ ၁၉၃၉ စစ င ၁

၁၉၄၁ စဇ ၁ င

င င င

င ။

(d) Where the premises were let on the first day of

September 1939 on a lease providing for a

 12

periodical increase of rent:

ဃ) င င င စည

င စ င စ ၁၉၃၉ စ၊

စ င ၁ ၌ င င„

(i) during the currency of the lease the rent so

provided for from time to time, and

၁) င စ ည စ စ ငဆ ည

စည င စ

င ညင ၊ င

(ii) after the expiry of the lease the rent payable

during the last period of the lease;

၂) င စ စ င င

စ ဆ င င

ညင ။

(e) where the premises were let under a lease for a

period of five years or upwards commencing on or

before the first day of September 1934, which has

expired after the first day of September 1939, the rent

fixed by such lease for the period containing the first

day of September 1939; Provided that the President of

the Union may prescribe generally or in the case of

 13

any urban area or of any class of premise that the

standard rent as defined in sub-clauses (A), (B), (C),

(D) (ii) and (E) shall be increased by an amount not

exceeding 1170 Housing, Land and Property Rights in

Burma: The Current Legal Framework 25 per centum

[….] if he considered that such increase is justified by

prevailing economic conditions;

င) စ ၁၉၃၄ စစ င ၁ ည

င စ ည ၅ စ၊ ည

၅ စ င င စ င

င ည စ င စ ည ၁၉၃၉ စ၊

စ င ၁ င စ စ

င ၁၉၃၉ စစ င ၁ င ည

င င စ င ည

င ။

င ငင ည ) ) ဂ) ဃ)

၂) င င) င ည စင ဆ

စ င ည

ငစင ၂၅ င စ င ည

င ည င၊ စ

ည င၊ စ စ ည
 14

င င ည။

g) “tenant” means any person by whom or on whose account rent

is payable for any premises, and includes a legal representative as

defined in the Code of Civil Procedure and every person from

time to time deriving title under a tenant and also every person

remaining in possession of the premises let to him after the

termination of the tenancy or lease with or without the assent of

the landlord;

ဆ) င ဆ ည စ င စ စ၊

စဆင စ စ၊ င ည စ ဆ ည။

စ င င ၌ ည

င စ ည င၊ စ င စ

ဆငဆင ဆင င ည င၊ င ည

င စ ဆ င ည စ

င ည စ စ၊ ည စ စ၊

င င ည င င ည။

h) “urban area” includes the City of Rangoon, and any area

declared to be a Municipality under Chapter II of the Municipal

Act, any area declared to be a notified area under section 246 of

the said Act, a Cantonment as defined in the Cantonments Act,

any area notified as a town under the Towns Act and any other
 15

area, which the President may, by notification, declare to be an

urban area for the purposes of this Act.

ဇ) ဆ ညစ င ည င၊

စ ၂ စ ည ည

ည င၊ ဆ ၂၄၆ ည

၍ င စ င ည ည င၊

င ည ည င၊

၍ ည ည င၊

စ င ၍ ငင

င စ င ည ည င င ည။

၈.၃။ စ ည င စ င င င ည

စ ၁၂)

12. (1) Regardless of the provisions of the Transferring Act and

Promise/Agreement Act or Rangoon civil law court Act, to regain

environs of building which is affected with this Act or to remove

tenant from building, no order and decree can be applied except

only for the following cases:

၁၂ ၁) စည င င င ည င

ဋည င ည င၊
 16

င ည င၊ ည င စ င

ဆင စ ည စ စ စ

င င စ စ ည ည ည

စ င စ င ။

(a) When civil government came in administration after the war

with Japan, according to the law, to collect the rental from the

tenant, rental seeking letter which is registered at the post office

will be sent to the tenant. Within three weeks from the day of

sending the letter, if the tenant doesn’t pay rental or doesn’t pay

to the inspector, or regarding to the renting according to the rental

promise/ agreement or the text of this Act, if the tenant breaks

those laws or fails to do so.

) ဂ င စ စစ ဆင စ

စ ည ည င င ည

င ငဆ ညစ စ င၍

င ည ငဆ ည စ၍

၃) င င င ည

၁၆ င ည ည

င ငစ ၍ င ဋည စ စ၊

စ စ င ည စ

ငည ည၊ ည ဆ င
 17

ည စ ည -

(b) After the war with Japan, before civil government back in the

administration, during that time, to earn the rental from the tenant,

in this case, civil law court decided that tenant has to pay the

rental, but fail to do so. or:

) ဂ င စ စစ ဆင စ စ ည

ည င င စ ငစ ၍

င င င င

၍ င ည ည င

ည စ၊ ည

(c) Where a tenant or a person who staying together with tenant or

other person staying in environs of building disturbs next door

neighbors or embarrasses surrounding people or using the

environs of building for despicable or unlawful business or being

received verdict for guilty of those businesses by the court or

environs of building is damaged by someone and ignorance of

someone.

ဂ) င ည င င ည

ည င ည စ စ င

ဆ စ ည င

စ င ငင စ ည ည င စ စ ည င
 18

ည စ ည စ ညစည ည

ငဆ င စ င ည ည

စ ည စ င စ င ည စ ည

င ည ဆ ည စ စ

ည ည င

စ ဆ ည စ ည -

(d) Where the environs of building is land, the landlord honestly

wants to get back the land to build a building or buildings or

rebuild the building, to build a building within a year after the day

of tenant leaves the building and landlord submits a bail with

appropriate amount of money which is agreeable by the court. or:

ဃ) စ ည စ င စ ဆ ည

ဆ ဆ ည ည ဆ

င င င ၍ စ ဆ

ည ဆ ဆ ည

ည ဆ ည ည ဆ

ည ၍ ည င စ င င ည

စ၍ ၁) စ င စ စ င ဆ င ည ၍ ည

င င င ည င င ည င င

ဆ ည စ ည -
 19

(e) Where the landlord honestly claims to get back the building or

part of the building for his own living under the effect of this Act,

landlord has to submit a bail with appropriate amount of money to

the court and guarantee to accomplish his moving within three

months just after the day when tenant leaves.

(င) င ဆင ဆ ည

ဆ စ င ည ဆ စ စ

ည ည

င င စ စ၊ င င

စ င င ၍ ဆ ည စ

င ည ည ဆ

ည ၍ ည င စ င င ည

စ၍၉ င

င စ စ င ဆ င ည ၍ ည င၊ စ

င င ည စ စ

င ည ၍ ည င၊ င ည င င ည

င င ဆ ည စ။
 20

င င င ည င င င င

င။

16. (1) Concerning the environs of the building, according to

section 12 (1), paragraph (a) or section 14 (1) paragraph (a), even

though the landlord doesn’t ask for rental, or where the landlord

refuses to accept rental from tenant, the tenant will:

(a) pay the rental to the inspector. In addition:

b) where the landlord doesn’t send notification or other means to

the tenant that he wants to accept the rental, the tenant will pay the

remainder of the rental to the inspector.

ဌ ဆ င င င င စ ညင

င ဆင င ည စင

ည င ည။ င င င ည င

င င င င င င င

ည။ င င င

င င င ည ၁၆ င ည။ င င

ည င င ၄င င စဆ င ည။

စဆ စ င ငဆ ည င စ

စ င၍ င င စ

၃ င ၄င င ည။

င စ ည င ည င စ င
 21

စည င ၁ ၆ င ည

ဆ င စ ည။ င စ ငဆ

၃ ည ည င င င င

င ည င၊ င င င

ည င၊ င င စ င စဆ င

ည။
1
“ င၊ င စ င” စ င င” င

င စဆ င င စဆ င စ

င စ စ ည စင င င

စစ င င င ည။ င စစ

ငင ငဆ င င င

ဆ င၊ စစ ၍ င င ဆ င

င စဆ င ည င ည”

ည။
2
“ င စ င စည ” စ င င

င င စဆ

င စစ င ည ည စ၍ င င

စစ င ည င

1
င၊ င စ င၊ , B.L.R. 294
2
င စ င စည ။ , B.L.R. 890.
 22

င င င ည ည ည စ၍

င င င ည။ စစ င ည

ည င င င ဆ င စ စ

ည။ စ င စစ င ညင င င

စစ ည ။ စစ င ည စ စ

ဆ ၌ စစ ဆ င င ည၊ င ည င စ

ည ည။

၁၂ ၁) ) င ည င ငစ ည

င င င စဆ င ည

ည ည စ ည င စ ည ၍

ဆင င င င ။

စည င ၁ ၈ င င င င

င င ည ၄င

င ည င င စဆ

င ည။
3
“ င င င င င” စ င င “ င ည

င ၍ င ဆ ဆ

င ည စည င ၁ ၈ င

ည။၁၉၄၆ စ၊ ဆင င

3
Maung Khin Maung V. Daw Hla Yin and one 1948, B.L.R. 481 (H.C)
 23

ည ည င င င

ည” ည။
4
“ င င င ည” စ င င “

၍ ငစ င င စ

ဆင င ည င ဋည င ”

ည။
5
“ ငစ င င” စ င င င စ

ည င ည င

င င ည င င

င စ င ည င င

ည ” ည။
6
“ ငဆ င ဂ ” စ င င” “ င ည

စ င ၌ င ၍ ငစ

ည။ င င ည င ည။

ည စ ည။ င င

စ စ ည င င စ ည ဆ

စ င ည င င စ ည။

င င ည

ညင င င င ငစ

င င စ င င င စ၍ ည

4
င င င ည , B.L.R. 514.
5
Tan Heng Suo V. Aun Ku Khing (a) U Sen and one, 1954. B.L.R. 79.
6
ငဆ င ဂ , B.L.R. 406.
 24

ဆ ဆ င စ ည။ င င ညင

၍ င ည” ည။

င င ညင င

င င။

After the war with Japan, before civil government back in

the administration, during that time, to earn the rental from the

tenant, in this case, civil law court decided that tenant has to pay

the rental, but fail to do so or:

ဂ င စ စစ စ၍ ဆင င

င င င င ည

စ ည ၄င င င

င င ည င ၇ စဆ င ည။ ၄င

င င စ၍ င င ။

င ည င စ င ငင င၊ င စ

င င စ ညစည ငဆ

င စ င။

Where a tenant or a person who staying together with tenant

or other person staying in environs of building disturbs next door

neighbors or embarrasses surrounding people or using the

 25

environs of building for despicable or unlawful business or being

received verdict for guilty of those businesses by the court or

environs of building is damaged by someone and ignorance of

someone.

င ည င စ င ငင င၊ င

စ င ဆ င ည ည စ င

ည ည င င င စ င ငင

င စ စ စ ည။ ည ည င စ

ညစည စ ည င

ည စ င ည။

စ င င ည င င

စ င စ စည င ၁ ၆

စစ ည။
7
“ စ င စ” စ င င င ည

င င င စ စ

၍ စ ည စ စ င

စ စ ဆ စ ည။ င

င စ စ င၊ င

ဆ စစ ည။

7
B.C Nath and one V. Sheik Abdul Latiff, 1949, B.L.R. 250. (H.C)
 26

င စ ည ဂ စ င

င ည။ ည စ

ည။ င ည ဂ င စ

စ စ င ည။ င င

ည င င စ စဆ

ဂ င စ င ည င င င ဆ

ည။ ည ၊

င င င ဆ

။ င င စ စ

စ စ င င င ည င

ဆ ဆ င င စ င ည။

င စ င င င ည

စ ည။ ငစ င င ဆ င ည စ စ

င င င စ ”

ည။
8
“ င စ ဂ ” စ င င “ င ည

ည င ည

ည။ င ည စ စ ည

င င င င င ည င စ

8
U Ohn Pe and one V. Mr. V. 3. Munro by Agent Mr. W. J. Munro 1954, B.L.R. 106 (H.C)
 27

ည။ စ စ ည။ င င ဆင

င ၁၃ ၁) စ င င ည”

ည။
9
“ င ၂ င၍ စ ၂” စ င င“ င ည

င စ စ ၄င င င င င င စ

င ၁၁ ၁) ဂ) င င ည

ည င ည စ စ င င

င င င င င ၄င ည

င င င င ည။ င ညင ည စ ၌ စ

စ စ င စ င စ

င င င ၄င ည စ င ဆ င စ င

ည စ င စ င င ည ည စ ည”

ည။
10
“ င ၄ င င” စ င င “

င ဆင င င င၊ င

င င င ၊ ၄င င င င င ဆင င

င င င ည။ ညဆ

စ င င ည။ င င

ဆင င ၁၁ ၁)

င င ည” ည။

9
င ၂ င စ ၂ ၁၉၆၂, B.L.R. ၅၅ C.C)
10
Yin Lot and three others V. Ma Hla Yin, 1963, B.L.R. 264 (C.C)
 28

11
“ င ၊ ဆ ” စ င င

“င ည စ င ဆ

ဆ င င င

စ စ င ဆ ည

င ည။ စ၍ ဆင င

၁၂ ၁) ဂ) င င ည။ င င ည

ဆ င ၌ ဆ ၍ င ည

စ စ စ ည စ ၊ ၄င ည ဆင

င ၁၂ ၁) ဂ) င

စ စ ည ဆ စ ည” ည။

င ဆ ဆ င င

င။

Where the environs of building is land, the landlord honestly

wants to get back the land to build a building or buildings or

rebuild the building, to build a building within a year after the day

of tenant leaves the building and landlord submits a bail with

appropriate amount of money which is agreeable by the court.

င ည င င ဆ ဆ

င င င င

စဆ င ည စ င င ည ဆ

11
င ၊ဆ ၊ , B.L.R. 154
 29

ဆ င င င

ဆ ည ဆ စ ည။ ဆ င

င င ည ဆ ဆ ည

ဆင စ ဆ ဆ င ၊

စ ဆ င၊ င င င၊ ဆ ဆ

စည စ ဆ င င စ ည င၊ ငဆင င

ည၍ ည င၊ င င ဆ ဆ

င င စ စ ဆ ည။

င င ည

“ င င” င ဆ

စ ည။ င ည ည င င

စ ည ၍ ည င ည င

ဆ ည စ င င ဂ

င င ဆ

စ ည။ င စ င ည။ င

င ည ဆ ဆ င င

င စ ည င င ဆ င ည

စ င ည စ၍ ၁) စ င ဆ

စ င ဆ ည ၍ င ည င ည င င

ည။
 30

င ည င စဆ စည င

၁ ၆ စစ ည။
12
“စ င င ” စ င င “၁၉၄၈ စ

ဆင င ၁ ) ၁) ဃ) င

င ည င စ ဆ စ ဆ

င င င ည။ င

၍ ည င င င င ည

စ င ည ည စ စ င ည ငစ စ

ည စ စ ည။ င င င ဆ

ဆ ည ဆ င ” ည။
13
“ င င င ၄” စ င င “၁၉၅၈ စ

ဆင င ၁၁ ဃ)

င ၁) င င ည ဆ ဆ ည

။ ၂) င င ည ဆ ဆ င

စ စစ ဆ ည” ည။
14
“ င ၂” စ င င

င စ ဆ င င

၍ ၄င စဆ ည။

12
C. Ah. Foung (a) Chom Fumg Mee (a) Chaw Fong Mee V. K. Mohamat Ka Ka and two others,
1950, B.L.R. 346 (H.C)
13
U Tun Pe V, U Maung Tin and four others, 1959, B.L.R. 16 (S.C)
14
င ၂၊ ၁၉၆၅, B.L.R. ၄၈၁.
 31

၄င စဆ ည

စဆ ည င ည။

စ စ စ ည င

၄င ည ၍ င င င စ

င ဆ ည ည ည၊

ည င စ ငစ ၍ င ဆ င

၊ ဆ ၊ ဆင င င

င င ည။

ည စ စည စ၍ ဆ

င င ည ဆင ည ဆ

စ ည င ၍ စ စ င၊ ည ည

ည ၍ ဆ ည

င င င စ င ၄င ၌ င င ၍

ဆ ည ည င ဆ

င ည ” ည။
15
“ စ င ၂” စ င င “

စည င စဆ င ၊

ဆင င ၁၂ ၁)

ဃ) စဆ င စ င ဆ ည င င

ည င င င စ င ဆ င

15
စ င ၊ , B.L.R. 1389.
 32

င စ ၁၂ ၁) ဃ)

စဆ င ည ” ည။

င ဆ စ ဆ င င

စ င င စ င။

Where the landlord honestly claims to get back the building or

part of the building for his own living under the effect of this Act,

landlord has to submit a bail with appropriate amount of money to

the court and guarantee to accomplish his moving within three

months just after the day when tenant leaves.

င ည ဆ စ ည ဆ

ဆ စ င စ ည ဆ

ည င င

င စ စဆ င င ည။ င စ

င င စ င

င င စ ည ဆ င

စ င င”ဆ ညစ စ

၍ စ င ။ င င စ

င င င ၊ င င ဆ ဆ ၊

င င ၊စ င င စ င၍

င ဂ ည င ဆ ည

စ င စ င င င ည။
 33

င ည င စ င င

င စ ည ည ၄င င

င ည စ၍ င ဆ စ ဆ င

င င င စ င ဆ င

ည စ င င ည င ည င င

ဆ စ ည။ င ဆ စ

ဆ စ ည င င စ ည ၊

င စ ညင င ညင

ည စ င င ဆ ည။

င ည စ င စဆ စည

င ၁ ၆ စစ ည စ ည။
16
“ ဂ ဆ င ဂ ဆ ” စ င င

“ င၌စည င စ ည။ စစ စ ည။

င ည င စ ည။

င င ဆ င စ င င

င စ ည” ည။

“ စ င ၊ ၄င င
17
င င ဆ ” စ င င “ င ဆ

င င ည င

ည င င စ င

16
Haji Abdul Samad. V. Haji Moosa Kaka and two others, 1962, B.L.R. 55 (H.C)
17
စ င ၊ ၄င င င င ဆ ,
B.L.R. 818.
 34

င စ ည။ င စ

ည ၌ စ၍

င င င ည

င င ည င ည

ဆ ည။ င ဆင စ ည င င

င င စ ည။

င င င စ

ဆ စည င ဆ

ဆ စ င င င စ င

င င စ၍ င င င

င ဆဆ င

င ည ဆ စ ည။ ဆင င

-၁၂ ၁) င) င ဆ ၍ င ဆ

င ည ည ဆ စ ည င ည

င ည။ င စ င င ဆ

င င စ င င င

၍ဆ င င င ည” ည။
18
“ င င င” စ င င “ င စ ည

ဌ ည ဆ င

စ င င င င င

18
င င င , B.L.R. 1205.
 35

၁၉၆ ည စ ဆင င

၁၂ ၁) င) င ည စ ည င စ င

င ငဆ ည ည ည ၍ ည င

ည င ည ည။ င င င

စ ဆ ည င

င င ဆ င ည ဆ

ည။ င င စ ည ဆ စဆ ၍ စ

င င စ ည။ စ စ ဆ င

င င င ည။ စ င ည စ ဆ

င င ည ည ည

စ ည” ည။
19
“စ ) င င င င ၂၊ ၂”

စ င င “ ဆ င ၍

ည င စ စ ည ဆ ည

စ င ည။ င စ ဆ ၁၉၅၃

စ ဆ ဆ စ ည။ င ဆ

ည င ဆ င ည င စ

င ည င င ည၊ င င

င င င ည စ စ ည ၄င

19
စ ) င င င င ၂၊ ၂၊ ၊ ၁၉၇၄ စ
၄ င၅
 36

င စ ၍စ င င င ည

ဆ ည။ ဆ စ ဆ ညဆ

င င င ၍ င င င င

စ ည ည ည။ စ၍ ည င စ

င စ င င ည

င င” ည။

င င စ င င င

င င။

င ည င ဆ ဆ စ

င င င စ င င င

စဆ င ည။ င င င စ

င င စ င င င စ

ည။ င င င

င င စ င

င င ည င င င စ

ည စ င င င ည။

င ည င စ င င

င င စ ည င စ င ည

၄င င င ည စ၍ င စ
 37

စ င ဆ င ည ၍ င ည င င ည င

င ဆ ည။

ည င စ င င

ည။

င ည စ င စဆ စည

င ၁ စစ ည စ ည။
20
“ င င စ ” စ င င ၁၁ ၁) စ) ၌

“ င င စ ” ၍

င ည စ င င င စ

ဆ င ၄င င ဆင ။ ည င

ဆ င င ည စ င ည င

င စ ည င ဆ ည

စ စ င င ၄င စ ည ဆင ည။ င

င င စည င င စ ည

င ည င ည စ င င စ

ဆ င ” ည။
21
“ င င ” စ င င စ င ၃

ဆ ၁ စ ၊ ၁၅ စ င င

ည င ည စ ဆ င

၍ င စဆ ည။ င င

20
U Tin Tun V. U Chit Htut and one, 1959, B.L.R. 163 (H.C)
21
Daw Thein Shwe V.S. M. Chowdhury 1963, B.L.R. 159.
 38

င င င င ည င စ ဆ

င ဆ င ။ င ည စ ဆ

င င စ ည။ င ည စ ဆ

င ဆ င” ည။
22
“ င စ” စ င င“ ည

ည င ည ၄င စ စ စ၊

စ စ၊ င င ည။ င

င ည စ င

င င စ င င င စ ည”

ည။
23
“ င င င ” စ င င “ ည

စ င င င

င ဆင င

၁ ၁) စ) ည ည ည ဆ ည

ည၊ င ည ဆ

စ င” ည။
24
“ဇ င ဇင ” စ င င “ ဆင

င ၁၂ ၁) စ)

ည ဆ င ည စ ည

င ည စ စ ည စ

22
The Chain Hoon V, Chan Htyan Soo 1964, B.L.R. 85 (C.C)
23
င င င ၊ . B.L.R. 308.
24
ဇ င ) ဇင ၊ , B.L.R. 152 (C.C)
 39

င ။ င ဆ စ င င စ

ည င” ည။

၈.၄။ င စ င င င င ၁၃)

င င င င င င

င ည င စ င စ

င င င င စ

င င င င ၁၃ ၁) ဆင

င င င စ စ င

ဆ င င င ဆ ည

စင ဆ င ည င င င၊

စ င ဆ င င ည စ

င င င ည။

13. (1) By the order of the President, in any area which is affected

by this section, to any type of environs of building, anyone who is

not a normal tenant, but who is living or working in the environs

of building in an honest way, such person may apply to the

inspector to continue to live in the environs of building. Where

this person submits a letter to the inspector in which he promises

to pay rent for his living, the inspector may issue a letter which

allows such person to live in such environs of building.

 40

Furthermore, the landlord or agent of the landlord shall be notified

by the inspector, if the inspector knows where they live.

၁၃ ၁) ငင င စ င င

ဆင စ ည င ည ၌ ည င၊ စ စ

စ င စ ၍ ည င ည ဆ စ စ

င င စ င စ၊ ည င စ

င င င စ င စ င ဆ

င င င ည။

ဆ ည စ စင ဆ င

င စ င ည ည

ဆ ည စ ငဆ င င ည စ ည

င ည င စ စ၊ င

ည စ စ စ ၄င င ည။

(2) According to section (14), not against the decisions of the

court, according to the subsection (1), a decision which allows

such person to continue to stay in such environs of building

means, as long as location of environs of building or type of

environs of building relates to this section, the decision will

remain for a certain period and such decision will be in the same

order for a further three months.

 41

၂) ၁၄ ည င ဆ င စ

၁) စ စ စ စ ငဆ

င င ည ဆ ည စ ည င စ စ၊

စ င ည စ စ င စ စ၊

ဆင ည စ ည င ည

ဆ ည စ ည။

However, the person who won the case according to the decision

of the court leaves the environs of building voluntarily, the

inspector may cancel the decision according to the submission of

the landlord. After that, such decision shall not be approved again.

င င င ည င

င စ င ည

င င င ည ဆ ည င ည

င ည ။
25
“ င င စ ” စ င င ) ည

စ စ ) ည။ ည

) ည စ ငဆ င င ည။
26
“ င ၃ ၊ ၃” စ င င

င စ င ၁၃ ၁)

25
Tan Choo Keng and two others V. Saw Chin Poon and anothers 1964. B.L.R. 29 (S.C)
26
င ၃၊ ၃။ ၁၉၆၆. B.L.R. ၁၃၉၅.
 42

ဆ င င င ည င

၍ဆ င စ ည။ င

ည။ စ ဆ င င င ည

င ည။ ည စ ည ၁) ည၌ င

င ည။ စ ဆ င င ည

စ င။ စင င ၍ င င

င င ဆ

င ည စ ည ည။

၈.၅။ င င င စ င င ည

စ ။ ၁၄)

၁၂ င င င င င စ

င စဆ င ည စ င

၁၃ င စ င ဆ င င

င စ င စဆ င ည

စ ၁၄ င ည။

14. (1) Although where law provides, according to section (13), to

reoccupy the environs of building where someone is allowed to

stay or to get rid of such person, no order and decree will be

applied for any case except for following cases:

 43

၁၄ ၁)။ စ င ည င စ

၁၃ စ စ င င

ည စ ည စ စ၊ စ

င စ စ၊ ည ည ည

စ င စ င ။

(a) In a case, a person who is allowed to stay in the environs

of building by the inspector, the registered letter which is posted

from postal office and asking for rental for landlord for such a

period of time, if the tenant does not follow according to the

letter within seven days, such amount of rental money shall not be

paid to the landlord or to the inspector.

) ဆ ည စ င င င

င စ င စ ၍

င ည င ငဆ

ညစ စ င၍ ည

ငဆ ည ၇) င ဆ င င

င င ည ၊ ၁၆

ည င ည စ ည

။
 44

(b) In a case, where a person or any person who is staying

together with such person disturbs the neighbors or embarrasses

the surrounding people, or uses the environs of building for

despicable or unlawful business or having a verdict by the court

for such case or damaging the environs of building by

tenant’s ignorance and carelessness.

) ည င င စ စ

ငဆ စ ည

င စ င ငင စ ည

ည င စ စ ည

ည စ၊ ည စ ညစည

ည ငဆ င စ င

ည ည စ ည စ င

စ င ည စ၊ ည ဆ ည စ စ

၊ ည ၊ ည

င စ

ဆ ည စ ည ၊

(c) Occasionally, in an honest way, the tenant wants himself

or any of his family members to stay in such environs of

building; the tenant makes a contract to the court with the

appropriate amount of money which is viewed appropriate by

 45

the court, the tenant oaths to implement within a period of time

which is allowed by the court.

ဂ) စ င စ င

င င င ည ငစ

င င စ စ င စ စ၊

စ စ င စ စ င

စ စ၊ ည ဆ ည

စ စ စ စ ၍ စ

င ည ငစ င င ၊ ည

စ င င ည ၍ ည င၊

ည င င စ

စ င ဆ င ည ၍ ည င

င ည င င ည င င ဆ

ည စ၊ ည ၊

(d) Such kind of order which was already abolished

according to section 13 (2).

ဃ) င ည ၁၃) ၂) င

စ ည စ စ ည။
 46

၈.၆။ င င စ ၁၆)

င င င င င စ ည င

င ည င င စ င

စဆ ည ဆ ည။ င င

ည စ င င ငဆ င ည

စ ည ည င င င င

ည စ ည င ည။ င င ငဆ

င ည စ င ည င

စ စ ငဆင ည ဆ င စ

င စဆ င င ၁၂ င ၁၄ င ၍

င ည ည။ င င င

င ည စ င ည င င င

င င စ င င င ၊

င ညင င ငင

င င င င င ၁၆ င ၍ င

ည။

16. (1) Concerning the environs of the building, according to

section 12 (1), paragraph (a) or section 14 (1) paragraph (a), even

though the landlord doesn’t ask for rental, or where the landlord

refuses to accept rental from tenant, the tenant will:

 47

၁၆ ၁)။ စ စ င စ ၍ ၁၂ ၁) ) င

စ စ၊ ၁၄ ၁) ) င စ စ ည ညင

င ငဆ င ည င င

ည င ငင ဆ င ည-

(a) pay the rental to the inspector. In addition:

။ င င င ည။ င-

(b) where the landlord doesn’t send notification or other

means to the tenant that he wants to accept the rental, the tenant

will pay the remainder of the rental to the inspector.

။ င စ ငစ ၍ င

င စစ င စ စ၊ ည င စ စ

င င င

င ည င င ည။
27
“ hukarem င he Controller of Rents” စ င င

င ည င င ဆ ည

င င င င င

ည င င င ည။ ဆ

င င င ည င င စ စ င၊

27
S. Thukarem V. The Controller of Rents, Rangoon and one 1950, B.L.R. 103, (S.C)
 48

စ င င င ည

င ည ည။
28
“ င င င ” စ င င စ

ည င စ ည။

ည င စ၍ င ည င င

စ ည ဆ

စ ည။ င စ င င င ။

ငင ၄

င င ည စ င ည င စ

ည၊ စ ည ဆ င စ င င

င ။

၁၄ ၁) ၁) င ၂) င စ

ညဆ င င င င င င င

င င င ည။ ၄င င

င င င စ ည။

“ ည င င ည င ည

င ည ည။ ဆ င င

င င င င ၊ စ

ည င စ ည၊ စ ည ငဆ စ င

င င ” ည။

28
Daw Ngwe Tin V. The Controller of Rents, and one 1951. B.L.R. 85, (S.C)
 49

“ စ ဂ၊ ဇ င ငစ င
29
” စ င င ဆင င ၁၆

င ည င စ ည။ စင ။

စင ၄င ၂ စ) င ည င

စ ည ည။

၈.၇။ င စင င ည

စ ၂၇)

၂ စ) ၁) င စင ဆ ည ၂၇ ၌

ည စ င

င ဆ င စ စ၊

၃၂ ည င ဆ

င စ စ၊ ၃၂ ည

င ဆ င စ စ စ၊

င ၂၇ ၌ ည စ

ည။ ၄င ၂၇ ည စင

င ည ည စ ည။

ည ၄င င င ၊

င င စ စ င စ ည

29
စစ ဂ ၊ ဇ င ငစ င ၊ , B.L.R. 51, (S.C)
 50

င င င စ

ည။

27. (1) Application from landlord or tenant to the inspector,

the inspector issues a proof letter with signature that rental is a

real standard rental.

၂၇ ၁)။ ည င ည

င စ င င ည

ည င င ည စ စ င စ ၍

စင စ င ည

ည။

(2) According to the application of landlord or tenant, the

inspector, according to the texts of this Act and related things, has

to approve the rate of standard rental and can approve relevant and

fair standard rental.

၂) စ စ င ည င

ည င

ည င ဆင င င ည င

၍ ည င င ည စင ည င

င ည င ည။

(a) In the case where, the whole environs of building or part

of the building is rented or tenant has rented the whole building or

 51

part of the building to sub-tenant or a case which affecting this

Act for any reason and in any difficult situation.

) စ စ စ စ စ ၊ စ စ

စ င င ည စ ည

င င ည စ စစ စ

စဆင င ည စ ည

စ င င စ င

စ စ ည စ၊

(b) Environs of building together with furniture including

food cost, in this kind of case, to be effective to this Act, rental

money which needed to be split for rental for furniture and food,

such kind of case.

) င ဂ င င ည စ င

ည င၊စ င ည င၍ င

ည စ င ည င စ ၍

စ စ င

င စ ည င င ဂင

ည စ င စ စ င

ည င ည စ၊
 52

(c) Environs of building which is rented without rental or

with very small amount of rental, rental for something except

building rental, such kind of case.

ဂ) စ စ င ည င၊ င

ည င ည င၊င င စ

စ င ည င င စ ည ည

င ည စ၊

(d) Rental which was paid on 1st of September 1939 or

environs of building was not rented on that day, the last rate of

rental before on that day, rental is too low considered by the

inspector, such kind of case.

ဃ) ၁၉၃၉ စ၊ စ င ၁ င ညင

ည င ဆင စ င

င င င စ ဆ

င ည င ဆ ည ည

င င ည စ။

(e) The case of changing the condition of building or the

cost of construction materials is rising up and cost more or after

1st of September 1939, municipal tax and tax rates are getting

higher for building, such kind of case.

 53

င) စ စ င ည စ၊ ည

ဆ ဆ စည င

င င င ငစ ည စ

ည ၁၉၃၉ စ၊ စ င ၁ ၌

စ စ င စ ၍ စ

ည စ။

(f) Rented a building for the first time after 1st of January

1941, such kind of case.

စ) စ စ ၁၉၄၈ စ၊ ဇ ၁

င ည စ၊

(g) From the day of 1st September 1939, the building

condition is getting bad or other concrete reasons, rented the

building on 1st of September 1939 or after that day, rented for the

first time and rental is too high or unfair considered by the

inspector, such kind of case.

ဆ) ၁၉၃၉ စ၊ စ င ၁ စ၍ စ

ဆ င င ည င၊

င င ည င ၊ ၁၉၃၉ စ

စ င ၁ င စ င ည

ည စ င
 54

ည င ည။ ည

င င င

ည စ င-

However:

(1) According to sub-section (d), for rental, any time between 1st

of September 1934 and 1939 September the 1st, the highest rate of

rental or the lowest rate of rental and plus 25% of lowest rate of

rental, according to the highest and lowest rentals, rental is not

more than such highest rental.

၁။ ဃ) င ၁၉၃၄ စ၊ စ င

၁ င ၁၉၃၉ စ၊ စ င ၁ စ

ည ည င ဆ စ င ည ဆင

ည င င စ င ည

ညဆင င ညဆ င ၂၅ င

စ င င ၊ ဆင င ည ဆင

စ င စ ။

(2) According to sub-section (E), according to the rate of rental

mentioned in section 6, the cost for repairing the building for good

condition or changing the shape, related to this cost, the inspector

may not increase the rate of rental not more than 6% a year.
 55

၂။ င) င ၆ င

ည င စ င င င င

ည င င ည င င

စ ၍ စ စ၊ စ င င ည စ င

စ ၍ စ စ ၁) စ င၆ င ၍ င င ။

(3) According to sub-section (G), standard rental is, related to the

self-own land for any purposes, similar purposes near that land,

similar rented land, government or Rangoon municipal or

Rangoon Municipal Corporation or similar local organization may

not increase the rental rather than current rental.

၃။ ဆ) စင စ စ

င ည င င စ ၍ ဆ

င စ င င ည

စ စ စ စ၊ စည င

ည စ င ည

စ စ စ င ဆဆ စ ည

င စ ။

(4) According to sub-section (F) or (G), environs of building is a

land and rented, if the land owner is government or Rangoon

municipal or Rangoon municipal corporation or similar local

organization, standard rental will be decided according to the

 56

decision of government or Rangoon municipal or Rangoon

municipal corporation or similar local organization.

