= Chapter 2 inds of Gift under Myanmar Customary Law Bereiscati si indsionei re are three kinds of gift according to Myanmar Customary Law. They are 21 1. Shinbyu gift 2. Grandparent's gift 3. Death-bed gift Shinbyu gift Under Myanmar Customary Law, a Buddhist man may make to give as gift of property at the time of shinbyu ceremony. If such property give- (1) Gift must be made during the actual celebration. (2) A gift of property made publicly to knowledge by both the parents or surviving parent at the time of the shinbyu ceremony constitutes. (3) A gift made on the day after the shinbyu ceremony is not a shinbyu gift. (4) A shinbyu gift, without delivery of possession, such property has managed by both the parents or by the surviving parents as they like. (5) When the absence of deliver possession, if the donee predeceases the donor, the gift comes to an end. (6) The donee can be obtained as delivery of possession if a gift of property should remain intact when the donor died. (7) The possession of property passes absolutely to the donee and the donor have no longer any power of disposal over it.Fight to claim on such py 4 4 0 erty. This princi} Dhammathats.$ S Principle is clearly stated in the prominent The principle from the a ibove Dh: i ease of Ma Me. Maung 1 Ammathats is supported and followed in the ee wk Hy? are valid without delivery op a Yar gift made by a grandparent to a grandchild contingent gifts and that the rules for es Such gift, like shinbyu gifts, are merely sue of inheritance and do not give the a Bifts are intended to operate merely as rules nee ca is to secure that the grandchild who, being fan : as Ra ee ae in competition with his elder uncles and aunts, ie inheritance as the grand i i parent considers fair. presumably younger, A possi ; ee a a Aa aa delivery of possession is essential for the ee gil by grandparent’s to grandchildren. This, eee igye and other Dhammathats among the varieties of thinthi; and the Dhamma, Manugye, Manu,Dayaii i "EE 1u,Dayajja, AAmwebon and Cittara extracts in Section 130 of the Digest 1, prescribed that the gift is valid whether accompanied by delivery of possession or not becomes the separate property of the donee.* Therefore, gift by grandparent is a like shinbyu gift regards as sole ownership of the donee and any other heir has no right to claim for the division of such property. Now-a-day gift by grandparent’s are very rare in our Myanmar Society. 2.2.1 Gift by Parents | ‘According to the Dhammathats a gift of moveable property is valid when itis made by the parents to the child at the time of performing domestic ceremony such es : washing the head of new-born baby, placing a baby in cradle, naming a child, or atthe | time of the marriage of the child. | But when parents make gifts to children who are living apart, such gift are not valid unless accompanied by delivery of possession.” igest Volume 1, 1898, Chapter VII, a ® Section 130 of the Kinwunmingyi, U, Gaung Di 73, UBR (91720) BT Oe of Leading Cases on Buddhist Law, Rangoon, British Myanmar Press Burmese Buddhist Law, 5* edition, 1951, p-306: B Gifts of Parents whether Vatig o F not The board principle of i uring their lifes, delivery of possession is subject ane a Fi valid when accompanied by Manugye say exceptions.' ys that althou, igh parents Property to one or other of hey SY that they give the whole oftheir their child: properties, because the parent en, yet such children shall not get all the pees S consent, the donee must return it if the children The result is t s that parents may make a valid gift oftheir property as they please a soir oe oo of their children so long as they are not in dotage and they do not make a gift of practically the whole of their estate,"" In U Tin Win v. U Tin Nyunt?, the Court held that there is no bar a Myanmar Buddhist has a right to deliver his own immoveable property to any their person freely. But in Dhammathat 36 volume, Chapter 8 Section 75 it is written that accordingly it is decided that if the parents unjustly make a gift of the whole of their property to one of their property to one of their children, the gift is not valid, as it should not have been made, the property given shall be partitioned according to the usual rules of partition or inheritance. The Court further held that U Tin ‘Nyunt, the original court of plaintiff cannot concern with subject matter because his parents, U Maung Nge and Daw Aye Mya are live at that time. So, that he cannot say anything to his parents for the giving to U Tin Nyut. Moreover, he cannot sue for cancellation of the gift deed. In the case of Daw Ni V. U Tin Hla", a mother has a right to sell some of her ‘own property to one of the children, who live with her. There is no rule to make known to other member of family, when she sells her property. The sale of their own property is no need to make known other like kittima adoption. The sale make in silent cannot be presumed under the influence of coercion. With reference to the above shown selections from Dhammathat and Rulings, the owner of the property can deliver his property at his will. But owner of the 2 [ahi SG, Principle of Moder Bumese Buddhist Law, * ton, 1951, p-306 "Tid p-307 2 1983,.M.L.R, P-191 © 1985, M.L.R,P-684 Property make a gift of entire the rights of other hei In the case of Daw Tote B Tote and Hla Gyi and two others! i se three others V. Daw Sein Sein Win (a) Daw »bser 2 ed that Daw Sein Sein Win (a) Daw Hla Gyi perc ‘Thaung had the daughter Daw Sein Sein Win (a) Daw Hla ge? a ‘un Min and the daughter Daw Wah Wah, that only U Tun Min jaw Wah Wah resided with Daw Thaung in the land and building of a ‘Township and that they took care of her in accord with the bounden duties of offspring. So, Daw Thaung lawfully gifted the said land and building to U Tun Min and Daw Wah Wah for being grateful to mother signing gift deed, It was lawfully changed from Daw Thaung to the title of U Tun Min and Daw Wah Wah in accord with the law and procedure under the registered gift deed. In seeing these facts, it is clearly visible that Daw Thaung gifted the said land and building as her own desire to U Tun Min and Daw Wah Wah and such gift is lawful and it found that had been divided the portion of inheritance for Daw Sein Sein Win (a) Daw Hla Gyi. Therefore, the decree and judgment of the divisional court is proved again cancelling the decree and judgment of the Supreme Court of the Union. In the case of Daw Win Kyi (a) Daw Win Kyi Nyunt V. Daw Thein Thein and other'®, the Court held that the property is owned by Buddhist husband and wife. Either husband or wife transfers the property to others on account of natural love. It one of the couple knows it and willingly agrees or gives implied consent that means his rights of share includes in transferring will agree with thus decision. 2003, M.L.R,P-115 15 1995, M.L.R,P-17615, In the case of Ko Khi, tae aie Maung Thein V. Ma San San Myint was held that oe Property which was given to him by See 'wfully by the deed of gift. While doing 2 ; ‘Were legal husband and wife leading a Bnd Fo) Inlet Of the fact ta al ie peg his father to his so, U Aung Htoo ‘matrimonial life. That Myint., accordii transferred to Ma San San - Hag to Myanmar Customary Laws, it is not that Ma San San Myint wife Ma Si ae ee raat ase Htoo also had the right to own it asthe Po ee es peer in the suit, Moen ‘San Myinthad the right to get, eee ae Sentient ree geo Be eer 'yunt San vs Daw Khin Ma Gyi”’, in the present gifted the (2) flats of Kyalyana 6 unit building from among the 2 buildings standing on the land plot No-35, together with the land concemed owned by U Than Han and Daw Khin Ma Gyi to his daughter Ma Nyunt Nyunt San by registered gift deed. In gifting the property owned by both husband and wife without any consent of spouse, only the portion of legato is valid. The right of husband who has not agreed is not effective. It is not against the Myanmar Customary Law as it is not a gift made for leaving anything to be divided as inheritance. In the case proposed by plaintiff to cancel the gift deed by love, it was decided as not appeared not to cancel gift deed as it was valid because it was not inclusive in section 126 of the Transfer of Property Act. District Court reviewed that the portion of the appellant Daw Khin Ma Gyi involved that was not impossible to be divided, that she might lose unless divided and laid down winning decree as proposed by Daw Khin Ma Gyi, plaintiff in the original court cancelling the decree and judgment of the original court. The lawyer of applicant pledged that Amendment Court should involve and amend asthe decree of the District Court against the Myanmar Customary Law. It appeared to divide property only after divorce, o say under the Myanmar Customary Law. As impusible to divide property owned by both couple before dvore, the right of Daw Khin Ma Gi may sulfer fom Iosif that dedi ef itself without caecling. Thus, is Cll Amendment is heart omitted. : mS ‘Therefore, gift of property to ther children by both parents durin their Ife Bt ls phen acoomenied iy diver of pomessin. But pret do ont vk 8 See % 1993, MLRP-1 "72001, MLR, p-S416 sift of partially the whole of th : 4 cir estate children, if such gif make to one ae and at the time of dotage to one of their ir children, the gi - |. the gift is not valid. 2.3 Death-bed Gitt es a bed from which he or she was neve 4 gift made by a donor when he or she was on T to tise again, A voluntary transfer of proper = st i: in fact on his or her death-bed j 'y between two living persons while the donor is imhopeless expectation of death and is about to die is When parents are lying or oath bed, Stricken down never to rise again, while on their Serene heme eee a and ee as inheritance." Doth he possession of mp and expects to die pat of his illness, delivers to on ee heer 3 keep as a aif in case the donor shall die of gift made in contemplation of death or danatio mortis causa. Thus all gifts made in contemplation of death are death-bed gifts, but all death- bed gifts are not gifts made in contemplation of death. Death-bed gift is the genus, and gift made in contemplation of death 2” A voluntary transfer of property between two living persons while the donor is in fact on his or her death-bed in hopeless expectation of death and is about to die is known as a death-bed gift, gift made during last illness or gift made in extremis. It is not disputed that the question as to the validity of a death-bed gift arising between Myanmar Buddhist must be decided according to the Myanmar Customary Law, nor is it disputed that a death-bed gift is invalid under the Myanmar Customary Law." The Myanmar Customary Law recognizes only one form of succession, intestate succession; and testamentary succession is opposes to the fundamental principles of the Myanmar Customary Law. Therefore, a Myanmar Buddhist cannot dispose of his property after his death by will and consequently no Myanmar Buddhist can, under the guise of making 2 gift, be allowed in effect to make a will; for he abi, 2 = Principle of Myanmar Buddhist Law, Caleuta, Easter Law House, 6" edition, 1957 a am 34d of the eae U, Gaung, Dige enst Vol-1, 1898, Chapter VIII 2 Section 191 of the Succession Act, 1925, p-217 211 Tezawunta vs Maung Zaw Pe, 10, Ran, 224v camnot’set oUght'the provisions of - of hi property after his death, "S Personal law as to the inheritance of his from the parents, it is val lid if there be del livery of possession? In the case of Mg Ba Aung vs Ma Pa U, = house fo her son with the consent of her husban = id, a year afier the lady's death th husband remarried an oe eae id declared the house at his atetpa property at his second » a Lady in her last illness gave a marriage, at the boy’s shi Y's shinbyu ceremony the boy's father confirmed the gift, in a suit between the boy and step-mother, ere it was held that the original death-bed gift was not iain Buddhist Law for