၄။ စ) ည ဆ) စ စ င

ည စ၍ င စ ည စည င

ည စ င ည

စ ည စ င စင စ

ည စည င ည

စ င ည ဆင

င ညင စ စ ည။
30
“ စ ၃ င င င ၅”

စ င င“ ဆင င ၁၉

၂၇) ဆ င စင င ဆင

စ ငစ ၍ င င င ည။

င စ စ၊ င စ စ၊ စင

င ည င၊ ည

င၊ စင င ည” ည။
31
“ င င ည ၃” စ င င

“ င ညစ ဆ င၍ စင

ည ။ င

င င င စင

30
စ ၃ င င င ၅၊ ၁၉၆ , B.L.R. ၁၂ .C)
31
င င ည ၃။ ၁၉၆၆, B.L.R. ၇၄၁.
 57

စ ည။ ၄င ည ည င

င စင င ည။ ည

င ည င ဆ င င စ င

၄င င ၍ င င၊

ငစ င ဆ ဆ ည

ဆ င ၊ ဂ စ ည ည ငဆ

င စစ ဆ စ င ၌ ငဉ စ၍

ဆ ည။ ည ည

င င ည။ င ငဆင ည စ

ည ည င ည စ

စစ စစ ဆ င ဆ ငဉ င ည။

စင င ည င ဆင စ စ ည။

င စ င

ဆ င င စ င စ ည

င ၊ ငစစ စစ ဆ ၍

ဆ ည။ င စ စ င င င ဆ

စ စည စ ည င ဆ ၊ င

စ စ င ၄ င ၍

ငဆင စ ည ညဆ င ည ၊

င စစ ဆ ဆ
 58

ည။ ဆင င ၄၃ ည င

င ၍၄င င ဆင ည

ဆ င စစ ဆ ၍ ဆ ”

ည။
32
“ င ၂” စ င င “ ဆင

င င ည

င ည ည ည စ င ၍ စင

င င င ည င၊ င င

င ည င၊ ည င

င ည။ စင ၌ စ င

၍ ည ည ည င င ည

င င စ ည ၍ ည င ည

ဆ င” ည။
33
“ ဇ ဆ င စ စ” စ င င

“ စ ည ည

ဆင င ၁ င ၂၇ င

ဆ ည င င ည င ည စ

ဆ ၃ င င

စ စ စ ည၍စင

32
င ၂၊ ၁၉၆၇, B.L.R. 558.
33
ဇ ဆ င စ စ၊ , B.L.R. 144.
 59

င ဆင င င

ဆ င င င ည။ စ စ ည

ည င ည

ည စ စ ည ဆ ည စ

ည ည င င ည စ စ

င င င၄င ည င ။

ည င စ စ င စင င ၍

င ည၍ ဆင င

စ ည ည စ င ဆ င င င

ဆင င ၃၂

ဆ င င ည ဆ င ။ င ဆ

စ ည င

ည ဆ င င ည ည

ည ဆ စ ည စ င စ ည ည။
34
“ င င င စ ၉” စ င င စ င

“ င င င င င င င င

င ၌ င င ဆ ည ဆ င

ည င င င င င

ည င င ဆ ညဆ စ

စ ည။

34
င င င စ ၉၊ ၁၉၆၈, B.L.R. ၂၉၇.
 60

င ၂၇ ၁) “ ည

စ စ စင င စ စ၊ င စ စ

စ ည။

င င စင င

င၊ င င စင

စ ၄င ည စ င

ငင ဆ င င” ည။
35
“ င ဆ ၃ င ည ၂” စ င င “၁၉၆

ည စ၊ ၄၄ ည င င င စ

ည။ ၁၉၄၈ စ

ဆ ၊ ၊ ဆ င ၊ င စ

ဆ င ည၁၉၆ ည စ စ င ည ည

ဆ ည စ စ ည ဆ ည။ ၁၉၄၈ စ၊

ည ည ။ ဆ ၊

ဆ င ည စ ည ည ၍

င င စ စ ည။ စင

င ည ည ၄င စ င င စ

စ ည ငင င။ ၂၇ င

စင င ည ဆ ည။ စင စ စ

င င ည” င ။

35
င ဆ ၃ င ည ၂၊ ၁၉၇ , B.L.R. ၁၅ .
 61

င င စ င ည င င

ငဆင င ည။ ငဆင

စ ၍

ငစစ စစ ဆ င ၊

င ည ဆ င စ ည။

စင စ ည င ည “စ ”

စ ည။ င င

စစ စင ငဆင ညဆ င စ ည စ ည။

စ စ ည။ ၁) င ၍ စ

စ၊ င၍ စ စ ငဆင ငဆင

ည င ည စ င ည။ င

င စ စ ငည င

၍ဆ ငဆ ည င ည စ ည။

င စ င င စင

ငဆင င င ည။

င ၍

စင င ၍ င ည

ည။
36
“ င င ၂” စ င င “စင

၌ င ည ဆင င

36
င င ၂။ ၁၉၇ , B.L.R. ၁၅၉.
 62

၂၇ ၂) င ည

ည င ၊ ဆင င င ည င

ည။ ငင

ညစစစ ည ည ၌ င

ည၍ ဆ ည စ ည။ ဆ ည

စ စ စင ၌ စ ငစ ည

စ စ ည။ စ င ဆ စ င ည

င င င ည င စ စ င င ” ည။
37
“ င င င င ” စ င င စင

ည င စ င င

င ငဆ င င ည။ င ည၄င င င

ငဆ င င စ င င ည ဆ င

စင ငဆင ည စ ည။ စင ဆင

င ၃၂ င ည

င ငဆင င ည။ ၌ င ည င

င င ည ဆ င

ည င င စင ငဆင

င ည ၂၇ ၂) င ည

င ည ည။

37
င င င င ၊ 1971, B.L.R. (C.C) 118.
 63

၈.၈။ စင ငင ဆ င

င ၂၇ ဆ

စင ၍ ငင ဆ င ၄င စ

ဆ င င

Reference) င င င င ၃၂ င ည။

32. (1) If the rate of standard rental for environs of building

approved by the inspector is denied, according to the section 27, if

the building is located in the city of Rangoon, the case file will be

submitted to Chief judge of Rangoon City judicial court or the

building is located in any city affected with this Act, to the judge

who is recognized by the President of State.

၃၂ ၁)။ ၂၇ စ စ စင

ည ဆ ငင ဆ င စ

င ည

ည င၊ စ ၍ ည ည

စ င ည ငင ည

ည င င င စ င ည။

However, when submitting according to this sub-section, if the

chief judge of Rangoon city judicial court or any recognized judge

considers it not to be charged by himself, application form will be

transferred to any judge who is in the district affected with this

 64

Act. The judge who received the transferred form can accept the

form and must have power to hear the case.

င င င

ည ည ည

စ ည င င

ဆ င င ဆ င စ ည

င ငစ င င င စ ည စ

င င ည။ င င ည

ဆ င င ည ည။

(2) The copy of order of inspector is submitted together with

transferred form.

၂။ င

င င ည။

(3) 50 Pyas stamp of court tax must be attached with the

transferred form paper.

၃။ င င ဆ ဆ င စ

ည။

(4) This transferred form must be submitted within 30 days

after the order of inspector. However, the period for

getting the copy of order of inspector is not included.

 65

၄။ ည

င ၃ ) င င င ည။ င

င ည င

င င ည ၌ ည င ။

(5) The verdict decided by the chief judge of Rangoon city

judicial court or one of the above mentioned judges is a

final decision.

၅။ ည င

ည င၊ ည

ဆ ည ည စ စ ည။

၄င ဆ င ၁၉၆ ည စ ဆင င

၂၇

စင င စ ည င

ည ည င၊

စ စ င ည ငင

ည ည င

င င ည။

စ င

စစ ဆ ည ။ ငင ည

ည ည
 66

စစ ဆ ည ၊ ငင ဆင င

င င (PERSO DE )

စ ဆ င စ င ဆ င င စ ည။ င

င စ ၍ ၄င ညဆ ည

၃၂ ၅) ည စ ည။ င င ။

င ၃၃ ၄င ည

ဆ င စ စစ ဆ စ ည

၄င ည စစ ဆ စ င

ည င ည င၊

စစ ဆ စ င ည င ည င

င င င ည င င

၍ ၄င ည င

င ည။
38
“ င ” စ င င“

ညင ည။ င

ည ဆ ည။ င

င စ ဆ င ည ။

ဆင င ersona designate)

င စ င ဆ င င င ည

38
Ah Yar V. U Kala B.L.R. 285 (H.C)
 67

င ၁၁၅ ငဆင င င စ င ”

ည။
39
“ င ဆ ” စ င င “ ဆင င

၂၂ ၁) င ည ည

၄င င င င စ ၍

၄င ၂၂

င ၍ ။ ၂၂ ည စည

ည ည။ ဆင င င

င င ဆင” ည။

ည စ စ င ည

င ည င ည။)

39
Daw Thi V. Daw San Mya 1952. B.L.R. 45 (H.C)
 68

Key Terms

urban area -

controller -

landlord - င

premises - စ

standard rent - စင

tenant - င

to regain environs of building - စ ည

to remove tenant - င င

disturb - စ င ငင စ ည

င စ စ ည

despicable - ညစည

unlawful - ငဆ င

bail with appropriate amount of money- င ည င င ည င

င ဆ ည

rental -င

inspector -င
 69

Questions

1. What is “urban area”?

2. Define the term in the followings.

(a) landlord (b) Tenant (c) premises

3. What do you understand “standard rent”?

4. According to Section 12 of the Urban Rent Control Act,

1960, how can environs of building be regained or tenant

from building be removed?

5. Under Section 13 of the Urban Rent Control Act, 1960, how

can anyone who is not a normal tenant, to live in environs

of building allowed?

6. What are the matters relating to get rid of any person who

is not a tenant in the Section 14 of the Urban Rent Control

Act, 1960?

7. In which matters, the inspector can standard rental for

environs of building describe?

 Chapter 9

Contents Pages

9.1 Name and Definitions 3

9.2 Formation of Vacant, Fallow and Virgin Lands f Management 8

Central Committee

9.3 Right to Do Land, Right to Utilize Land on Vacant, Fallow 10

and Virgin Lands

9.4 Conditions in accordance with the Right to Do, 15

Right to Utilize Land of Vacant, Fallow and Virgin Lands

9.5 Security Fees and Land Revenue 22

9.6 Condition shall be complied by the Person who is granted 23

the Right to Use Vacant, Fallow and Virgin Lands

9.7 Supervision 26

9.8 Giving Help to Persons who are granted Right to Use 32

of Vacant, Fallow and Virgin Lands

9.9 Offences and Penalties 36

 2

The Vacant, Fallow and Virgin Lands Management Law(2012)

- ၊

ဌ ည

( ) ည ည။

( ) ( ) ည။

၊ ၊

ည ည ည

ည။ ည

ည ဌ

ည ဌ ည ၊

ည ၊ ဌ

ည ည

ည ၊

ည။
 3

9.1 Name and Definitions

Section -1 This Law shall be called the Vacant, Fallow and Virgin

Lands Management Law.

( ) ၊

ည။

Section -2 The following expressions contained in this law shall have the

meanings as given hereunder:-

( )

(a) “Central Committee” means the Central Committee for the

Management of Vacant, Fallow and Virgin Lands;

ည ၊

ည။

(b) Ministry means Union Government Ministry of Agriculture and

Irrigation.

(c) Department means department of Agriculture Land

Management and Statistics.

 4

(d) “Task Force” means the Task Force for the Management of

Vacant, Fallow and Virgin Lands, has been formed by this

Law;

(e) “Vacant land and Fallow land” means land which was

done by the tenant before, and then that land was

abandoned by the tenant in any reason, not only the State

designated land but also for agriculture or livestock

breeding purposes;

(f) “Virgin land” means land which may be new land or other

wood land in which cultivation was never done before. It

may have or not with forest, bamboo or bushes, even

though ground feature may be plane or not ,and includes the

land which has been cancelled legally from Reserved

Forest, Grazing ground, and Fishery pond land respectively

for Agriculture, Livestock Poultry Farming and

Aquaculture, Mining, and Government allowable other

purposes in line with law;

(g) “Security Fees” mean fees prescribed by this law, advance

payable to one of the Union Government authorized bank in

credit or collateral by persons who are granted the right to

do land, right to utilize land in accordance with the type of

enterprise;
 5

(h) “Land Revenue” means land tax rate prescribed by the

rule made under this law payable to the State by persons

who are granted the right to do land, right to utilize land in

accordance with the type of enterprise;

(i) “Perennial Plant” means plants grow in compact

plantation to gain the benefit from plantation crop (or)

perennial plant within a period of time in accordance with

the type of the plant;

(j) “Orchard” means plants grow in either compact plantation

or mixed cropping whether it’s no need for replanting as

per harvest frequently until the plant is dead;

(k) “Seasonal Crops” means crops grow within the growing

season period, after harvest and getting income, It must be

newly tillage operation and sown for further production;

(l) “Mines Exploitation Enterprise” means as same as define

in Section2, Sub-section (j) of the Myanmar Mine Law;

(m) “Permission Order” means the order of permission has

been granted by Central Committee in respect of

application for granting right to do land, right to utilize land

on Vacant, Fallow and Virgin Lands;

( ) ည ၊

ည။
 6

( ) ဌ ည ည

၊ ည ဌ ည။

( ) ဌ ည

ဌ ည။

(ဃ) ည ည ည

ည ၊

ည။

ည ၊

ည ည။

( ) ၊ ည

ည ည။

( ) ည ၊

ည ၊ ည ၊

ညည ည ၊ ည

ည ည။
 7

၊ ည ည။

( ) ည ၊

၊ ည၊ ည

ည။

(ဇ) ည ၊

၊ ည၊

ည ည။

(ဈ) ည ည ည

ည ၊ ည။

(ည) ည ည ည

၊ ည

ည ည

ည ည ည။
 8

(ဋ) ည

ည။

(ဌ) ည

၊ (ည)

ည ည။

(ဍ) ည ည ၊

ည ည။

9.2 Formation of Vacant, Fallow and Virgin Lands

Management Central Committee

Section -3 The President: -

(a) the Central Committee for the Management of Vacant, Fallow

and Virgin Lands, with the Union Minister for Agriculture and

Irrigation appointed as a Chairman, Director-General of the

Department of Agriculture Land Management and Statistics as

Secretary and suitable persons of the concern government

 9

department and organizations , and other suitable persons as

members, in order to ensure the management task concerning the

use of Vacant, Fallow and Virgin Lands for State Economic

Development in relation to commercial agriculture, livestock

breeding, mining, and government allowable other purposes in

line with law;

(b) the Central Committee constituted under the above paragraph

(a), can be reconstituted when necessary;

( )

ည-

( ) ၊

၊ ၊

၊ ည ည

ည ဌ ည ဌ

ည ၊ ဌ

ည ၊

ဌ ၊ ည ည

ည
 10

ည ၊

ည ည။

( ) ( ) ည

ည ည။

- ။ ည-

( ) ည ၊

ည ည ည။

ည ၊

ည ၊ ည ည

ည ည ည။

( ) ( ) ည

ည ည။

9.3 Right to do Land, Right to Utilize Land on Vacant, Fallow

and Virgin Lands

၊ ၊

Section 4. The Central Committee shall permit the right to do, (and)

right to utilize land of vacant, fallow and virgin land in the country, for

the following purposes:-

 11

(a) Agriculture;

(b) Livestock Poultry Farming and Aquaculture;

(c) Mining;

(d) Government allowable other purposes in line with law.

( )

ည ၊

ည-

( ) ၊

( ) ၊

( ) ၊

(ဃ) ည ည

Section 5. The following persons and organizations may apply to

Central Committee in accordance with the prescribed conditions for

carry out the purposes which are stated in Section 4:

(a)Myanmar citizen investors;

(b)Department, Government Organization, and Non-Government

Organizations;

(c)Exemption persons who are eligible in accordance with Section 4 of

the Transfer of Immovable Property Restriction Law, 1987;

 12

(d) Joint-Venture of Foreign Investors who have right to carry out with

Department (and) Government’Organization in accordance with

Myanmar Investment Law;

(e) Joint-Venture of Foreign Investors who have right to carry out with

Myanmar Citizen Investors, in accordance with Myanmar Investment

Law.

(၅)

ည ည

ည ည-

( )

( ) ဌ ၊ ည

ည ၊

( ) ၉၈၇ ၊ ည

ည ည

(ဃ) ဌ ၊ ည

ည ည ၊

( )

ည
 13

ည ည

( ) ည ၊

ည ၊

ည ည

ည ဌ ၊ ည

ည ။

၅- ။ ၊ ည

၊ ၊

ည။

Section 6. The Central Committee shall take the following necessary

action in respect of on application matters which are in accordance with

Section 5:-

(a) to get the recommendation of the concern Region or State

Government;
 14

(b) to get the recommendation of the Ministry of Mines for mining,

and other concern Ministry for other purposes prescribe in Section4,

Sub-section (d);

(c) to coordinate with the Ministry of Environmental Conservation and

Forestry ,and other concern Ministries for the prevention of damage

and destruction to the Forest land which are Reserved Forest, and

Protected Public Forest; and for conservation of natural regions,

watershed area and natural fisheries;

(d) to submit the necessary suggestion relate to explore the National

Land Use Policy to the Union Government;

(၆)

ည ၅ ည -

( ) ည

ည။

( )

ဌ ည ၊ ၊ (ဃ)

ဌ ည ည။

( ) ည

၊ ၊
 15

ဌ ၊

ဌ ည ည။

(ဃ)

ဉ ည ည။

Section 7. The Central Committee shall permit the grant on

application for granting right to do, right to utilize land of Vacant,

Fallow and Virgin Lands with the agreement of Myanmar Investment

Commission for foreign investment.

(၇)

ည ၊

၊ ည

ည။

Section -8. The Central Committee shall make permission or

rejection of the systematic application in order to ensure the

management task concerning the use of Vacant, Fallow and Virgin

Lands.

(၈) ည ၊

ည။
 16

၈- ။( ) ည ည

၊ ၊

ည ည

ည။

( )

ည ည ၆၀

ည။

( ) ည

ည ၊ ည။

၈- ။ ၈ ၈- ၊ ( )

ည ည။

Section -9. In accordance with the Section 8,the Central

Committee Shall issue the permission order, granting the right to do,

right to utilize land of vacant, fallow and virgin lands, after security

fees has been paid.

(၉) ည ၈

၈- ၊ ၊

ည။
 17

9.4 Conditions in accordance with Right to Do, Righ to Utilize

Land of Vacant, Fallow and Virgin Lands

၊ ၊

Section -10. The Central committee shall permit the following

land area of Vacant, Fallow and Virgin Lands in relation to commercial

agriculture, and livestock breeding purposes:-

(a) Agriculture

(1) In the case of Perennial Plant, Orchard, and Industrial Crop not

more than 3000 acres at a time and whenever cultivation is completed

on 75 percent of the permitted acres, an additional not more than 3000

acres at a time up to a total of 30000 acres shall be permitted

frequently.

Actual cultivable acre more than 3000 acres at a time shall be

permitted for the state interest with the agreement of the Cabinet of the

Union Government;

(b) Livestock, Poultry Farming and Aquaculture

(1) In case of Aquaculture, not exceed 1000 acres;

(2) In case of Livestock breeding and Poultry Farming

(aa) Livestock breeding for buffalo, cattle, horse, not exceed 2000

acres;
 18

(bb) Livestock breeding for sheep, goat, not exceed 500 acres;

(cc ) Poultry farming, pig, not exceed 300 acres;

(3) Animal husbandry not include in sub-section (1) and (2), suitable

acres;

(c) Mining purpose shall be permitted with the agreement and

coordination with the Union Government of the Ministry of Mine;

(d) Government allowable other purposes in line with law shall be

permitted with the agreement and coordination with the Union

Government of the relevant Ministry.

Section 10-A

(c) In the case of rural farmer and a family who want to run

manageable farm shall be allowed to use not exceed 50 acres by

the permission of one of the respective local organization may be

managed.

( ) ည ၊

ည ည

ည။

( ) ည ၊

ဧ ၀၀

ဧ ၀၀၀ ည။ ည

ဧ ၇၅ ည
 19

ဧ ၀၀၀ ဧ

၀၀၀၀ ည။

ည ည ဧ ၀၀၀ ဧ

၀၀၀၀ ညဧ ည။

( ) -

( ) ၊ ၊ ဧ ၀၀၀

ည။

( ) -

( ) ၊ ၊ ဧ ၀၀၀

ည။

( ) ၊ ဧ ၅၀၀

ည။

( ) ၊ ၊ ၊ ဧ ၀၀

ည။

( ) ( ) ( )

ဧ ည။

( ) ည

ဇ ဌ

ည ည။
 20

(ဃ) ည ည

ည ၊ ဌ

ည ည။

၀- ။ ည ၊

ည ည

ည။ -

( ) ည ၊

ဧ ၀၀ ည။

ည ဧ ၇၅ ည

ဧ ၀၀

ဧ ၀၀၀ ည။

( )

ဧ ၅၀

ည။

Section -11. The Central Committee shall permit the following

duration for right to use of Vacant, Fallow and Virgin Lands in relation

to commercial agriculture, and livestock breeding purposes:-

(a) Agriculture

(1) For perennial plants and orchard, the duration for right to use land

is not exceed 30 years from the year of grant;

 21

(2) For seasonal crops, the duration for right to use land shall continue

so long as there is no breach of condition;

(b) For Livestock, Poultry Farming and Aquaculture, the duration for

right to use land is not exceed 30 years from the year of grant;

(c) After expire the duration of right to use land in accordance with the

above sub-section(a)(1) and sub-section(b), shall continue permission

the duration base on type of work ,an additional years frequently up to

a total of not exceed 30 years;

(d) For Mining purpose the duration of right to use land shall be

permitted with the agreement and coordination with the Union

Government of the Ministry of Mine;

(e) For Government allowable other purposes in line with law the

duration of right to use land shall be permitted with the agreement and

coordination with the Union Government of the relevant Ministry.

( )

ည ၊ ၊

ည -

( ) -

( ) ည ည

ည။
 22

( ) ည

ည။

( ) ည

ည။

( ) ( ) ( ) ( )

ည။

(ဃ) ည

ဌ ည ည။

( ) ည ည

ည ၊ ဌ ည

ည။

- ။ ည ၊

( ) -

( ) ည ည

၀ ည။

( ) ည

ည။
 23

( )

၀ ည။

( ) ( )၊ ( ) ( )

ည ၀

ည။

Section -12. The Central Committee shall permit the right to use land in

a case where application is made by Investors who have been permitted

in accordance with Myanmar Investment Law, or by Organizations

consisting of Investors who have been permitted in accordance with

Myanmar Investment Law in areas in which land development

operation are unable to be carried out by the citizens.

( ) ည ည

ည ည

ည ည ၊

၊
 24

ည။

9.5 Security Fees and Land Revenue

Section -13. The Central Committee may fix the security fees rate to the

payable person who will get the permission right to use the vacant,

fallow and virgin lands, depending upon the type of enterprise.

( )

ည ၊ ၊

ည။

Section -14. The Central Committee may fix the land revenue rate to be

assessed and suitable period of tax-exemption for granting right to use

the vacant, fallow and virgin lands, depending upon the type of

enterprise and crop.

( )

ည ၊ ၊

ည ၊

ည။
 25

Section -15. The Department shall be made in the following manner:-

(a) Assessment and collection of land revenue shall be made start from

the expire date of tax-exemption period to the person who got the

permission for granting right to use the vacant, fallow and virgin land

depending upon the type of enterprise and crop;

(b) Supervision shall be made on payment of land revenue of person

who got the permission for granting right to use the vacant, fallow and

virgin lands.

( ၅)

ဌ ည-

( ) ၊ ၊

ည ည

ည။

( ) ၊ ၊

ည။

9.6 Conditions shall be complied by Person who is granted the

Right to Use the Vacant, Fallow and Virgin Lands

 26

၊ ၊

ည ည

Section 16. Person who is granted the right to use the vacant, fallow

and virgin lands shall be complied the following conditions:-

(a) The land granted shall be used for the purpose granted and in

relation to economic enterprise;

(b) The enterprise shall carry out to be completed within four years

from the date of grant according to the purpose granted. The prescribed

period may be revised by the Central Committee for losing time due to

natural disaster and unstable security conditions;

(c) Land granted shall not be mortgaged, giving, sold, leasing or

otherwise transferred or divided without the permission of the Cabinet

of the Union Government;

(d) Land revenue shall be paid fully for the land granted;

(e) With respect to land granted the conditions prescribed by the

Central Committee, shall be complied;

(f) Expect the purpose granted enterprise, exploring other natural

resources below and above ground is prohibited;

(g) If natural resources are found in the authorized land and the

Government being desirous of extracting the same on a commercial

basis resumes the area required therefrom, it shall be surrendered as

directed by the Union Government;

 27

( ၆) ၊ ၊

ည-

( ) ည

ည။

( ) ည ည

ည။

ည ၊ ည

ည ည။

( ) ည ၊

ည ၊

၊ ၊ ၊ ည

(ဃ) ည ၊

ည။

( ) ၊ ၊

ည ည။
 28

( )

ဇ ည ။

( ) ဇ ည

ဧ ည ဧ ည ည

ည ည

ည ည။

9.7 Supervision

Section-17. The Central Committee shall constitute and

prescribed duties of the Task Force and Special Group in respective

Region or State, for scrutinizing and co-ordinations with respect to

submitted cases of right to use the vacant, fallow and virgin lands.

( ၇) ည ၊ ၊

၀ ည ၊
 29

ည ည

ည။

Section-18. The Central Committee may form occasionally and

appoint the Special Board with relevant Departments, to inspect

whether the person who is granted right to use vacant, fallow and virgin

land shall comply with or not the prescribed conditions to carry out the

purpose granted.

( ၈)

ည ၊ ၊

ည ည ည

၊ ဌ

ည။

Section -19. The Central Committee shall resume the area

required in the authorized land, if one of the following situations

arises:-

(a) If ancient culture heritage are found in the authorized land;

(b) If infrastructure project or Special project are desired to be

constructed on the authorized land, in the interest of the State;

(c) Except the permitted minerals, if other natural resources are found

in the authorized land which are permitted for production of mining;

 30

(d) If natural resources are found in the authorized lands which are

permitted for the purposes described in Section4, Sub-section (a), (b),

and (d).

( ၉)

၊ ည

ည ဧ ည ည-

( ) ၊

( )

( )

ဇ ည ၊

(ဃ) ၊ ( )၊ ( ) (ဃ)

၊ ဇ

ည ။

Section-20. For resuming the area required in the authorized land

in accordance with the Section19, the Central Committee will have to

be undertaken in coordination with the department, organization

concerned for getting the compensation within the prescribed period,

calculated by current value to cover the actual investment cost of the

 31

legitimate owner, with the agreement of the Cabinet of the Union

Government.

( ) ည ၊

၉ ည ၊

ည ည

ဌ ၊ ည ည

ည။

Section- 21. If the Central Committee found that the person who

is granted right to use vacant, fallow and virgin lands, breach any

condition of this law; the security fees deposited shall be forfeited to

the State and, shall be revoked the right of land use.

( )

ည ၊ ၊

ည ည ၊ ည ည

ည။
 32

Section -22. The person and organizations who have granted the

authorized land before this law is enacted, by the permission of the

Central Committee for the Management of Vacant, Fallow and Virgin

Lands shall be complied the following conditions:-

(a) Submit the complete record file to the Central Committee, attach

with granted area, order issue date and serial number, the statement of

actual cultivated area and remaining un-cultivate area with photo and

document evidence;

(b) Comply this law with respect to cultivated area of vacant, fallow

and virgin lands;

(c) It deem as the authorized lands which never reclaimed beyond the

prescribed duration, have been revoked by the State;

(d) If the Central Committee found that those persons who are granted

such rights fail to adhere or violate the prescribed conditions or fail to

fulfill their commitments during the prescribed time, the security fees

deposited shall be forfeited to the State and, shall be revoked the right

of land use.

( ) ( ) ၊

ည ည-

( ) ၊

ဧ ည

ည
 33

ဧ ဧ

ည။

( ) ၊

ည။

( ) ည ည

ည ည ည။

( ) ည ည

ည ည ည

ည ည ၊

ည ည။

( ) ၊

ည ည-

( ) ၊

ဧ
 34

ည ၊

၊ ၊

( ၀ ၈ ) ည

ည။

( ) ( )

၊ ည ါ

၊ ည

ည ည ၊ ည။

( ) ( )

ည ၊

ည ည။
 35

9.8 Giving Help to Persons Who are granted Right to Use of

Vacant,Fallow and Virgin Lands

၊ ၊

Section- 23. The Central Committee shall make the following

matter:-

(a) If the persons who are granted right to use vacant, fallow and

virgin lands, contact and request for technical, good quality seeds and

other assistance for carry out agriculture or Livestock breeding

purposes, then the Central Committee shall take necessary action to

help them;

(b) If the persons who are granted right to use vacant, fallow and

virgin lands, request for getting loan of investment capital or the

assistance of materials and services, then the Central Committee shall

make necessary recommendation to the concern department and

organization;

(c) If the persons who are granted right to use vacant, fallow and

virgin lands, faced with huge amount of damage and loss by natural

disaster like as cyclone, request for getting special loan to the State,

then the Central Committee shall make necessary recommendation to

the relevant Ministry.

( )
 36

ည-

( ) ၊ ၊

ည ည ၊

ည ည။

( ) ၊ ၊

ည ၊ ည

ည ည ဌ ၊ ည

ည။

( ) ၊ ၊

ဌ ည။

Section- 24. The Central Committee shall refund the security

fees to the persons who are granted right to use vacant, fallow and

virgin lands, when the enterprise completed within the prescribed time

and conditions.

( )

ည ည

ည ည ည ၊
 37

ည ည။

Section- 25. The Central Committee shall make the following

matter :-

(a) When the person who is granted right to use of vacant, fallow and

virgin land submit his suffering of dispute, disturbance, encroachment

and destroying the benefits with the local farmers, in carrying out the

work, the Central Committee shall make co-ordination with relevant

department and organization at first, and if unable to coordinate it shall

make in accordance with Law;

(b) The Central Committee shall make co-ordination depend on their

desire of the local farmers, not to be lost. Whether the existing

farmland are included in the authorized area of which are not permitted

officially, and ever since before growing by the local farmers;

(c) The Central Committee shall make in accordance with Law with

the agreement of the both sides, if there is an authorized farmer in the

authorized area before.

( ၅)

ည-

( )) ၊ ၊

ည
 38

၊ ၊

ဌ ၊ ည ည ည။

ည ည။

( ) ၊ ၊

ဧ ည

ည ည။

( ) ၊ ၊

ဧ ည

ည ည

ည။

(ဃ) ( )၊ ( ) ( )

ည ည

၊ ၊

ည ည။
 39

9.9 Offences and Penalties

Section- 26. Anyone whomsoever that destroy the benefit with

respect to immovable property on the authorized land , shall be

sentenced with imprisonment for a term which may not exceeding three

years or with fine which may not exceed one million kyats or with

both.

( ၆)

ည ၊ ၊

၊ ည။

Section- 27. Anyone whomsoever that encroach on the authorized

land without the permission of the legitimate owner or his

representative, shall be sentenced with imprisonment for a term which

may not exceeding two years or with fine which may not exceed five

hundred thousand kyats or with both.

( ၇) ည

၊ ၊

ည-
 40

( ) ည ၊

( ) ၊ ၊

၇- ။ ၊

ည ၊ ( )၊ ( )

၊ ၊

ည။

Section- 28. Anyone whomsoever that obstructs the legitimate

owner or the person who is working with the agreement of the

legitimate owner in the course of their duties on the authorized land,

shall be sentenced with imprisonment for a term which may not

exceeding six months or with fine which may not exceed one hundred

thousand kyats or with both.

 41

( ၈) ည ၊ ၊

၊ ည။

Section- 29. Anyone whomsoever that fail to comply with an

eviction-order on revoking the authorized land , shall be sentenced with

imprisonment for a term which may not exceeding one year or with

fine which may not exceed three hundred thousand kyats or with both.

( ၉)

ည ၊

၊ ည ည

၊ ည။

၉- ။ ၊ ၊

ည -

( ) ၆၊ ( ) ည
 42

ည။

( ) ၆၊ ( ) ည

ည ည

ည။

Key Terms

Vacant Land -

fallow land -

Virgin Land -

land Revenue -

security fees -

livestock breeding -

hindrance -

disturbances -

cultivation by trespass -

infliction of damage -
43
 Chapter 10

Farmland Law

Contents Pages

10.1 Definitions 3

10.2 Right to Cultivate a Farmland 9

10.3 Privileges of a Person with the Right to Cultivate a Farmland 15

10.4 Rules to be abided by the Person with the Right to

Cultivate a Farmland 17

10.5 Formation of various levels of Farmland Management Bodies 21

10.6 Rights and Responsibilities of the Central Farmland

Management Body 22

10.7 Action taken for failure to abide by the Regulation 27

10.8 Settlement of Disputes on Right to Cultivate a Farmland and

Appeal 29

10.9 Compensation and Indemnities 32

10.10 Offenses and Penalties 33

 2

Farmland Law

-
 3

10.1 Definitions

Section-3

The following expressions contained in this law shall have the meanings as

given hereunder.

(a) Farmland means land stipulated as rice land, Yar land, Khaing

land, Taung Yar (upland) land, perennial crops land, dhani

(palm) land; garden land; orchard and alluvial land. This

expression does not include dwellings and religious buildings

and its environs and public land not utilized for agricultural

purposes within the boundary of a Township or Village Tract;

 4

(b) Rice land means land utilized mainly for paddy cultivation by

natural source of water or by means of restored water through

irrigation (created by men);

(c) Alluvial isle means unsteady land constantly changing in its soil

composition and structure due to submergence underwater and

yearly current flow condition;

(d) Right to cultivate means the right to hold in possession and

utilize, cultivate farmland for the purpose of increasing

productivity in accordance with this law or the by-laws, rules

and regulations prescribed under this law. This expression does

not include the right to extract and utilize natural resources such

as gemstones, minerals, petroleum and natural gas, existing

below and above the land;

 5

(ဃ)

(e) Farmer means a person who fits one of the following criteria:-

(1) A person who personally works or who has habitually

worked personally, by utilizing the land for agriculture or

livestock breeding or both as his principal means of

subsistence;

(2) A person who personally supervises the utilization of the

said land during the relevant period of agriculture or

livestock breeding or both as his principal means of

subsistence;

(3) A person who personally works or who supervises during

the whole process of plantation of seasonal crops, garden

crops, perennial crops or industrial farming on the relevant

land with his own investment capital;

(4) A person who participates in agriculture and farming

business by utilizing the said land;

(5) A person who actually produces and sells seedlings, seeds,

breeds and hatchlings/fingerlings required in the agriculture,

 6

livestock breeding and related manufacturing enterprises by

utilizing the said land;

-
 7

(f) Farming family means family members living together, related

by blood or by marriage, of a farmer who is the head of the family;

(g) Chief of the family means a person who is the principal person

in charge of the family business and who is also the head of the

family;

(h) Constructional improvement means any modification work

carried out at the expenses or with the labour of the person currently in

possession to cultivate or by his predecessors in possession to cultivate

the said farmland, increasing the perpetual value of the said farm. This

expression also includes any buildings, drainage works, irrigation

channels, tanks, wells, embankments, roads erected on the said land

for the dwelling purpose of the cultivator or for the purpose aiding the

agriculture business and other improvements for perpetual

 8

development. But does not include the clearing land for cultivation,

raising of banks/ridges of paddy fields or improvements of non-

perpetual nature;

(i) Guardian means a person assigned by a court of law with

relevant jurisdiction to undertake the custody and care of a juvenile

(minor) or a person of unsound mind or his possessions or of both;

ဈ
 9

(J) Farmers Association means an Association of Farmers formed

in accordance with a law enacted with the aim of supporting the

development of the rural economy.

(k) Ministry means the Ministry of Agriculture and Irrigation of the

Union.

(l) Department means the Survey and Land Records Department.

10.2 Right to Cultivate a Farmland

Section 4 A person with the right to utilize a farmland shall apply for a

right to cultivate on the said farmland at the Department’s Township office

 10

through the relevant Ward or Village Tract Farmland Management Body, in

accordance with the prescribed conditions.

( )

Section 5 The Department’s Township office shall, after scrutinizing the

application for a right to cultivate a farmland as per Section 4 in accordance

with the prescribed conditions, submit to the Township Farmland

Management Body.

( )

Section 6 The Township Farmland Management Body shall, with the

approval of the District Farmland Management Body, issue a certificate for

the right to cultivate farmland, upon the registration and payment of

registration fees in accordance with the prescribed conditions, in connection

with a farmland in existence on the date of this Law coming into force, to the

following person or organization:-

(a) If it is a person:-

(1) the said family with the right to utilize the farmland shall be of

a family farmers or a member of the family;

(2) the head of the family or a member of the family or a guardian

with the right to utilize the farmland who have been currently in

possession and cultivating as family business on the said

 11

farmland in accordance with the prevailing laws before the

enactment of this law;

(3) a person with legal beneficiary rights under this law after

enactment of this law or with the provisions of the by-laws

issued in accordance with this law;

(4) a person who has attained the age of 18 years;

(5) a person who is a citizen, an associate citizen or a naturalized

citizen.

( ) -

( )

( )
 12

( )

( ) ( )

( )

(b) If it is an organization, a government department, governmental

organization, non-governmental organization, a company or an association

with the right to utilization of the farmland.

( )

Section 7 The Township Farmland Management Body shall, after coming

into force of this law, issue a certificate to grant the right to cultivate a

farmland, with the approval of the District Farmland Management Body,

with regard to the farmlands with the right to utilize resumed by the State and

farmlands located by the State from time to time, upon registration and

payment of registration fees as per the prescribed conditions at the

Department’s Township office, to the following person or organization:-

(a) If it is a person who:-

(1) is engaged in agriculture business by utilizing the farmland;

 13

(2) if no special reason exists, has settled down in the relevant ward

or village tract;

(3) has attained the age of 18 years;

(4) is a citizen, an associate citizen or a naturalized citizen.

(b) If it is an organization, it should be a government department,

government organization, a non-governmental organization,

company or association which actually wishes to carry out

agricultural business on the said farmland.

-၇

( ) -

( )

( )

( ) ( )
 14

( )

( )

Section 8 The Township Farmland Management Body shall issue the right to

utilize a farmland to a person, who, in accordance with this law - applies for

the right to utilize a farmland upon carrying out agricultural farming at the

cultivable, fallow and virgin land after obtaining the right to utilize such land

as farmland; or attains the right to utilize a farmland by inheritance; or by

purchasing, exchanging or accepts as presentation of a gift, upon his

registration and payment of registration fees in accordance with the

prescribed conditions at the Department’s Township office.

 15

10.3 Privileges of a Person with the Right to Cultivate a

Farmland

Section 9 A person with a right to cultivate a farmland shall be entitled with

the following privileges:-

(a) to possess, cultivate and enjoy the benefits arising out of the right

to cultivate thereof;

(b) to sell, mortgage, rent, exchange and present as gift, the whole or

part of the farmland, in accordance with the prescribed rules;

 16

(c) to acquire the decision of a relevant court of law in accordance

with the prevailing law, if a dispute in connection with the

inheritance of the right to cultivate a farmland arises;

(d) to the right to cultivating the farmland, as far as the rules

prescribed are not breached;

(e) to enter into mutually beneficial ventures with rural cooperatives

investments and private investors for the development of agricultural

enterprise on the said farmland;

(f) to enter into mutually beneficial ventures jointly with foreigners

and organizations comprising of foreigners on the said farmland in

accordance with the Republic of the Union Myanmar Foreign

Investment Law.
 17

Section 10 The provisions under Section 4, 5, 6, 7, 8 and 9 are not relevant to

allocation of alluvial land.

- ၇

10.4 Rules to be abided by the Person with the Right to Cultivate

a Farmland

Section12. A person with the right to cultivate a farmland shall:-

(a) cultivate the farmland as prescribed in this law;

(b) make payment of land revenue and other taxes levied by the

Ministry in connection with the farmland;

 18

(c) register the sale, mortgage, rent, exchange and present as gift of the

farmland at the relevant Department’s Township Office, by

making payment of stamp duty and registration fees of the contract

as prescribed by the Department;

(d) register the inheritance of the right to cultivate a farmland at the

relevant Department’s Township office in accordance with a

prevailing law;

(e) mortgage the right to cultivate a farmland only for the sole purpose

of investment capital required for agriculture production and do so

at a government bank or a bank acknowledged by the government;

 19

(f) not trespass and cultivate without official allocation by the relevant

Farmland Management Body;

(g) not use the farmland for different purpose without a permission

order;

(h) not cultivate a different type of crop from the initial crop cultivated

on the farmland, without a permission;

(i) not leave the farmland fallow without a valid reason;

(j) not sell, rent, exchange or present as gift, the farmland before

obtaining the right to cultivate a farmland or during a dispute with

regard to the right to cultivate a farmland.