want of delivery of possession and that even the : yu gift was not valid as the husband alone could not give away the house without the second wife’s consent, In the ease of Ma Yu vs Po Thaung”™, a man on his death-bed transferred by ‘two registered deeds paddy lands to his nephew requesting him to sell the same after his death and devote the sale proceeds for religious purposes. Four days later the man died leaving his widow. The nephew sold away the paddy lands. In a suit between the widow and the nephew it was held, that as the death-bed was made in favour of a non- heir and as it was in the nature of as testamentary disposition country to the provisions of the personal law of the donor so it was invalid under the Myanmar Customary Law. In the case of U Khin Maug San V. Daw Saw Yu New (A) Daw Saw Yu Yu Kyaw and three Others”, U Khin Mang San prosecuted against the 3 including Daw Saw Yu New for cancelling (2) sheets of gift deed and administration upon the inheritance. Divisional Court laid down tentative decree that plaintiff deserved one- second of inheritance declaring as cancelled. Either plaintiff or contestant appealed that decree to the Supreme Court of the Union, the civil appeal presented by contestant was granted as a place and the decree declaring was cancelled and the tentative decree as plaintiff deserved one-second of inheritance was confirmed. The civil appeal presented by plaintiff was omitted. It was presented to court of special appeal as unsatisfactory to the said 2 appeal cases. Section 79 of the Kinwunmingyi, i, 11; PS 711, BLL-T, P- 234 5014, M.LR, p- 27 , G aung Digest Vol-1, 1898a 1B Plain asked for selog yy : ee (evidence 2 and 3). Evidence 2 wag TATE as cancelled (2) sheets of gift deed a grandfather to grandchild ( Bift deed dated 143-2016 gifted by the decree of the Supreme Court of the Union, mn the case of Daw Thai vs Daw Ngoot and one™, the donor, a Sino-Myanmar Buddhist, nine days prior to her death, made a gift of her entire estate, when death ‘was imminent, to strangers when there were nature heirs. The donor Daw Shwe Yi was 72 years of age when she made the gift. She had been suffering from leprosy for several years before the gift. She had propitiated “nats” at her house about a month or so before the gift on account of her ill-health. She could not go to Pleader to give him instructions for drafting the deed of gift and she had to ask the Sub-Registrar to come to her house and register the deed on the ground that she could not go to his office as she was not well. The deed has to be registered in her bed-room while she was just sitting up in her bed, and the Sub Register, who asked her to hold the pen while he himself made the cross-mark “cannot write, being unwell”. She had to be carried in a cradle when she was removed on the same day from her own house (which is included in the gift) to the house of the donees, and she died in their house on the ninth day after the gift. The gift was made, and the subject matter of the gift clearly indicates that she gave all her properties to the appellant and U Kwain and moved into their house as her death was imminent and she herself was under an apprehension that her dissolution was at hand.hildren living wi been delivery of possess ildren living with them it is invalid even if there has ton of the subject of gift. But where a death-bed gift is made pe ee av ae from ee cee it is valid if there be heirs, even if there be delivery of, sue Stranger is not valid as against the natural ion. Nowadays, Myanmar Buddhist cannot make death-bed gift under Myanmar Customary Law. If the gift on his/her make to another person, such gift is invalid. But family arrangement may be made by Myanmar Buddhist. Such gift is valid. Family arrangement means by the agreement of the owner upon the property and his family members compact before the death of the owner how to divide the inherit property or the arrange how to divide each family members compact upon the property of inherit after the death of the owner. Family arrangement may be made either by oral or document before the parents and heirs. If it is immoveable property and exceed 100000 kyats, register deed must be registered under the Registration Act. ‘The parties to a family arrangement must be persons who have a right in the property with regard to which the arrangement is made and there must be mutuality among them in the arrangement. In doing so the arrangement binding on all of them. In executing the document of partition property by the agreement of the family members, if there contained the heirs of the deceased and any other person not an heir, such document shall not be deemed as the family arrangement.” Under Myanmar Customary Law, the case whether the family arrangement hhas manage or not described in the precedent of Daw Thae Yin v. U Tun Nyan’*. In this case stated that the main aim family arrangement is not to appear the disputes 12 edition 2014, p-238 _ EEE 7 Mya Sein, U, Myanmar Customary Law, 78 1966, B.LR, 591among the heirs and to preven ; 7a Tom arguing each pepe ance other about the disposition of their survivor inherited the wi i the children cannot acquire the ‘anmar Customary sees ee Law, on the death of one spouse, right to inherit before their parents’ ge te death child). If the family arrangemen; except or: ae asa (first bom competent natural the property by means of family arrangement a - : the case of U Ba Min v, Daw Mya Mya and two other™, it was decided that 4 family arrangement made by the agreement of all heirs and dis isposed the property by such arrangement, shall not be cancelled. Moreover, there is n © tight to argued under section 115 of the Evidence Act that such family arrangement is not valid. When the court administer in disposing the share of inheritance it shall be under the religion of the deceased owner of the property. In this case, there has been application to the court by any heir for disposition of property under Islamic Law. They disposed the property with mutual agreement by executing a bond before the executive members of the ward and witnesses. Then they took relative parts of land, the share of inheritance. And it was found that the appellant plaintiff, U Ba Min sold and delivered his share part of land. So, the court shall not need to dispose the property due to disposition of property by the mutually agreements of all heirs. In the case of Daw Ngwe Hlaing v. U Hla Saung’!, it was held that family arrangement means by the agreement of the owner upon the property and his family members compact before the death of the owner how to divide each family members compact upon the property of inherit after the death of the owner. In disposing of property by family arrangement, the important fact is to have the consent of all heirs. The family arrangement shall be completed only by meeting of all heirs. U Tun Myint v. Daw Ngwe Kyi 1983, M.L.R, 101 2007, MLR75 **1991, M.LR, 50to meet with each other at the same place. tf fferent area separately, itis not easy ~ If such. successful only when all of them met with each oth romaine other at be successful. Thus, i : the same time, it was difficult 9 im Saying to include all co-heirs, it must i is allthe family members mainly, ust include the desire of 2.3.1 Death-bed gifts of parents to children Despite of the f act that Myanmar Buddhists have no right to write will, itis ie... fe bees or deceiving the laws, they execute a deed that In the case of Mg Ba Aung vs Ma Pa U, a Lady in her last illness gave a house to her son with the consent of her husband, a year after the lady's death the husband remarried and declared the house at his atetpa property at his second marriage, at the boy’s shinbyu ceremony the boy’s father confirmed the gift, in a suit between the boy and step-mother, it was held that the original death-bed gift was not valid under the Buddhist Law for want of delivery of possession and that even the shinbyu gift was not valid as the husband alone could not give away the house without the second wife’s consent. In the case of Ma Thin Myaing v. Maung Gyi and five™, it was observed that a mother made a gift of land to three out of her five children, subject to a condition that she was to continue in possession and enjoy the rents and profits thereof during her life time, and that the gift was only to take effect after her death. It was held that the principles of Burmese Buddhist Law apply to the ease, and that, as this gift was merely an attempt to evade the principles governing inheritance under that law, and as itamounts, in fact, to making a will, the gift is invalid. ‘The case of Daw Lay Tin v. U Aung Win and two™, according to Transfer of Property Act, Setion 122 to bea natural lve git in gving property to someon must have the donor and donee a certain property. The propery giving s natural ove sft mut be in possesion ofthe doce. He ose mus give ita hises own fee Wil Sa eee cc mana frm Hite ov Bory. wae ee 21, BLT, P57 ® Y Ran p-351 2001, MLR, p-392Chapter 3 Laws relating to constitute a Gift The essence of a gift i itis pa omen ane ee roperty. As for the validity of gifs in governed by the Myanmar Castomary Law and gifts are completed by delivery of possession alone. The Transfér of Propety Act was extended to the whole territory of Union of Myanmar with effict from I* Jexmary 1922, After the enactment of the Transfer of Property Act 2 Myanmar Buddhist cannot claim immoveahle by way of gift except by a registered imstrement_ So. if the donor gave the immoveahle property by way of gift be may be exccuted the dood ‘Then the deed must be registered under Registration Act Gift made by the registered jnstrument, must be collect the tnx upon the value of the property im ancondance wi para 33 of the Stamp Act Noemally, according @ existing ew. Stcing any prope tat concern with Myanmar Castoenary Lew. But they are concer with Teamstir of Property Act and Commact Act. Therefore, Tramsfer of Propesty Act, Contact Act, Registtion Act and Somsp Actare isting lees of gf 2 Mr 3 Necessary fora Vaid GE . i _Aesseding > Sects 122 of te Tams of Png Act prvesics eer easiie of comin existing esse “waht ES ee ie peopesss. made voiammary amd ee pce ae dem mei, called ir deme,cepti such acceptance must be made durin, i fill capable of giving. If the donce dies ee ae - é : TE aece Therefore, according to this section, negees nt Bits void! (1) There are should be a donor and don, wires Ce ee z © The subject of gift must be a cer aa Ain existing property, moves moveable or 6) The gift should be made voluntarily and wit lout consideration, ni the donor (5) Then acceptance by or on behalf oft 2 done: (6 The transfer of gift must made Tegistered instrument : the donor and attested by at least two witnesses? a Ses. (4) There should be a transfer on the par of Myanmar Buddhist can also make a gift of love. To constitute a A My idl al gift of natural | : ratural love, there must be a donor and donee, Such - Such property must be in possession of donor. Ifa valid gift of immoveable Property a registered deed be must be needed. 