 20

Section 13. After coming into force of this law, a dispute with regard to the

right to cultivate a farmland shall be entitled to a right of legal course of

action only upon being registered at the Department.

Section 14. A person with the right to cultivate a farmland shall not sell,

mortgage, rent, exchange or present as gift, the whole or partial right to

cultivate a farmland to any foreigner or an organization comprising of

foreigners, without the approval of the Union Government.

 21

10.5 Formation of various levels of Farmland Management

Bodies

Section 15. The Union Government shall:-

(a) form the Central Farmland Management Body comprising with the

Union Minister of the Ministry of Agriculture and Irrigation as Chairman, the

Deputy Minister for Ministry of Agriculture and Irrigation as Vice-Chairman,

the Director General of Survey and Land Records Department as the

Secretary, and the relevant heads of government departments and

organizations as members.

(b) The Central Farmland Management Body so formed under sub-

section (a) may be re-organized from time to time.

( )

''

''

Section 16. The Central Farmland Management Body:-

(a) shall form the following various levels of Farmland

Management Bodies.

(1) Region or State Farmland Management Body;

(2) District Farmland Management Body;

(3) Township Farmland Management Body;

(4) Ward and Village Tract Farmland Management Body.

(b) may re-organize the various levels of Farmland Management

Bodies so formed under sub-section (a).

 22

10.6 Rights and Responsibilities of the Central Farmland

Management Body

Section 17. The rights and responsibilities of the Central Farmland

Management Body are as follows:-

(a) prescribing the rights and responsibilities of various levels of

Region or State, District, Township and Ward or Village Tract

Farmland Management Bodies;

 23

(b) supervising and directing on matters relating to registration of right

to cultivate a farmland, issuance of permit for the right to cultivate

a farmland, settlement of disputes on right to cultivate and right to

utilize a farmland;

(c) supervising and directing on matters relating to sale, mortgage,

rent, exchange and presenting as gift of the right to cultivation of a

farmland;

( )

(d) revoking the right to cultivate a farmland of a person who has

been issued with an administrative penalty under Section 19 sub-

section (c) and (d), a farmland relevant under Section 31, or right to

cultivate a farmland of a person penalized under Section 37;

ဃ ဃ

၇
 24

(e) scrutinizing and verifying the proposals for utilization of farmland

for rural and urban housing projects submitted by the Region or

State Farmland Management Body, in connection with the housing

requirements of increasing population and households in rural and

urban areas;

(f) scrutinizing and verifying the proposals submitted by the Region

or State Farmland Management Body on matters relating to

utilization of farmland for teaching schools, health department,

hospitals, clinics, library, rural markets, cemetery and other

buildings relating to the development of living standards of the

rural population;
 25

(g) scrutinizing and verifying the proposals submitted by the Region

of State Farmland Management Body on matters relating to

utilization of farmland for the construction of necessary roads and

infrastructure, maintaining of agricultural machinery and

equipment, rice mills and warehouses for storage or crops required

in the process of transition to a mechanized modern agricultural

system from the manual agricultural system, for the development

of the agriculture sector;

(h) scrutinizing and verifying the proposals submitted by the Region

or State Farmland Management Body with regard to the utilization

of farmland for constructional improvements for the process of

transition from the manual agriculture system to a mechanized

 26

modern agricultural system, for the development of the agriculture

sector;

(i) supervising, directing and prescribing policies relating to rights of

person with the right to cultivate an alluvial land and allocation of

right to cultivate such land;

(j) supervising and directing on matters relating to hill side

cultivation. (shweapyaungtaungyar)

(k) carrying out duties assigned by the Union Government in

connection with farmland, from time to time.

ဋ
 27

10.7 Action taken for failure to abide by the Regulations

Section 19, Upon failure to abide by all regulations or one of the regulations

under Section 12 of this law, the Farmland Management Body appointed by

the Ministry solely for the purpose of investigating such matters, may, after

investigation and inspection in accordance with this law or with the by-laws

issued under this law, issue one or more orders as follows:-

(a) to impose payment of fine of a prescribed amount;

(b) to enforce utilization of farmland as prescribed;

(c) to evict persons fit for eviction from the farmland;

(d) to destruct buildings constructed, without approval, on the

farmland.
 28

Section 20 Upon failure of a person with the right to cultivate a farmland to

abide by the order issued under Section 19, the Farmland Management Body

mentioned therein, may take legal action by direct complaint in a relevant

court of law by, after the expiry of the time prescribed in the said order.

Section 21 A person with the right of cultivate a farmland who fails to

make payment of tax and tariffs levied by the Ministry, shall have such tax

and tariffs levied as an arrear of land revenue, in accordance with the

prevailing laws.
 29

10.8 Settlement of Disputes on Right to Cultivate a Farmland and

Appeal

Section 22 The Ward or Village Tract Farmland Management Body shall

carry out investigation, hearing and deciding after filing an initial case on the

dispute relating to a right to cultivate a farmland.

Section 23 (a) A person dissatisfied with the order or decision made by

the Ward or Village Tract Farmland Management Body as per Section 22,

may appeal to the relevant Township Farmland Management Body in

accordance with the prescribed conditions, within 30 days from the date of

order or decision.

-
 30

(b) The Township Farmland Management Body may confirm, revise or

cancel the order or decision made by the Ward or Village Tract Farmland

Management Body.

Section 24 (a) A person dissatisfied with the order or decision of the

Township Farmland Management Body made as per Section 23 (b), may

appeal to the relevant District Farmland Management Body in accordance

with the prescribed conditions, within 30 days from the date of the order or

decision.

- -

(b) The District Farmland Management Body may confirm, revise or

cancel the order or decision made by the Township Farmland Management

Body.
 31

Section 25 (a) A person dissatisfied with the order or decision made by the

District Farmland Management Body made as per Section 24 (b), may appeal

to the relevant Region or State Farmland Management Body in accordance

with the prescribed conditions, within 60 days from the date of the order or

decision.

- -

(b) The Region or State Farmland Management Body may confirm, revise or

cancel the order or decision made by the District Farmland Management

Body.
 32

(c) The decision of the Region or State Farmland Management Body shall

be final.

10.9 Compensation and Indemnities

Section 26 Notwithstanding the provision in any prevailing law, the

Central Farmland Management Body shall coordinate as necessary to enable

the relevant authority in compensating and administering by other means in

connection with the farmland resumed for the benefit of the State or the

public, including, the development by constructional improvements on the

said farmland, and the avoidance of any loss on the part of the initial holder

of the right to utilize a farmland for his implementations thereof.

 33

10.10 Offenses and Penalties

Section 35 Any person, with the right to utilize a farmland, found guilty of

failing to abide by the order issued under Section 19, or an order issued or

decision made in connection with a dispute on right to utilize a farmland

under this law, shall be liable to an imprisonment of minimum 6 months to

maximum 2 years and may be liable to a fine of minimum three hundred

thousand to five hundred thousand Kyats.

Section 36 A person who has been found guilty of failing to abide by the

order issued under Section 19 shall be liable to the maximum penalty under

Section 35, for additional offense upon being found guilty of prior conviction

of a similar offence.
 34

Section 37 Any person, with the right to cultivate a farmland, found guilty

of contravening the prohibition under Section 14, shall be liable to an

imprisonment of minimum 1year to maximum 3 years, with a fine not less

than 10 hundred thousand Kyats. The money and property relating to the

offence shall also be liable to confiscation as public property.

၇
 35

Key Terms

farmland -

rice land -

alluvial isle -

farming family -

rules to be abided -

inheritance -

acknowledged by the -

government

valid reason -

confirm -

revise -

cancel -

compensation and -

indemnities
 36

Questions

1. Explain the following terms.

(a) Farmland (b) Rice land (c)Alluvial isle

2. What is right to cultivate a farmland? Who have the right to cultivate a

farmland, explain about?

3. Which privileges of a person with the right to cultivate a farmland can be

provided?

4. What are the rules to be abided by the person with the right to

cultivate a farmland?

5. Explain the formation of various levels of Farmland Management Bodies.

6. In which provisions can rights and responsibilities of the Central

Farmland Management Body, be prescribed?

7. How can be action taken for failure to abide by the Regulations?

8. Discuss settlement of disputes on right to cultivate a farmland and appeal.

 Land Law

Presented by
Dr. Yin Nu Tun
Lecturer
Department of Law
Yangon University of Distance
Education
07-Oct-19 1
 CHAPTER I
DEFINITIONS AND MEANINGS
Immovable Property
• According to section (3) of the Transfer of Property Act:
 does not include standing timber, growing crops or grass.
• The Registration Act in which section 2(6)
 includes land, buildings, hereditary allowances, right to
ways, lights, ferries, fisheries or
 any other benefits to arise out of land and things attached to
the earth or
 permanently fastened to anything which is attached to the
earth but not standing timber, growing crops nor grass.
07-Oct-19 2
 Attached to the earth
(a) rooted in the earth, as in the case of trees and shrubs;
(က)သစ်ပင်ကကီးများမှစ၍မ မနှင့်ကပ်၍မပါက်သည့်သစ်ပင် ငယ်ကမေး
များကဲ့သို့့မ မ၌ အ မစ်တွယ်စွဲကပ် တည်ရှိ ြင်း။

(b) imbedded in the earth, as in the case of walls or buildings;

(ြ) တံတိုင်း၊ အမောက်အဦများကဲ့သို့့ မ မ၌ တစိတ် တမေသ မုပ်ဝင်
တည်ရှိ ြင်း။

(c) attach to what is so imbedded for the permanent beneficial

enjoyment of that to which it is attached.
(ဂ) ေိုြ့သ
ဲ ည့်အတိုင်း မုပ်ဝင်တည်ရှိသည့်အရာတွင် ထာဝရ
အကျိုး ြစ်ထွနး် မစရန် တွယ်ကပ်တည်ရှိမန ြင်း။

3
 Determination what is or what is not
immoveable property

• In order to determine , two tests have been laid

down:
degree or mode of annexation ပစ္စည်းထားပုံထားနည်း
object or purpose of annexation ထားပုံထားနည်း၏
ရည်ရွယ်ြျက်
07-Oct-19 4
 Kapurchand (Myanmar) Ltd vs The
Myanmar National Reforming Company and
Others 1955 B. L. R. P. 278 (H.C)

• mechanical device by which the license is

worked for profit cannot be considered to be
immoveable property.
• petrol pump can be seen that nowadays, petrol
pump is an immoveable property because not
causing by one place to others.
07-Oct-19 5
 Notice
ကကားသိ ြင်း
• when he actually knows that fact, or
• when, but for willful abstention from an
inquiry or search which he ought to have
made, or gross negligence,
• he would have know it.
07-Oct-19 6
 3 kinds of Notice

(1) actual notice

အမှနတ
် ကယ်ကကားသိ ြင်း
(2) constructive notice and
ကကားသိသည်ဟု ယူေ ြင်း
(3) notice to agent
ကိယ
ု စ
် ားေှယ်သို့့ကကားသိ ြင်း

07-Oct-19 7
 Explanation I
Registration is notice

• instrument has been registered and completed in the manner,

prescribed by the Registration Act and the rules made there
under,

• duly entered or filed, as the case may be, in books kept under
the Registration Act, and

• correctly entered in the indexes kept under the Registration

Act.

07-Oct-19 8
 Explanation II
Possession amounts to notice
• deemed to have notice of the title,
• if any, of any person who is
• for the time being in actual possession
thereof.
07-Oct-19 9
 Explanation III
Notice to agent
• deemed to have had notice of any fact
• if his agent acquires notice thereof
• whilst acting on his behalf in the course of
business
• to which that act is material.

07-Oct-19 10
 Chapter II
TRANSFER OF PROPERTY BY PARTIES
Transfer of Property
 means an act by which a living person
 conveys property, in present or in future,
 to one or more other living persons
"living person"
 includes a company or
 association or
 body of individuals

07-Oct-19 11
 What may be transferred

Property of any kind may be

transferred,
except as otherwise
provided by this Act or by any other
law for the time being in force.

07-Oct-19 12
• Property which may not be transferred (except as otherwise)
• Section 6 of the Transfer of Property Act

 The chance of an heir-apparent succeeding to an estate

• ပစ္စည်းများကို အမမွြံထိုက်သူ (Heir Apparent) ၏ အမမွေက်ြံရန် အြွင့်အမရး

 A mere right of re-entry for breach of condition subsequent

• စည်းကမ်းြျက် ပျက်ကက
ွ သ
် ည့အ
် တွက် ပစ္စည်းကို ပန်ေည်သိမ်းပိုက်ြွင့်

 An easement
• သက်သာြွင့်

 An interest in property restricted in its enjoyment to the owner personally

• ပစ္စည်းရှင်ကိုယ်တိုင်သာ ြံစားရန် ကန့့်သတ်ထားသည့်ပစ္စည်းတွင် အကျိုးြံစား ြွင့်

 A mere right to sue

• တရားစွဲေိုပိုင်ြွငသ
့် က်သက်

 A public office အစိုးရြန့့်သည့် ရာထူး/ salary of a public officer အစိုးရအမှုထမ်း၏

07-Oct-19 13

ေစာ
 Stipends allowed to military, air-force and civil pensioners of Government and
political pensions
ကကည်း၊ မရ၊ မေတပ်နှင့် အုပ်ြျုပ်မရးေိုင်ရာ နိုင်ငံမရးေိုင်ရာ ပင်စင်စားများ အား

ြွင့် ပုထားသည့် မထာက်ပံ့မကကးနှင့် ပင်စင်မကကးများ

 opposed to the nature of the interest affected အကျိုးစီးပွားနှင့် ေန့့်ကျင် / an unlawful

object or consideration

ဥပမေနှငမ
့် ညီသည့် ရည်ရွယ်ြျက် သို ့မဟုတ် အတိုးစားနား / a person legally

disqualified to be transferee ေွှဲမ ပာင်းြံယူသူ ြစ်ရန် ဥပမေအရ

အရည်အြျင်း ြျွတ်ယွင်းသူ

 a tenant having an untransferable right of occupancy

ေွှဲမ ပာင်းနိုင်ြွင့်မရှိမသာ အငှားယူသူ

07-Oct-19 14
 Persons competent to transfer
Section 7 of the Transfer of Property Act

 Every person competent to contract and entitled to transferable

property, or
 authorized to dispose of transferable property not his own,
 is competent to transfer such property
 either wholly or in part, and either absolutely or conditionally,
 in the circumstances, to the extent and in the manner
 allowed and prescribed by any law for the time being in force.

07-Oct-19 15
 Operation of transfer
Section 8 of the Transfer of Property
Act
Unless a different intention is expressed or
necessarily implied,
a transfer of property passes forthwith to the
transferee
all the interest which the transfer or is then
capable of passing in the property, and in the
legal incidents thereof.

07-Oct-19 16
 Oral transfer
Section 9 of the Transfer of Property Act

without writing in every case

in which writing is not expressly required by

law.
07-Oct-19 17
 Transfers by Ostensible Owner
Real Owner----------- A

Ostensible Owner– B
(Seller with the consent of A)

Buyer ----------------- C

* Reasonable care, Good faith.

07-Oct-19 18
 Transfers by Ostensible Owner
Section 41 of the Transfer of Property Act
 an ostensible owner of the property.
 owner with the consent express or implied of the
real owner.
 transferee must purchase the property from such
ostensible owner for consideration.
 Before taking transfer, the transferee must with
reasonable care, to ascertain, transferor had power
to make the transfer, in other words he must act in
good faith.
 must be immoveable property.

07-Oct-19 19
 Benami Transaction
Seller ----------- A
Benamidar----------– B
(Buyer with the money of C)
Buyer -------------C
(Real Owner)

• Sale
• Relationship
• Deed of sale (Possession)
• Property (Possession)
• Purchase amount came
07-Oct-19 20
 Benami Transaction
• The reason to sale with Benami Transaction
• The relationship between the real owner and benamidar
• The possession of the deed of sale
• The possession of the property
• The question where from the purchase amount came

07-Oct-19 21
Transfer of property pending suit relating there to
(Lis-Pendens)
• Section 52 of the Transfer of Property Act
 There must be pendency of suit or proceeding into competent
court
 The suit or proceeding must be pending
 The litigation must not be collusive
 A right to immoveable property must be directly and
specifically in question
 The property in dispute must not be transferred or otherwise
dealt with by any of the parties
07-Oct-19 22
 Part performance
Section 53 (A) of the Transfer of Property Act
• Essential Element of Part Performance

 contract to transfer immoveable property

 consideration for contract to transfer,

 in writing and such writing should be signed by the contractor himself, or

signed on his behalf,

 terms must be ascertainable with reasonable

 transferee must have been put into or is already in possession of the

property in part performance of the contract,

 transferee must have fulfilled or been ready to fulfill his part of the
obligation under the contract.
07-Oct-19 23
 CHAPTER III
SALE OF IMMOVEABLE PROPERTY
Definition of Sale
• Section 54 of the Transfer of Property Act
 transfer of ownership
 in exchange
 for a price paid or promised or part-paid or part-
promised

07-Oct-19 24
• In the case of tangible immoveable property of the
value of one hundred thousand Kyats and upwards,
 can be only by a registered instrument

o In the case of tangible immoveable property of a

value less than one hundred thousand Kyats,
 either by registered instrument or by delivery of the
property.
07-Oct-19 25
 Essentials of valid sale
• a person competent to transfer
• a person competent to be the transferee
• transferable immoveable property
• a transfer of ownership
• in exchange for a price
• be paid or promised or part-paid or part-promised
• In the case of tangible immoveable property of the value of
one hundred thousand Kyats and upwards,
 can be only by a registered instrument
o In the case of tangible immoveable property of a value less
than one hundred thousand Kyats,
 either by registered instrument or by delivery of the property.
07-Oct-19 26
 Contract for Sale
• A contract for the sale of immoveable property is
• a contract that a sale of such property
• shall take place on terms
• settled between the parties.
• Title in the property can be transferred only by a
conveyance and
• not by mere agreement between parties.

07-Oct-19 27
 Rights and liabilities of buyer and seller
The seller is bound-
 to disclose to the buyer material defect in the property or in the seller's title

 to produce to the buyer on his request for examination all documents of title
relation to the property

 to answer to the best of his information all relevant questions put to him by the
buyer

 on payment or tender of the amount due in respect to the price, to execute a proper
conveyance of the property

 between the date of the contract of sale and the delivery of the property, to take as
much care of the property

 to give, on being so required, the buyer, or such person as he directs

 to pay all public charges and rent accrued due in respect of the property up to the
date of the sale ….. etc
07-Oct-19 28
 The seller is entitled-

• to the rents and profits of the property till the

ownership there of passes to the buyer.
• where the ownership of the property has passed to
the buyer before payment of the whole of the
purchase – money to a charge upon the property
in the hands of the buyer.

07-Oct-19 29
 The buyer is bound

• to disclose to the seller any fact as to the nature or extent of the seller's
interest in the property of which the buyer

• to pay or tender, at the time and place of completing the sale, the purchase-
money to the seller or such person as he directs

• where the ownership of the property has passed to the buyer to bear any
loss arising from the destruction injury or decrease in value of the property
not caused by the seller

• where the ownership of the property has passed to the buyer as between
himself and the seller, to pay all public charges and rent, principal moneys
due on any incumbences subject to which the property is sold, and the
interest
07-Oct-19 there on afterwards accruing due 30
 The buyer is entitled

• where the ownership of the property has passed to him,

to the benefit of any improvement in, or increase in
value of the property, and to the rents and profits
• Unless, when he properly declines to accept the
delivery, to a charge on the property, as against the
seller.

07-Oct-19 31
The Transfer of Immoveable
Property Restriction Law 1987

• Restriction relating to Immoveable

Property ( Section 3-7)
• Registration (Section 8-10)
• Penalties (Section 11-13)
07-Oct-19 32
 CHAPTER IV
MORTGAGE OF IMMOVEABLE PROPERTY
Definition of Mortgage
Section 58 (a) of the Transfer of Property Act
• the transfer of an interest
• in specific immoveable property
• for the purpose of securing the payment of money
advanced of to be advanced by way of loan,
• an existing or future debt, or performance of an
engagement which may give rise to a pecuniary
liability.

07-Oct-19 33
 Kinds of Mortgage

• Simple Mortgage S.58 (b)

• Mortgage by conditional sale S.58 (c)
• Usufructuary Mortgage S.58 (d)
• English Mortgage S.58 (e)
• Mortgage by deposited of title-deeds. 58(f)
• Anomalous Mortgage S.58 (g)

07-Oct-19 34
• Rights of Mortgagor မပါင်နှံသူ၏ အြွငအ ့် မရးLiabilities of Mortgagor
မပါင်နှံသူ၏ တာဝန်များ
 Rights of mortgagor မပါင်နှံသူ၏ အြွငအ
့် မရး
• Right of mortgagor to redeem မပါင်နှံသူ၏ မရွးနုတ်ပိုင်ြွင့်။ ပုေ်မ-၆၀

• Obligation to transfer to third party instead of re-transference to mortgagor.

• မပါင်နှံသူသို့့ ပန်ေည်ေွှဲမ ပာင်းမပးမည့အ
် စား တတိယေူသို ့ေွှဲမ ပာင်း မပးရန်
မတာင်းေိုြွင့်။ ပုေ်မ ၆၀(က)

• Right to inspection and production of documents စာြျုပ်စာတမ်းများ

စစ်မေးကကည့ရ
် ှုြွင့်။ ပုေ်မ ၆၀ (ြ)

• Right of redeem separately or simultaneously ြွဲ ြား၍မသာ်ေည်းမကာင်း၊

တပပိုင်တည်းမသာ်ေည်းမကာင်း၊ မရွးနုတ်ြွင့် ။ ပုေ်မ ၆၁၊

• Right of usufructuary mortgagor to recover possession

အ မတ်အစွန်းြံယူအကျိုးြံစားမစရန်မပါင်နှံသူ ၏ ေက်ရှိ ပန်ေည် ရယူြွင့်။

ပုေ်မ-၆၂
07-Oct-19 35
• Accession to mortgaged property
အမပါင်ပစ္စည်းတွင် တိုးပွား ြင်း။ ပုေ်မ-၆၃။
• Improvenments to mortgaged property
အမပါင်ပစ္စည်းတိုးတက်မကာင်းမွနမ
် အာင် ပု ပင် ြင်း ပုေ်မ-၆၃
(က)
• Renewal of mortgaged lease
အမပါင်ပစ္စည်းငှားရမ်း ြင်းကို အသစ်ေဲေှယ် ြင်း။ ပုေ်မ-၆၄
• Implied contract by mortgagor
မပါင်နှံသူက ပုေုပ်သည်ဟု ယူေရသည့် ပဋိညာဉ်များ။ ပုေ်မ-
၆၅
• Mortgagor's power to lease
မပါင်နှံသူက ပစ္စည်းကိအ
ု ငှားြျထားြွင့်။ ပုေ်မ-၆၅ (က)
07-Oct-19 36
Liabilities of Mortgagor မပါင်နှံသူ၏
တာဝန်များ

• Waste by mortgagor in possession

မပါင်နသ
ှံ ူေက်ဝယ်ထားရှိမသာ အမပါင်ပစ္စည်းကို
ပုန်းတီးမစ ြင်း။ ပုေ်မ-၆၆

 A mortgagor in possession of the mortgaged property is

not liable to the mortgagee for allowing the property to
deteriorate;
 but he must not commit any act which is destructive or
permanently injurious thereto, if the security is
insufficient or will be rendered insufficient by such act.
07-Oct-19 37
• Rights and Liabilities of Mortgagee အမပါင်ြံသူ၏ အြွငအ
့် မရးများ
နှငတ
့် ာဝန်များ

 Rights of mortgagee အမပါင်ြံသူ၏ အြွငအ

့် မရးများ

• Right of foreclosure or sale

မရွးနုတ်ြွငက
့် ို ပိတ်ပင်ပိုင်ြွင့် သို ့မဟုတ် အမပါင်ပစ္စည်းကို မရာင်းြျပိုင်ြွင့်။ (
ပုေ်မ-၆၇)

• Right to sue for mortgage-money

တရားစွဲေိုပိုင်ြွင့်။ ပုေ်မ-၆၈

• Power of sale when valid

အမပါင်ပစ္စည်းကို မရာင်းြျပိုင်ြွင့်။ ပုေ်မ-၆၉။

• Appointment of receiver
ပစ္စည်းထိန်းြန့့်ထားြွင့်။ ပုေ်မ ၆၉(က)
07-Oct-19 38
  Liabilities of Mortgagee
အမပါင်ြံသူ၏ တာဝန်များ
• Liabilities of mortgagee in possession
အမပါင်ပစ္စည်းေက်ရှိ ြစ်သည့် အမပါင်ြံသူ၏ တာဝန်များ။ ပုေ်မ-၇၆
 manage the property
collect the rents and profits
property pay the Government revenue, all other charges of a public nature
and all rent accruing due in respect thereof during such possession
make such necessary repairs of the property as he can pay for out of rents
and profits thereof after deducting from such rents
not commit any act which is destructive or permanently injurious to the
property
 for loss or damage by fire, apply any money which he actually receives
under the policy , in reinstating the property, or if the mortgagor so directs, in
reduction or discharge of the mortgage-money ….etc
07-Oct-19 39
 CHAPTER V
LEASE OF IMMOVEABLE PROPERTY

• Section 105 of the Transfer of Property Act,

• a transfer of a right to enjoy such property, made
for a certain time, express or implied, or in
perpetuity,
• in consideration of a price paid or promised, or
• of money, a share of crops, service or any other
thing of value,
• to be rendered, periodically or on specified
occasions to the transferor
• by the transferee, who accepts the transfer on
such terms.
07-Oct-19 40
 Essentials of Lease
• must be a lessor, who is able to make the lease and
absolute owner or competency to grant a lease
• must be a lessee, who is capable of taking the thing
demised
• subject-matter is immoveable property
• a transfer of an interest in that property
• leases for a certain time, periodic leases, and leases in
perpetuity
• consideration is either premium or rent of forming part
of the consideration of the lease or nature of rent
• an acceptance of the thing demised, and of the estate by
the lessee
• made by a registered instrument
07-Oct-19 41
 Notice to Quit
• Notice to quit in periodic tenancies
• ငှားရမ်းသည့က် ာေအေိုက် နို ့တစ်စာကို
ကကိုတင်မပး ြင်း

• Form and construction of notice to quit

• နို ့တစ်စာတွင် ပါရမည့အ
် ြျက်များ

• Service of notice
• နို ့တစ်စာမပးပို ့နည်း
07-Oct-19 42
• Leases how made
ငှားရမ်း ြင်းကို မည်သို ့ပုေုပ်ရန် ပုေ်မ-၁၀၇

• Rights and liabilities of the lessor and

the lessee
အငှားြျထားသူနှင့် အငှားယူသူတို့့၏
တာဝန်နှငအ
့် ြွငအ
့် မရးများ ပုေ်မ-၁၀၈

07-Oct-19 43
 Rights and liabilities of the lessor
• Disclosure of material defect
အငှားြျ ထားသည့် ပစ္စည်း၏ ြျွတ်ယွင်းြျက်ကုိ
အငှားြျထားသူက အငှားယူသူသို့့ထုတ်မြာ် မ ပာရန်

• Delivery of Possession
• အငှားြျထား သူသည် ငှားရမ်းသူအားပစ္စည်းကို
ေက်မရာက်မပးအပ် ရန်

• Quiet possession
• ပစ္စည်းကိအ
ု မနှာင့အ
် ယှကမ
် ရှိ
ေက်ရှိရရှိမအာင်မောင်ရွက်ရန်
07-Oct-19 44
 • Rights and liabilities of the lessee
• Accession
• တစုတ
ံ ရာတိုးပွား ြစ်ထွန်းောြဲ့ေျှင် တိုးပွား ြစ်ထွန်းသည့်အရာသည် ငှားရမ်း ြင်း

• Destruction of leasehold property

• ပစ္စည်းတွင်အဓိက ြစ်မသာ အပိုင်းမှာ မီးမောင် ြင်း၊ မေမုန်တိုင်းကျ ြင်း၊ မရေွှမ်း မိုး ြင်း၊
စစ်တပ် သို ့မဟုတ် ေူစုေူမဝးတို့့ အဓမ္မမနှာင့်ယှက် ြင်း သို့့ မဟုတ် ​မကာ ကွယ် နိုင်သည်
အ ြားအမကကာင်းတစုတ
ံ ရာမကကာင့် အားေုံးပျက်စီး ယိုယွင်း ြင်း

• Repairs
• ပင်ေင်ရန် အမကကာင်းကကား ပါေျက်နှင့် သင့်မတာ်သည့်အြျိန်ကာေအတွင်း အငှားြျထား သူက
မ ပင်ေျှင် အငှားယူသူက ပင်ေင်ြွင့်

• Payment of lessee
• အငှားြျထားသူက တစုတ
ံ ရာမငွမကကးမပးရန် ရှိသည်ကို မမပး ေျှင်ထိုသို ့မပးေပ် ရန် မငွကို
အတိုးနှင့် ငှားရမ်းြမှ နုတ်ယူြွင့်

• Removal of fixtures
• မ မတွင် မိမိစွဲကပ်ထားမသာ အရာများကို မရွှ ့မ့ ပာင်း ြွင့်
07-Oct-19 45
• Emblements

• အငှားယူသူ၏ အ ပစ်မကကာင့် မဟုတ်ပဲ အ ြားအမကကာင်းမကကာင့် ငှားရမ်း ြင်း ေုံးြန်း တိုင် မရာက် ေျှင်

အငှားယူသူ ပစ္စည်းတွင် စိုက်ပျိုးထားသည့် မကာက်ပဲသီးနှံများ ကို စု မောင်း သိမ်း ယူ၍ သယ်မောင်နိုင်ရန်

ပစ္စည်းအတွင်း ေွတ်ေပ်စွာ ဝင်ထက

ွ ်ြွင့်

• Lessee's right of transfer

• အကျိုးြံစားြွင့်အားေုံး ကို ြစ်မစ တစ်ြျို ့တစ်ဝက်ကို ြစ်မစ၊ ေွှမ

ဲ ပာင်း ြံယူသူက ေည်း

ထပ်ေင့်ေွှဲမ ပာင်းမပးနိုင်ြွင့်

• Similar to the lessor's duty in clause (a)

• ပစ္စည်းတွင်အငှားယူသူ ြံယူမည့် အကျိုးစီးပွားသည် မည်သည့် အမျိုး အစား ြစ်၍ မည်မျှ ရှိသည်၊မသိေျှင်

အငှားယူသူက အငှားြျထားသူအား မ ပာကကားရန် တာဝန်

• Payment of rent

• ငှားရမ်းြကို မပးရန်တာဝန်

• Keeping and restoring the lease whole property

• ပျက်စီးယို ့ယွင်းမှုသည် အငှားယူသူ ၄င်း၏ကိုယ်စားေှယ် သို ့မဟုတ် အမစြံများ၏ ပုေုပ်မှု သို ့မဟုတ်

ပျက်ကွက်မှုမကကာင့် ြစ်ေျှင် နို ့တစ်စာရပပီး ၃ ေ အတွင်း အငှားယူသူက မကာင်းမအာင် ေုပ်ရန် တာဝန်

07-Oct-19 46
• Lessor's title to be protected
• အမှုစွဲေိုရန်မသာ်ေည်းမကာင်းအငှားြျထားသူ၏့ အကျိုးြံစားြွင့်ကိုကျူးေွန်မကကာင်း့
ကိုမသာ့် ၄င်း၊့ မနှာင့်ယှက့် မကကာင်း့ ကိုမသာ်၄င်း၊့ အငှားယူသူသိေျှင့် အမကကာင်း့ အား့
မေျာ်စွာ့သတိ့ဝိရိယ့စိုက့်ထုတ့်၍့အငှားြျထားသူသို ့့အမကကာင်းကကား့ရန့်တာဝန်

• Mode of lessee's use of the property

• အငှားယူသူသည့်ပစ္စည်းနှင့်တကွ့ပစ္စည်းမှ ြစ်​ထွန်းသည့်အရာကို့သာမန့်
အမ မာ်အ မင်ရှိသူသည့်သူ၏ကိယ
ု ်ပိုင်ပစ္စည်း ြစ်ြဲ့ေျှင့်အသုံး ပုသကဲ့သို ့့အသုံး ပု့ရန်

• Erection of permanent structure

• အငှားြျထားသူ၏့သမောတူညီြျက်မရပဲပစ္စည်းမပါ်တွင့်
ေယ်ယာစိုက်ပျိုးရန်အတွကမ
် ှတစ်ပါး့တည်ပမဲမသာအမောက်အဦကိ့ု မမောက်ေုပ်ရန်

• Restoration of possession
• ငှားရမ်း ြင်းကုန်ေုံးမသာအြါ့အငှားယူသည့်အငှားြျထားသူအား့ငှားရမ်းသည့့်ပစ္စည်း

07-Oct-19 47
 CHAPTER VI
EXCHANGE

Section 118 of the Transfer of Property Act,

When two persons mutually transfer the
ownership of one thing
 for the ownership of another neither thing or
both things being money only,
the transaction is called an "exchange“.

07-Oct-19 48
 Right of party deprived of thing received in exchange
ေဲေှယ်ရသည့ပ
် စ္စည်းေက်ေွတ်သူ၏ အြွငအ
့် မရး

 Section 119 of the Transfer of Property Act,

• In the absence of a contract to the contrary,

• the party deprived of the thing or part there of he has received in

exchange,

• by reasons of any defect in the title of the other party,

• is entitled at his option to compensation , or

• to the return of the things transferred by him.

07-Oct-19 49
 Right and Liabilities of Parties
ေဲေှယ်သူတို့့၏ အြွငအ
့် မရးနှငတ
့် ာဝန်များ

Section 120 of the Transfer of Property Act,

Each party
 has the rights, and is subject to the liabilities of a
seller as to that which he gives, and
 has the rights, and is subject to the liabilities of a
buyer as to that which he takes.

07-Oct-19 50
 CHAPTER VII
GIFT

• transfer of certain existing moveable or

immoveable property
• made voluntarily and without consideration,
• by one person, called the donor,
• to another, called the donee, and accepted by
or behalf of the donee.
07-Oct-19 51
 Essential Elements of Gift
• a donor and a donee;
• မပးကမ်းသူနှင်ရ
့ ယူသူရှိရမည်။

• a certain existing property, moveable or immoveable;

• မပးသည့ပ
် စ္စည်းသည် တည်ေျက်ရှိသည့် ပစ္စည်း ြစ်ရမည့အ
် ပင် ေွှဲမ ပာင်းမပး နိုင်မသာ
ပစ္စည်း ြစ်ရမည်။ မတည်ရှိမသးမသာ အနာဂတ်ပစ္စည်းကို မပးကမ်း ြင်း မ ပု နိုင။်

• made voluntarily and without consideration;

• မပးကမ်း ြင်းမှာ အေိုးစားနားမရှိပဲ မပးကမ်းသူက မိမိသမော အမေျာက် မပးကမ်း
ြင်း ြစ်ရမည်။

• a transfer on the part of donor;

မပးကမ်းသူက ပစ္စည်းကိုေွှဲမ ပာင်းမပးရမည်။

• acceptance by doonee or on behalf of the donee;

ရယူသူအသက်ရှင်မနစဉ် ရယူသူကိုယ်တိုင် သို ့မဟုတ် ၄င်းကိုယ်စား

ေက်ြံရမည်။

• made only in accordance with the requirements of section 123.

• ေက်ြံ ြင်းသည် မပးကမ်းသူ အသက်ရှင်မနစဉ်နှင့် မပးနိုင်ရန် အရည်အြျင်း ရှိစဉ် ြစ်ရမည်။
07-Oct-19 52
 Chapter (VIII)
The Urban Rent Control Act, 1960

ဥပစာကို ပန်ေည်သိမ်းပိုက်ရန်နှင့်
ဥပစာမှအိမ်ငှားကို နှင်ထုတ်နိုင်သည့် ကိစ္စရပ်များ

• ပစ္စည်းေွှဲမ ပာင်း ြင်း အက်ဥပမေပဋိညာဉ် အက်ဥပမေ

ရန်ကုန်ပမို ့မတာ်တရားမရုံးအက်ဥပမေတို ့တွင်မည်သို ့
ပင်ရှိမစကာမူ -

07-Oct-19 53
 ၁၉၆ဝ ပည့်နှစ်

• ပမို ့ပေိုင်ရာငှားရမ်းြကကီးကကပ်မရးအက်ဥပမေ
• ပုမ်မ- ၁၂
• ဥပစာကို ပန်ေည်သိမ်းပိုက်ရန်နှင့် ဥပစာမှအိမ်ငှားကို နှင်ထုတ်နိုင်သည့်
ကိစ္စရပ်များမအာက်ပါကိစ္စများတွင်မှတစ်ပါး ြျမှတ် ြင်းမ ပုရ။

• to collect the rental from the tenant, rental seeking letter which
is registered at the post office will be sent to the tenant.
• Within three weeks from the day of sending the letter, if the
tenant doesn’t pay rental or doesn’t pay to the inspector

07-Oct-19 54
• မတာင်းေိုသည့် မန ့ရက်မှစ၍ ရက်သတ္တ ပတ် (၃)ပတ် အတွင်း
ငှားရမ်းြကို အိမ်ရင
ှ ်အားမမပးေဲ ၊

• ကကီးကကပ်မရးဝန်ထံ ပုေ်မ ၁၆ အရ မမပးသွင်းေဲမနသည် ၊

• civil law court decided that tenant has to pay the rental, but fail
to do so.