32 Gift Made by Document As for the validity of gift in Myanmar conceming before 1922 sift are governed by the Myanmar Customary Law and gifs are completed by delivery of possession alone. Since 1893 in the city of Rangoon, and since 1905 in most of the important places of Myanmar, and since 1922 in practically the whole of Myanmar, the provision of the Buddhist Law that git must be completed by delivery of possession has been repealed by Section 123 of the Transfer of Property Act of 1882. So, in cases of gifts of immoveable property, it is immaterial now whether there is delivery of possession or not so long as there isa registered deed of gift tested by two witness. [Also under this section, it is found that a gift of moveable property is valid by mere delivery of possession. A gift of immoveable property amongst Myanmar Buddhist before the 1" April 1930 was valid without acceptance or delivery of possession provided there was aregistered deed of gift duly attested by two witnesses. But owing to an amendment (which has no retrospective effect) to Section 129 of the Transfer of Property Act, from the 1* April 1930, in case of a conflict Dies a toe aS Section 122 ‘Transfer of Property Act oH *Thet Pay, ce Kawredge ofthe Transfer of Property ‘Act, 2" edition, 2007, p-298geen the Provisions OF the gift Of the Tran fe 28 sfer yaa Customary Law the latter shall 10 lon Of Property mee Hence it may be said that fom the Bet prevail 3 at of the April 1 ly when there ig g Out sane made only when there is acceptance hy, *if at immoveable po perty ¢ gift by the donor le donee a eed of lft by T attested by two witnesse, SXeCutions of a registered S. In fact a Myanmar cannot claim any i i i nmoveable ty a registered deed in accordance with the Property by way of gift ex ) cs sransfer of Property Act. sion of the Section 123 of the While on the frst day of January 1922, th 4 : , the Trans extended [0 practically the whole of Myanmar, a fer of Py *f 0 in order immoveable property under Section 122 and 123 of Transfer of fer of Pr operty Act was ‘0 make a git of effected by, roperty Act must be (@) A registered instrument (b) Attested by at least two witnesses (¢) Such registered instrument signed by or on behalf of the donor (d) Document shall be registered (Registration Act Section 17) According to Section 17 of the Registration Act, 2018, provides that any of the following documents may be registered according to this law, namely; (a) Any instrument of sale or any instrument which purport or operate to create, declare, assign, limit, or extinguish or revoke whether in present or in future, any right, title or interest, whether vested or contingent, of the immoveable property or any thing relating o such property ofthe value of not exceeding ‘one hundred thousand kyats. (b) Any mortgage-deed of the value of one hundred thousand kyats (@) Leases of immoveable property for any term not exceeding oe ear assign, limit, extinguish or revoke, any (d) Any instrument related to declare, yntingent to or in moveable property right, title or interest, whether vested or co1 (@) Wills (f) Any instrument for family arrangements -d of the Arbitrators (g) Any decree or order of the court or any aware edit 1957, + Sc Lani Principle Myanmar ust La, Cale Easter Law House, 6° edition, .C. Lahiri, Principle Myan P316317certificate of (ay eRe Of se granted 4g te ‘ sold by public auction by the g . PUrchaser a OU, {DY immoy, department or organization he TeVenue offer Moveable py (i Any grantor an instrument of pan ition of am « government department op organ; any ization i Other documents, except the docu; iments : shall be registered,* Under sect , ‘Mens wich Ifthe gift of moveable Property (¢,9 201d, ai sed by delivery of possession, ” diamond es, the ma 3 fie eae p sfer may be The registered deed of gift is stamped eee ; n aeordance with schedule VN. 33 of he Stamp qugs ate of He In the case of Maung Puyo Tha Boye ea held that, «My iim it La goat cain neal Popes Py oy et ace . In the case of Maung Pan Myine v. Ma Pwa Tin’, that eee > of git inthe absence of endorsement of acceptance inthe deo Pea = fe : ; uF mutation of name of issue of tax ticked for Pay 1ym donee and enjoyment of rent and profit by her. So. 1. grant In the case of U Soe Aung v. Daw Khin Hla Hla and two, tho Bet) witness made their signature in exhibit the gift deed, itis not agree with Section 3 of the Transfer of Property Act. Although who operate the instrument admit that he has made the instrument, it does not agree with the Evidence Act, Section 70. lent of land revenue in the name of the donee cannot derogate from the In U Aung Tun v. U Tun Tin’, a gift was made on account of natural love but in accordance with Section 123 of the Transfer of Property Act, the registration was needed, although the value of the property whatever may be. The value of the ie land involved in the suit was 50 kyat. The donor verbally transfer it, acording to Section $4 ofthe Transfer of Property Act, it was decided that te git was invalid The property is owned by the husband and wife. It one scone = the consent of other, transfer the property by gift, the right of transfer’s property {Sect stration Act, 2018 é fi ‘Nese T, Mouaear Customary Lan, 2%, 2014 6-44 $1948, BLR p-717 1109, BLLR, (H.C) P-338 2000, MLR, P-73 1966, BL, P-755fe V3 . e yn the case of Daw Win Kyi (@) Daw aa sarecable i Yi sce pope i OvNE! by Budi uae Nyunt y and wife. p: jess the property to others on account gp eae Eith Ve. It o at ° 4 willingly agrees or gives implieg consent that ia ill agree with thus deci MERI hisighs ofa, gansferring WH" ABree us decision, share includes ia le he is alive and still capable of tan " consi : joe. Ihe donee dies before acceptance, the gin deserbed that such gif of property may be transfered afer the death of the donor, the gift is invalid.” The case of Daw Lay Tin v. U Aung Win and two! Without any Ve Such gift of property during his life Biftis void. If conditions inthe deed of eration. Similarly, the donee must rece » according to Transfer of property Act, Section 122, to be a natural love gift in giving propety to someone it ust have the donor and donee a certain property. The property giving as natural love gift must be in possession of the donor. He or she must give it at his/her own free will without demanding any charge on it. The donor must transfer hisher own property. ‘The donee must accept the property while the donor is in favourable condition when. hehe is still living. It shall be a successfull deed only when the donor is still tig Likewise, it requires that the donee this natural love gift while helshe is sill alive. Only when the donee had accepted that natural love gift by bipeliienct Pa by = ofhisher representative accepted on his/her behalf, the aoa ee : itcomes into force