• အိမ်ငာှ း ထံမှရရန်ရှိမသာ ငှားရမ်းြ အတွက် တရား မ ရုံးက

အိမ်ရှင် အား အနိုင်မပး
အိမ်ငာှ း အမပါ် အမိန့့် သို ့တည်းမဟုတ် ေီကရီ ြျမှတ်ထား သည့်မငွ
ကို မမပး ေဲမနသည့က
် စ
ိ ၊္စ
07-Oct-19 55
• Where a tenant or a person who staying together with tenant or other
person staying in environs of building disturbs next door neighbors or
embarrasses surrounding people or using the environs of building for
despicable or
• unlawful business or being received verdict for guilty of those businesses
by the court or environs of building is damaged by someone and ignorance
of someone.
• အိမ်ငှားသည် အိမ်နီးြျင်းများအား စိတ်ပငို ငင်မအာင်၊
အမနှာင့အ
် ယှက် ြစ်မအာင် ပုေုပ်မှုနှင့် ဥပစာကို ညစ်ညမ်းယုတ်မာ မသာ
သို ့မဟုတ် ဥပမေနှငေ
့် န့့် ကျင် မသာကိစ္စအတွက် အသုံး ပု ြင်း
• အိမ်ငှား၏ သို ့တည်းမဟုတ် ေိုြဲ့သည့် တစ်ဦးတစ်မယာက်၏ ြုန်းတီးမှု
သို ့တည်းမဟုတ် မပါ့မေျာ့မှု သို ့တည်းမဟုတ် ပျက်ကွက်မှု မကကာင့် တရားရုံး၏
သမောအရ
07-Oct-19 ဥပစာ၏ အမ ြအမနေိုးရွားသွားသည့် ကိစ္စ 56
• Where the environs of building is land, the
landlord honestly wants to get back the land to
build a building or buildings or rebuild the
building,
• to build a building within a year after the day
of tenant leaves the building and
• landlord submits a bail with appropriate
amount of money which is agreeable by the
court.
• မ မရှင်ကအမောက်အအုံမောက်ေုပရ ် န်
ရိုးမ ြာင့် မသာသမော ြင့် မ မကို ရယူ ြင်း။
07-Oct-19 57
-ထိုဥပစာမှအိမင် ှားမ ပာင်းမရွှ ့သည့
့ မ
် န ့ရက်ကစ၍ (၁)နှစ်အတွငး်
ထိုကိစ္စကိုပပီးစီး မအာင်မောင်ရွက်ပါမည်ဟူ၍အိမရ
် ှင်ကို တရားရုံးက
သင့်သည် ထင် မင်သည့်မငွအမရ အ တွက် ြင့် ြံဝန်ြျုပ်ေို သည့်ကိစ္စ

Where the landlord honestly claims to get back the

building or part of the building for his own living.
• အိမ်ရှင်သည်မိမိပိုင်အမောက်အအုံသို ့မဟုတ်အမောက်အအုံအစိတ်အပိုင်းကိုမိမိကို
ယ်တိုင်မနထိုငရ
် န် ကိစ္စ

07-Oct-19 58
 ၁၉၆ဝ ပည့န
် ှစ်ပမို ့ပေိုင်ရာငှားရမ်းြကကီးကကပ်မရးအက်ဥပမေ
ပုမ်မ- ၁၃
အိမ်ငှားမဟုတ်သူအားမနထိုင်ြွင့် ပု
-anyone who is not a normal tenant, but who is living or working in the environs of
building in an honest way, such person may apply to the inspector to continue to live in
the environs of building.

-Where this person submits a letter to the inspector in which he promises to pay rent for
his living, the inspector may issue a letter which allows such person to live in such
environs of building.
• - ဥပစာအတွက် စံငှားရမ်းြကို မပးမောင်ေိုမကကာင်း စာ ြင့် ဝန်ြံသည့အ
် ြါ

ကကီးကကပ်မရးဝန်သည် ထိုမေျှာက်ထားသူအား ဥပစာတွင် ေက်ေက်မနထိုင်

ြွင့် ပုသည့် အမိန့့်စာကို ထုတ်မပးရမည့်

- မိမိအမိန့့်မိတ္ထူကိုေည်း အိမ်ရှင်ထံ သို ့ြစ်မစ၊ အိမ်ရှင်က အာဏာေွှဲအပ်ထား သည့်
ကိယ
ု ်စားေှယ်ထံသို ့ြစ်မစ ၄င်း၏ မနရပ်ကုသ
ိ ိေျှင် မပးပို ့ရမည်။
07-Oct-19 59
 ၁၉၆ဝ ပည့န
် ှစ် ပမို ့ပေိုင်ရာငှားရမ်းြကကီးကကပ်မရးအက်ဥပမေ

ပုမ်မ- ၁၄

အိမ်ငှားမဟုတ်သူအားမနထိုင်ြွင့် ပုထားမသာ ဥပစာမှ နှင်ထုတ်နိုင်သည့်

ကိစ္စရပ်များ။

if the tenant does not follow according to the letter within

seven days, such amount of rental money shall not be paid to
the landlord or to the inspector.
- ငှားရမ်းြမပးရန် မတာင်းေို သည့စ
် ာကို စာပို ့တိုက်မှ မှတ်ပုံတင် ၍
မပးပို ့ပပီးသည့မ
် နာက် ထိုမတာင်း ေိုသည့မ
် န ့ရက်မှ(၇)ရက် အတွင်း ေိုက်နာ
မောင်ရွက် ြင်း မရှိေဲ ထိုငှားရမ်းြကို အိမ်ရှင် အားေည်းမမပး၊ ပုေ်မ ၁၆ အရ
ကကီးကကပ် မရးဝန်ထံသို ့ေည်း မမပးသွင်းေဲမနသည့် ကိစ္စ

07-Oct-19 60
• where a person or any person who is staying together
with such person disturbs the neighbors or embarrasses
the surrounding people,
• or uses the environs of building for despicable or
unlawful business or having a verdict by the court for
such case or damaging the environs of building by
tenant’s ignorance and carelessness.
• အိမ်နီးြျင်းများအား စိတ်ပငို ငင်မအာင်၊ အမနှာင့အ
် ယှက် ြစ်မအာင် ပုေုပ်မှုနှင့်
ဥပစာကို ညစ်ညမ်းယုတ်မာ မသာ သို ့မဟုတ် ဥပမေနှငေ
့် န့့် ကျင်
မသာကိစ္စအတွက် အသုံး ပု ြင်း
• အိမ်ငှားမဟုတ်သူ၏ သို ့တည်းမဟုတ် ေိုြဲ့သည့် တစ်ဦးတစ်မယာက်၏
ြုန်းတီးမှု သို ့တည်းမဟုတ် မပါ့မေျာ့မှု သို ့တည်းမဟုတ် ပျက်ကွက်မှု မကကာင့်
တရားရုံး၏ သမောအရ ဥပစာ၏ အမ ြအမနေိုးရွားသွားသည့် ကိစ္စ

07-Oct-19 61
• the tenant makes a contract to the court with the appropriate amount of money
which is viewed appropriate by the court, the tenant oaths to implement within a
period of time which is allowed by the court.
• တရားရုံးက သတ်မှတ် သည့် ကာေ အပိုင်းအ ြား အတွံင်း ထိုကိစ္စကို ပပီးစီးမအာင် မောင်ရွက်
ပါမည်ဟူ၍မသာ် ေည်းမကာင်း တရားရုံးက သင့သ
် ည်ထင် မင်သည့် မငွအမရအတွက် ြင့် ြံဝန်ြျုပ်ေိုသည့်
ကိစ္စ

• Such kind of order which was already abolished according to section 13

(2).
- ြွင့် ပုသည့အ
် မိန့့်ကို ပုေ်မ(၁၃) (၂)ပါ ခြင်းြျက်အရ ြျက်သိမ်း ပပီး ြစ်သည့် ကိစ္စများ

07-Oct-19 62
 • ၁၉၆ဝ ပည့်နှစ် ပမို ့ပေိုင်ရာငှားရမ်းြကကီးကကပ်မရးအက်ဥပမေ
ပုမ်မ- ၁၆
• ငှားရမ်းြ ေက်မြံ ြင်းကိစ္စ
• landlord doesn’t ask for rental, or where the landlord refuses to accept
rental from tenant, the tenant will:
• pay the rental to the inspector

- အိမ်ငှားက ထိုငှားရမ်းြမပးသည်ကို အိမ်ရှင်က ေက်မြံေို ငင်းေိုမသာအ

ြါအိမ်ငှားသည် -ထိုငှားရမ်းြကိုကကီးကကပ်မရးဝန်ထံမပးသွင်းနိုင်သည်။

- မနာက်ထပ်ရရန်ရှိမသာ ငှားရမ်းြကို မိမိေက်ြံ ေိုမကကာင်း

နို ့တစ်စာ ြင့် ြစ်မစ၊ အ ြား နည်း ြင့် ြစ်မစ အိမ်ငှားအားအမကကာင်း မကကား

ေျှင်ထိုသို ့မနာက်ထပ်မပးရန်ရှိမသာ ငှားရမ်းြကိုေည်း ကကီးကကပ်မရး ဝန်ထံ

မပးသွင်းနိုင်သည်။

07-Oct-19 63
 ၁၉၆ဝ ပည့်နှစ် ပမို ့ပေိုင်ရာငှားရမ်းြကကီးကကပ်မရးအက်ဥပမေ
ပုမ်မ- ၂၇

ငှားရမ်းြကကီးကကပ်မရးဝန်က စံငှားရမ်းြ သတ်မှတ်မပးနိုင်သည့် ကိစ္စရပ်များ

• Application from landlord or tenant to the inspector, the inspector issues a proof
letter with signature that rental is a real standard rental.

• According to the application of landlord or tenant, the inspector, according to the

texts of this Act and related things, has to approve the rate of standard rental and
can approve relevant and fair standard rental.
•
- စံငှားရမ်းြ အမှန် ြစ် မကကာင်း မိမိေက်မှတ် မရးထိုးသည့် သက်မသြံေက်မှတ်ကုိ
ထုတ်မပးရမည်။
•
- ကကီးကကပ်မရးဝန်သည်တရားသည် ထင် မင်သည့် စံငှားရမ်းြကို

• သတ်မှတ်ရမည့်အ ပင် မိမိ သမော အတိုင်းေည်း သတ်မှတ်နိုင်သည်။

07-Oct-19 64
 CHAPTER (IX)
The Vacant, Fallow and Virgin Lands Management
Law(2012)
မ မေွတ်၊ မ မေပ် ပုေ်မ - ၂(င)

• “Vacant land and Fallow land” means land which was done by
the tenant before, and then that land was abandoned by the
tenant in any reason,

• not only the State designated land but also for agriculture or
livestock breeding purposes;
07-Oct-19 65
 Virgin land
မ မရိုင်း ပုေ်မ ၂ (စ)

• “Virgin land” means land which may be new land or other wood
land in which cultivation was never done before.

• It may have or not with forest, bamboo or bushes, even though

ground feature may be plane or not ,and

• includes the land which has been cancelled legally from Reserved
Forest, Grazing ground, and Fishery pond land respectively for
Agriculture, Livestock Poultry Farming and Aquaculture, Mining,
and Government allowable other purposes in line with law;
07-Oct-19 66
• Formation of Vacant, Fallow and Virgin Lands
Management Central Committee
• the Central Committee for the Management of Vacant, Fallow and
Virgin Lands, with the Union Minister for Agriculture and Irrigation
appointed as a Chairman, Director-General of the Department of
Agriculture Land Management and Statistics as Secretary and
suitable persons of the concern government department and
organizations ,
• and other suitable persons as members, in order to ensure the
management task concerning the use of Vacant, Fallow and Virgin
Lands for State Economic Development in relation to commercial
agriculture, livestock breeding, mining, and government allowable
other
07-Oct-19 purposes in line with law; 67
• Right to do Land, Right to Utilize Land on Vacant,
Fallow and Virgin Lands
• The Central Committee shall permit the right to do, (and)
right to utilize land of vacant, fallow and virgin land in the
country, for the following purposes:-
• (a) Agriculture;
• (b) Livestock Poultry Farming and Aquaculture;
• (c) Mining;
• (d) Government allowable other purposes in line with law.

07-Oct-19 68
 Persons and organizations that can apply to the
Central Committee
 Myanmar citizen investors
 Government departments, government organizations and non-
governmental organizations
 persons exempted in accordance with Section 14 of the Transfer of
Immovable Property (Restriction) Act, 1987
 investors permitted under the Myanmar Investment Law to carry out
matters of mutual benefit with a government department and
government organization
 investors permitted under the Myanmar Investment Law to carry out
matters of mutual benefits with Myanmar citizen investors.
07-Oct-19 69
 CHAPTER (X)
FARMLAND LAW, 2012
Farmland ပုေ်မ- ၃ (က)
Include
• land stipulated as

• rice land,

• Yar land,

• Khaing land,

• Taung Yar (upland) land,

• perennial crops land,

• dhani(palm) land;

• garden land; orchard and alluvial land.

Does not include

• dwellings and religious buildings and its environs and

• public land, not utilized for agricultural purposes within the boundary of a
Township or Village Tract;
07-Oct-19 70
• Right to Cultivate a Farmland ပုေ်မ (၄ - ၈)
• Privileges of a Person with the Right to Cultivate a
Farmland ပုေ်မ (၉ - ၁၀)
• Rules to be abided by the Person with the Right to
Cultivate a Farmland ပုေ်မ (၁၂ - ၁၃)
• Formation of various levels of Farmland
Management Bodies ပုေ်မ (၁၅ - ၁၆)
• Rights and Responsibilities of the Central Farmland
Management Body ပုေ်မ (၁၇)
07-Oct-19 71
• Action taken for failure to abide by the Regulations
ပုေ်မ (၁၉ - ၂၀)

• Settlement of Disputes on Right to Cultivate a

Farmland and Appeal ပုေ်မ (၂၂ - ၂၅)

• Compensation and Indemnities ပုေ်မ (၂၆)

•07-Oct-19
Offenses and Penalties ပုေ်မ (၃၅- ၃၇) 72
 Thank You

07-Oct-19 73
 1

Chapter 1

The Land and Revenue Act

Contents pages

1.1 The Extent of the Act 5

1.1.1 Interpretation- clause 6

1.2 Of Rights over Land 11

1.2.1 Kinds of land excluded from the operation of Part I 11

of this Act

1.2.2 Power to define the Boundaries of excluded 13

Lands

1.2.3 Right which may be acquired over Land 14

1.2.4 Status of Landholder how acquired 17

1.2.5 Landholder's Rights 22

1.2.6 Landholder's relinquishing possession 25

1.2.7 Rights of Landholder to make over Land temporari ly 26

to Revenue-officer (Section 12)

1.2.8 How to Recover Possession within Twelve Years 27

1.2.9 Land Records 30

1.3 Revenue and Taxes 32

1.3.1 Land liable to Land-revenue Assessment 32

1.3.2 Mode of Assessment 35

1.3.3 Personal Liability for Land-revenue and for Taxes 36

on families

1.4 Proceedings against Defaulter for recovery of Arrear 37

 2

1.4.1 Definition of “Arrear" and” Defaulter" 37

1.4.2 Proceedings for Recovery Arrears 38

1.4.3 Proceedings against the Land 42

1.5 Appeals 45

1.5.1 Bar to Jurisdiction of Civil Courts 49

 3

The Land and Revenue Act

(Land a e e eA

ရ ရ ရ

ရ ရ

ရ ရ ဤ

ရ ရ

ရ ရ

ရ ရ ရ

ရ ၀

ရ ရ

ရ ရ

ရ ရ
 4

ရ ရ
၂

၂ ရ ရ

၂ ၀ ရ

ရ ရ

ရ
၃

ဤ ရ

The Land and Revenue Act (

The Land and Revenue Act 1876, was enacted as an India Act
st
No. II, and it was entry into force on the 1 February 1879. The Act

Land Holder's Right.

၂
The Lower Burma Land and Revenue Manual.
၃
Capitation tax
 5

was enacted whereas it is expedient to declare the law relating to the

acquisition by private persons of rights in land in the Union of

(Burma) Myanmar, and whereas it is expedient also to consolidate

and amend the law relating to the assessment and collection of land

revenue.

၂ ရ ရ ၂ ၀

ဤ ရ

1.1 The Extent of the Act

Under the section 1(1) of this Act, provides that this Act

extends to lower (Burma) Myanmar and the Thayetmyo District of

Upper (Burma) Myanmar. This mean that the provisions of this Act

are applied in the whole Lower (Burma) and its extent is also applied

till the Thayetmyo of Upper (Burma).

ဤ ရ

- ရ ရ
 6

ရ ရ

၂ ရ

ရ ဤ ရ

1.1.1 Interpretation- clause

Section 3 of this Act defines the terms and clause used in the

Act.

Possession

Section 3 (a) Land is said to be in the possession of a person under

this Act;-

ဤ ၃ ၀ ရ
၂
ရ ရ ၃ ရ ဤ

ရ ရ

၃ ဤ ရ

၀ ရ ရ

(1) When it is occupied by him, or by his servant, agent,

tenant, or mortgagee, or by some other person holding

under him.

Possession
၂
Revenue-Officer
 7

(2) When he, his servant, agent, tenant, mortgagee or other

person holding under him has paid the revenue which fell

due in respect of such land during the last preceding year

of assessment as fixed under Section 41;

(3) If such land, left fallow in the ordinary course of

husbandry, was, when last cultivated, cultivated by him,

his servant, tenant, agent or mortgagee, or by some other

person holding under him;

၀ ရ

ရ ရ

၂ ရ

ရ ရ

ရ
 8

Provided that no person shall be deemed to be in possession

merely on the grounds mentioned in the second or third clause of this

definition of any land which is occupied by a person not holding

under him, or of any land which he has relinquished by a notice in

writing presented to a revenue-officer at such time of the year as the

President of the Union may by rule from time to time appoint in this

behalf.

The term “Possessio ” mea s ha he perso shall be eeme

to be in possession is the real owner.

ရ ရ ရ

၀ ရ

၀ ရ ရ ရ

ရ ရ ရ

ရ ၀ ရ ရ

ရ ၀ ရ
 9

ရ ၀ ရ ရရ

ရ ရရ ရ

ဤ ရ ရ

၀ ရ ဤ

၀ ရ

ရ ရ ဤ ၃

၀ ရ

Revenue-Officer

ရ ရ

Under the Sub-section (b) of Section (3) of this Act, defines

ha he “re e e-offi er” means;-

Section 3(b)

Any person whom the President of the Union may

appoint, by name or as holding an officer to do -

(1) anything required by this Act to be done by a revenue -

officer,

(2) anything to be done by a Government officer under this Act

or under any rule made under this Act and for the doing of

which no agency is specially provided by this Act.

 10

Therefore, the revenue-officer means that a person only

appointed by the President of the Union.

၃ ရ ရ -

ဤ ရ ရ ရ ရ

ရ ရ ရ

၂ ဤ ရ ဤ ရ

ရ ရ ဤ

ရ ရ

ဤ ရ ရ ရ -

ဤ ရ ရ ရ ရ ရ

ရ ရ ရ
 11

1.2 Of Rights over Land

1.2.1 Kinds of land excluded from the operation of Part II of

this Act

၂ ၀

Section 4 of this Act, prescr ibed the kinds of land excluded

from operation of this Part; - as follows:-

Nothing contained in this Part shall apply to the following: -

(a) Land included in any forest constituted a "r eserved-forest"

under the law for the time being in force;

(b) Land included in any fishery demarcated under the Fisheries

Act;

(c) The soil of any public road, canal, drain or embankment ;

(d) Land included within the limits of any town;

(e) Land appropriated to the dwelling place of any town or village;

(f) Land included in any military cantonment;

(g) Land included in any Civil Station ;

(h) Land belonging (on the 1st February 1879) to the site of any

monastery, pagoda, or other sacred building or if any s chool,

and continuing to be used for the purpose of such monastery,

pagoda, building or school.

 12

ရ ရရ

ရ ရ

၂ ရ
၂
ရ

၃ ရ ရ
၃

ရ ၀

၅ ရ
၅

ရ ၀

ရ ရ ရ

-
၂
-
၃
-
- ဃ
၅
-
-
-
 13

ရ ရ

ရ ရ

The President of the Union may from time to time, by

notification, exclude any other land from the Operation of this P art or

of any section thereof.

၂ ရ ရ ရ
၂

1.2.2 Power to define the Boundaries of excluded Lands

Then Section 5 of this Act provides the power to define

boundaries of excluded lands that, when the boundaries of any lands

exempt or excluded under Section 4 from the Operation of this Part or

of any section thereof need definition for the purpose of that Section

- ဇ
၂
-
 14

and no other mode of defining them is provided by law, the President

of Union shall cause them to be defined by the revenue -officer.

If, before they are defined, any question arises as to whether

any land is included within them; such question shall be decided by

the revenue-officer, whose decision, subject to appeal and review as

hereinafter provided, shall be final.

ရ ဤ ရ

ရ ရ ရ

ရ ရ ရ ရ

ရ ရ

ဤ ၀

ရ ရ ရ
၃
ရ

1.2.3 Right which may be acquired over Land

ရရ ရ

Section 6 of the Act provides the rights which may be acquir ed

over land. According to it,

၃
-၅
 15

"No right of any description shall be deemed to have been or shall be

acquired by any person over any land to which this part applies,

except the following:

(a) Rights created by any grant or lease made by or on behalf

of the Government;

(b) Rights acquired under Section 26 and 27 of the

Limitation Act;

(c) Rights created or originating in any of the modes

hereinafter in that behalf specified;

(d) Rights legally derived from any right mentioned in clause

(a), (b) and (c) of this Section.

Therefore, the rights mentioned in (a) to (d) may not be

acquired any person any over land to which this part shall apply.

ဤ ၂

ရ ရ ရရ ရရ ရ

ရ ရ ရ

ရ ရ ရ

၂ ၂ ၂ ရ

ရရ ရ
 16

၃ ရ ရ ရ

ရ ရ

ရ ရ ရရရ

ဤ ၂ ရ ရ

ရ ရရ

ရ ဤ

ရ ရရ ရ ရ ရရ

ရ ရ

ရ ရ ရ ရရ

ရ -၂ ရ ၂၀

ဤ ရ ရ ၀ ရ
 17

ရ ရ ရ

ရ ရ ရ

1.2.4 Status of Landholder how acquired

၀ ရ ရရ

Status of landholder is signified by the provisions of Section 7

of this Act. It provides that, "Except as provided Section 22, any

person having been in possession of any culturable land for twelve

years continuously, and having during that period regularly paid the

revenue due thereon, or held the same under an express exemption

from revenue, shall be deemed to have, upon the expiration of that

period, acquired the status of a landholder in respect of such land:"

Provided that such status shall not be deemed to have been

acquired by any possession which terminated more than twelve years

prior to the 1st February 1879.

Therefore, any person having been –

(1) in possession of any culturable land for twelve years

continuously,

(2) during that period regularly paid the revenue due thereon,

(3) held the same under an express exemption from revenue

Shall be deemed to have upon the expiration period, acquired the

status of a landholder.

But, that such status shall not be acquired by the term ination

more than twelve years, prior to the 1st February 1879.

 18

ဤ ၀ ရ ရရ

၂၂ -

- ရ

၂ ၀ ရ

- ရရ

၀ ရ

၀ ရ ရရ

ရ ၀ ရ ရ ရ

ရ ၂

ရရ ရ ဤ ရ ရ

၀ ရ ရရ

ရ ရ ရ

ရရ ရ

၂ ဤ
 19

ရရ ၂ ရ

ဤ ၂၂

ဤ ရ

၂၀ ရ ၂

၀ ရ ရရ ရ

ဤ ရ ၃

၀ ရ ရရ ရ

ရ ရ

The explanation 1 of the this Section explained that, "when

land in the possession of one person comes immediately into the

possession of another by transfer of succession the possession is

deemed to be continuous, and the latter may, in reckoning his length

of possession, add the possession of the former to his own."

For example –

U Phyu has land possessed. After five years he

transferred such land his son, Maung Ni, immediately. Another five

years, Maung Ni was dead an Maung Nyo, son of Maung Ni, was

come into the possession by succession is deemed to be continuous,

 20

when Maung Nyo possessed such land in five years, the possession

shall be deemed to be 15 years.

ရ ရ ရ

ရ ရ ရ

၀ ရ

၀ ရ ရ

၀ ရ ၀ ရ ရ

ရ ၀ ရ

၀ ရ

၅ ၀ ရ

၀ ရ ၅ ရ

၀ ရ ၅ ရ

ရ ရ

၅ ရ

The explanation 1 (A) of this Act, also explained that, "where, by

reason of circumstances arising out of the war, any person has been

compelled to relinquish possession of any culturable la nd at any time

 21

during the period commencing on the 8th day of December 1941 and

ending with such date as may be prescribed by the President of the

Union, by notification, in this behalf, but , who since the cessation of

hostilities has regained possession of such culturable land as in the

meantime has not been occupied by any other person, he shall be

deemed to have been in continuous possession of such land and he

may add the period of relinquishment, for the purpose of computing,

to the period prescribed in this Section.

ဇ ရ ဤ

ရ ၀ ရ ရ

ရ ၀ ရရ

၀ ရ ရ

၀ ရ ရ ဤ

ရ ရ ရ

၀ ရ

ဤရ ရ ရ

၀ ရ ရ

ရ
 22

၀ ရ

၀ ရ

Explanation 2 of this Act, prescribed that, "when any revenue

have been paid in respect of any land by any person holding such

land under the person in possession thereof, such revenue shall, for

the purpose of this Section, be deemed to have been paid by the

person so in possession.

ရ ၂ ရ ရ

၀ ရ ရ

ဤ ရ ရ

၀ ရ ရ

ဤရ ၂ ရ ရ ရ

ရ ရ ရ

1.2.5 Landholder's Rights

၀ ရ ရ

Landholder's rights are defined under Section 8 of this Act.

This Section points out that a landholder shall have a permanent

heritable and transferable right of u se and occupancy in his land,

subject only-
 23

(a) to the payment of all such revenue, taxes and rates as may from

time to time be imposed in respect of such land under any law for the

time being in force;

(b) to the reservation in favour of Government of al l mines and

mineral products, and of all buried treasure with all the powe rs

conferred by Section 38 (A).

၀ ရ

ရရ

ရ ရ

ရရ ရ

၀ ရ

ရ ရ

ရ ရရ

ရ ရ

၂ ရ

၃ ရ

-
 24

၂
ရ ရ ရ ရ

၀ ရ ရ ရရ

ရ ၀ ရ ရ

ရ ရ

၀ ရ

ရ ရရ

ရ ရ ရ ရ

ရ ၅ရ ရ ရ

၀ ရ ရ ရ

ရ ရရ

၀ ရ ရ

ရ ရ

ရ ရ ရ

၂
- .
 25

1.2.6 Landholder's relinquishing possession

၀ ရ ရ

Section 11

Any landholder who, except as provided in Section 12,

voluntarily relinquishes the possession of any land shall at once

1
forfeit his status of a landholder in respect of such land.

ရ ရ ၂

ရ ၀ ရ

၀ ရ ရ

Section 13 of this Act explained the right of landholder to make

over land temporarily to revenue officer.

1
Section 11 of Land and Revenue Act
 26

1.2.7 Rights of Landholder to make over Land temporarily

to Revenue-officer (Section 12)

ရ ၀ ရ

ရရ

This Section laid down that," whenever any person in

possession of land, and claiming the status of a landholder in respect

thereof, desires temporarily to relinquish the possession of the same,

he may present a petition to the revenue-officer requesting him to

take over such land."

The revenue- officer on receipt of such petition , if it appears to

him or such enquiry as he thinks fit to make that the petitioner is

entitled to such status , shall cause a notice to be punished in such

manner as the president of the Union may be rule prescribe ,

declaring that he has taken over the land ; and the land shall there

upon be at his disposal to be left on lease on otherwise dealt with ,

subject to the rights of any third parties over the land and to the right

of the petitioner next hereinafter reserved.

၂ ရ ရ ၀ ရ

ရရ

၀ ရ ရ ရ

ရ ရ ရ ရ
 27

ရ ရ ရရ

၀ ရ ရ ရ

ရ ရ ရ

( ရ

ဤ ရ

ရ ရ ရ

1.2.8 How to Recover Possession within Twelve Years

ရ ရ ရ ၂

၀ ရ

Section 13 provided how to recover possession within twelve

years. The petitioner may, at any time within twelve years f rom the

date on which the land has been taken over by the revenue -officer,

apply to the revenue-officer to reinstate him in possession of the

same.

Provided that in computing the twelve years period during

which such application may be made, the period beginning from the
 28

1st day of January 1942 to the 3rd day of December 1945 shall be

disregarded.

One receiving such application, the revenue-officer shall, in

such manner as may be provided by rules made under this Act and in

force for the time begin, give notice of the application to any person

who may be in occupation under him, and shall in due time proceed

to eject him, and shall put the applicant in possession of the land.

But no person shall be ejected under the Section from any land

which, before receiving notice from the revenue -officer if the said

application, such person or his predecessor in interest has in any way

prepared for cultivation, until the person sought to be ejected has

gathered in his crop. (Provided of this Section)

And also that no person shall be so ejected from any land which

he or his predecessor in interest has planted, drained, embanked or

otherwise permanently improved, until he has been paid by the

applicant the value of such improvement at the date of eject ment,

such value to be determined, in case the parties differ, by order of the

Section 14

Section 14 explained that, if any person applies for possession

of land under Section 13, alleging that he is the successor in interest

of the petitioner from whom such land was taken over by the

revenue-officer may, in his discretion, reject such application, or

proceed thereon under Section 13 as if were an application by the

said petitioner, and the person from whom such land has been taken,

or any other person, may sue to establish this title to such land.
 29

၃ ရ ရ ရ ရ

၀ ရ ရ

ရ ၂ ရ ရ

၂ ရ ၅ ဇ ၃ ရ

ရ ရ ရ

ရရ ၀ ရ

ရ ဤ

ရ ရ

ရ ရ ၀ ရ

ရ ရ ရ

ရ ဤ ရ ရ

၀ ရ ရ ရ

ရ ရ ဤ

ရ ရ ရ

ဤ ရ ရ

ရ
 30

ရ ၀ ရရ

ရ ရ

ရ ရ

ရ ရ ရ ရရ

ရရ

ရ ရ

၀ ရရ ရ

ရ ရ ရ

၀ ရရ

ရ ရ ရ

၃ ရ

ရ ရ

1.2.9 Land Records

*

Section 15

Section 15 of this Act provides the declaration and record of

original acquisition of landholder's status.

*
Land Records.
 31

Any person being in possession of any land and asserting that

he himself or any other person through whom he claims, acquired the

status of a landholders in respect of such land in the manner provided

by Section 7 of may apply to the revenue-officer to record, in a

register to be provided for this purpose, a declaration of such status

having been so acquired.

And the revenue-officer, if it appears to him, after a notice of

such application has published for such period and in such manner as

the President of the Union may by rule prescribe, and after such

enquiry as the revenue-officer may think fit to make, that such status

was so acquired, shall records a declaration to that effect, and furnish

that applicant with a certificate of the same having been recorded.

ဤ ၅ ရ ရရ

၀ ရ ရ ရ

ရ ရ ရ ရ

ရ ရ ရ ရရ ဤ

ရ ရ ရ

ရရ ရ

ရ ရ

၂ ရရ
ရ၂
 32

ရရ

1.3 Revenue and Taxes

This chapter provides especially the modes of assessment, how

to collect of revenue, and arrear and the mode of recovering them.

1.3.1 Land liable to Land-revenue Assessment

Under Section 23 of this Act, there are kinds of liable to land-

revenue assessment as follows-

- All culturable land:

st
- all land which was culturable on the 1 February, 1879, but

which subsequently becomes unculturable in consequence of

the erection of buildings or otherwise by the act of man,

st
- all land assessed to land-revenue on the 1 February, 1879.

ဤ ၂၃

ရ
 33

ဤ ရ

ရ ၀ ရ

ရ ရ

ရ ရ

၃ ၀

ရ ၀ ရ

But, nothing in this Section shall apply to-

st
(a) land which, on 1 February, 1879 belonged to the site of any

monastery, pagoda, or other sacred building, or of any school,

and which continues to be used for the purposes of such

monastery, pagoda, building or school.

(b) land exempt from assessment, under the express te rms of any

grant made by or on behalf of the Government.

(c) land in respect of which a toungya tax is imposed under Section

33.
 34

(d) land appropriated to the dwelling places of any town or village

and exempted from the operation of the former part of th is

Section by order of the President of the Union.

Therefore, these exempted lands shall not be liable

according to this Act, but these lands be liable to the provisions of

the Municipal Acts and the Town and village Act.

ရ ရ

၃၃ ရ ရ

ဃ ရ

ဤ ၂၃

ဤ ရ

ရ ရ ရ

ရ ရ
 35

ရ ရ ရ ရ

ရ ရ

1.3.2 Mode of Assessment

*

The land-revenue payable under Section 23 in any area shall be

assessed at such rates, in such a manner and for such period as the
1
President of the Union may, by notification, direct.

ဤ -၂ ရ

ဤ ရ ၂၃ ရ

Under the Section 25, the rates payable in respect of any land

may be altered from time to time as the President of the Union may
2
direct.

ဤ ၂၅ ရ

*
Mode of Assessment.
1
. Section 24 of the Land and Revenue Act.
2
. Section 25 of the Land and Revenue Act.
 36

1.3.3 Personal Liability for Land-revenue and for Taxes on

families

ရ ၀

Sections 37 and 38 are applied to the liabilities for land -

revenue and taxes on personal and families.

Subject to the provision under Section 37 for the personal

liability for land-revenue, that, the amount of payable on account of

revenue on any land for any year of assessment shall be due jointly

and severally from all persons, who have been in possession of such

land and any time during such year, and all persons who have held

under them as tenants, mor tgagees or conditional vendees.

၃ ရ ၀ ရ

ရ ရ

ရ ၀ ရ

၀ ရ

ရ ၀ ရ

၀ ရ

ရ ရ

၀ ရ

Under Section 38, when a tax per family of cultivators of any

land is imposed, the amount due for any year of assessment from each

family shall be due jointly and severally from all males of such
 37

family who at any time during such year, being then above the age of

eighteen years, took any part in the cultivation of such land.

ရ ရ ၀ ရ

၃ ရ

ရ ၀ ရ ရ

ရ ရ

1.4 Proceedings against Defaulter for recovery of Arrear

1.4.1 Definition of “Arrear" and “Defa l er"

ရ
၂

Every sum payable under this Act On account of any revenue,

tax, rate, fee, duty, composition, compensation or costs, shall fall due

on such date, and shall be payable at such place and to such person,
1
as the President of the Union may from time to time by rule direct.

Arrear.
၂
Defaulter.
1
. Section 43 of the Land and Revenue Act.
 38

ဤ ၃ ရ

ရ ရ ၀ ရ ရ ဤ

ရ ရ

ရ ရ

ရ ရ

This Section provides the revenue etc., when due where and

whom payable.

When any such has fallen due, and written notice of demand for

it has been served on anyone of the persons liable for it, or published

in such manner as the President of the Union may from time to time

by rule direct, and thirty days have elapsed from the service or

publication of such notice without such sum having been paid, such

sum shall be deemed to be an arrear.

And every person liable for it shall be deemed to be a defaulter.

1.4.2 Proceedings for Recovery Arrears

ရ ရ

When the person liable for the arrears, it shall deemed to be a

defaulter as the provisions of Section 44, there can be proceeded for

the recovery of arrears under Section 45 of this Act.

 39

ရ ရ

ရ ဤ

There are the essentials of the proceeding for the recovery of

arrears under Section 45 of this Act:

၅ ရ

(1) An arrear may be realized as if it were the amount of a

decree for money passed against the defaulter in favour of

any revenue-officer whom the President of the Union may

from time to time appoint in this behalf by name or as

holding any office.

ရ ရ

ရ ရ

ရ ရ

ရရ ရ

(2) with a view to the realization of such arrears may be

instituted by such officer before any other revenue -officer

whom the president of the Union may from time to time

appoint by the name or as holding any office.

၂ ရရ ရ ရ ရ ရ

ရ ရရ ရ ရ ရ

ရရရ
 40

ရရ ဇ ရ ရ ရ

(3) such other officer may exercise all the powers c onferred on.

၃ ဇ ရ ရ ရ ရ ရ

ရ ရ ဇ ရ ရ

(4) such other officer shall conform to all rules of procedure

prescribed for , a Court executing a decree by the Code of

Civil Procedure.

ရ ရ

ရ ရ ရ ဇ ရ ရ ရ

ရ ရ ရ

ရ ရ

(5) except when execution is applied for against a defaulter who

has absconded, or who reasonably believed to be about to

abscond, the officer before whom proceedings are instituted

under this Section shall, before issuing any process of

execution against a defaulter, cause a notice to be served or

him in the manner prescribed for the service of summons

defendants in civil suit.

၅ ရ ရ

ရ ရ ရ ဇ ရ
 41

ရ ရ ရ

(6) Requiring him either to pay the amount of the arrear or to

appear on a day fixed in the notice and show cause why such

amount should not be realized from him.

ရ ရ ရ ရ ရ

ရ ရ

(7) If the day so fixed such amount has not been paid and the

defaulter does not appear, or appearing fails to show cause

as aforeside, the said officer may order the process to issue

forthwith.

ရ ရ ရ

ရ ရ

ရ ရ ရ ဇ ရ

ရ ရ

ရ ရ ရ

ရ ရ ရ
 42

ရ ရ ဇ ရ ရ

ရ ရ ရ ရ

1.4.3 Proceedings against the Land

When the arrear is one of land-revenue the proceedings may be

followed by the provisions of Section 46 of this Act.

ဇ ရ

ရ ရ ရ ရ

Under Section 46 laid down that, instead of or in addition to,

the proceedings which may be instituted under Section 45, a revenue -

officer empowered in this behalf by the President of the Union may,

when the arrear is one of land-revenue proceed against the land on

which such arrear has accrued as next hereinafter provided.

ရ ရ ရ

ရ
 43

ရ ရ

If the revenue-officer finds on enquiry that there exists any

permanent heritable and transferable right of use occupancy in the

land, Section 47 of this Act provides that, such officer may sell by

public auction such right in the whole of the land, or in such portion

there of as he may deem sufficient for the realization of the arrear.

The proceeds of such sale shall be applied in the first place in

liquidation of the arrear, and in the event of there being any surplus

remaining, the revenue-officer shall, if he is satisfied as to the right

of any person claiming such surplus, pay the amount thereof to such

person and if he is not so satisfied, shall hold the amount in deposit

for the person who may ultimately succeed in due course of law in

establishing his title thereto.

ရ ရ ရ

ရ ရရ

ရ ရ

ရ ရရ

ရ ရ ရ

ရရ

ရ ရ
 44

ရ ၀ ရရ

The purchaser at a sale under Section 47 shall be deemed to

have acquired the right offered for sale, free from all encumbrances

created over it and from all subordinate interests derived from it ,

except such as may he expressly reserved by the revenue -officer at

the time of sale. (Section 48)

ရ ရ ရ ၀

၀
၂
ဇ ရရ

If the revenue-officer proceeding against the land finds on

enquiry that no permanent heritable and transferable right of use and

occupancy exist therein, he may, by proclamation published o n the

land in such manner as the President of Union from time to time by

rule directs, declare that he has taken possession of such land on

behalf of the Government, and may summarily eject any person found

in occupation thereof.(Section-49)

ရ ရ ရ ရ

ရ ရ ၀ ရ ရ

ရ ၀ ရ ရ

All Encumbrances.
၂
Subordinate Interests.
 45

ရ ရ

When a proclamation is published under Section 49 in respect

of any land over which any private rights of any prescription exist,

such land shall be deemed, to have been, from the date of such

proclamation vested in the Government free from all such rights as

have not been expressly reserved by the terms of such proclamation.

(Section-50)

၅၀ ဤ

ရ ရ ရ ရ

ဤ ရရ

ရ ရ ရ

ရ ရ ရ

ရ ရ ရ ရ

1.5 Appeals
*
၀

Under Section 55 of this Act, appeals shall lie from orders and

decision given under any provision of this Act in such cases, to such

*
Appeals
 46

officers and subjects to such. Limitations as to tim e and such other

conditions as the President of the Union may from time to time by

rule determine.

ဤ ၅၅ ၀

ရ ဤ ရ

ရ ရ ရ ရ ရ

ရ ၀

(a) matters disposed of by revenue-officers under Section 5,12

and 17 inclusive, except orders as to the value of or

improvement;

(b) claims to occupy or resort to lands under Section 19,20 and

21,and disputes as to the use or enjoyment of such lands

between persons permitted to occupy or resort to the same;

(c) questions as to whether any land or any person is liable to

be assessed to any revenue-tax or rate;

(d) questions as to the mode or principle of assessment to any

revenue, tax or rate, or as to the amount assessed;

(e) questions as to the right to a settlement of land revenue, or

the nature or term of the settlement to be offered;

(f) questions as to the validity or effect of any settlement, or as

to the whether the conditions of any settlement are still in

force;
 47

(g) questions as to the liability of any person under Section 37

and 38;

(h) questions as to whether any revenue, tax, or rate in arrear,

(i) questions as to the legality of any process issued under

Section 45;

(j) questions as to the validity of a sale under Sectio n47, or as

to the effect of a proclamation under Section 49;

Provided also that in all cases the Financial Commissioner shall

have power to call for and review the proceedings, if he thinks fit to

do so, and pass such order there on consistent with the provis ions of

this Act as thinks fit.

ရ ရ ၅ ရ

၂ ၀

ရ ရ

၀ ရ

ရ ရ ၀ ရ

၂ ၂၀ ၂ ရ

ရ ၀ ရ

၅၅
 48

ရ ရ

ရ
၂

၃ ရ
၃
ရ ရ ရ

ရ ရ

၀
၂

( ရ

ရ
၃
ရ ရ ရ

၃ ၃ ရ

ရ ၀

ရ ရ ၀
၂
၅၅
၃
၅၅
၅၅ ဃ
၂
၅၅
၃
၅၅
 49

ရ
၅

၅ ရ ရ ရ

ရ ရ ရ

၀ ရ ရ ရ ၀

ရ ရ ၀

ရ ရ ၀

၀ ရ

1.5.1 Bar to Jurisdiction of Civil Courts

ရ ရ ရ ရ

Under Section 56 of this Act explained that the Civil Courts

shall not exercise jurisdiction as to the following matters:

၅၅
၅
၅၅ ဇ
၅၅
၅၅
 50

Except as here in before expressly provided, no Civil Court

shall exercise jurisdiction as to any of the following matters, namely:

ရ ရ ရ

၅ ရ -

(a) matters, claims and questions mentioned in the first

provision to Section 55;

(b) claims to any office connected with the revenue

administration or to any emolument appertaining to such

office; or in respect of any injury caused by exclusion,

suspension or removal there from;

(c) claims to have allotments made under Section 20 or 21 and

objections to the making of such allotments;

(d) claims to a remission or refund of any revenue, tax, rate,

fee, duty or composition payable or paid under this Act;

(e) questions as to the right to, or amount of, any compensation

for improvements awardable under Section 13.

၅၅ ရ

၅၅
၂
၀

၂ ရ

၂
၅
 51

ရ ရ ရ

ရ ရ

၃ ၂၀ ရ ၂ ရ

ရ
၂

ဤ ရ ရ ရ

ရ ရ

ရ
၃

၅ ၃ ရ ရ ရ

ရ ရ

၅
၂
၅
၃
၅ ဃ
၅
 52

Reference rulings will be seen at the appendix. The students

should refer to the above rulings as mentioned.

"Appendix A"

Cases for the Land Revenue Act

1. "Maung Thaung vs. Shaik Abdul Gani"(1983 R.L.R.603)

Where a notice of demand was issued under Section 44 of the

Land and Revenue Act for municipal taxes addres sed to the owner of

a property, who was dead at the time and the notice, was served on

the care-taker of the property. It is held that the care -taker was

neither an agent of the dead owner nor a person liable to pay the tax

and consequently there was neith er an “arrear" nor a “ efa l er"

within the meaning of s.44.

The service of the notice was invalid and a sale of the property

following upon such notice a nullity. The provisions of S.56 of the

Burma Land Revenue Act do not oust. The Jurisdiction of the C ivil

Courts in a matter between Private Individuals to which Government

is not a party.

ရ ရ ရ

ရ ရ

၃ ရ ရ ၀၃
 53

ရ ၀ ရ ရ

ရ ၀

ရ ရ ရ ရ

ရ ၀ ရ

ရ ရ

ရ ရ

ရ ၀ ရ

ဤ ရ ရ ၅

ရ ရ

ရ ရ ရ
 54

2. "Ah Twe and another vs. Ma Mai Sein and others"(1941 R.L.R

7 F.B)

In the case of an arrears of land revenue, the provisions of the

Burma Land and Revenue Act alone have to be considered, and the

arrears fall to be recovered by the procedure lain down in that Act

only. Questions as to whether any revenue, tax or rate is in arrear and

by whom it is payable; questions as to the legality of process in

recovering sums in arrear; and questions as to the validity of a

revenue sale or proclamation are all questions to be decided by the

Revenue Courts and the jurisdiction of the Civil Courts in such

matters is ousted by the provisions of S.56 of the Act.

On the other hand, a status empowers a local body or authority

to recover any arrears of tax or some fee or money claimable as if

they were arrears of land revenue it is a condition precedent to the

right of the authorities concerned to have recourse to the special

procedure that a sum has fallen due, and that it is due from t he person

from whom it is being claimed. A Civil Court has jurisdiction to

determine such questions.

ရ ရ ရ

ရ ရ

ရ ရ
 55

ရ ရ ရ ရ

ရ ရ ရ

ဤ ရ ရ

ရ ရ

ဤ ဤ

၅၅ ၅

ရ ရ ရ ရ ရ၀ ၅

ရ ရရ ရ

ရ ရ

ရ ရ ၀ ၀

ရ ရ ၀ ၀
 56

ရ ရ ရ ၅ ရ

၅၅ ၅

ရ ရ ရ ရ

ဤ ရ ရ

ရ ရ

ရ ၀

ရ ရ
 57

Key Terms

Possession - ၀ ရ

Revenue-officer - ရ ရ

Of Rights over land -

Rights which may be - ရရ

acquired over land ရ

Status of Landholder - ၀ ရ

La hol er’s igh s - ၀ ရ

Land Records -

Culturable Land -

Sacred building - ရ

Toungya Tax -

Arrear -

Defaulter -

ရ
 58

Assignment Questions

1. What is the extent for the Land and Revenue Act in its

application?

2. What do you unders a by he erm “ e e e-offi er”

under the provision of the Land and Revenue Act? Answer.

3. Mention kinds of Land excluded from the operation of the Land

and Revenue Act 1879.

4. What are the rights which may be acquired over Land und er

the provision of the Land and Revenue Act 1879?

5. How to acquire the Status of Land Holder under the Land

and Revenue Act 1879?

6. How can the personal liability be imposed for land -revenue

and taxes on families?

7. Explain briefly the proceedings for recovery of arrears.

8.What are the proceedings against defaulters for recovery of

Arrear?

Short Questions

1. Defi e he erm “Possessio ” a or i g o he pro isio of

the Land and Revenue Act 1879.

2. Explain the right of landholder to make over land

temporarily to revenue officer.

3. Wha are he La Hol er’s igh s er he pro isio of

the Land and Revenue Act? Give short answer.

4. What matters shall not exercise jurisdiction of Civil Co urts?

59
 1

Chapter 2

The Upper Myanmar Land and Revenue Regulation

Contents pages

2.1. Extent and Definitions 3

2.2 Provisions with Respect to State Land 3

2.2.1 Definition of "State Land" 4

2.2.2 Cognizance of Claims to State Land 5

2.2.3 Incidents of the Tenure of State Land 8

2.2.4 Land-revenue 10

2.2.4.1 Liability to payment of land-revenue 10

2.3 Collection of Revenue 14

2.3.1 Definition of "Revenue" 14

2.3.2 Time and mode of payment of revenue 15

2.3.3 Process for recovery arrear 16

2.3.4 Exclusion of Jurisdiction of Civil Courts 19

 2

The Upper Myanmar Land and Revenue Regulation

 3

2.1. Extent and Definitions

Extent

The Extent of this Regulation is provided under section one of

these Regulations that, extends to Upper Myanmar only excluding the

Thayetmyo.

2.2 Provisions with Respect to State Land

Chapter 3 of this Regulation is "including the meaning of State

Land, cognizance of claims to State Land, incidents of the tenure of State

Land, and the liability to payment of Land-revenue.

 4

2.2.1 Definition of "State Land"

The term of "State Land" defined by Section 23 of this

Regulation, that in the following Sections of this Regulation

means Land belonging to or at the disposal of the Government,

and includes:-

(a) land formerly termed royal land;

(b) land held on condition of rendering public or as an appendage to or

emolument of a public office;

(c) islands and alluvial formations in rivers;

(d) coast-land and land included within reserved forests; and

(e) land which has been under cultivation but has been abandoned and

to the ownership of which no claim is preferred within two years

from the 13th July, 1889, (The date of commencement of this

Regulation).

၁
 5

၁ ၁ ၂

2.2.2 Cognizance of Claims to State Land

Section 24

(1) Any land which before the 13th July 1889, has been or

thereafter may be State Land shall be deemed to be such land

until the contrary is proved.

၁ ၂ ၁ ၁

၁
 6

၂ ၁

(2) A claim to the ownership or possession of any land with respect

to which such a declaration has been or may be so made, or to

hold such land free of land revenue or at a favorable rate of

land-revenue, or to establish any line upon, or other interest in,

such land or the rents, profits or produce thereof, shall be

recognizable by the collector only, and the order which the

collector may make the claim shall, subject to the provisions of

Chapter II with respect to appeal, review and revision, be final.

၂ ၂ ၂
 7

(3) The period of limitation for a claim under the last proceeding Sub-

section shall be one year from the date of the declaration made by

the Collector .

၂ ၂

(4) A declaration made by the Collector under Sub-section (1) may be

withdrawn by him at any time before the passing of an order on

any claim preferred under Sub-section (2) to the ownership or

possession of the land to which the declaration relates; and a

declaration so withdrawn shall be deemed not to have been made,

and no presumption of the nature specified in Sub-section (1) shall

be deemed to have arisen.

၂ ၁
 8

2.2.3 Incidents of the Tenure of State Land

Section 25 of this Regulation provides that, subject to the

provisions of this Regulation and the rules there -under and to the term of

any order made on any such claim as is mentioned in Sub -section (2) of

the last foregoing section, the following are among the incidents of the

tenure of State Land, namely;

၂ ၂

(a) an occupier of State Land can have no heritable or transferable

right of use or occupancy therein, nor can any rights adverse to the

Government exist in such land unless they have been created or

continued by a grant made or on behalf of the Government;

၁)
 9

(b) an occupier of State Land may not, except for the default in the

payment of land-revenue due from him to the Government, be

ejected from such land without such notice as may be prescribed by

rules to be made by the President of the Union of Myanmar in this

behalf or, failing such notice, such compensation as, subject to any

such rules, the Collector may, having regard to all the circumstance

of the case, deemed just;

(c) a person occupying State Land without the permission of the

Collector or of some other officer authorized by rules to be made

by the President of the Union in this behalf, or occupying such

land with such permission and making default in the payment of

 10

the land--revenue due from him to the Government in respect

thereof, may at any time to be ejected from the land by order of the

Collector.

2.2.4 Land-revenue ( )

2.2.4.1 Liability to payment of land-revenue

Section 27 provides the liability to payment of land -revenue,

such as:-

(1) All lands, to whatever purpose they may be applied and where -ever

they may be situate, shall subject to the other provisions of this

Sections, be liable to the payment of land-revenue to the

Government. (Section 27(1)).

၂ ၁
 11

(2) The land-revenue payable under Sub-section (1) shall be as such

rates in kind or money and for such periods as the revenue-officer

appointed in this behalf may, in accordance with rules to be made

by the President of the Union, fix. The rates so fixed may be on

classes of soil on classes of crop throughout any district or part of

a district. (Section 27(2)).

၂ ၂ ၂ ၁

(3) The President of the Union may direct that in any district or part of

district abatement from the rates fixed under Sub-section (2) shall

be made before they are applied to the assessment of land other

than State Land, and in every such direction shall specify the

amount of such abatement. When in any district or part of district

 12

such abatement has been granted, the abatement shall not be

withdrawn nor decreased in any future revision of the assessment

except will the previous section of the President of the Union

(Section 27(3)).

၂ ၂

(4) All land, which was subject to the payment of land-revenue

immediately before the 13th July, 1889 shall, whether it has or has

not been declared under Section 24(1), to be State Land, continue

to be so subject, and the land-revenue payable in respect of there of

shall until the land is assessed under the provision of the

Regulation and the rules thereunder, believed in such manner and

at such rates as have heretofore been customary. (Section 27(4)).

၁ ၁

၂ ၁
 13

( 5) Nothing in sub-section (1) with respect to the liability of State

Land to the payment of land-revenue shall be deemed to apply to

any of the following classes of land, namely.

(a) land belonging on the 13th July, 1889 to the site and ca rtilage

of any monastery, pagoda, or other sacred building or of any

school, and continuing to be used for the purpose of such

monastery, pagoda, building or school;

၁ ၁ ၁

(b) land exempt from liability to the payment of land-revenue by

the express terms or any grant made or continued by or on

behalf of the Government. (Section 27(6)).

၂
 14

2.3 Collection of Revenue

2.3.1 Definition of "Revenue"

Definition of "Revenue" is provided by section 37 of this

Regulation as follows:-

"Revenue" includes:-

(1) land-revenue payable in respect of State and other lands;

(2) revenue payable on account of precious stones mines, minerals,

coal, earth-oil, salt and ferries;

(3) excise in respect of spirit; fermented liquor, intoxicating drugs and

opium;
 15

(4) every other sum payable to the Government in accordance with

law; contract or local usage.

2.3.2 Time and mode of payment of revenue

According to Section 38 of this Regulation the Financial

Commissioner may make rules determining the number and amount of

the installments by with the person to whom and the time, place and

manner at and in which any revenue is to be paid (Section 38(I)).

၁
 16

Any revenue not paid as required by rule in an arrear, and the

person from whom it is primarily due, as well as the surely , if any, for

the payment thereof by that persons is a defaulter. (S.38(3)).

2.3.3 Process for recovery arrear

Section 41 of this Regulation provides how to get the

recovery arrear.

(1) An arrear may be recovered by any one or more of the

following processes, namely:-

(a) by service on the defaulter of a notice requiring him to pay the

arrear at the time and place, and to a person, specified in the

notice;
 17

(b) by attachment and sale of any moveable property belonging to

the defaulter accept if he is an agriculturist, his implements of

husbandry and seed-grain and the cattle actually employed by

him in agriculture, and if he is an artisan, his tools;

(c) by the arrest of the defaulter and his imprisonment in the civil

jail for a period not exceeding one month ;

(d) by attachment and sale of any immoveable property belonging

to the defaulter.

ဃ
 18

(2) The processes described in Sub-section (1) may be used either

separately or simultaneously.

၁၂ ၂၁

Effect to Sale on Incumbrance

When any immoveable property is sold under this Chapter for the

recovery of an arrear due in respect thereof, the following consequences

shall ensue, unless a revenue-officer empowered in this behalf had

otherwise directed, namely;

(a) all leases, lines and other in cumbrances on the property shall

be extinguished and
 19

(b) all grants or contracts previously made by any person other

than the purchaser in respects of the property shall become

1
void as against the purchaser .

(c) when any immoveable property is brought to sale under this

Chapter, for the recovery of any other than an arrear due in

respect thereof, the interests of the defaulter alone therein, as

those interests.

) ၂

2.3.4 Exclusion of Jurisdiction of Civil Courts

Section 53 of this Regulation provides the exclusion of jurisdiction

of Civil Courts.

1
Section 42 (1) of this Regulation.
 20

Except as otherwise provided by this Regulation.

(1) A Civil Court shall not have jurisdiction in any matter which the

President of the Union or a revenue-officer is empowered by or

under this Regulation to dispose of or take recognizance of the

manner in which the President of the Union or any revenue -officer

exercise any powers vested in them by or under this Regulation;

and in particular.

(2) A Civil Court shall not exercise jurisdiction over any of the

following matters, which shall be cognizable exclusively by

revenue-officers, namely:-

(a) any question as to the limits of any State Land ;

 21

(b) any claim to the ownership or possession of any State Land, or

to hold such land free or land-revenue or at a favorable rate of

land-revenue, or to establish any lien upon of other interest in,

such land or the rents, profits or produce thereof;

(c) any claim to compel the performance of any duties imposed by

or under this Regulation or any other enactment for the time

being in force on any revenue-officer as such;

(d) the preparation of records of rights or periodical edition of

such a record;

(e) the correction of any entry in a record or in a register of

mutations;

(f) the amount of land-revenue to be paid in respect of any State

or other land under this Regulation;

(g) the amount of , or liability of any person to pay, any other

revenue recoverable under this Regulation;

(h) any claim to hold free of revenue any-land, fishery or natural

products of land or water;

(i) any claim connected with, or arising out of , the collection of

revenue, or the enforcement of any process for the recovery o f

an arrear of revenue or any sum recoverable as such as arrear;

(j) any claim to set aside, on any ground other than fraud, a sale

for the recovery of an arrear of revenue or any sum

recoverable as such an arrear;

(k) the amount of, or the liability of any person to pay; any fees,

cost or other charges imposed under this Regulation.

 22

၂
 23

၁၁
 24

Key Terms

Land and Revenue Regulation -

State Land -

Incidents of the tenure of State Land -

Financial Commissioner -

Liability to payment of land-revenue -

Process for recovery arrear -

Incumbrance -
 25

Assignment Questions

1. Explain the exclusion of jurisdiction of Civil Courts, with the

reference cases.

2. How to cognize of claims to State Land?

3. What is the usual tenure of lands other than State Lands?

4. How may an arrear of revenue be recovered?

Short Questions

1. What do you understand by the term “State land”?

2. What are the processes for recovery arrear?

 1

Chapter 3

The Stamp Act

Contents pages

3.1 Nature and kinds of Stamps 2

3.2 Definitions 4

3.3 Stamp-duties 14

3.3.1 Liability of Instrument to Duty 14

3.3.2 Stamps and the mode of using them 16

3.4 The Time of Stamping Instruments 21

3.5 Instruments not Duly Stamped 24

3.5.1 Examination and impounding of instruments 24

3.5.2 Special provision as to unstamped receipts 28

3.5.3 Instruments not duly stamped inadmissible in 28

evidence, etc.
 2

The Stamp Act

The Stamp Act was enacted in 1899 as India Act No. II and it

came into 1st July, 1899. On and after the 1st April, 1941, Schedule I of

India Act II of 1899, shall have to be effec ted.

3.1 Nature and kinds of Stamps

There are two kinds of stamps namely:-

(a) Judicial Stamp and

(b) Non-judicial Stamp

 3

Judicial Stamp means the stamps which are used under the Court

Fees Act and in Judicial Courts and certain other Courts and are sealed

with the words "Court Fees".



Non judicial stamps are stamps which are used by individuals ; in

accordance with the provisions of Stamp Act in making instruments.

Non judicial Stamps can be used for two kinds , namely:

(a) Adhesive Stamps and

(b) Impressed Stamps

( \


Court Fee.
 4

3.2 Definitions

Section 2 of this Act provides the definitions concerned with the

whole Act.

In this Act, unless there is something repugnant in the subject or

context.

(1) "banker" includes a bank and any person acting as a banker.

(Section 2(1))


(2) "bill of exchange " means a bill of exchange as defined by the

Negotiable Instruments Act, and includes also a hundi, and any other

document entitling or purporting to entitle and person whether named

therein or not, to payment by any other person of, or to draw upon any

other person for any sum of money: -. (Section 2 (2))






Banker

Bill of Exchange
 5

(3) "bill of exchange payable on demand ".

includes: -
1
၃

(a) an order for the payment of any sum of money by a bill of

exchange or promissory note, or for the delivery of any bill

of exchange or promissory note in satisfaction of any sum of

money, or for the payment of any sum of money out of any

particular fund which may or may not be performed or

happen;

(b) an order for the payment of any su m of money weekly,

monthly or at any other stated periods: - and

(c) a letter of credit, that is to say instruments by which one

person authorizes another to give credit to the person in

whose favour it is drawn:. (Section 2(3)).


Hundi
1
Bill of Exchange payable on demand.
 6

(4) "bill of lading" includes a through "bill of lading" but does not

includes a mate's receipt. (Section 2(4)).

(5) "Bond" includes:-

(a)any instrument whereby a person obliges himself to pay money

to another, on condition that the obligation shall be void if a specified act

is performed, or is not performed, as the case may be;

 7

(b) any instrument also attested by a witness and not payable to

order or bearer, whereby a person obliges himself to pay money to

another, and

(c) any instrument to attested, whereby a person obliges himself

to deliver grain or other agricultural produce to another (Section 2( 5)).

(6) "Chargeable" means, as applied to an instrument executed or first executed

after coming into operation of the constitution chargeable under this

Act, and as applied to any other instrument chargeable under the

law in force executed in the instrument at different times, first

executed. (Section 2(6)).

၆
 8

(7) "Cheque" means a bill of exchange drawn on a specified banker

and not expressed to be payable otherwise than on demand: -

(Section 2(7)).

(8) "Collector" includes any Revenue Officer and any officer delegated by

the Director General of the Internal Revenue Department; . (Section 2(9)).

(9) "Conveyance" includes a conveyance on seal and very instrument

by which property, whether moveable or immoveable, is

transferred " Intervios " and which is not otherwise specifically

provided for by Schedule 1.

 9

(10) "Duty Stamped" as applied to an instrument, means that the

instrument bars an adhesive or impressed stamp of not less than the

Proper amount and that such stamped has been affixed or used in

Accordance with the law for the time being in force in the Union of

Myanmar. (Section 2(11)).

၀


(11) "Executed"and"Execution" used with reference to instruments

means "Signal" and "Signature". (Section 2(12)).

(12) "Impressed Stamp" includes:-

(a) labels affixed and impressed by the proper officer, and

(b) stamps embossed or engraved on stamped paper. (Section 2

(13)).


Duly Stamped
 10

(13) "Instrument" includes every document by which any right or

liability is, or purports to be, created transferred, limited, extend ed,

extinguished or recorded. (Section 2 (14)).

2
၃

(14) "Lease" means a lease of immoveable property and includes also;

*
(a) ------------

(b) an undertaking in writing, not being a counterpart of a lease, to

cultivate, occupy or pay or deliver rent for immoveable property;

(c) an instrument by which tolls of any description art let ;

(d) any writing on an application for a lease intended to signify

that the application is granted;

(Section 2 (16)).
3

2
Instrument
*
Section 2 (16) is omitted.
3
Lease
 11


a

(15) " Mortgage Deed " includes every instrument whereby, for the

purpose of securing money advanced, or to be advanced, by way of

loan, or an existing or future debt, or the performance of an

engagement, one person transfers, or creates to or in favour of

another, a right of over or in respect of specifi ed property.

(Section 2 (17)).
5
၅


a- ၆
4
Tolls
5
Mortgage-deed
 12

(16) " Papers " includes vellum, parchment, or any other material on

which an instrument may be written. (Section 2 (18)).


၆

(17) " Power of Attorney " includes any instrument not chargeable with a

free under the law relating to court fees for the time being in force

empowering a specified person to act for and in the name of the

person executing it. (Section 2 (21)).


၇

(18) " Promissory Note " means a promissory note as defined by the

Negotiable Instrument Act. (Section 2 (22)).

(19) " Receipt " includes any note, memorandum or writing: -

(a)whereby any money, or any bill of exchange, cheque, or

promissory note is acknowledged to have been received, or

(b)whereby any other moveable property is acknowledged to have

been received in satisfaction of debt, or


Paper

Power of Attorney.
 13

(c)whereby any debt or demand, or any part of a debt or demanded,

is acknowledged to have been satisfied or discharged, or

(d)which signifies or imports any such acknowledgement and

whether the same is or is not signed with the same of any

persons. (Section 2 (23)).



ဃ (


Receipt
 14

3.3 Stamp-duties

3.3.1 Liability of Instrument to Duty

Instruments chargeable with duty is provided by Section 3 of this

Act.

(a) every instrument mentioned in that Schedule which, not having

been previously executed by any person is, executed in the Union of

Myanmar on or after the first day of July 1899;

(b) every bill of exchange payable otherwise than on demand or

promissory note drawn or made out of the Republic of the Union of

Myanmar on or after for acceptance or payment, or endorse, t ransferred

or otherwise negotiated, in the Republic of the Union of Myanmar, and

၏
 15

(c) every instrument other than a bill of exchange or promissory note

mentioned in that schedule, which not having been previously executed

by any person, is executed out of the Republic of the Union of Myanmar

on or after that day, relates to any property situate, or to any matter or

thing done or to be done, in the Republic of the Union of Myanmar, and

received in the Republic of the Union of Myanmar.

Provided that no duty shall be chargeable in respect of -

(1) any instrument executed by, or on behalf of, or in favour of the

Government in cases where, but for this exemption, the

Government would be liable to pay the duty.

၏
 16

(2) any instrument for the sale, transfer or other disposition, either

absolutely or by way of mortgage or otherwise, of any ship or vessel, or

any part, interest, share or property of or in any ship or vessel registered

under the Registration of ship Act, as amended by Subsequent Acts.

၏ ၏

3.3.2 Stamps and the mode of using them

Section 10 of this Act provides the duties how to be paid, that is to

say-

(1) Except as otherwise expressly provided in this Act, all duties with

which any instruments are chargeable shall be paid, and such

payment shall be indicated on such instruments, by means of

stamps:-

(a) according to the provisions herein contained ; or

(b) when no such provision is applicable thereto as the President of

the Union may by rule direct.

 17

(2) The rule made under Sub-section (1) may among other matters,

regulate,

(a) on the case of each kind of instrument the description of stamps

which may be used;

(b) in the case of instruments stamped with impressed stamps -the

number of stamps which may be used;

(c) in the case of bill of exchange or promissory notes written in

any Oriental Language- the size of the paper on which they are

written.

၏
 18

According to this Section all duties chargeable under this Act,

must be paid with stamps and the kinds of stamps must be in accordance

with this Act or the rules there under;

Cancellation of Adhesive Stamps

Section 12 of this Act describes the procee dings how to cancel the

stamps;

(a) whoever affixes any adhesive stamp to any instrument

chargeable with duty which has been executed by any person

shall, when affixing such stamp, cancel the same to that it

cannot be used again; (S. 12(1)(a)).

 19

(b) whoever executes any instrument on any paper bearing an

adhesive stamp shall, at the times of execution, unless such stamp

has been already cancelled in manner aforesaid, cancel the same so

that it cannot be used again. (Section 12(1) (b)).

Any instrument bearing an adhesive stamp which has not been

cancelled so that it cannot be used again shall, so far as such stamp is

concerned, by deemed to be unstamped. (S. 12 (2)).

The person required by Sub-section (I) to cancel an adhesive stamp

may cancel it by writing on or across the stamp his name or initials or the

name or initials of his firm with the true date of his so writing, or in any

other effectual manner. (Section 12 (3)).

 20

Therefore, according to this Section, the person so cancelling may

cancel it.

(1) by writing on or across the stamp his name or initial, or

(2) by writing on or across the stamp the name or initials of his firms

with true date of his so writing, or

(3) in any other effectual manner .

၃
 21

How to write an instrument stamped with impressed stamp

According to Section 13 of this Act, every instrument written upon

paper stamped with an impressed stamp shall be written in such manner

that stamp may appear on the face of the instrument and cannot be used

for or applied to any other instrument.

3.4 The Time of Stamping Instruments

The time of stamping instruments, executed in and out of the

Union of Myanmar, is provided under Sec tion 17, 18 and 19 of this Act.

၇
 22

Section 17 provides that all the instruments chargeable with duty

and executed by any person in the Republic of the Union of Myanmar

shall be stamped before or at the time of execution.

Section 18 also provides the instrument other than bill and notes

executed out of the Union of Myanmar.

Every instrument chargeable with duty executed only out of the

Republic of the Union of Myanmar, and not being a bill of exchange or

promissory note, may be stamped within three months after it has been

first received in the Republic of the Union of Myanmar. (S. 18(1)).

Where any such instrument cannot, with reference to the

description of stamp prescribe therefore, be duly stamped by a private

person, it may be taken within the said period of thr ee months to the
 23

Township Revenue Officer ( Collector), who shall stamp the same, in

such manner as the President of the Union may by rule prescribe, with a

stamp of such value as the person so taking such instrument may require

and pay for. (S. 18(2)).

၃
)

According to the provision of Section 19 of this Act, the first

holder in the Republic of the Union of Myanmar of any bill of exchange

payable otherwise than on demand or promissory note drawn or made out

of the Republic of the Union of Myanmar shall before the presents the

same for acceptance or payment or endorses, transfers or ot herwise

negotiates proper stamp and cancel the same: Provided that-

၏
 24

(a) if, at the time any such bill of exchange or note come into the

hands or any holder thereof in the Republic of the Union of

Myanmar, the proper adhesive stamp is affixed thereto and

cancelled in manner prescribed by Section 12 and such holder has

no reason to believe that such stamp was affixed or cancelled

otherwise than by the person and at the time required by this Act,

such stamp shall, so far as relates to such holder, be deemed to

have been duly affixed and cancelled;

(b) nothing contained in this provision shall relieve any person from any

penalty incurred by him for omitting to affix or cancel a stamp.

 25

3.5 Instruments not Duly Stamped

3.5.1 Examination and impounding of instruments –

Section 33

(1) Every person having by law or consent of parties authority to receive

evidence, and every person in charge of a public office, except an officer of

police, before whom any instrument, chargeable, in his opinion, with duty, is

produced or comes in the performance of his functions, shall, if it appears to him

that such instrument is not duly stamped, impound the same.

၃၃
 26

(2) For that purpose every such person shall examine every instrument so

chargeable and so produced or coming before him in order to ascertain whether it

is stamped with a stamp of the value and description required by the law in force

in 1*[India] when such instrument was executed or first executed:

၃၃

Provided that—

(a) nothing herein contained shall be deemed to require any Magistrate or Judge

of a Criminal Court to examine or impound, if he does not think fit so to do, any

instrument coming before him in the course of any proceeding other than a

proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal

Procedure, 1898 (5 of 1898.);

၃၆
 27

(b) in the case of a Judge of the Supreme Court of the Union, the duty of

examining and impounding any instrument under this section may be delegated

to such officer as the Court appoints in this behalf.

(3) For the purposes of this section, in cases of doubt,-- (a) 2* ( Ministry of

Finance and Revenue of the Union Government may, with the approval of the

Union Government may determine what offices shall be deemed to be public

offices; and (b) the 2*[ Ministry of Finance and Revenue of the Union

Government may, with the approval of the Union Government .] may determine

who shall be deemed to be persons in charge of public offices.

၃ -

၏ ၀

၀
 28

3.5.2 Special provision as to unstamped receipts –

Where any receipt chargeable with a duty of one anna is tendered to or

produced before any officer unstamped in the course of the audit of any public

account, such officer may in his discretion, instead of impounding the instrument,

require a duly stamped receipt to be substituted therefor.

3.5.3 Instruments not duly stamped inadmissible in evidence, etc. –

Section 35

No instrument chargeable with duty shall be admitted in evidence for any

purpose by any person having by law or consent of parties authority to receive

 29

evidence, or shall be acted upon, registered or authenticated by any such person

or by any public officer, unless such instrument is duly stamped:

၃၅

Provided that—

(a) any such instrument not being an instrument chargeable with a duty of one

anna only, or a bill of exchange or promissory note, shall, subject to all just

exceptions, be admitted in evidence on payment of the duty with which the same

is chargeable, or, in the case of an instrument insufficiently stamped, of the

amount required to make up such duty, together with a penalty of five hundred

Kyats, or, when ten times the amount of the proper duty or deficient portion

thereof exceeds five rupees, of a sum equal to ten times such duty or portion;

-
 30

(b) where any person from whom a stamped receipt could have been demanded,

has given an unstamped receipt and such receipt, if stamped, would be admissible

in evidence against him, then such receipt shall be admitted in evidence against

him on payment of a penalty of one rupee by the person tendering it;

(c) where a contract or agreement of any kind is effected by correspondence

consisting of two or more letters and any one of the letters bears the proper

stamp, the contract or agreement shall be deemed to be duly stamped;

 31

(d) nothing herein contained shall prevent the admission of any instrument in

evidence in any proceeding in a Criminal Court, other than a proceeding under

Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898;

ဃ ၃၆

(e) nothing herein contained shall prevent the admission of any instrument in any

Court when such instrument has been executed by or on behalf of the

Government, or where it bears the certificate of the Collector as provided by

section 32 or any other provision of this Act.

၏
 32

Key Terms

Judicial Stamp -

Non-Judicial Stamp -

Adhesive Stamp -

Impressed Stamp -

Banker -

Bill of Exchange -

Bill of Lading -

Bond -

Changeable -

Cheque -

Collector -

Conveyance -

Duly Stamped -

Executed -

Lease -

Mortgage Deed -

Promissory Note -

Receipt -
 33

Assignment Questions

1. Discuss the liability of Instrument to duty with the Stamp Act.

2. Explain how to use the Stamps.

3. How to cancel the Adhesive Stamps.

4. Discuss the Time of Stamping Instruments.

Short Questions

1. Discuss the Nature of Stamps.

2. Explain how to use the Stamps.

3. How to cancel the Adhesive Stamps.

 1

Chapter 4

Court Fees Act

Contents pages

4.1 Fees in the Courts and Public Offices 3

4.1.1 Fees in the High Court

(At Present Supreme Court) 3

4.1.2 Fees in other Courts and in Public Offices 4

4.1.3 Fees payable in the Civil Suits 5

4.1.4 Suits to be paid for market-value 7

4.1.5 Suits for moveable property 12

4.1.6 Suits between Landlord and Tenant 14

4.2. Exemption of Certain documents 16

4.3. Legal Facts Relating to Court Fees Act 21

 2

Court Fees Act

Introduction

The Court Fees Act was enacted in 1870 as India Act No. VII and

it was come into force in Myanmar Naing-Ngan since the 1st April 1870.