only at the death of the donor, te giving property aie alive proves to be unsuccessful. In cree with, — ee Se clearly established that Myanmar Buddhist . Bees oa agreement should seem to come into force only ene of the will, It shall be contradictory to Myanmar ti 449 13* edition, 2018, P- "Mya Sein, U, Myanmar Customary Law, 111995, MLRP-176 {Section 122 of the Transfer of Property Act 2001, M.LR, p-392pad been following and practic; 18 4 Practicing fo 2 to other with natural love, oe ive jou Maung Mya and five v. Mia Thay Act, giving immoveab| agro Me, eae ea Section 122 te yf or 2 person on behalf of himsetgy herselp ee : ; m vei property to be legally registred, tthe mM the propery and j ion, the gilt shall ot be Successful. Accor Should not be det i geet an POSES OFTHE ul, the ope, a Oe Pops of pain ae ugh bei tee os 15/80 were not able to hold the Droperty in kan ‘ng given under registered It is found thay the agreement «for tat purpose been not agreeable with Transfer of ged be illegal whereby the instrument tame ae a Act Section120. nll and void, ; jn U Tun Tun v. U Myat Zaw Aaung!® j > in onder to make sscess gif in dance with Section 122 ofthe Transfer of Property Aci That gift shall be required in possession. Donor a oa ave donor and ennseat and without any consideration. Donor shall transfer his oe it with his free sa acept the git while donor is stl liv. Git hall ea ae fill alive = shall have pee a of property. Similarly the gift stall . confirmed while denee also is still alive and he or, himself or by anyone on behalf of im shall accept the gift. In Daw Pwar Thet v. U Soe Aung", provisions of the Evidence Act, Section 70, the Transfer of Property Act Section 3 and Section 123 the deed of natural love gift requires shall have at least two witnesses to sign. The meaning of attestation as a document which is required to sign by witness may become legal document or not, cvenifthe party of deed himself has admitted thatthe document hasbeen executed by himself, The case was held that, the deed of natural love gif ball be lelly only en atleast two witnesses have signed on gift deod, Attestation is defined in Sesion soft Transfer of Property Act, requiring at least two witnesses shal sete Sing iy pny Gy ingen emcees EERE ders sled the deo: Then, wioeses sal sign tress fms farther held that, pny of deed hms bs fied tat Ba ce © org win si sos fo 2001, MLR, P-291 52007, MLR, P-S210 produce evidence regarding wi a og of exenuting the deed. But any g 33 &Xecutio N oft Loc hat That ‘ “ie ‘Thus, any document may not i. admission g ument ; I is tequireg me gall i, COME legal ke deed without signing by ys locumen sing a Y Witnesses according ‘en by Witnesses *F admission of ° Provision of lay, ; . i Must kn¢ 2 .d witnessing the signatur ti * ent am ; Snature made by the Patties who oe i itnesses sign i ctl attested with gn in a deed. Ifthe atesteq wit aan i Iinesse: of making instrument and does not Witnessing mya eS mt OOW ou ser F @ The attested witnesses, signed in ies aking eo! 3 : “a ope not attested witness only make their Signature on deed ‘struments they « . ‘The Whole Property of Donor give to another whether valid i inci Or not ‘The basic principle is that the owner of the propery ; 'y has right to deliver his ety ats will: But there isa problem, whether has igo nti his 5 liver his cpl poperty is considered one.” ‘ In Daw Thai v. Daw Ngoot", suit was decided. Nine days before she died, paw Shwe Yee, 75 years old took the one who had nursed her since so many years t spe residence of registration officer. She delivered her whole property she owned, by sean of gift: Daw Shwe Yee suffered skin disease since so many years and at he time when she made the registered deed, she was feeling so ill. So the High Court decided that the deed was invalid. The High Court shown two reasons that the gift decd was against Myanmar Customary Law. First the eft made in contemplation of death or donation. Second, it was a gift of entire estate. In the case of U Maung Ohn v. Daw Tin ‘Mya’, mother had a son and two daughters, Mother delivered her garden land to her son wit registered deed. The gift It was legal because she deliver not her whole property, but some part of the and. It was ic the present in aecordance with the Transfer of Property Act. It could not be said thatthe i i Law. sift was against Myanmar Customary “A In the case of U Ohn Maung v. U Thein Hla, prescribes that a mother Z i Han and daughter law, Daw Shwe Gon delivered her own property 1 her aa) sie ans Daw Tin Hla, One of the son U Thein Hla files 2 suit-U 7989 ae : ion of deed. the said gift deed is invalid. And he also claims cancellation ° Nya Sein, U, Myanmar Customary Law 13° edition, 2018, 450 "1949, BLR, (H.C) p-47 '.Cenzal Court 1981, Civil Second Apes! No 39 1986, BLL, P-189the suit as follow, 4 cided A person Can m; 4 ot ahi cot dest child or first born ane Bhan child, calteg WN Proper pe cannot object what Daw Shwe Gane » having Y at his iy do it , . a xing Orasa rights, can objeo, Me Wien sh Teh, othr Whether cd y or not, when D; * 98S alive, U 7p ary LN ON oe ren Daw Shwe Gon ein Was expii : : 7 St Monona the det of Dy What Daw. Shwe ats after the "0 fle a suit for cust! oe i ne Gon, the cause of action to suit arises, The © right Ne egred her property Was agai 10 obj ansferrd hex P against the Myanmar ¢ ject to Ustomary La sion arise om the day when Daw Shwe Gon w, © the tight 2S expired, ne of the heir has no right to suit aginst rela NS 10a gift of, goo aw Shwe Gon. So, U Th an of ein Hla may hay - aiid before the expiration of the owner of the property 2! entire estate jg jn the case of Daw Yee Yee v. Daw Tin Tin, moth segs oe ofthe dates he ad an ety ne: two daughters, yeti sl elstered. AL the ine when he gi i ae = sift enld, lees, and some pieces of fumiture are emsined in mother vied i 's possession. The out dies thatthe gift ded is valid. Ith whole prope swans ferred, that st Myanmar Customary Law. In this suit mother transfers land and buildin is i ag to vnc of er daughter by registered deed, At the same time diamond, gl, jewels some pieces of furniture are remained in mother's possession for heirs. So the gift gai and jeod duly registered is valid. In Daw Htay Htay v. Daw Than Tin”, an administration suit in tail cour, the defendant defences that the property are already disposed by registered gift ded. ther is no prohibition that Myanmar Buddhists must not deliver his property 1 0% ofthe member ofthe family. Because of 0 delivery is made, i there ae no ropes foother bers it must be presumed that it against the Myanmar Customary Law. The ope already has disposed must be disposed 10 all ers In the case of Daw Khin Mya Sitt v. Daw Su Suand other thre”, eld that a nnlker called Daw Ohn Thein, transfers her whole prope 1 her daughter Daw Khin Mya Sitt, When she was expired there was no property to dispose for a heirs, That's against the Myanmar Customary L4W. ‘The property which Daw Khin Mya Sit had received must dispose to all hei. "ya Sein, U, Myanmar Customary Law, 13° ton 2018, p45 © 1987, Supreme Court, Civil First Appeal.NO-SO 035 ® 191, Supreme Court (Mandalay), Civil First APPS 2001; Supreme Court, Civil First Appeal No. 29-Ee i} ret? ii ae person freely. If the parents unjustly Make a4 git oF the whole oF ny enn i wo” al ae of their unjustly make a gift of the whole of their property to one she gift is not valid, as it should not have been made, the property pantitioned according to the usual rules of partition or inheritance. cit must BEM Certain Existing Property if ‘The sy. ams transferable under Section 6 of the Transfer of Property Act 1882. eit cannot be Fre property 25 goer rc according to section 124 of the Transfer of Property Act 1882, provides a gift conptisi€ poth existing and future property is void as to the latter.”* Existing property can only be the subject of gift, future property not in af subject matter of the gift must be certain existing moveable or immoveable existence at the time of the gift cannot form the valid subject of a gift. A gift of future propesty is 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 intenting donor, or those claiming under him, to complete and perfect ine 34. Power of Revocation of Gift Revocation by act of the party is an intentional or voluntary revocation. The ‘transfer of Property Act prescribed when gift may be suspended or revoked. [According to Section 126 of the Transfer of Property Act- ‘The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor @ gift shall be suspended or revoked: but a gift which the partes agree shall be revocable, wholly or in party, at the mere “elo tment gree nse granimrbaet ws#D c= 8Y be. A gift may also be revoked in any of the case (save want or failure of consi jxekion anuermis atTerE SCOTIA it might be rescinded. Save as aforesaid, a gift cannot be revolved. B gection 6 of the Transfer of Property Act, 1882 2 Section 24 of the Transfer of Property Act, 1882 het Phay, Us ThE Knowledge of the Transfer of Property Act,p-307, 308‘hime contained in this section shall he d 6 eemed Nol d ame , ie gor consideration without notic affect i sets" e. the rights of ustations B, i A rh a gives & field to B, reserving to himself, mn i 4 ass 5 pack the field in case B and his descen ieee as the right to take efore A.B dies yi - B dies without ld. wares a lakh of kyats to B, reserving to tai with BY take back at pleasure kyats ten thousand out of thy lakh, Ie to Ks. 90.000 but is void as to Ks. 10,000 which , contin ascendant in As lifetime. A may tke back the fe Sassen, the right to The gift holds good as gift may also be i lue t0 belon, 8 ‘A gift may also be revoked in any of the cases (save want ig to A. or failure of consideration) in which, if it were a contract, it might be Tescinded. Again to section-19 of the Contract Act, 1872, pe l agreements without free consent. ae When consent 10 an agreement is cans by contin, fad o misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused. A party to a contract, whose consent was causes by found or misrepresentation may, if he thinks fit, insist that contract shall be performed, and that he shall be put in the position in which he would have been if the representations made had been true.” In the case of Ma Htay v. U Thar Hlaing™, the father the possession his lands verbally to his children as inheritance. The father leamed that his children mortgaged the land, redeemed it and used the mortgaged money to buy other things but he was Fora few years later, the father fled a suit against the land on the ground that the gift was void held that if it was decided in favour of the of the Transfer of Property Act to silent to buy other things with that. his children to recover the possession of stered deed. It was father it would amount f© Jet him take the cover e. ie. ee ine the marking of a gift of immoveable ae door de done ate gweld evel if mortgaged the Property ‘without the donor's consent in his to the donor personally, the happening of since there was no regi is valid according ‘Act, 1882«isnt dependent on the Will of the dono, an 9 ee evoke the gift. This i + and it is o could revol g 1S Not an absolute rer nly uring his lifetime : i rans raint on ak, tion 10 of the Tr onaljond r der Sect ; sfer of Property cal Henation such aS is jn the case of U Ohn Maung v. U Thain jy Z reser swe Gon delivered her own property to her son Tibes that a mother called \ UThin, pen in i One of the son U Thin Hailes uty a and daughter in ay, ihe said gift deed is invalid. And he also claims a in Hla claims to ie i i elation of ost desided te su 2 ILO. A peso can manag i Se The Sens xcept the oldest child or first born child, called (Graee Own propery at his wl children cannot object what Daw Shwe Gon has ‘ ws) having vested rights, other i i when she was alive. U Ther fla, having no Orasa rights, can object, whether eae was alive. U Thein 4 gainst Myanmar Customary