This Act provides how to institute in civil suits and filing criminal cases,

ad valorem fees or fixed fees must be paid a s Court Fees according to the

Court Fees Act, if the respective documents are of the kinds specified in

the First or Second Schedule of this Act.

 3

4.1. Fees in the Courts and Public Offices

4.1.1. Fees in the High Court (At Present Supreme Court)

Section 3 of this Act provides the levy of fees in the Supreme

Court on the original sight, that is to say.

The fees payable for the time being to the clerks and officers of the

Supreme Court or chargeable in such Court under No. 11 of First, and

Nos. 7,12,14,20 and 21 of the Second Schedule to this Act annexed shall

be collected in manner here after appearing.

Section 4 of this Act also provides to the changeable with fees

shall be filed in extraordinary, original criminal jurisdic tion or

extraordinary original civil jurisdiction: or in the exercise of its

jurisdiction as regards appeals from the judgments of one or more judges

of the said Court, or of a Division Court.

Section 5 provided that the procedure in case of difference as to

necessity or amount of fee.

 4

4.1.2 Fees in other Courts and in Public Offices

Section 6 of this Act provides on documents filed in other Courts

or in public Officers.
 5

Except in the Supreme Court, no document of any of the kinds

*
specified as chargeable in the First or Second Schedule to this Act

annexed shall be filed, exhibited or recorded by any public officer,

unless in respect of such document there be paid a fee of an amount not

less than that indicated by either of the said Schedules as the proper fee

for such document. (Section 6).

4.1.3 Fees payable in the Civil Suits

There are two kinds of fees payable in the Civil Suits -

namely:-

(1) Ad Valorem Court Fees and

(2) Fixed Fees

*
See at Appendix 'B'
 6

Ad Valorem Fees

Suits which must be paid with ad Volorem fees are provided in

Section 7 of this Act. Section 7 must be read together with the Schedule

1 of his Act.

According to Section 7 of this Act, suits which must be paid with

ad Valorem fees can be decided three portions as follows:-

(1) Suits to be paid Court Fees according to the market-value of the

subject-matter.

(2) Suits to be paid Court Fees according to amount at which the re lief

sought is valued by the party.

(3) Suits to be paid Court Fees according to Law.

-
 7

4.1.4 Suits to be paid for market-value

Section 7 of this Act provides the suits to be paid Court Fees

according to market-value of the subject-matter are as follows:-

(1) Suits for money

(2) Suits for moveable property other than money.

(3) for possession of land (where the land forms part of an estate paying

revenue to the Government, but is not a definite share of such estate and

is not separately assessed)

(4) Suits for possession of house or garden.

(5) Suits to enforce a right of pre-emption.

2
 8

4
ဃ
5

1. Suit for money

According to Section 7(1) provides that in suits for money

including suits for damages or compensation, or arrears of maintenance

or annuities, or of other sums payable periodically according to the

amount of claimed.

2. Suits for moveable property other than money

Section 7(3) of this Act provides to be payable in suits for

moveable property other than money, where the subject-matter has a

market-value according to such value at the date of presenting the plaint.

3
ဃ
4

5
၆
 9

3. Suit for possession of land

Under Section 7(5) of this Act provides that -

In suits for the possession of land, houses and garden according to

the value of the subject-matter and such value shall be deemed to be -

(a) where the subject-matter is land,

(b) where the land forms an entire estate, c a definite share of an

estate, paying annual revenue to Government on forms part

of such estate and is recorded as aforesaid and such revenue

is settled ten times the revenue so payable;

but not permanently five times the revenue so payable.

(c) where the land pays no such revenue, or has been partially

exempted from much payment, or is charged with any f ixed

payment is lien of such revenue, and net profits have arisen

from the land during the year next before the date of

presenting the plaint fifteen times such net profits;

 10

but were no such net profits have arisen therefrom the

amount at which the Court shall estimate the land with reference to the

value of similar land in the neighborhood;

(d) where the land forms part of an estate paying revenue to

Government, but is not definite share of such estate and is

not separately assessed as above mentioned the market-value

of the land;

" Explanation " --- The word 'estate' as used in this paragraph,

means any land subject to the payment of revenue, for which the

proprietor or farmer shall have executed a separate engagement to

Government, or which, in the absence of such engagement, shall have

been separately assessed with revenue;

 11

4. Suits for possession of house or garden

According to Section 7(5) (e) of this Act, the amount of fee

payable under this Act in suits for possession of house or garden shall be

computed according to market value of the house or garden.

(
 12

In the case of
*
"Daw Than Tin V. Daw Ohn Tin"

It was held that, a suit for possession of a house in governed by

Section 7(5) (e) of the Court Fees Act. In this case decided that in such a

suit, the appellant's payment of court-fees according to one rooms price

is not sufficient. It must be according to the market-value of the whole

house.
6

4.1.5.Suits for moveable property

According to Section 7(4) of this Act, the amount of fee payable

under this Act suits for moveable property shall be computed as follows:

*
1966 B.L.R. (C.C) P. 332
6
၆ - -
 13

(a) is suits for moveable property where the subject-matter has no

market-value, as for instance in the case of documents relating to

title.

(b) in suits to enforce the right to share is any property on the ground

that it is joint family property.

(c) in suits to obtain a declaratory decree or order, where

consequential relief is prayed,

(d) in suits to obtain injunction -

(e) in suits for a right to some benefit not herein otherwise provided

for to arise out of land, and

(f) suits for account -

According to the amount at which the relief sought is valued in the

plaint or memorandum of appeal.

Therefore, in all such suits the plaintiff shall state the amount

which he values the relief sought.

 14

10
ဃ

11

12

4.1.6 Suits between Landlord and Tenant

According to Section 7(11) of this Act the amount of fee payable

under this Act in suits between landlord and tenant as follows:-

10
ဃ
11

12
 15

(a) for the delivery by a tenant of the counterpart of a lease,

(b) to enhance the rent of a tenant having a ri ght of occupancy,

(c) for the delivery by a landlord of a lease,

(d) for the recovery of immoveable property from a tenant, including a

tenant holding over after the determination of a tenancy.

(e) to contest a notice of ejectment.

(f) to recover the occupancy of immoveable property from which a

tenant has been illegally ejected by the landlord, and

(g) for abatement of rent, -

ဃ
 16

4.2. Exemption of Certain documents

Section 19 of this Act provides the exemption of certain

documents.

Nothing contained in this Act shall render the following

documents. Chargeable with any fee –

(1) Power- of - attorney to institute or defend a suit when executed

by officer, warrant-officer, non-commissioned officer, or

private of the Myanmar Army not in civil employment.

(2) Written statements called for by the Court after the first hearing of

a suit.

(3) Probate of a will or letters of administration where amount of value

of the property in respect of which the probate or letters shall be

granted does not exceed one hundred thousand kyats.

(4) Application of petition to Collector or other officer making a

settlement of land-revenue, or to a Commissioner of Revenue,

relating to matters connected with the assessment of land or the

ascertainment of rights thereto or interests therein, if presented

previous to the final confirmation of such settlement.

(5) Application relating to a supply for irrigation, of water belonging

to Government.
 17

(6) Application for leave to extend cultivation, or to relinquish land,

when presented to an officer of land-revenue by a person holding,

under direct engagement with Government, land of whic h the

revenue is settled, but not permanently.

(7) Application for service of notice of relinquishment of land or of

rent.

(8) Written authority to an agent to distain.

(9) First application other than-petition containing a criminal charge or

information for the summons of a witness or other person to attend

either to give evidence or to produce a document or in respect of

the production or filling of an exhibit not being an affidavit made

for the immediate purpose of being produced in Court.

(10) Bill-bonds in criminal cases, recognizance to prosecute or

evidence, and recognizance for personal appearance or otherwise.

(11) Petition, application, charge or information respecting any offence

when presented, made or laid to or before a police officer.

(12) Petition by a prisoner, or other person in duress or under restraint

of any Court or its officers.

(13) Complaint of a public servant as defined the Penal C ode, a

municipal officer, or an officer or servant of a railway

administration.

(14) Application for permission to cut timber in Government forests, or

otherwise relating to such forests.

(15) Application for the payment of money due by Government to the

applicant.
 18

(16) Petition to appeal against a municipal tax.

(17) Application for compensation under any law for the time being in

force relating to the acquisition of property for public purposes.

(18) Petitions under the Christian Marriage Act, Section 45 and 48.

Therefore, we can see that, the documents, above mentioned

are exempted to pay for Court Fees according to this Act.

-
 19

(
 20

)
 21

4.3. Legal Facts Relating to Court Fees Act

The following are the main legal facts in chargeable with Court

Fees according to this Act.

(1) Every question relating to valuation for the purpose of determining

the amount of any fee changeable under this Chapter on a plaint or

1
memorandum of appeal shall be decided by the Court.

(2) If an appeal or plaint, which has been rejected by the lower Court

on any of the grounds mentioned in the Code of Civil Procedure, is

ordered to be received, or if a suit is reminded in appeal, the

Appellate Court shall grant to the appellant a certificate,

1
Section 12 of this Act.
 22

authorizing him to receive back from the Township Revenue

1
Officer the full amount of fee paid on the memorandu m of appeal.

(3) Where an application for a review of judgment is admitted, the

Court, unless the delay was caused by the applicant' slashes, may

in its discretion, grant him a certificate authorizing him to receive

back from the Township Revenue Officer so much of the fee paid
2
on the application as exceeds the fee.

(4) Where an application for a review of judgment is admitted, the

Court reverses or modifies its former decision on the ground of

mistake in law or fact, the applicant shall be entitled to a

certificate from the Court authorizing him to receive back from the

Township Revenue Officer so much of the fee paid on the

application as exceeds the fee payable on any other application to

3
such Court.

(5) No document which ought to bear a stamp under this Act shall be
4
of any validity, unless and until it is properly stamped.

(6) But if any such document is through mistake or inadvertence

received, filed or used in any Court or office without being

properly stamped, the presiding judge or the head of officer, or

5
order that such document be stamped as he may direct.

1
Section 13 of this Act.
2
Section 14 of this Act.
3
Section 15 of this Act.
4
Section 28 of this Act.
5
Section 14 of this Act.
 23

(7) On such document being stamped accordingly, the same and every

proceeding relative thereto shall be as valid as if it had been

6
properly stamped in the first instance.

(8) The President of the Union may, from time to time by notification

in the Gazette, reduce or remit all or any of the fees mentioned in

the First and Second Schedules to this Act anne xed, an may in like
7
manner cancel or vary such order.
1
(9) Fee payable under this Act in suits for money.

(10) In suits for moveable property other than money, where the

subject-matter has a market-value, according to such value at the

2
date of presenting the plaint.

(11) Suits in possession, of the market-value of the land, houses or

3
garden.

(12) In suits to obtain a declaratory decree or order where the

4
consequential relief is prayed.

(13) Suit for a right to some benefit (not herein otherwise provided for)
5
to arise out of land.

(14) Suits to payable for fixed fees in accordance with Second

6
Schedules.

6
Section 28 of this Act.
7
Section 35 of this Act.
1
Section 7(1) of this Act.
2
Section 7(3) of this Act.
3
Section 7(5) (d), (e)
4
Section 7(4)
5
Section 37(4)(d)
6
Schedule II
 24

13

14

15

16

13

14

15

16
 25

17

18

19

17

18

19
 26

20

21

22

23

20

21

22

23
ဃ ၆
27
 28

Key Terms

The Court Fees -

Ad valorem Court Fees -

Fixed Fees -

Market Value -

Suits for money -

Moveable property -

Possession -

Exemption -

Documents -
 29

Assignment Questions

1. Explain the fees in the Courts.

2. What amount payable on suits for possessions of land?

3. What amount payable on suits between landlord land tenants?

Short Questions

1. Discuss the fees payable in the Civil Suits.

2. What do you understand by the “Ad valorem Fees?”

3. How to pay the Court Fees on suits for houses?

 1

Chapter 5

Income-Tax Law

Contents pages

5.1 Title, Applicability and Definitions 2

5.2 Charge of Income-tax 9

5.3 Powers and Duties 17

5.4 Computation of Income 17

5. 5 Payment of Tax at the time of receiving Income 26

5.6 Furnishing of Return of Income and Annual

Salary Statement 30

5.7 Assessment of Income-tax 31

5.8 Procedures relating to Assessment of Income-tax

in Certain Special Cases 34

5.9 Agreement made between States 44

5.10 Appeal, Revision and Reference 45

5.11 Refund 54

5.12 Matters relating to Persons Leaving the Union of Myanmar 55

5.13 Recovery of Tax 57

5.14 Supplemental Powers 63

5.15 Offences and Penalties 67

5.16 Power to make Rules and Regulations 73

5.17 Miscellaneous 73
 2

Income-Tax Law

5.1 Title, Applicability and Definitions

1. (a) This Law shall be called the Income tax Law.

၁။ ( ) ၀ ။

(b) This Law shall come into force with effect from 1974-75

assessment years.

( ) ၁၉၇၄-၇၅

2. This Law shall extend to the whole of the Republic of the Union of Myanmar

and shall also apply to all the citizens of the Republic of the Union of Myanmar

residing outside the Republic of the Union of Myanmar.


။ ၀

။ **

3 The following expressions contained in this law shall have the definitions

meanings given hereunder;-


၀၁၁ ( ) ။
 3

(a) Myanmar means the Republic of the Union of Myanmar;

(b) This Law means the Income-tax Law;

(c) Rules mean rules made under this Law;

(d) Tax means income-tax payable under this Law, and includes penalty imposed

under this Law;

(e) Assessee means a person who, having received assessable income under this

Law, is liable to pay income-tax on that income;

(f) Income received means income received or deemed to be received, or income

accrued or arisen or deemed to have accrued or arisen;

(g) Year means the financial year;

(h) Income year means the year in which income is received;

(i) Assessment year means the year next following the income year;

(j) Association of persons includes partnerships, joint-ventures, companies,

associations formed by individuals, registration of association or institution by

existing law, co-operative societies and Government economic enterprises;

(k) Resident foreigner means:-

(i) in the case of an individual, a foreigner who resides in Myanmar for not

less than one hundred and eighty three days during the income year;

(ii) in the case of a company, a company formed under the Myanmar

Companies Act or any other existing law wholly or partly with foreigner

share-holders;

(iii) in the case of an association of persons other than a company, an

association formed wholly or partly with foreigners and where the control,

management and decision making of its affairs is situated and exercised

wholly in the Union of Myanmar;

 4

(l) Non-resident foreigner means any foreigner in the Union of Myanmar;

(m) Non-resident citizen means any citizen of the Union of Myanmar who resides

and earns income outside Myanmar for any time in a year;

(n) Total income means the following income received in the income year:-

(i) in the case of a resident citizen or a resident foreigner, all income received

within and without the Republic of the Union of Myanmar;

(ii) in the case of a non-resident citizen, all income as prescribed by the Rules;

(iii) in the case of a non-resident foreigner, or a foreigner or a foreign

economic organization investing under the Republic of the Union of

Myanmar Foreign Investment Law, all income received within the Union

of Myanmar;

(o) Company means a company as defined in the Myanmar Companies Act or in

any other existing law. This expression includes any foreign economic

enterprise carrying on business in Myanmar which is treated as a company by

the Union of Government for the purposes of this Law;

(p) Citizen includes an associate citizen or a naturalized citizen for the purpose of

this Law;

(q) Capital Asset means any land, building and its rooms therein, vehicle and any

Capital assets provided as a contribution to an enterprise. In this expression,

shares, bonds, security papers and similar instrments are also included;

(r) Capital gain means any profit realized from the sale, exchange or transfer of

any capital asset. Any inheritance, gift without consideration and donation

shall not be included within the meaning of the term transfer.

(s) The township head of the internal revenue office means the officer in charge

of the relevant township internal revenue office who is assigned duty to assess
 5

the tax payable by the tax payer, or the heads of the respective offices who are

assigned duty to assess the tax in the inernal revenue office for medium tax

payers or in the internal revenue office for large tax payers under this law”.

(u) Security papers means the security papers as defined in the Securities

Exchange Law;

(v) Assessment means calculation and assessment of tax by the head of the

township internal revenue office under this law and, additionally, self-assessment

by the tax payer in the income declaration form in accordance with the provisions

stipulated in the law, as well as temporary assessment during the income year;

(w) The Union Tax Law means the law relating to taxes which is to be submitted

to the Pyidaungsu Hluttaw yearly by the Union Government in accordance with

the provisions stipulated in the constitution.

( ) ** ။

( ) ၀ ။

(ဂ)

(ဃ) ၀

၀ ။

( ) ၀ ၀

၀ ၀ ။

( )၀ ၀ ၀

၀ ၀

။
 6

( ) ။

(ဇ) ၀ ၀ ။

( ) ၀

။
*
( ) ဂ

၀ ။
**
(ဋ) -

(၁) ဂ ၀

( )

( ) ဂ ၀၀

၀ ဂ ။

(ဍ)

*
၀၁၁ ၄ ။
**
၁၉ ၉ ၄ ။
 7

(ဌ)
*
၀

(ဎ) ၀ ၀ ၀

(၁) ( )

( ) ဌ

၀
 
( )

၀ ။

( )

*
၀၁၁ ( ) ။

၁၉ ၉ ၅ ။

၀၁၁ ( ) ။

၁၉ ၉ ။
 8

၀ ။
****
( )

၀ ။
*****
( )

။
*
( )

၀ ။

**( ) ဌ

ဌ ၀

( ) -

****
၁၉ ၉ ၅ ။
*****
၀၀ ။

*
၁၉ ၉ ။
** ၀၁ ။
 9

(၁)

( )

( )

( ) ဌ

၀ ။

(ဗ)

5.2 Provision relating to Charge of Income Tax

Chapter II includes charge of Income-tax, Exemptions and Reliefs

5.2.1 Charge of Income-tax

 10

4.(a) Specifying, amending and substituting the following income and income tax

rates according to the Union Tax Law for any assessment year-

(1) Total taxable income to be assessed;

(2) Income tax rate for each type of income;

(3) Income tax rate for income on which the tax is payable in a foreign currency.

( )

(၁)၀ ၀

( )၀ ၀

( )

(b) When specifications, amendments and substitutions are done in accordance

with sub-section (a), all taxable total income earned during the income year

related to the assessment year must be assessed and the specified rate must be

applied for each type of income.

( ) ( )

5. (a) This Law does not apply to the following types of income-

(i) Income achieved by any religious or charitable organization and used

 11

exclusively for matters of religion or charity;

(ii) Income achieved by a local authority;

(iii) Pension, Money from the commutation of a pension and Gratuity;

(iv) Compensation obtained for death or injury;

(v) Money obtained from an insurance;

(vi) Income of casual, non-recurring nature with the following exceptions:-

(aa) capital gains;

(bb) income from an enterprise;

(vii) Share of the after-tax profit of an association.

၅။ ( ) -

(၁)

( )

( )
1
(Gratuity)

(၄)

(၅)

( )

---

( )

( )

1
၀၁ ၅( ) ။
 12

(၇) ဂ ၀ ။

(b) (1) Any person earning income for which the Union Tax Law grants

tax exemption, relief or other benefits is entitled to such exemption, relief or

benefit;

(2) The Union Government has the right to grant exemptions or relief from

income tax or grant other benefits related to the tax for the following income

types-

(aa) Income obtained from donations for social, religious, health or educational

causes in the country from domestic or foreign employers or international

organizations;

(bb) aid provided for the country by domestic or foreign organization;

(cc) interest paid on soft loans or official development aid loans;

(dd) donated property or donations provided by domestic or foreign organizations

in the event of natural disasters.

(c) An exemption from income tax must be granted to newly established small-

and mid-sized business for three consecutive years, including the starting year,

for income specified as exempted by the Union Tax Law;

Under section 5 (d) of the Income Tax Law, where benefits in respect of

income tax are prescribed under any law of the United Nations, Diplomats,

Consulate, International Organisations, and Investment and Special Economic

Zone Law, those benefits shall be allowed in accordance with such provisions.

Notwithstanding the benefits in respect of income-tax prescribed under any other

law except aforementioned laws, the assessment shall follow the provisions

stipulated under the Union Taxation Law and Income Tax Law.
 13

*
( ) (၁)

( ) ၀

( )

( )

(ဂဂ) ၀

(ဃဃ) ၀

။
*
(ဂ)

*
၁၉ ၉ ၇ ။

*
၁၉ ၉ ၇ ။
 14

၀ ။
**
(ဃ) ဂ

6. (a) In the Union Tax Law in any assessment year shall take under the

allowance the matter of specify, amended and added;

(1) basic allowance in respect of an association of persons;

(2) basic allowance in respect of an individual and allowance in

respect of the parents, spouse and children must be living together with the

taxpayer in order to qualify to the allowance.

(b) shall be deleted;

(c) The following amount shall be deducted from the total income and the tax

shall be computed on the remaining amount of income:-

(i) basic allowance in the case of an association of persons;

**
၀၁ ၅( ) ။
 15

(ii) in the case of an individual:---

(aa) basic allowance;

(bb) basic allowance in respect of an individual and allowance

in respect of the parents, spouse and children must be living together

with the taxpayer in order to qualify to the allowance;

(cc) premium paid for the life insurance Policy of an assessee and

his spouse;

(dd) contribution towards savings funds as prescribed by the Rules.

Provided: Sub-section (a) & (c) shall not apply mentioned in section to the

computation on capital gains under section 13 and non-resident foreigner

mentioned under Section 26 .

(d) shall be deleted.

6A. When assessing the taxable income, money donated for any religious or

charitable organization sponsored by a state organization of any level or

recognized by the Ministry of Planning and Finance of the Union Government by

virtue of a notification may be deducted from the amount calculated in

accordance with sub-section (c) of section 6. The deductible donation shall not exceed

25% of the total income of the tax payer.

Explanation: In the expression “charity”, aid for the public good such as aid towards
education and health and aid for the poor and persons affected by natural disasters are
included.

***
။( )

***
၀၀ ၅ ။
 16

(၁) ဂ

( ) ဂ

( ) ။

(ဂ)

(၁) ဂ

( ) ဂ -

( )

( )

*
(ဂဂ)

(ဃဃ)

(ဃ) ။

*
၀၁၁ ။
 17

။ ( ) (ဂ) ၁

- ( )။ (ဂ)

။ ။

၀ ။

5.3. Powers and Duties

Section 7
 18

The Union of Government of the Ministry of Planning and

Finance may agree with the Union of Government by

notification, from committees to exercise the powers and

perform the duties contained in this law.

If necessary, by agreement with the Union Government,

the Ministry of Planning and Finance of the Union Government

by notification delegate the powers and duties of any of the

committees to any individual.

*
၇။

။
**

5.4. Computation of Income

Chapter IV provides the computation of income under Income Tax Law as

follows;

*
၀၁၁ ၇ ။
**
၀၁၁ ၇ ။
 19

8. (a) Income shall be computed under each of the following heads of income:-

(i) salaries;

(ii) profession;

(iii) business;

(iv) rental fees from property;

(v) capital gains;

(vi) income which has escaped assessment;

(vii)other sources of income.

(b) Income from profession, income from business and income from other means

shall be aggregated and the tax shall be assessed on the total amount. Income

under the remaining heads shall be assessed separately in accordance with each

income head.

***
။( ) -

(၁)

( ) ၀

( )

(၄)

(၅)

( ) ၀

(၇) ၀

***
၁၉ ၉ ၉ ။
 20

( ) ၀ ၀

၀ ၀ ၀

၀ ။

Under section 9 of the Income Tax Law, the tax shall be payable by any

person under the head salaries in respect of salaries, wages, annuity, bonus,

award and any fees, commissions received in lieu of or in addition to any salary

and wages received or receivable by him from his employer.

၉။

10. (a) The tax shall be payable by any person under the head profession in

respect of the income received from his profession.

(b) In computing that income, expenditure incurred for the purpose of earning

that income, and depreciation allowance prescribed by the Regulations, shall be

deducted.

(i) capital expenditure;

(ii) personal expenditure;

(iii) expenditure not commensurate with the extent of the professional service.

၁၀။( )

။
 21

( )

(၁) -

( )

( ) ။

Explanation 1.- Profession means rendering of service for fees with one’s skill

and includes services rendered for fees by a doctor, a nurse, a lawyer, an

engineer, an architect, a film artiste, a theatrical artiste, a writer, a painter, a

sculptor, an accountant, an auditor, an astrologer, a teacher, etc.

Explanation 2- In counting income from profession, only the income received by

way of fees other than salary shall be included.

Explanation 3- If the professional service is not rendered personally but by

employing some other person, it shall be treated as a business and assessed

accordingly.

၁။ ၀

၀ ဂ

။ ၀ ၀
 22

။ ၀

11. (a) The tax shall be payable by any person under the head business in respect

of his income derived from business.

(b) In computing that income, expenditure incurred for the purpose of earning

that income, and depreciation allowance as prescribed by the Regulations, shall

be deducted.

Provided that the following shall not be deducted;

(i) capital expenditure;

(ii) personal expenditure;

(iii) expenditure not commensurate with the volume of business ;

irrelevant expenses and expense incurred not for production of the

income;

(iv) payment made to a member of an association of persons other than a

company and a co-operative society. Provided that payment made for

professional service shall be deducted.

Explanation- In the expression “ business”-

(a) Any trading business, commercial business or production business and any

similar business as well as any services business is included.

 23

(b) Furthermore, buying or transferring security papers, or investing in security

papers to obtain interest is included if such acts are performed repeatedly in a

year as an economic business.

၁၁။( ) ၀

( ) ၀ ၀

ဌ ။

(၁)

( )

( )

(၄) ဂ

၀ ဂ

။
*
။ -

( ) ၀

၀ ၀

၀ ၀ ။

*
၀၁၁ ။
 24

( )

၀ ။

12. (a)The tax shall be payable by any person under the head rental fees from

property, in respect of the income received by letting out land or land and

building.

Explanation---Letting out land or land and building includes not a private land or

once again of letting out building.

(b) In computing that income, the expenditure incurred for earning that

income shall be deducted from the actual rent receivable or the annual rental

value as assessed by the local authority, whichever is greater.

Provided that the following shall not be deducted:-

(i) capital expenditure;

(ii) personal expenditure;

(iii) inappropriate expenditure.

၁ ။( )

၀ ။
**
။

( ) ၀

**
၀၁၁ ၉ ။
 25

(၁)

( )

( ) ။

13. The tax shall be payable by any person under the he a capital gains in respect

of the gains realized from the sale, exchange or other ways and means of transfer

of one or more capital assets within a year. Capital gains shall be computed and

assessed in accordance with the Rules.

***
၁ ။
****

ဌ ။

14. Tax under the head of “income which has escaped assessment” shall be

assessed on the value of immovable or movable property (including money) if it

cannot be ascertained how the respective person obtained this property. The

income shall be calculated in accordance with the rules stipulated under this

section.

၁၄။

***
၁၉ ၉ ၁၀ ။
****
၀၁၁ ၁၀ ။
 26

14A. The tax shall be payable under the head other sources of income in respect

of the income which is not included under any of the preceding heads of income.

In computing that income, expenditure incurred for the purposes of earning that

income shall be deducted. Provided that the following shall not be deducted:-

(a) Capital expenditure;

(b) Personal expenditure;

(c) Inappropriate expenditure;

*
၁၄- ။

( ) -

( )

(ဂ) ။

14B. Income derived from property or business transferred by and assessee,

either directly or indirectly, without sufficient cause, to the spouse and unmarried

children, shall be included in the total income of the assessee and the assessment

shall be made on that total income.

*
၁၉ ၉ ၁၁ ။
 27

**
၁၄- ။

5. 5. Payment of Tax at the time of receiving Income

15.(a) Whoever has a total income or capital gains chargeable to tax in any year

shall be liable to pay income-tax at the time of receiving that income.

*
၁၅။( )

( )

Section 16 of the Income Tax Law shall be substituted as follows-

16(a) Any person who is responsible to disburse the money shall, for any type of

income, including income under the head “salary”, withholds the tax to be paid

from the disbursed money at the time of disbursement. The tax to be paid on the

**
၁၉ ၉ ၁ ။

*
၀၁၁ ၁၁ ။
 28

respective annual income of the relevant person under the respective head shall

be estimated and withheld in the most equal installments possible. However, if

more or less tax was withheld than would have been required according to the

actual amount in the income year, the installment may be decreased or increased.

(b) The Ministry of Planning and Finance of the Union Government may issue

notifications with the approval of the Union Government for withholding tax

matters for any type of income under the remaining heads except for income

under the head “salary”.

(c) The person who withheld the money in accordance with sub-sections (a)

and (b) shall pay the respective amount to the Union Government in accordance

with the regulations with the stipulated time and by the stipulated method and

shall abide by all the stipulations concerning this matter.

(d) Anyone failing to withhold and pay in accordance with sub-sections (a) and

(b) without sufficient reason shall be regarded as defaulter who failed to pay this

tax. The Minister for Planning and Finance of the Union Government may, by

notification, fix the fine to be paid for this default.

Explanation--- The “person who is responsible to disburse the money” under this

section means the owner himself if the business is owned by an individual and

the association of persons if it is owned by this association. In case of the Union

government or a regional authority, the relevant management staff is responsible

to disburse the money.

၁ ။( )( )

။
 29

( )

(ဂ) ( ) ( )

(ဃ) ( ) ( )

*
။

*
၀၁၁ ၁ (ဂ) ။
 30

။ ။

ဂ ။

After Section 16 of the Income Tax Law, Section 16A and 16B shall be inserted as
follows-
Section 16 A (a) Income-tax payable under Section 15 shall be the tax due as computed
on the estimated total income of that year.
Such tax:
(i) Shall be paid quarterly and the tax payment shall be made within 10 days after
the end of quarter in accordance with the prescribed procedures.
(ii) Tax paid within the specified days as mentioned above in sub-section (i) shall be
considered as the tax paid in the respective income year.
(b) If the gain is realized from capital asset, the estimated tax shall be computed on
such capital gains and paid within 30 days starting from the date of the sale, exchange or
transfer by any other means of capital asset”.
(c) If the tax to be paid in accordance with this section is not paid or the amount
paid is less than the tax assessed, 10% of the unpaid amount shall be additionally levied as
a fine.
16B The Minister for Planning and Finance of the Union Government may, with the
approval of the Union Government, issue notifications specifying the methods to be
followed for the payment of tax via the withholding mechanism or via advance payments.

၁ - ။ ၁၅

(၁) ၁၀
 31

( ) (၁)

( )

(ဂ)

၁ - ။ ဌ

5. 6. Furnishing of Return of Income and Annual SalaryStatement

Under Section 17 (a) of the Income Tax, the return of income

of any person who has assessable total income in the income year,

or any association of person including the company, whether they

 32

got the profit for that year or not, except for religious or charitable

organizations, shall be furnished as prescribed by the Regulations

within three months from the end of that year.

Provided that such person who has income only under the head salaries is

not so required.

(b) Notice may be served upon any person to furnish his return of income in

accordance with the Regulations.

(c) Whoever, having furnished a return of income, wishes to amend his return

for some mistakes in the return, may furnish a revised return before the

assessment is made.

၁၇။( )

( )

(ဂ)
 33

18. An employer shall furnish yearly the annual salary statement as prescribed by

the Regulations within three months from the close of the income year.
*
၁ ။

5.7. Assessment of Income-tax

19. (a) If it is satisfied that the return of income furnished under section 17 is

correct and complete, incom-tax shall be assessed on the basis of that return.

(b) Many request, at any time within 3 years after the end of the relevant

assessment year from the person who has to pay income tax for the income year

or at the time of income earned or from the person who has been requested by the

head of the township internal revenue department to submit the income

declaration form, to: produce supporting evidence, accounts, and a list of the

property that is not included in the accounts. May request this person’s

attendance for the purpose of examination and assessment. The list of property

mentioned in this sub- section may be prescribed by the Ministry of Finance in

income tax regulations.

(c) If the income can be correctly computed from the supporting evidence

produced by the assessee under subsection (b), income-tax shall be assessed

on the basis of that supporting evidence.

If the income cannot be correctly computed from the supporting evidence

*
၁၉ ၉ ၁၄ ။
 34

furnished by the assesse, income-tax shall be assessed by the Township

Revenue Officer after scrutinizing other supporting evidence required by the

Assessment Committee.

(d) The head of the township internal revenue department shall assess the

income tax based on the available supporting documents with regard to anyone

who failed to submit the income declaration form in accordance with sub-section

(a) of section 17, sub-section (b) of section 17, or who failed to heed the request

in the notice given in accordance with sub-section (b) of this section. The

Ministry of Finance may issue notifications specifying the methods of

assessment.

၁၉။ ( ) ၁၇

( )၀ ၀ ၀

၀ ၀

၀ ။

ဌ ၀ ဌ

(ဂ) ( )
 35

(ဃ) ၁၇ ( ) ( )

( )

20. (a) If there is any loss from a source of income year, such loss shall be set-

off against the income from the remaining sources of income of that year.

In doing so, any losses which cannot be thus set-off shall be set-off in

stages during the following three years, among the sources of income

starting with the income at the lowest income-tax rate and then on to

income at higher income-tax rates.

Provided that this section shall not apply to the following:-

(i) loss in respect of capital assets;

(ii) the share of loss from an association of persons.

 36

*
။

( )

( ) ဂ ။

5. 8. Procedures relating to Assessment of Income-tax in certain

Special Cases

21. (A) if it is found necessary, on account of the fraudulent intention of any

person, to make assessment of re-assessment on the income which has

escaped assessment of tax under this Law, assessment or re-assessment

may be made at any time after the end of the relevant assessment year.

Provided that such assessment shall be made only after obtaining prior

sanction from the committee authorised for this purpose by the Ministry

of Planning and Finance of Union Government. Prior sanction shall only be

accorded where it is of opinion that in the circumstances of each particular

case, there is an intention to defraud in order to evade tax under this Law.

*
၁၉၉၁ ၄ ။
 37

Provided that the assessment as aforesaid shall be made at the rates of income-

tax prevailing in the relevant assessment year.

၁။( )

**
။

။
*
။ ။ ( )

(၁)

( )

**
၀၁၁ ၁၄ ။
*
၀၀ ။
 38

ဌ ဌ

(b) In any case where sub-section (a) is not applicable, assessment or re-

assessment as mentioned above shall be made only within three years from

the end of the following matters:-

(i) income chargeable to income-tax has escaped assessment;

(ii) income has been under-assessed; or

(iii) assessment has been made at a low rate;

(iv) relief in excess of the amount actually allowable under the Law has been

allowed.

( ) ( )

(၁)

( )

( )
 39

(၄)

22. (a) Any person authorized under section 7 may, within three years from the

date of order passed by him or by any equivalent authority under the Myanmar

Income-tax Act or under This Law, rectify any mistake apparent from the record

and shall within such period rectify any such mistake which has been brought to

his notice by the assessee.

(b) Amending the original amount of penalty imposed under sub-section (a) of

section 46, or sub-section (b) of section 47, or sub-section (c) of section 47 on

account of the difference of tax between the final assessment made under an

order of appeal, revision or reference and the original assessment, shall be

deemed to be a rectification of mistake apparent from the record within the

meaning of sub-section (a). For this purpose the period of three years mentioned

in sub-section (a) shall be computed from the date on which the final order has

been passed.
*
။( ) ၇

*
၀၁၁ ၁၅ ။
 40

( )

၄ ( ) ၄၇

( ) ၄၇ (ဂ)

( )

( )

23. Income-tax shall be assessed on the legal representative or on the person

legally responsible in connection with the relevant income in the following

cases:-

(a) deceased person;

(b) legally incapable person, sue to certain reason;

(c) a person who cannot undertake lawful responsibility in providing

solution.

Provided that income-tax payable under this section by the legal

representative or legally responsible person shall only be to the extent to which

the estate which they have taken responsibility is capable of meeting the tax

assessed.

-
 41

( )

( )

(ဂ) ။

24. When a business is discontinued, every person who has a share in that

business at the time of discontinuance shall in jointly and severally liable to

assessment of income-tax and for the amount of tax payable.

၄။

25. When a business is succeed by a person from the owner of that business and

in case if there is difficulty in communication with that owner the successor shall

be treated as the agent of the previous owner and income-tax shall be assessed for

the following periods:-

(a) the period in the income year of succession within which the previous

owner carried on the business;

(b) the income year preceding the income year of succession;

၅။
 42

( )

( ) ။

26. (a) If a non-resident foreigner has received Income by any of the following

means, that income received shall be deemed to be income received within

Myanmar and income-tax Shall be assessed accordingly ;-

(i) income received from any capital asset within Myanmar ;

(ii) income received from any source of income within Myanmar ;

(b) In lieu of the non-resident foreigner, income-tax may be assessed and

collected from his agent in respect of the said incomes. Any arrear of income tax

may be recovered from any assets of the non-resident foreigner which are, or may

at any time come, within Myanmar.

။( )

(၁)

( )

( )

။
 43

27. The head of the township internal revenue office may, after informing

any one of the following persons its intention of treating him as agent of the non-

resident foreigner or non-resident citizen, deem him as such agent for all income-

tax purposes :-

(a) any person delegated in anyway by a non-resident foreigner or by a

non-resident citizen in respect of his income;

(b) any person who has business connection with that non-resident person ;

(c) any person who is receiving income on behalf of that non-resident

person ;

Provided that the person who is intended to be treated as agent shall not be

treated as such under this section without giving him an opportunity of being

heard.

၇။ ဌ

( )

( )

(ဂ)

။
 44

28. (a) If a non-resident foreigner carries on Business as owner or charterer of a

ship in any year he shall be assessed in accordance with the Rules.