Law or not, when Daw Shwe Gon was expi Shwe Gon, the cause of action to suit arises. The noe oa ago Gon transferred her property was against the Myanmar C aoe death of Daw Shwe Gon. So, U Thein Hla m sien ae 4 : ay have the right to file a suit for declaration arise on the day when Daw Shwe Gon was expired. In 1.U Tin Win and one v. U Tin Nyunt and two", Myanmar Buddhist parents had made gifts to their one child as per deed of gift the remaining children have right or not to sue on their parents to cancel the deed of gift by the reason thatthe gift had been against Myanmar Customary Lav. It was held tat, there i no objection thet a Myanmar Buddhist las no right to make gift. But thse gifis been assumed against Myanmar Customary Law when as pet above provisions, a Myanmar Buddhist had person and thee were no heritages left fr his heirs when he had died, ‘and those gifts shall have put up into heritages and then 1d that, when orginal Court plaintiffs U Tin Nyunt had [Maung Nge and Daw Aye Mya had been stilla properties. As they had no right © speak given of his properties to any other shared, It was additionally hel parents, his to disputed «a Win they bad no right 10 gue to cancel disputed deed. pees Gar Yuand one”, giving own property ‘under natural pe fers his! her property 10 the other party without love sia eae sea natural Jove gift ifthe donor holds the consideration. It cannot be ee 3 936, BLP s bet BLR vs 206 341995, MLR PD begun to sue this suit, their lives, U Tin Nyunt had no # on parent's gifts to Jn Daw Aye AY® a ia: withdraw OF cancel his or her gift at his) ioe 38 il I. But thy donor ang de Y be wit me tM | agreement that thi fi ave natural ag ls natural love Bilt. ma i "AWN OF nullified oy 3 F re should arise @ certain reason or event, Th such an the i agreey ¥ at R me i the condition that the donor holds the Tight to w on ent, there must not if H ' V the vache ov will But atthe time of giving the po natal love gif at eement OF saying verbally to the donee may call to ety, either stating in the oe agree i . that a mortgaging While the donor is sil] living, where, the latter must reiain » Whereas es ould jeerined if the donee should violate that condition There! : fa vil appellate suit was granted Judgment and Decree passed sa of first y valid. strict Court is to be Agreement would be Revocation of a gift can be made by a dono ry if it the deed contain concition that the donee must abide during the lifetime ofthe donor and a = : if the donee neglected the condition, then the donor has the right to file a civil suit relating to revocation of gift. In conclusion, Dhammathats mentioned delivery of possession in all case of gift except in the case of shinbyu gifts and grandparent’s gifts. A gift of moveable property, the transfer may be effected by a delivery of possession. But after the enactment of the Transfer of Property Act, 2 Myanmar Buddhist cannot claim jmmoveable property without a registered deed. According to the Myanmar Customary Law, Myanmar Buddhist cannot give the whole of their property t0 & stranger or heir, If he want to give, he can eive only existing property but he cannot give future property under the Transfer of Property Act. Where the dane breaches the conditions ones inte LC the donor and done, the gift will definitely be void.Conclusion Ten ft is said to be null and void. uly of a gif init if ane ait Pertaining marriage, succession, inheritance, religious ee ecided in accordance with Myanmar Customary Law. Gift under ust mary Law are generally classified as Shinbyu gifts, grandparents ae and death-bed gifts while some scholar classified it as four kinds including the gift made from parents to children. According to the Dhammathats parents may transfer any moveable or immoveable property to their natural son or daughter or adopted son or adopted daughter, but not all the property they owned. The parents can also give the property to a stranger. There is no prohibition for such cases in Dhammathat; but parents cannot give the whole of their property with the registered deed if immoveable property to a stranger. And then Myanmar Buddhist cannot make death-bed gift under Myanmar Customary Law, If the gift on hisfher death-bed make to another person, such gift is invalid, But family arrangement may be made by Myanmar Buddhist Such gift is valid. Ordinarily, gift does not concem with Myanmar Customary Law. Normally, when a question of succession, inheritance, marriage, religious usage or jostitution arises in a case of gif, Myanmar Customary Law should be applied in determining the validity of such gift. ‘After the Transfer of Property ~ — ‘nto Myanmar, a Myanmar Buddhist has to abide the provisions of the said Act in ing gift deed. A gift is : making eif Z ft maker fulfills the provisions of the Transfer of Property Act. A gift fulbles e dance with section 123 of the Transfer of Property Act. ade to valid in acco! ; ual an be a valid gift by the delivery of the possession. On the other c Moveable property i . ‘Act extended by the British ruler through India said to be valid, if the provisions of the Dhammathat are4s, if immoveable property mus Tequire q Tepistered The registered deed han be made in accordance with Schedule is Paragraph.33 Of the Stamp Act, must The Transfer of Property Act is the enacted law, aw is in contradiction with the fy ihe Myanmar Customary mer Transfer of ail. Therefore, the donor must not prevail. 'Y Act the former shall Only abide the Custo Prescripts inclusive in the Dhammathats are disagreed with the modem law, So, the government have to enact the enacted laws. The enacted laws will be amended by the government from time to time, for its requirements and benefit of the society, Ee f Aas Although there was no ‘any problem in gifting Property in hand since bet = : i ing Transfer of wust sign registered deed in case of the Property gifted after a 5 it tered. ae Act. So, it shall be lawful only when that gift deed has been reg