(b) A person who is authorised to grant port clearance certificate shall deliver

such certificate only when the master of the ship, the ship owner, or the agent of

the charterer, has produced the certificate that income-tax has been fully paid, or

satisfactory arrangement has been made for the payment of income-tax.

။( )

( )

29. Where the Ministry of Finance of the Union Government prescribes by

notification in of any class of assessees or any class of income, that the income

year shall be the assessment year or that assessment may be made within the

income year, or how a particular assessment shall be dealt with, the assessement

concerned shall be made in accordance shall be made in accordance with the

prescribed rules.

၉။ ဌ
 45

30. (a) Assessment and collection of tax for the following shall be made in

accordance with the prescribed rules or regulations:-

(i) economic organizations of the Government;

(ii) a foreigner or an association of persons formed abroad, participating in

Governmet or Government sponsored project, business enterprise or

any particular work with the approval of the Government;

(iii) co-operative society;

(iv) non-resident citizen;

(v) person receiving income in foreign currency.

(vi) a person who is allowed to compute and pay the tax on the income that

he earned based on the self-assessment under this Law.

(b) Provisional assessment in respect of any person who has furnished a return

of income shall be made as prescribed by the Regulations.

*
၀။ ( )

*
၁၉ ၉ ၁၅ ။
 46

(၁)

( )

ဂ ။

( )

(၄)

(၅)

( )

( )

ဌ ။

5. 9. Agreement made between States

Under Section 31 of the Income Tax Law, if the Union Government enters

into an agreement with any foreign state or with any international organization

relating to income-tax including Avoidance of Double Taxation Agreement or

agreement for exchange of information on taxation or loan agreement at low

interest rate, the terms of the said agreement shall be followed, notwithstanding

anything contained in any other provisions of the Law.

 47

*
၁။ -

( )

( ) ။

5.10. Appeal, Revision and Reference

32. (a) If the assessee is not satisfied with any order concerning him passed by

the head of the township internal revenue office , he may appeal to the head

of the Union territory internal revenue office or the head of the

region or state internal revenue office or the head of the internal

revenue office for medium taxpayers, and the head of the internal

revenue office for large tax payers in accordance with the regulation

prescribed.

*
၀၁၁ ၁ ။
 48

(b) The assessee shall present a memorandum of appeal within thirty days of

the receipt of the notice of demand or of the order with which he is dissatisfied.

Provided that the head of the Union territory internal revenue office or the

head of the region or state internal revenue office or the head of the

internal revenue office for medium tax payers, and the head of the

internal revenue office for large tax payers may admit the appeal after the

expiry of the said period if it is satisfied that there is sufficient cause for not

presenting it within the said period.

(c) An assessee desiring to appeal has the right to present the appeal under

this section only after he has complied with the following:-

(i) income-tax payable has been fully paid; or

(ii) application is made to the head of the Union territory internal

revenue office or the head of the region or state internal revenue office or

the head of the internal revenue office for medium tax payers, and the

head of the internal revenue office for large tax payers has complied with

the decision of that Committee in respect of that tax;

(d) In disposing of the appeal, the head of the Union territory internal

revenue office or the head of the region or state internal revenue office or

the head of the internal revenue office for medium tax payers, and the

head of the internal revenue office for large tax payers shall give the

appellant an opportunity of being heard and may pass any order thereon as it

thinks fit.

Provided that if an enhancement of income-tax is intended, the appellant

shall be allowed an opportunity to show cause why it shall not be enhanced.

။( ) ဌ
 49

ဌ ဌ

( )

(ဂ)

(၁)

( ) ဌ

ဌ
 50

(ဃ)

33. (a) If the appellant assessee or the head of the township internal

revenue office is not satisfied with the order of the head of the Union

territory internal revenue office or the head of the region or state internal

revenue office or the head of the internal revenue office for medium tax

payers, and the head of the internal revenue office for large tax payers,

appeal may be preferred to the Appella te Committee within sixty days of

the receipt of that order.

(b) The Appellate committee may admit an appeal under this section after the

expiry of sixty days referred to in subsection (a) if it is satisfied that there was

sufficient cause for not presenting it within that period.

(c) In an appeal under this section, the memorandum of appeal to the

Appellate Committee shall be presented in accordance with the procedure laid

 51

down by that Committee. When the appeal is preferred by an assessee,

documentary proof for payment of kyats ten hundred as a fee must be attached.

(d) The Appellate Committee, after giving the appellant and the respondent an

opportunity of being heard, shall pass such orders thereon as it thinks fit

regarding the appeal.

(e) Except as provided in section 34, the orders of the Appellate Committee

passed in appeal shall be final.

Explanation- The Appellate Committee appearing in this section and in

succeeding sections means the Committee delegated by the Ministry of

Planning and Finance of the Union Government under section 7 to dispose of

second appeals preferred either by the assessee or the head of the township

internal revenue office who is dissatisfied with the order of the head of

the Union territory internal revenue office or the head of the region or

state internal revenue office or the head of the internal revenue office for

medium tax payers, and the head of the internal revenue office for large

tax payers..

။ ( ) ဌ

ဌ
 52

***
။

( ) ( )

(ဂ)

။
*

(ဃ)

( ) ၄

***
၀၁၁ (ဂ) ။
*
၀၁၁ ၁ ( ) ။
 53

**
၇ ဌ

Section 33(A) provide that the order of the head of the township

internal revenue office shall be final if the tax is up to kyats 30000; the

decision of the head of the Union territory internal revenue office or the

head of the region or state internal revenue office or the head of the

internal revenue office for medium tax payers, and the head of the

internal revenue office for large tax payers shall be final if the tax is up

to kyat 100000; and the decision of the Appellate Committee shall be

final if the tax exceeds kyats 100000 and if no question of law arises.
*** ****
- ။ ဌ
*****

၁၀၀၀၀၀

**
၀၁၁ ၁၄ ။
*** ၁၉ ၉ ၁ ။
****
၀၁၁ ၁ ( ) ။
*****
၀၁၁ ၁ ( ) ။
 54

According to Section 34 of this Law, (a) If there is any question of

law arising out of the order of the Appellate Committee, the assessee or,

the head of the Union territory internal revenue office or the head of the

region or state internal revenue office or the head of the internal revenue

office for medium taxpayers, and the head of the internal revenue office

for large tax payers may, within sixty days after the receipt of the order

of the Appellate Committee, propose to the Appellate Committee to refer

the case to the Supreme Court of the Union.

(b) If the Appellate Committee for a certain reason refuses to draw

up a statement of the case and refer it to the Supreme Court of the Union,

the person whose proposal is rejected may apply to the Supreme Court o f

the Union within sixty days of the receipt of rejection order to direct the

Appellate Committee to draw up a statement of the case and refer to it.

(c) If the Supreme Court of the Union accepts that there is question of

law arising out of the case which requires decision, then the Supreme

Court of the Union shall decide that question and its judgment shall be

communicated to the Appellate Committee.

(d) An appeal shall lie to the Supreme Court of the Union from an

order passed by it under sub-section (c).

၄။( )

ဌ
 55

ဌ ဌ

( )

(ဂ)

(ဃ) (ဂ)

35 (a) The Revisional Committee may, within three years from the

date of the order passed by the head of the township internal reven ue

office under this Law, call for the records of proceedings on its own

motion or on the application of the assessee, to revise that order. The

Revisional Committee may make necessary enquiry or may cause such

 56

enquiry to be made when the records of procee dings are received. An

appropriate order may be passed at any to me thereafter.

Provided that in passing the following orders, the assessee shall be given an

opportunity of being heard:-

(i) the order enhancing the amount of income-tax payable by the assessee;

(ii) the order reducing the amount of refund to be paid to the assessee;

(iii) the order setting aside the assessment made on the assessee.

(b) The Revisional Committee shall not revise any order under this section if:-

(i) an appeal lies to the head of the Union territory internal revenue

office or the head of the region or state internal revenue office or the

head of the internal revenue office for medium taxpayers, and the head of

the internal revenue office for larg e tax payers and the time allowed for

presenting the appeal has not expired; or

(ii) the order is one where an appeal has been preferred to the head

of the Union territory internal revenue office or the head of the region or

state internal revenue office or the head of the internal revenue office for

medium taxpayers, and the head of the internal revenue office for large

tax payers;

(c) Application for revision by an assessee cab only be made when he has

complied with ther provisions under sub-section (c) of section 32.

Explanation- The Revisional Committee mentioned in this section means

a Committee delegated by the Ministry of the Planning and Finance of the

Union Government under section 7 to open revision proceedings and exercise

revisional powers regarding the order passed by the head of the township

internal revenue office, in the following cases:-

 57

(a) where the assessee being dissatisfied with the order of the head of the

township internal revenue office has applied for revision;

(b) where the Revisional Committee is of the opinion that action taken by

the head of the township internal revenue office is incorrect.

၅။( ) ဌ

။ ။

(၁)

( )

( ) ။

( )

(၁) ဌ

ဌ
 58

( ) ဌ

(ဂ) (ဂ)

ဌ
*
၇

ဌ ။

( ) ဌ

( ) ဌ

36. Copies of order passed under section 32, 33 and 35 shall be sent to

the relevant assessee, the head of the township internal revenue office

and the head of the Union territory internal revenue office or the head of

the region or state internal revenue office or the head of the internal

*
၀၁၁ ၁၄ ။
 59

revenue office for medium taxpayers, and the hea d of the internal

revenue office for large tax payers, as the case may be.

။ ၅

ဌ ဌ

ဌ ။

5.11 Refund

37. (a) if any person satisfies the head of the township inte rnal

revenue office with supporting evidence that the amount of tax paid by

him or on his behalf for any year exceeds the amount which he is

properly chargeable under this Law, he shall be entitled to a refund of

such excess. If any excess payment of tax has been found by the head of

the township internal revenue office, such excess shall also be refunded

to the relevant assessee.

(b) The claim for refund is to be made only within one year from the date of

receipt of the letter of intimation that such refund is due.

Under Section 37 (c) of the Income Tax Law, with regard to the refund,

if the taxpayer requests to offset against the tax due under any of the income tax

assessment or to consider it as advance income tax in the current financial year,

 60

the head of the township internal revenue office may proceed accordingly as

requested by the taxpayer.

၇။ ( )

( )

(ဂ)

5.12 Matters relating to Persons Leaving the Union of Myanmar

38. (a)No person shall leave the Union of Myanmar unless he obtains a certificate

from the authority delegated for this specific purpose stating that he has no
 61

liability to pay tax or that Satisfactory arrangement has been made for the

payment of the tax.

Provided that exception to the above requirement may be by the Government

by notification.

(b) The owner or charterer of any vehicle who issues a ticket to carry any

person from the Union of Myanmar to any place outside the Union or has carried

him by such vehicle without the certificate required by sub-section (a) shall be

liable to pay the amount of tax payable by that person, and shall also be liable to

a fine which may extend to ten thousand kyats.

။( )

။
**
ဌ

( )

( )

*
၀၁၁ ၁၄ ။
**
၀၁၁ ၁၄ ။
 62

***

5.13 Recovery of Tax

39. (a) Any amount of tax specified in the notice of demand under section 53

shall be paid within the time mentioned in that notice or within the time extend

for such payment. In case of failure so to pay, the unpaid tax shall be deemed to

be an arrear and the person ailing to pay such tax shall be deemed to be a

defaulter.

(b) The arrears of tax may be recovered by the h ead of the

township internal revenue office as if it were a money decree

passed by a Civil Court.

(c) For the purpose of recovering the arrears of tax under sub -

section (b), the head of the township internal revenue office shall

have the following powers:-

(i) the powers of a Civil in finalizing execution of a money decree ;

(ii) the appointment of a receiver for the whole of the property in which the

defaulter has partial interest (the co-owner or co-sharer shall be intimated before

such appointment);

(iii) the right to sell the whole of the property and to distribute the sale

proceeds, if the part of the property in which the defaulter has partial interest

***
၀၁၁ ၁ (ဂ) ။
 63

cannot be sold for any of the following reasons (before doing so, those having

beneficial interest shall be intimated) :-

(aa) the nature of the property;

(Bb) the number of co-owners orco-sharers;

(cc) other special circumstances;

(iv) the right to sell the property to the co-owner or co-hirer where the sale is

of indivisible immovable property and the said co-owner or co-sharer is one of

the bidders who gives equal bid, and the right to sell the property to the person

who first submitted his name if the number of co-owners or co-sharers who give

equal bid is more than one.

၉။ ( ) ၅

( )

ဌ ။

(ဂ) ( )

ဌ ။

(၁)

( )
 64

။)

( )

)-

( )

( )

(ဂဂ) ။

(၄)

40. (a) The head of the township internal revenue office may impose

penalty as required on the defaulter for the arrears of tax.

Provided that the total amount of the penalty so imposed shall not exceed the

arrears of tax.
 65

(b) The head of the township internal revenue office may direct a person

from whom money is due or may become due to the defaulter, or who holds or

may subsequently hold money for or on account of the defaulter, to pay that

money for the arrears of tax on behalf of the defaulter. In so doing, it shall be

directed that the tax shall be paid as soon as the money becomes payable, or

when the money comes into possession, or within the time mentioned in the

notice. If that money exceeds the arrears of tax, only the amount equal to the

arrears of tax shall be paid and if it is equal to or less than the amount of arrears,

the whole of the money shall be paid. A copy of the aforesaid intimation shall be

sent to the last known address of the defaulter. The head of the township

internal revenue office may extend the time of payment mentioned in the

notice.

(c) Any person making payment in compliance with a notice under

sub-section (b), shall be deemed to have made the payment under the

authority of the defaulter, and the receipt of the head of the township

internal revenue office shall constitute a good and sufficient discharge of

the liability of such person to the defaulter to the extent of the amount

referred to in the receipt.

(d) If the person on whom a notice under sub-section (b) is served fails to make

payment in pursuance thereof, further proceedings may be taken on the footing

that the head of the township internal revenue office’s notice has the same

effect as a warrant of attachment of property under subsection (b) and (c) of

section 39.

(e) Where the person on whom a notice has been served under sub-section (b)

is able to show with supporting evidence to the head of the township internal
 66

revenue office that the sum demanded or any part thereof is not due to the

defaulter or that he does not hold any money for or on account of the defaulter,

then he shall not be liable to pay under sub-section (b).

၄၀။( ) ဌ

( ) ဌ

(ဂ) ( )

။
 67

(ဃ) ( )

၉ ( ) (ဂ)

( ) ( )

( ) ။

41. Notwithstanding anything contained in any other law for the time being in

force, no authority or court shall be competent to make an interlocutory order

staying recovery proceedings under this Law. Provided that the aforesaid

authority or court may pass an interlocutory order on the sale of property within

its jurisdiction in the following cases:-

(a) proceedings instituted by a person other than the defaulter, regarding

the said property;

(b) in the case of proceedings instituted by an assessee, where an appeal or

a revision or a reference preferred by the defaulter under this law is pending.

၄၁။

။
 68

( )

( )

5.14 Supplemental Powers

Under Section 42 of the Income Tax Law, the head of the

township internal revenue office, the head of the Union territory internal

revenue office or the head of the region or state internal revenue office or

the head of the internal revenue office for medium taxpayers or the head

of the internal revenue office for large tax payers, and a ny committee

delegated and organized under section 7, may require any person who has

any information relating to income-tax, to furnish such information.

*
၄ ။ ဌ

ဌ ဌ

*
၀၁ ၁ ။
 69

၇ ဂ

Under Section 43 of the Income Tax Law, the head of the township

internal revenue office, the head of the Union territory internal revenue

office or the head of the region or state internal revenu e office or the

head of the internal revenue office for medium taxpayers or the head of

the internal revenue office for large tax payers, the committees formed in

accordance with section 7 and the committees and persons who are

assigned duty have the same powers as are vested in a civil court.
*
၄ ။ ဌ ဌ

၇ ဂ

44. The head of the township internal revenue office, the head of

the Union territory internal revenue office or the head of the region or

state internal revenue office or the head of the internal revenue office for

medium taxpayers or the head of the internal revenue office for large tax

*
၀၁၁ ၀ ။
 70

payers, and any committee delegated and organized under section 7, shall have

the powers to carry out the following matters:-

(a) the right to enter and inspect any place or building for purposes of assessment

or disposal of any appeal;

Under Section 44(b) of the Income Tax Law, the right to examine any

accounts or documents kept in any systems, to place marks identification, to

make extracts or copies of the whole system or some extracted contents, to record

business operation in photos or videos while executing inspections in accordance

with sub-section (a).

44 A

**
၄၄။ ဌ

ဌ ဌ

ဌ ၇

( )

( ) ( )

**
၀၁ ၁ ။
 71

ဗ ။

၄၄- ။ ၄၄ ( ) ( )

( ) ( )

45. If the head of the township internal revenue office, and the head

of the Union territory internal revenue office or the head of the region or

state internal revenue office or the head of the internal revenue office for

medium taxpayers, and the head of the internal revenue office for large

tax payers, has reason to suspect that any books of accounts or

documents had been withheld from production or may not forthcoming

when required in the course of proceedings under this Law, that authority

has the following powers;-

(a) the right to search any building, place, or business premises;

(b) the right to seize any books of account or documents found in that place.

In case of such seizure;-

(i) a receipt shall be granted;

 72

(ii) they shall be retained in its custody only for so long as may be

necessary for examination pending the final disposal of the

assessment or appeal as the case may be.

၄၅။

ဌ ဌ

ဌ
*
ဂ -

( )

( )

(၁) ။

( )

။
**
(ဂ) ဌ ( ) ( )

*
၀၁၁ ၁( ) ။
**
၀၁၁ ၁( ) ။
 73

။
*
(ဃ) ( ) ( )

5.15 Offences and Penalties

46.(a) If the head of the township internal revenue office in the course of

any proceeding under this Law beleives and is satisfied that any person fails

without reasonable cause, to comply with the requirements under sub-section (a)

*
၀၁၁ ၁( ) ။
 74

or (b) of section 17 or under section 18 or under sub-section (b) of section 19, a

penalty not exceeding ten percent of the tax shall, in addition to the tax payable,

be imposed for each default.

Explanation- The person, who is liable to pay penalty for failure to comply

with the requirement under section 18, is the one who is responsible to furnish

the annual statement of salaries. The penalty payable by him shall be ten per cent

of the tax required to be deducted from the salaries in accordance with that

statement.

(b) If any person fails to furnish information. Under section 42, an extension of

time up to fifteen days may be granted to him.

(i) If the assessee continues to fail to furnish the information within the

extended time, the head of the township internal revenue office may, by

exercising its judicial powers conferred by section 43, issue a warrant causing

him to be brought and may investigate why he fails to furnish the information. If

the cause of failure to furnish is due to the loss of documents and the loss is not

owing to his fault, he may then be allowed to divulge whatever he remembers by

an affidavit.

(ii) If the head of the township internal revenue office has found that

there is no sufficient excuse for the failure to furnish the information, he may be

prosecuted. If the court finds him guilty, he shall be punishable with

imprisonment for a term which may extend from one to three years.
*
၄ ။ ( ) ဌ

၁၇ ( ) ( )

*
၀၁၁ ( ) ။
 75

၁ ။ ၁၉ ( )

**

။ (၁ )

( ) ၄

(၁၅) ။

(၁)
*
ဌ

**
၀၁၁ ၁၇ ။

*
၀၁၁ ( ) ။
 76

( )
**
ဌ

47. (a) If the head of the township internal revenue office in the course of

proceedings finds that any person has concealed his income or concealed the

particulars relating to his income, he shall be permitted to disclose those facts

fully within the specified time.

(b) If such person discloses fully in the specified time, he shall pay, in

addition to the tax payable on his total income, a penalty equal to one time of the

amount of tax increase on account of the concealment.

(c) If such person fails to disclose the particulars within the specified time or

discloses less than the income concealed, he shall, in addition to paying the tax

and penalty in accordance with sub-section (b), also be liable to prosecution. If

the Court finds him guilty, he may be punishable with imprisonment for a term

which may extend from three to ten years.

Provided that no prosecution shall be instituted under this section without

the prior sanction of the authority delegated by the Ministry of Planning and

Finance of the Union Government for this purpose. The said authority shall, by

taking into consideration the magnitude of that person’s fraudulent intention to

evade the tax leviable under this Law and the fesibility of such disclosure, decide

**
၀၁၁ ( ) ။
 77

whether to grant sanction or not. The time within which disclosure is allowed to

be made may be extended if necessary.

၄၇။( )

*
ဌ

( )

(ဂ)

( )

။
**

*
၀၁၁ ( ) ။
**
၀၁၁ ၁၄ ။
 78

။ ။

48. Whoever gives and takes bribe or attempts to do so in connection with this

Law, shall be liable to be punished under the Penal Law or under any other law

specifically enacted for this office.

၄ ။

49. (a) All the particulars appearing in the proceedings dealt with under this Law

shall be deemed to be of confidential nature. Notwithstanding anything contained

in the Evidence Act, no Court shall be competent to summon any public servant

to produce such particulars or to give evidence in respect thereof.

(b) No public servant shall disclose such particulars except in the case of a

matter relating to the Government.

(c) Any public servant who contravenes the provisions of sub-section (b) shall

be prosecuted and if he is found guilty he may be punished with imprisonment

for a term which may extend to 6 months.

Explanation - Public servant means any person whom the Government has

designated as public servants from time to time.

၄၉။ ( )

။
 79

( )

(ဂ) ( )

ဂ ။

50. Prosecution for the purpose of section 49 shall only be instituted with the

prior sanction of the authority delegated by the Government.

*
၅၀။ ၄၉

5.16 Power to make Rules, Regulations

*
၀၁၁ ၁၄ ။
 80

**
၅၁။ -

( ) ဌ

( ) ဌ

(ဂ) ဌ ဌ

5.17 Miscellaneous

52. (a) All the accounts kept for the assessments Under this Law shall be in

Myanmar or in English.

(b) The Government may, by notification, prescribe regulation as to what

particulars should be contained in the accounts of any class of income, or any

class of assessees.

၅ ။( )

ဂ ။
***
( ) ဌ

**
၀၁၁ ။
 81

53. When any tax becomes payable by an order passed under this Law, the

Assessment Committee shall send to the assessee the notice of demand in the

prescribed form, specifying the amount of tax payable.

၅ ။

54. A receipt shall be given to the assessee for any tax collected under this Law.

၅၄။

၅၅။ ( )

***
၀၁၁ ၄ ။
 82

( ) ( )

(ဂ)

( )

56. Every person deducting or paying any tax in pursuance of this Law in respect

of income belonging to another person is here by Indemnified for the said

deduction and payment.

၅ ။

57. No suit shall be filed in any Civil Court to set aside or modify any assessment

made under this Law and no prosecution shall lie against any public servant for

anything done in good faith under this Law.

၅၇။

။
 83

58. In computing the period of limitation Prescribed for an appeal, or a revision,

or a reference under this Law, the time requisite for obtaining a copy of the order

resulting in the appeal or the revision or the reference and the time requisite for

obtaining permission to appeal under clause (ii) of subsection (c) of section 32

shall be excluded.

၅ ။

(ဂ) ( )

၅၉။ ။ ဂ

Key Terms
 84

Income-Tax -

Association of persons - ဂ

Non-resident foreigner -

Non-resident citizen -

Total income - ၀

Capital Asset -

Capital gain -

Charge of Income-tax -၀

Assessable -၀

Rates of income-tax -၀

Religious or charitable institution -

Casual and nonrecurring -

Received in commutation of a pension -

Tax exemption -

Tax relief -

Other benefits in respect of tax -

Consecutive years -

Allowance in assesse or his spouse -

 85

Annuity -

Perquisites received in lieu -

Expenditure -

Furnishing -

Return of Income -

Annual Salary Statement -

Agreement made between States -

Appeal -

Revision -

Reference -

Appellate Committee -

Appellant assessee -

Assignment Questions

1. Study on the "charge of Income-tax" under the Income-tax Law.

2. What are the exemptions which are permitted by the Income - tax
 86

Law?

3. Mention reliefs under the Income - tax Law.

4. Describe the heads of income in the computation of income.

5. Explain the matters relating to the "Assessment of Income-tax".

6. Can the Committee assess to the non-resident foreigner?

7. Discuss about "Second Appeal" under the Income - tax Law.

8. When can reference for decision be made?

Short Questions

1. Explain in the following terms.

(a) Resident foreigner

(b) Non-resident foreigner

(c) Total income

(d) Capital gain

2. Explain how to access the income tax on the non-resident citizen.

3. Mention the Penalty for failure to comply with requirements of

the law under the Income-tax Law.

4. How can penalty for concealment be described?

 1

Chapter 6

Commercial Tax Law

Content pages

6.1 Definitions 4

6.2 Charging Tax and Having Responsibility to Pay Tax 9

6.3 Tax Exemption and Relief 11

6.4 Registration and Intimation of Commencement of

Enterprise 14

6.5 Monthly Payment of Tax and Sending of Three-

Monthly Return 15

6.6 Assessment and Refund 18

6.6.1 Assessment 18

6.6.2 Refund 21

6.6.3 Assessment or Re-assessment and Rectification 22

of Mistake

6.7 Appeal and Revision 25

6.7.1 Appeal 25

6.7.2 Revision of Order Passed by the Township, Region 30

or State Levels

6.8 Offences and Penalties 32

6.8.1 Default 32

6.8.2 Evade and Cenceale 35

6.8.3 False 37
 2

6.8.4 Giving Bribe, Taking Bribe and Misappropriation 37

6.9 Recovery of Tax 38

6.9.1 Duties and Powers 39

6.9.2 Miscellaneous 40
 3

(Commercial Tax Law)

- -

၂ ၄-၂

The provisions of this Law shall be effective in the whole country

commencing from the 2014-2015 financial year.

 4

ဤ ၂ ၄-၂

6.1 Definitions

Section 3. The following expressions contained in this Law shall have the

meanings given here under:

(a) Tax means the tax payable under this Law. This expression also includes
the penalty under this Law;

(b) Assessee means a person by whom tax is payable under this Law.

(c) Goods mean imported articles or produced within the country for the
purpose of sale;

(d) Service means the rendering of service on remuneration, a fee or

consideration.
 5

(e) Proceed of sale means the money received or to be received from the

sale of goods on cash basic or on credit or by other deferred payment

system or from sale in advance system. If it is the exchange of goods, it is

the value determined in doing so. This expression includes the value of

packing material for packing the goods;

(f) Proceeds of Service means money received or to be received for

rendering services;

(g) Producer of Goods means a person who produces goods in a mill,

factory or place of work owned by him or causes goods to be produced by

another person and sells them;

 6

(h) Person Rendering Service means a person rendering service on

remuneration, fee or consideration;

(i) Importer means a person importing goods from abroad by land, sea or

air;

(j) Landed Cost means the sum total of the cost prescribed under the

Customs Laws for the goods imported, the amount of customs duty levied

on such goods and the expense incurred in unloading;

(k) Return means the form in which the assessee by whom tax is payable

under this Law declares his proceeds of sale or proceeds of service;

(l) Schedule means the schedules annexed to this Law;

 7

(m) Assess means the prescribing of tax payable by the assessee under this

Law;

(n) Year means the financial year;

ဎ)

(o) Assessment Year means the year consecutive to the year in which the
proceeds of sale or proceeds of service accrued.

(p) Three months means the period of three months from the

commencement of the financial year;

(q) Township Revenue Officer means the officer-in-charge of the

relevant Township Revenue Office who is assigned duty to assess the

tax which shall be paid by assesse. This expression includes Staff

Officers or Duty Staff Officers who are assigned duty to assess the

tax under section 10 of the Commercial Tax Law.

 8

(r) Trade means commercializing goods by a system of cash-

payment, credit, deferred payment, pre-selling, exchange and sale-and

–return.

(s) Trader means a person who trades on his behalf or as a

representative or by any other means.

(t) The Union Tax Law means the tax law that shall be submitted

yearly by the Union Government to the Pyihtaungsu Hluttaw under

the provisions of the Constitution.

6.2 Charging Tax and Having Responsibility to Pay Tax

 9

Section 4.

(a) Tax shall be imposed as shown in the schedules on the goods produced

within the State;

(b) Tax shall be imposed as shown in the schedules on services rendered within

the State;

(c) Tax shall be imposed as shown in the schedules in respect of goods

imported from abroad.

ဃ ၄

Section 5. The tax imposed under section 4 is liable to be paid by the respective

producer of goods, person rendering service or the importer.

၄ -

( )

( )
 10

Section 6. The schedules annexed to this Law or the rates of tax may be

amended by the State Budget Law for any year.

Section 7. The provisions of this Law shall not be applicable to goods produced

and sold or proceeds of service rendered solely for a religious or charitable

purpose by any religious or charitable organization.

-
 11

6.3 Tax Exemption and Relief

Section 8. (a) The Government may, by notification

( )

(a) exempt from tax or grant relief therefrom in respect of any kind of goods,

any kind of service or any assessee;

( )

(b) determine the amount of proceeds of sale or proceeds of service on which

tax shall not be imposed;

(c) in respect of any newly established enterprise-

(3)

(aa) exempt from tax or grant relief therefrom on machineries, plants or

other articles imported from abroad for installation in a new construction;
( )
 12

(bb) exempt from tax or grant relief therefrom with a limit of three consecutive

years including the year of commencement of the production enterprise or

service enterprise;

( )

(1) Grant of tax exemption or relief in respect of any category of goods

produced in the country and exported or sold.

( )

(b) The Union Government may grant commercial tax exemption and relief in

respect of the following items;

( )

(1) Donations by local or international donors or internal organizations for social,

religious, health or educational purposes;

( )

(2) Goods supplied by local or international organizations to the State;

 13

(၂)

(3) Equipment from donors or international organizations that is imported in

order to be used by scholars or practitioners who are engaged in the development

of the State;

( )

(4) Goods used by diplomats if the exemption or relief id granted reciprocally.

Section 9. If it is desirous to charge tax on any production of goods or

rendering of service, it may be prescribed by regulations for doing so.

6.4 Registration and Intimation of Commencement of Enterprise

According to Section 11.

 14

(a) Any person who carries out a goods production enterprise or service

enterprise shall register with the relevant Township Revenue Officer as

stipulated by regulations.

(b) Any person who commences operation of a goods production

enterprise or service enterprise shall furnish a letter of intimidation on

the commencement of the operation as such to the relevant Township

Revenue Officer as stipulated by regulations.

(c) The Township Revenue Officer may inform any person to register or to

furnish letter of intimation on commencement of operation of his

enterprise in accord with the regulations.

6.5 Monthly Payment of Tax and Sending of Three-Monthly Return

 15

According to Section 12.(a) Any person who has taxable proceed of sale or

receipt from service within a year, shall pay due monthly tax within ten days after

the end of the relevant month. Moreover, a three-monthly return shall be

furnished to the relevant Township Revenue Officer within one month after the

end of relevant three-month.

(b) The Township Revenue Officer may intimate any person to pay due

monthly tax and send three-monthly return if there is cause to

consider that he has taxable proceed of sale or receipt from service

within a year.

(c) If it is failed to pay tax under sub-section (a) or (b), or if there is cause

to consider that the tax paid is less than the tax payable, the Township

Revenue Officer may, based on the information received, estimate and

 16

claim the tax payable or the additional tax payable.

(c) The tax paid under sub-section (a), (b) or (c) shall be set-off from the

tax due in the assessment.

(e) The tax payable on goods imported under sub-section (c) of section 4

of the Law shall be collected together with the customs duties by the

Customs Department in accord with the manner of collecting customs

duties.

Furnishing Annual Return

 17

Section 13. (a) Any person who has taxable proceed of sale or receipt from

service in a year shall furnish an annual return for such year to the Township

Revenue Officer within three months after the end of the relevant year.

(b) If there is cause to consider that any person has taxable proceed of sale

or receipt from service in a year, the Township Revenue Officer may

intimate to furnish annual return.

(a) If there is any mistake or omission in the annual return furnished under

sub-section (a) and (b), it may be amended before the assessment is

made.

6.6 Assessment and Refund

 18

6.6.1 Assessment

According to Section 14. (a) If the Township Revenue Officer is satisfied

that the annual return furnished under section 13 is correct and complete relating

to the proceed of sale or receipt from service, he may assess the tax based on

such return.

(b) If it is necessary, the Township Revenue Officer may, after carrying out

causing the assessee to submit accounts and documents, summoning

and examining him; assess tax based on such documents if it is

possible to obtain proceed of sale or receipt from service correctly from

such accounts and documents.

(c) If it is not possible to obtain the proceed of sale or receipt from

service correctly from the accounts and documents submitted by the

 19

assessee, the Township Revenue Officer shall assess tax after

scrutinizing other necessary evidences and documents.

(d) If the assessee fails to furnish annual return, submit the accounts and

documents or to appear and accept examination, the Township

Revenue Officer may estimate and assess tax based on the information

collected. He may summon and examine any person and demand

necessary information before assessing tax.

Under Section 15. To enable to assess and collect the tax on the followings

within the year without waiting until the end of the relevant financial year, it shall

be carried out as stipulated by regulations:

- -
 20

(a) person who would go abroad for good;

(b) person who terminates the enterprise;

(c) person who carries out entertainment.

(d) person who pays a monthly fixed rates or fixed amount of

money.

15A . Anybody leaving the Republic of the Union of Myanmar shall,

in the manner prescribed by the regulations, obtain a recommendation

letter showing that he paid tax under this law. In respect of this

matter, however, the Ministry of Finance of the Union Government

may grant excemptions by notification.

-
 21

6.6.2 Refund

Section 16. If the assessee may prove that the tax paid is more than the

amount payable or if it is found by the Township Revenue Officer, such excess

shall be refunded. The assessee has the right to claim it only within one year after

receiving the intimation of refund.

6.6.3 Assessment or Re-assessment and Rectification of Mistake

According to Section 17. (a) The Township Revenue Officer may intimate

the assessee to furnish annual return relating to any of the following matters

within three years after the end of the relevant assessment year. After doing so,
 22

assessment or re-assessment may be carried out at any time in accord with the

provisions of this Law:

(i) escaping from assessment although being liable to tax;

(ii) under-assessment of tax.

Provided that, if the assessment or re-assessment is found to be necessary

on account of fraud, evasion and concealment relating to the proceed of sale or

receipt from service, the assessment or re-assessment may be made at any time

after the end of the relevant assessment year with the prior permission of the

Director General of the Internal Revenue Department.

 23

(b) In carrying out under sub-section (a), the tax shall be calculated and

demanded only at the rate contained in the schedule effective for the

relevant year.

According to Section 18. (a) The Township Revenue Officer, Area

Revenue Officer of the Union or Region or State Revenue Officer or Head of the

Companies' Circle Tax Office or Head of the Assessment Office or Appellate

Tribunal may rectify any mistake if it is found a mistake apparent from the record

relating to any of his or its assessment order or if it is submitted by the assessee

or appellant, it may be rectified within three years from the date of such order.

Provided that if it is to make amendment for increasing tax or reducing refund,

the assessee shall be given the right to defend.

-
 24

(b) In carrying out under sub-section (a), the tax shall be calculated and

demanded only at the rate contained in the schedule effective for the

relevant year.

6.7 Appeal and Revision

6.7.1 Appeal

Section19. (a) If the assessee is dissatisfied, he may appeal to the

followings:

(a) if the tax exceeds thirty thousand kyats , to the Area Revenue Officer

of the Union or Region or State Revenue Officer or Head of the Companies'

Circle Tax Office or Head of the Assessment Office;

 25

(i) if it is a decision of the Area Revenue Officer of the Union or Region or

State Revenue Officer or Head of the Companies' Circle Tax Office or

Head of the Assessment Office and the tax exceeds ten thousand kyats,

to the Revenue Appellate Tribunal;

(ii) if it is a question of law which arises from the decision of the Revenue

Appellate Tribunal, to the Supreme Court of the Union.

(b) An assessee dissatisfied with any order may appeal in accordance with

the regulations. If the order was issued by the Township Revenue Officer, the

assesse shall appeal within thirty days from the date of receipt of the tax

collection letter or order with which the assesse is dissatisfied. If the objecting

assessee or the Township Revenue Officer are dissatisfied with the order of the

Area Revenue Officer of the Union or State or Region Revenue Officer or Head

f th C m n ’ C T x Off H d f th A m nt Off , th y
 26

have the right to appeal within sixty days from the date of the receipt of the order

with which they are dissatisfied. In counting the limitation period, the following

periods shall be excluded:

(i) Time required for obtaining the copy of the order against which the appeal is

intended to be filed:

(ii) time for filing a request to be entitled to appeal without paying the tax in full.

(c) The period contained in sub-section (b) may be accepted in relaxation by the

relevant Area Revenue Officer of the Union or Region or State Revenue Officer

or Head of the Companies' Circle Tax Office or Head of the Assessment Office,

Revenue Appellate Tribunal or Supreme Court if there is sufficient cause.

 27

(d) The person who is desirous to appeal has the right to appeal only by

complying with the followings:

(i) paying tax which shall be paid fully, or

(ii) applying to the Area Revenue Officer of the Union or Region or State

Revenue Officer or Head of the Companies' Circle Tax Office or Head of

the Assessment Office and complying with his decision.

(e) In disposing the appeal, an appropriate order may be passed after

giving the appellant the right of expression.

 28

(f) If the tax does not exceed thirty thousand kyats, the decision of the

Township Revenue Officer; if the tax does not exceed one hundred

thousand kyats, the decision of Area Revenue Officer of the Union or

Region or State Revenue Officer or Head of Companies' Circle Tax

Office or Head of the Assessment Office; if the tax exceeds one hundred

thousand kyats and if question of law does not arise, and the decision of

the Revenue Appellate Tribunal shall be final.

19A. (a) The assesse or Area Revenue Officer of the Union or State

v nu Off H d f th C m n ’ C T x

Office or Assessable Office may, if it is a question of law

which arises from the order of the Revenue Appellate

Tribunal, propose to that Revenue dissatisfied to hand

over the matter to the Supreme Court of the Union.

 29

(b) If a proposal filed in accordance with sub-section (a) is

rejected by the Revenue Appellate Tribunal, the person

who filed the proposal may apply to the Supreme Court of

the Union within sixty days from the date of the receipt of

the order which rejectets the proposal.

6.7.2 Revision of Order Passed by the Township, Region or State

Levels
 30

Section 20. The Director General of the Internal Revenue Department

may, on his own motion or on the application of an assessee, re-scrutinize any

order passed by the Township Revenue Officer, Area Revenue Officer of the

Union or Region or State Revenue Officer or Head of the Companies' Circle Tax

Office or Head of the Assessment Office and pass the appropriate order within

three years after the date of such order.

Provided that the assessee shall have no right to submit in the following

matters:

(a) being not terminated the limitation for appeal or appeal is pending in the

matter in which appeal may be filed to the Area Revenue Officer of the

Union or Region or State Revenue Officer or Head of the Companies'

Circle Tax Office or Head of the Assessment Office;

 31

(b) being the assessee does not comply with sub-section (d) of section 19.

6.8 Offences and Penalties

6.8.1Default

Section 21. If any person, without sufficient cause, defaults in any of the

following matters, the Township Revenue Officer shall cause him to pay a fine at

following stipulated percentage. When causing him to pay fine, the fine

mentioned in sub-section (f) shall be collected separately before the end of the

financial year:

( )

-
 32

(a) a fine equivalent to ten percent of the tax payable in the relevant assessment

for the failure to register or to send intimation of commencement of the operation

of the enterprise;

( )

(b) a fine equivalent to ten percent of the tax payable in the relevant assessment

for each of the following failures: failure to pay the monthly tax

within the stipulated time, to submit the quarterly return or the annual

return.

( )

(c) a fine equivalent to ten percent of the additional tax payable in the

relevant assessment for each of the following failures: failure to pay

tax in accordance with the annual return, failure to comply with a

notice requesting personal attendance for an examination relating to

the assessment;

( )
 33

(d) a fine equivalent to ten percent of the additional tax payable in the

the relevant assessment for the failure to pay tax within the stipulated

period or within the extended period.

(ဃ)

(e) a fine equivalent to ten percent of the additional tax payable in the

relevant assessment for the failure to keep receipts or documents

showing acceptance of the money that are required to be kept

according to the Commercial Tax Regulations;

( )

(f) a fine equivalent to hundred percent of the tax payable in the

relevant assessment if the township revenue officer finds out the

failure to issue receipt or document of receiving money to the buyer

or service receiver although it is kept or failure to stick the revenue

stamp in the value of tax due prescribed by the rules although the
 34

receipt is issued, one hundred per cent of the tax due shall be imposed

on the value of receipt or document of receiving money for the said

failure, and the following amount of money shall also be imposed as

the number of failure within a financial year:

(i) two hundred thousand kyats for the first-time failure;

(ii) five hundred thousand kyats for the second-time failure;

(iii) seven hundred thousand kyats for the third-time failure;

(iv) one million kyats in a time for more than the third-time

failure.

( )

( )

(၂)

( )
 35

(၄)

According to Section 21 A. If any person fails to submit the accounts

stipulated to keep by the Ministry of Finance of the Union Government, by

notification, under this Law without sufficient cause, the relevant Township

Revenue Officer shall cause him to pay a fine equivalent to ten percent of the tax

due.

-၂

6.8.2 Evade and Cenceale

Section 22. (a) (i) If any person is found to have evaded payment of tax or

concealed particulars relating to the proceed of sale or receipt from service to

reduce tax, he shall be allowed to disclose in full within the stipulated time.

-၂၂
 36

(ii) If such person disclose in full within the stipulated time, he shall pay, in

addition to the tax payable by him, a penalty equivalent to the amount of

tax payable on account of evasion or further payment on account of

concealment.

(iii) If such person fails to disclose within the stipulated time or disclose an

amount which is less than the proceed of sale or receipt from service

evaded or concealed, he shall pay both of the tax payable and the penalty

mentioned in clause (ii) and shall also be liable to prosecution. He shall

be punished, on conviction, with imprisonment for a term not exceeding

one year or with a fine not exceeding one hundred thousand kyats or with

both.

၂
 37

6.8.3 False

Section 22(b) If any person who is found to have furnished the false return

relating to his proceed of sale or receipt from service or to have produced books

of accounts, statements of accounts which are false or which he knows to be false

with deceitful purpose shall pay a penalty equivalent to the amount of tax payable

and shall also be liable to prosecution. He shall, on conviction, be punished with

imprisonment for a term not exceeding three years or with a fine not exceeding

three hundred thousand kyats or with both.

-၂၂
 38

6.8.4 Giving Bribe, Taking Bribe and Misappropriation

Section 23. Any person who commits any of the following offences in

connection with this Law shall be prosecuted with the permission of the authority

concerned and shall, on conviction, be punished with imprisonment for a term

which may extend from three to seven years:

(a) giving bribe, taking bribe;

(b) attempting to give or take bribe;

(c) abetting in giving or taking bribe;

(d) misuse of any of the powers conferred under this Law with dishonest

or deceitful intention.

(e) failure to abide by without reasonable ground as provided in this Law.

 39

( )

6.9 Recovery of Tax

Section 24. If the assessee fails to pay tax and penalty within the stipulated

or extended time, the unpaid amount shall be deemed to be an arrear and the

relevant assessee shall be deemed to be a defaulter and the Township Revenue

Officer shall recover the said arrear as if it were an arrear of income-tax. In such

recovery, the Township Revenue Officer shall use the manners and exercise

powers provided in the Income Tax Law.

၂၄

6.9.1 Duties and Powers

 40

According to Section 10. The Director General of the Internal Revenue

Department shall have the right to take responsibilities and exercise powers

contained in this Law. Moreover, he may implement by allocating and assigning

duties to service personnel of his Department.

Section 25. (a) The persons who are assigned duty under section 10 of the

Law has the right to carry out the followings:

(i) the right to enter and inspect any building, place or business premises

for the relevant assessment or appeal;

(ii) the right to stamp marks of identification on the books of accounts or

documents found during such entry and inspection and make extracts

and copies therefrom.

၂
 41

6.9.2 Miscellaneous

Section 26. The manners for assessment and collection of tax relating to

the economic organizations of the Union Government, State-owned mills,

factories, trading and service enterprises may be determined by regulations.

Section 27. The Union Tax Law may, for any year, prescribe the tax rate

for [revenue in] foreign currency if foreign currency is received as purchase price

for the sale of any goods or as remuneration for the rendering of any service.

( ၂ )

Section 28. (a) For the assessments contained in this Law, true accounts

shall be prepared and maintained in Myanmar language or

English.

၂
 42

(a) The Ministry of Finance of the Union Government may prescribe, by

notification, to maintain accounts in which what particulars are

included, to produce when required under sub-section (b) of section 14

for any category of income or any category of assessee.

Section 30. If a matter arises to determine who is the producer, trader,

service provider or importer for the matter contained in section 4; or who is the

person necessary to register under sub-section (a) of section 11, the decision of

the Director General of the Internal Revenue Department shall be final.

Section 31. The Union Government may, except for money collected on export,

give a stipulated percentage of the money collected in Myanmar currency as

commercial tax from a Region or State to the fund of this Region or State.
 43

Section 32. The producer, trader, importer or service provider shall, after having

collected the tax together with the net purchase price for the sale of domestically

produced goods, bought goods or imported goods or the net fee for the service,

give a receipt or a document showing acceptance of the money to the purchaser

or recipient of the service.

၂
 44

Section 33. Regulations may be issued with regard to the sale, production,

distribution and import of special goods where a tax is affixed.

Section 34. The informer who informs, with evidences, the failure to issue

receipt or document of receiving money to the buyer or service receiver although

it is kept or failure to stick the commercial tax stamp equivalent to the tax due

although the receipt is issued shall be rewarded with ten per cent of fine which is

hundred per cent of tax due under sub-section (f) of section 21 and ten per cent of

fine as the number of failure. No disclosure of the informer shall be made except

the matter of the Government.

၂ ( )

၄)
 45

Key Terms

Commercial Tax -

Financial year -

Assessee -

Goods -

Material -

Service -

Proceed of sale -

Receipt from service -

Service provider -

Remuneration -

Landed value -

Assessment year -

Charging Tax -

Commencing date of effectiveness -

 46

Religious or charitable -

Tax Exemption -

Tax Relief -

Intimation of Commencement of Enterprise -

Sending of Three-Monthly Return -

Furnishing Annual Return -

Refund -

Re-assessment -

Rectification of Mistake -

Escaping from assessment -

Evade -

Conceal -

False -

Giving Bribe -

Taking Bribe -

Misappropriation -
 47

Recovery of Tax -

Assignment Questions

1. Study on the Charging Tax under Commercial tax Law.

2. What are the provisions relating to "Assessment of commercial-tax"?

3. Explain the matters relating to the "Appeal and Revision" for the

commercial-tax.

4. When and whom can it appeal to?

5. Write the offences and penalties which are provided in Commercial Tax Law.

Short Questions

1. Define the following terms.

(a) Assessee

(b) Service

(c) Landed value

2. Discuss on "Tax Exemption and Relief".

3. Explain how to send three-monthly return?

4. Wh t d y u m n th t m S v und th C mm T x Law?

5. H w n y u d f n th L nd d v u und th C mm T x L w?
48
 1

Chapter 7

Sea and Land Customs Acts

Content pages

7.1 The Sea Customs Act and the Land Customs Act 4

7.1.1 The objectives of the Sea Customs Act and the Land 6

Customs Act

7.1.2 Interpretation 7

7.2 11

7.2.1 Fix to Customs-duties 11

7.2.2 Levy of Customs-duties 12

7.2.3 Exemption from Customs Duties 14

7.2.4 Abatement of Duty 19

7.2.5 Drawback 24

7.3 Arrival of Conveyance and Departure of Conveyance 28

7.3.1 Arrival of Conveyance 28

7.3.2 Offences and Penalties 32

7.3.3 Departure of Conveyance 35

7.4 40
 2

7.4.1 Prohibition and Restrictions of Importation 40

7.4.2 42

7.4.3 44

7.4.4 Offences and Penalties Relating to (S 18, 19) 45

7.4.5 Attempt to import or export restricted goods or 47

prohibited goods.

7.4.6 Burden of Proof (Special Rule of Evidence) 53

 3

(Sea and Land Customs Acts)

” The Tariff Act, 1953 Act no. LXXII of 1953

”
 4

7.1 The Sea Customs Act and the Land Customs Act

The Sea Customs Act was enacted in 1878 as an Indian Act VIII of

1878. The Land Customs Act was enacted in 1924 as Indian Act 19 of 1924.

In 1948 after independence, the government of the Republic of the

Union of Myanmar modified those Acts for five times up to 17th March

2015. The last amendment was made in 2018. The government also maintains

the discretionary power under the Sea Customs Act to prohibit the

importation of certain goods from time to time by the issue of notifications

according to the said Act.

As far as bringing in and taking out of the taxable goods are

concerned, The Sea Customs Act and the Land Customs Act are applicable

according to the mean of export and import which could be either by any
 5

mode of transport or by land to levy the customs duty on the goods. When

the Land Customs Department does levy of customs duties, collection of

customs duties, taking legal actions against with importation and exportation

of goods without paying customs duties and determination for offences and

penalties, the provisions of the Sea Customs Act must be applied. Also for

the airfreight, if respective law stipulated that section 19 of the Sea Customs

Act is applicable for the prohibitions and the restrictions of importation or

exportation of goods, the procedures under section 19 of the Sea Customs

Act must be followed whenever the prohibitions and the restrictions of

importation or exportation of goods are concerned.

1
” ၄
2
”

၀ ၆)

(၆)

1
The Sea Customs Act (India Act No. VIII of 1878)
2
The Land Custom Act (India Act No.XIX of 1924)
 6

7.1.1 The objectives of the Sea Customs Act and the Land

Customs Act

To enable the State's economy more stable.

To prevent illegal importing and exporting goods which are prohibited

or restricted bringing into and taking out of the Republic of the

Union of Myanmar.
 7

7.1.2 Interpretation

(Customs-Port)

Customs- port means any place declared under section 11 to be a port for

the shipment and landing of goods. (Sec.3 (d)).

- ဃ

Therefore, the following ports are declared by the Notification in the

Gazette as customs-port, which are provided under Sec. 11 of this Act.

(1) Yangon port for Yangon Division

(2) Sittwe, Maungdaw, Buthetaung, Kyaukphyu and Thandwe ports

for Rakhine States.

 8

(3) Pathein port for Ayeyawadi Division.

(4) Kawthaung, Dawei and Myeik ports for Tanintharyi Division.

(5) Mawlamayaing, Kawthareik, Thingannyi-naung and Myawadi

ports for Mon and Kayin States.

Foreign Port)

Foreign port means any place beyond the limits of the Republic of the

Union of Myanmar. (Sec.3 (e)).

Conveyance

Conveyance” means any vehicle which navigates by air, by any

mode of transport sea or by land used for the industrial or commercial

transport of goods. Such expression includes lighters and barges, square-

 9

rigged or ship borne, hovercraft, aircraft, road vehicle (including trailers,

semi-trailers and combinations of such vehicles), railway rolling stock

which is used for the transport of persons for remuneration, or which

is driven whether or not for remuneration. (Sec. 3 (f)).

၄ Coasting Conveyance )

Coasting- Conveyance ” denotes any conveyance proceedings

from one-customs-port to another customs-port, whether touching at

any intermediate foreign-port or not, or proceeding from or to a

customs-port to or from a place declared to be a port under section

12. (Section 3(g)).

(Master)

Master” when used in relation to any conveyance means any person

having command or charge of such conveyance. This expression also

includes such person having command or charge of any kind of conveyance

used to travel on and to convey anything by any mode of transport, by air or

 10

by land. But this expression does not include pilot” and harbour-master”.

(Sec. 3 (h)).

၆ (Warehousing Port)

Warehousing port means any customs-port declared under section 14 to

be a warehousing port. (Sec. 3 (i)).

(Warehouse)

Warehouse denotes any place appointed or licensed under section 15 or

16.
 11

Shipment means loading of goods on board a conveyance bound for a

customs- port or a foreign-port. (Sec. 3 (k)).

7.2

7.2.1 Fix to Customs-duties

3
- ဋ
 12

Union Ministry of Planning and Finance may from time to time, by

notification in the Gazette, fix, for the purpose of levying duties, tariff-values

of any goods exported or imported by any mode of transport on which

customs-duties are by law imposed and alter any such values fixed by any

Tariff Law for the time being in force.

7.2.2 Levy of Customs-duties

Except as hereinafter provided, customs-duties shall be levied at such

rates as may be prescribed by or under any law for the time being' force, on-

(a) goods imported or exported by any mode of transport into or from any

customs-port from or to any foreign port ;

(b)XXXXXX;
 13

(c) goods brought from any foreign port to any customs-port, and, without

payment of duty, there transhipped for, or thence carried; to, and imported at,

any other customs-port ; and

(d) goods brought in bond from one customs-port to another. (S-20)

Except as otherwise expressly provided by any law for the time being

in force, goods whereof any article liable to duty under this Act forms a part

or ingredient shall be chargeable with the full duty which would be payable

on such goods if they were entirely composed of such article, or, if composed

of more than one article liable to duty, then with the full duty which would be
 14

payable on such goods if they were entirely composed of the article charged

with the highest rate of duty. (S -21)

7.2.3 Exemption from Custom Duties

Under Section 23, Union Ministry of Planning and Finance may from

time to time, by notification in the Gazette, exempt any goods imported into,

or exported from, the Republic of the Union of Myanmar, or into or from any

specified port therein, from the whole or any part of the customs-duties

leviable on such goods.

The Union Ministry of Planning and Finance may, by special order in

each case, exempt from the payment of duty, under circumstances of an

exceptional nature to be stated in such order, any goods on which customs-

duties are leviable.

 15

၄ -
 16

Section 24 provides that the Director General of Customs may from

time to time prescribe by notification the articles which shall be treated as

passenger's baggage not subject to duty.

The Director General of Customs may, subject to any general rules

relating to the landing and shipping of passengers' baggage and the passing of

the same through the custom-house which may be made under section 75,

pass free of duty any baggage in actual use, and for this purpose may

determine, subject to any Such rules, whether any goods shall be treated as

baggage in actual use, or as goods subject to duty.

 17

( ၆

Under section 25 of this Act provides the re-imported articles of

country-produce, such as:

If goods produced or manufactured in the Republic of the Union of

Myanmar be imported into any customs-port from any foreign port, such

goods shall be liable to all the duties, conditions and restrictions (if any) to

which goods of the like kind and value not so produced or manufactured are

liable on the first importation thereof:

Provided that, if such importation takes place within three years after

the exportation of such goods, and it is proved to the satisfaction of the

Competent Customs Official that the property in such goods has continued in

the person by whom, or on whose account, they were exported, the goods

may be admitted without payment of duty.

 18

Section 26 also provides the excise-duty on importation of certain

country-goods, that is to say, any goods produced or manufactured in the

Republic of the Union of Myanmar which have been exported there from and

on the exportation of which any drawback of excise has been received, shall

on being imported into any customs-port be subjected, unless the Director

General of customs in any particular case otherwise directs by special order,

to payment of excise-duty at the rate to which goods of the like kind and

quality are liable at such port.

- ၆

All goods derelict, jetsam , float sam and wreck, brought or coming

into or found in any place in the Republic of the Union of Myanmar, shall

be subject to the same duties, if any, to which goods of the like kind are for

the time being subject on importation at any customs-port, and shall in other

respects be dealt with as if they were imported from a foreign port, unless it

be shown to the satisfaction of the Competent Customs Official that such

goods are the produce or manufacture of any place from which they are

entitled to be admitted duty-free(Section 27).

 19

Section 28 of this Act stated how the country provisions and stores

may be shipped free of duty. But no rum shall be so shipped on any

conveyance going on a voyage of less than thirty days probable duration.

7.2.4 Abatement of Duty

Goods chargeable with duty upon the value thereof, but for which a

specific value is not fixed by law for the purpose of levying duties thereon,

shall, without unnecessary delay, be examined by an officer of Customs. If it

appears that the customs value of such goods is correctly stated in the import

declaration or shipping bill, the goods shall be assessed in accordance

therewith.

If it appears that such goods are properly chargeable with a higher

rate or amount of duty than that to which they would be subject according to
 20

the value thereof as stated in the import declaration or shipping bill, such

officer may detain such goods. In every such case the detaining officer shall

forthwith give notice in writing to the owner of the goods of their detention,

and of the value thereof as estimated by him ; and the Competent Customs

Official shall, within two clear working days after such detention, or within

such reasonable period as may with the consent of the parties be arranged,

determine either to deliver such goods on payment of duty charged according

to the entry of such owner, or to retain the same for the use of Government.

(Section – 31, 32)

(import declaration (Shipping Bill)

- -

When any goods, the value of which has been fixed by law for the

purpose of levying duties thereon, have, before delivery of the import

declaration, deteriorated to the extent of more than one-tenth of their value,

the duty on such goods shall, ,if the owner thereof so desires, be assessed ad

valorem.

The customs value of such goods shall be ascertained as provided in

section 33, and the duty shall be assessed thereon. (Section -34)
 21

import declaration)

၄ ၀

- ၄

If, on the first examination of any such goods under section 31, the

owner thereof states in writing that such goods are, in consequence of

damage sustained before delivery of the import declaration, of value less than

that stated in goods such bill, the Competent Customs Official, on being

satisfied of the fact, may allow abatement of duty accordingly. (Section -33)

import declaration)

The reduced duty to be levied on such goods may be ascertained by

either reduced of the following methods, at the option of the owner:—

 22

(a) the custom value of such goods may be fixed on appraisement by an

officer of Customs and the duty may be assessed on the value so fixed ;

or

(b) the goods may, after due notice in the Gazette or some local newspaper,

be sold by public auction at such time (within thirty days from the date of

delivery of the import declaration), and at such place, as the Competent

Customs Official appoints; and the duty may be assessed on the gross

amount realized by such sale, without any abatement or deduction, except

(in the case, of goods imported) of so much as represents the duties

payable on the importation thereof.

( (import declaration)

၀
 23

Where the Competent Customs Official is satisfied that any goods on

which duties are levied on quantity and not on value, and which are of a kind

which the Union Ministry of Planning and Finance has, by notification in the

Gazette, declared that the provisions of this section shall apply, have before

delivery of the import declaration deteriorated to the extent of more than one-

tenth of their value, he may allow an abatement of duty proportionate to the

extent of such deterioration. (Section – 34 A)

၄-

(import declaration)

၄
 24

No abatement of duty on account of any deterioration shall be allowed

on wine, spirit or beer, or save as provided by section 34A on any other

articles on which duties are levied on quantity and not on value. (Section -35)

7.2.5 Drawback allowed on re-export

When any goods which have been imported by drawback system, by

any mode of transport into any customs-port from any foreign port, due

customs duties shall be paid since such goods had been imported. If such

goods upon which duties of customs have been paid and are capable of being

easily identified or stores for use on board or ship equipments using on

board are to be re-exported from such customs-ports to any foreign port,

correspond with the provisions of importation, seven- eights of such duties

shall be repaid as drawback.

Provided that, in every such case, the goods be identified to the satisfaction

0f Competent Customs Official at such customs-port, and that the re-export

be made within two years from the date of importation, as shown by the

records of the custom-house.

 25

Provided further that, the Director- General of Customs may extend one year

as the term of period. If it is necessary to extend the term of period permitted

by the Director- General of Customs, Union Minister of Planning and

Finance may extend the term case by case for the interest of the state.

(Section 42).

-၄

Under Section 43 of this Act, when any goods, having been charged

with import duty at one customs-port and then exported to another, are re-

exported by any mode of transport as aforesaid, drawback shall be allowed

on such goods as if they had been so re-exported the former port, Provided

that, in every such case, the goods be identified to the satisfaction of the

officer in charge of the customs-house at the port of final exportation, and

that such final exportation be made within three years from the date on which

they were first imported into the Republic of the Union of Myanmar. (S- 43)
 26

According to section 51, no drawback shall be allowed unless the

claim to receive such drawback is made established at the time of re-export.

No such payment of drawback shall be made until the conveyance

carrying the goods has put out to sea, or unless payment be demanded within

six months from the date of entry for shipment.

The declaration by carrying drawback has been provided under section

52 as follows:

Every person, or his duly authorized agent, claiming drawback on any

goods duly exported, shall make and subscribe a declaration that such goods

have been actually exported and have not been re-landed and are not intended

to be re-landed at any customs-port; and that such person was at the time of
 27

entry outwards and shipment, and continues to be, entitled to drawback

thereon.

၄ ( Export Manifest)

7.3 Arrival of Conveyance and Departure of Conveyance

 28

7.3.1 Arrival of Conveyance

The Director General of Customs may, by notification in the Gazette,

fix a place in any river or port, beyond which no conveyance arriving shall

pass until a manifest has been delivered to the pilot, officer of Customs or

other person duly authorized to receive the same. (Section -53)

(Manifest)

If, in any river or port wherein a place has been fixed by the Director

General under this section, the master of any conveyance arriving remains

outside or below the place so fixed, such master shall, nevertheless, within

twenty-four hours after the conveyance anchors, deliver a manifest to the

pilot, officer of Customs or other person authorized to receive the same.

 29

If any conveyance arrives at any customs-port in which a place has not

been so fixed, the master of such conveyance shall, within twenty-four hours

after such conveyance has anchored within the limits of the port, deliver a

manifest to the pilot, officer of Customs or other person authorized to receive

the same. (Section -54)

Every manifest shall be signed by the master, and shall specify all

goods imported in such conveyance, showing separately all goods (if any)

intended to be landed, transshipped or taken on to another port, and all ship's

stores intended for consumption in port or on the homeward voyage, and

shall contain such further particulars, and be made out in such form, as the

Director-General of Customs may from time to time direct. (Section -55)

 30

The Competent Customs Official may permit the master to amend any

obvious error in the manifest, or to supply any omission which in the opinion

of such Collector results from accident or inadvertence, by furnishing an

amended or supplementary manifest, and may, if he thinks fit, levy thereon

such fee as the Director-General of Customs from time to time directs.

 31

Except as herein provided, no import manifest shall be amended.

The person receiving a manifest under section 53 or 54 shall countersign the

same and enter thereon such particulars as the Director-General of Customs

from time to time directs in this behalf. (Section -56)

7.3.2 Offences and Penalties

If, in any river or port wherein a place has been fixed under section 53

by the Director-General of Customs, any conveyance arriving passes beyond

such place before delivery of a manifest to the pilot, officer of Customs, or

other person duly authorized to receive the same. The master of such

conveyance shall be liable to a penalty not exceeding twenty hundred

thousand kyats. (S 167 (13))

 32

If the master of any conveyance arriving, which remains outside or

below any place so fixed, wilfully omits, for the space of twenty-four hours

after anchoring, to deliver a manifest as required by this Act, such master

shall be liable to a penalty not exceeding twenty hundred thousand kyats. (S

167 (14))

၆ ၄

If, after any conveyance arriving has entered any customs-port in

which a place has not been fixed under section 53, the master of such

conveyance wilfully omits, for the space of twenty-four hours after

anchoring, to deliver a manifest as required by this Act, such master shall be

liable to a penalty not exceeding twenty hundred thousand kyats. (S -167

(15))
 33

If any goods entered in the import-manifest of a conveyance are not

found on board of the conveyance, or if the quantity so found is short, and if

such deficiency is not accounted for to the satisfaction of the officer in charge

of the custom-house. The master of such conveyance shall be liable to a

penalty not exceeding three times the value of the missing or deficient goods,

or if such value cannot be ascertained, to a penalty not exceeding ten hundred

thousand kyats for every missing or deficient package or separate article. (S-

167(17))

၆၄

- ၆
 34

If any person required by this Act to receive a manifest from any

master of a conveyance refuses so to do, or fails to counter sign the same or

to enter thereon the particulars referred to in section 56, such person shall be

liable to a penalty not exceeding ten hundred thousand kyats. (S-167 (18))

7.3.3 Departure of Conveyance

Under section 62 of this Act, provides that no conveyance, whether

laden or in ballast, shall depart from any customs-port until a port-clearance

has been granted by the Competent Customs Official or other officer duly

authorized to grant the same.

၄
 35

And no pilot shall take charge of any conveyance proceeding to sea,

unless the master of such conveyance produces a port-clearance.

If any master of a conveyance attempts to depart without a port-

clearance, such master shall be liable to a penalty not exceeding ten hundred

thousand kyats. (Section 167(21)).

If any conveyance actually departs without a clearance, the master of

such conveyance shall be liable to a penalty not exceeding twenty hundred

thousand kyats. (Section 167(22)).

 36

If any pilot takes charge of any conveyance proceedings to sea,

notwithstanding that the master of such conveyance does not produce a port-

clearance, such pilot, on conviction before a judge, shall be liable to a penalty

not exceeding twenty hundred thousand kyats.(Section 167(23))

- ၆

Application for Port Clearance

According to Section 63, provides that every application for port

clearance shall be made by the master at least twenty four hours before the

intended departure of the conveyance.

The master shall at the time of applying for port clearance.

 37

(a) deliver to the Competent Customs Official a manifest in duplicate

, in such form as may from time to time be prescribed by the

Director-General of Customs, signed by such master , specifying

all goods to be exported in the conveyance and showing separately

all goods and stores entered in the import manifest and not landed

or consumed on board or transshipped:-

(b) deliver to the Competent Customs Official such shipping bills or

other documents as such officer acting under the general instructions of

such Director-General of customs requires:- and

-
 38

(c) answer to the proper officer of Customs such questions touching

the departure and destination of the conveyance as are demanded of

him.

-၆

Refuse Port-clearance to Any Conveyance

According to the provisions of section 64, the Competent Customs

Official may refuse port-clearance to any conveyance until-

-၆၄

(a) the provisions of Section 63 are complied with ;

(b) all port –dues and other charges and penalties due by such

conveyance, by the owner or master thereof; and all duties

 39

payable in respect of any goods shipped therein , have been duly

paid , or their payment secured by such guarantee, or by deposit

at such rate, as Competent Customs Official directs;

(c) the ship’s agent if any delivers to the Competent Customs

Official a declaration in writing to the effect that he will be liable for

any penalties imposed under sec. 167 No.17 and furnishes security

for the discharge of the same;

d the ship’s agent if any) delivers to the Competent Customs

Official a declaration in writing to the effect that such agent is

answerable for the discharge of all claims for damage or short

delivery which may be established by the owner of any goods

comprised in the import cargo in respect of such goods;

(e) the conclusion of the proceedings if any against the conveyance.

-၆
 40

7.4.1 Prohibition and Restrictions of Importation

 41

No goods specified in the following clauses shall be brought, whether by land

or sea, into the Republic of the Union of Myanmar:—

(a) * * * *

(b) counterfeit coin ; or coin which purports to be current coin but which is

not of the established standard in weighs or fineness :

(c) any obscene book, pamphlet, paper, drawing, painting, representation,

figure or article :

(d) goods applied to a counterfeit trade-mark or any other existing

laws, goods which import a false trade description:

(e) goods made or produced beyond the limits of the Republic of the Union

of Myanmar and having applied thereto any name or trademark being, or

purporting to be, the name or trade-mark of any person who is a

manufacturer, dealer or trader in the Republic of the Union of Myanmar

unless--

(i) the name or trade-mark is, as to every application thereof, accompanied by

a definite indication of the goods having been made or produced in a place

beyond the limits of the Republic of the Union of Myanmar; and

(ii) the country in which that place is situated is in that indication indicated in

letters as large and conspicuous as any letter in the name or trade-mark,

and in the same language and character as the name or trade-mark.

(S-18)
 42

၆
 43

7.4.2

Any Union Ministry or Union Ministry of Planning and Finance

assigned by the Union Government may from time to time, by

notification in the Gazette, prohibit or restrict the bringing or taking by any

mode of transport for those goods of any specified description into or out

of the Republic of the Union of Myanmar, or any specified region

thereof, either generally or from or to any specified country, region, port or

place beyond the limits of the Republic of the Union of Myanmar.

Any person who imports or exports any illegal goods which have

prohibited or restricted shall be taken action by existing Laws.

(S-19)

၄
 44

7.4.3

Before detaining any such goods as are or may be specified in or under

section 18 or section 19, as the case may be, or taking any further

proceedings with a view to the confiscation thereof under this Act, the

Director-General of Customs or other officer appointed by the Union

Ministry of Planning and Finance in this behalf may require the regulations

under this section, whether as to information, security, conditions or other

matters, to be complied with, and may satisfy himself in accordance with

those regulations that the goods are such as are prohibited to be imported. (S

19 (a))
 45

7.4.4 Offences and Penalities Relating to (S 18, 19)

If any goods, the importation or exportation of which is for the time

being prohibited or restricted by or under Chapter IV of this Act, be imported

into or exported from the Republic of the Union of Myanmar contrary to such

prohibition or restriction, or if any attempt be made so to import or export

any such goods, or if any such goods be found in any package produced to

any officer of Customs as containing no such goods, or if any such goods, or

any dutiable goods, be found either before or after landing or shipment to

have been concealed in any manner on board of any conveyance within the
 46

limits of any port in the Republic of the Union of Myanmar, or if any

goods, the exportation of which is prohibited or restricted as aforesaid, be

brought to any wharf in order to be put on board of any conveyance for

exportation contrary to such prohibition or restriction. Such goods shall be

liable to confiscation; any person concerned in any such offence shall be

liable to a penalty not exceeding three times of the customs value of the

goods or such person concerned shall, on conviction of any such offence

before a Judge, be liable to imprisonment for a term not exceeding three

years. (S-167(8))

၄ -

၄
 47

၄
 48

7.4.5 Attempt to import or export restricted goods or prohibited

goods.

If any goods, the importation or exportation of which for the time

being prohibited or restricted by section.18 or 19 of this Act, be imported into

or exported from the Republic of the Union of Myanmar, contrary to such

prohibition or restriction, or if any attempt be made so to import or export

any such goods, any person concerned in any such offence shall be punished

according to section.167 (8) of this Act. (Section. 167(8))

Although there is a provision that if any attempt be made to import or

export restricted goods or prohibited goods, any person concerned shall be

punished according to section.167 (8), there is no definition of "attempt" in

the Sea Customs Act. When it was promulgated in 1878.

In the year 1959, the definition of attempt was inserted by the Sea

Customs Amendment Act as follows;

For the purpose of item 8 of the Schedule to section.167 and 167 A,

the word "attempt" means any act of concealment, keeping or conveying of

goods under such circumstances as are sufficient to satisfy the Competent

Customs Official that the goods are being concealed kept, or conveyed with

intent to import or export the goods contrary to the prohibition or restriction

under section.19, section, 167 B.

 49

Before the definition was inserted although there was evidence that the

prohibited goods were being concealed or conveyed the court could not

punish due to the lack of this definition.

- ၆ - ၆

၆
 50

In the case of Pun Za Cin v. The Financial Commissioner (Commerce) and

two others, 1960 B.L.R S.C (142)

It was held that the word "Attempt" is nowhere comprehensively defined.

The ordinary meaning is to "try" or to "endeavour". It is more than a state of

mind and a define stage in the commission of the crime. Intention even

though it may be, is not punishable. It cannot be said that, in sending gold

from Rangoon(Yangon) to Kalewa, which is 160 miles away from the Indian

frontier, and attempt to send it out of Myanmar had been made.

၄ ၆
 51

၆၀

- ၆

Daw Nyunt Yi v. Secretary of Financial and Revenue Ministry, 1967 B.L.R

C.C (691)

Daw Nyunt Yi, on arrival at the airport handed over a package to a person

nearby. When customs officers examined the package gems were found

inside. The customs officers presumed that Daw Nyunt Yi concealed and

conveyed the gems with the dishonest intention of exporting it according to

section 167 B, customs officers could presume as such if they found the

restricted and prohibited goods were being brought by concealing. The Chief

Court decided that there is nothing wrong in confiscating the gems under

section 167(8) of the Sea Customs Act.

Therefore, after the "attempt" was inserted by the Sea Customs

Amendment Act, where the prohibited goods were being concealed or

conveyed the court could punish under the provision of section 167 B.
 52

၄ ၆

The Union of Myanmar v. U Maung Maung, 1967 B.L.R C.C 480

Gold chains which are manufactured in foreign country found

possession of the Appellant. The defendant cannot be taken as the one who

has smuggled those goods into Myanmar.

 53

Foreign Exchange Regulation Act, section 9(1) and the Sea Customs

Act, section 19 provided that possession or ownership alone cannot be taken

as an offence.

It amounts to offence only when such goods have been imported

contrary to law.

7.4.6 Burden of Proof (Special Rule of Evidence)

 54

When the Sea Customs Act was enacted in 1878, there is no provision

in respect of the proceeding regarding burden of proof. In the year 1953, the

provision of the burden of proof in the Sea Customs (Amendment) Act and

Section 167A has been inserted.

Section 167(A) of the Sea Customs Act provide that if in any

prosecution or in any proceeding is respect of any goods, the importation or

exportation of which has been prohibited or restricted under section 19, any

question shall arise whether such goods have not been imported or whether

no attempt has been made to export such goods, contrary to such prohibition

or restriction, then in such case the burden of proof thereof shall be on the

accused or on the person against whom the proceedings are opened.

Before the Amendment Act, when the persons concerned in import

and export of prohibited goods, the burden of proof under Section 167(8) is

on the prosecution to proof his accusation against the accused.


Burden of Proof
 55

၄
 56

In the case of, Kantilal Gordhandas Shah v. The Assistant Collector of

Customs (Preventive) 951 B.L.R S.C (244)

It was held that, section 167(8) of the Sea Customs Act provides for

imposition of penalty upon persons concerned in import and export of

prohibited goods and restricted goods, and the burden of proof under that

Section is on the accused to prove his accusation against the accused and

unless and until the accuser can prove his allegation the accused must be let

off. Procedure adopted by the Collector is the very antithesis of the one

contempt in Section 167(8) of the Sea Customs Act and is a breach of the

cardinal rule of criminal jurisprudence.

After the year 1953, when the Amendment Act was enacted the

special rules of evidence to prove the accusation was shifted to the accused.
 57

4
- - ၄၄
 58

In the case of, U Tun Aung and others. Vs Ministry of Finance and

Revenue and others'', 1961, B.L.R.,SC (91) held that , where the case filed

under section 167, the accused person must prove whether the goods liable to

be confiscated or not according to section 167 (A).

Therefore after section 167 (A) was inserted in 1953, as the special rule

of evidence, burden to prove will lie on the accused or on the person against

whom the proceeding are opened.

၆
5
၆

5
၆ - -
 59

Key Terms

Sea and Land Customs -

Customs- port -

Coasting Vessel -

Master -

Warehousing Port -

Warehouse -

Shipment -

Fix to Custom-duties -

Levy of Custom-duties -

Exemption from Custom Duties -

Abatement of Duty -

Import declaration -

Shipping Bill -

Drawback -

Export Manifest -

Arrival of Vessels -

Departure of Vessels -

Application for Port Clearance -

 60

Refuse Port-clearance to Any Vessel -

Prohibition and Restrictions of Importation -

Attempt -

Burden of Proof -