BunMA LAW REPORTS

SUPREME COURT

19'50

Containing cases determined by the Supreme

Court of the Union of Burma

Rai Ballad"r P. K. BASU (Advocate), EDITOR.

U BA SEIN (Advocate), REPORTF,R.

ri

..f Published under the authority of the President of the Union of

Burma by the Superintendent, Government ~Printing .!!nd
Stationery, Burm&. Rangoon.

[All rights reserved]

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 NAMES OF THE JUDGES AND LAW
OFFICERS OF THE UNION

SUPREME COURT
[Hon'ble Agga Maha Thray Sithu SIR BA U, Kt.,
M.A. lCantab.), Barrister-at-Law, Chief Justice
of the Union of Burma (on leave from l~t January
1950 to 31st July 1950).
lHon'bleThada Thiri Thudhamma U E MAUNG, M.A.,
LL.M. (Cantab.), Barrister-at-Law, Acting Chief
Justice from 1st January 1950 to 31st July 1950.
PUISNE JUDGES
lHon'ble JUSTICE Thada Thiri Thudhamma U E MAUNG,
M.A., LL.!VI. (Cantab.), Barrister-at-Law.
:Hon'ble JUSTICE U j{YAW MYINT, Barrister-at-Law,
i\ up to 17th February 1950.
Nl :Hon'ble JUSTICE Thada Thiri Thudhamma U THEIN
~. MAUNG, M.A., LL.B. (Cantab.), Barrister-at-Law,
from 18th February 1950.
LAW OFFICERS
ATTORNEY-GENERAL
Thada Maha Thray Sitlm U CHAN HTOON, LL.B.
(Lond.), Banister-at-Law.
ASSISTANT ATTORNEY-GENERAL
Thray Sithu U CHAN TUN AUNG, B.A.,. B.L. Barrister-
at-Law.
GOVERNMENT ADVOCATES
..' jCH00N FOUNG, B.A., B.L.
. U TIN MAUNG, B.A., B.L.
\Tj MYA THEIN, B.A., Barrister-at-Law.
U BA SEIN, B.Se., B.L.
D KYAW (I), B.A., B.L.
ASSISTANT GOVERNMENT ADVOCATE.
;U KHIN MAUNG, B.A., B.L.
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TABLE OF CASES REPORTED

SUPREME COURT
PAGE

, Abdul Gaffar v. U Kyaw Nyun and one 218

t - - Razak v. U Paw Tun Aung & Co. 258

J
J Ah Fat (a) U Auug Thein v. U Tha Win aud another
Ariff Moosajee Dooply and one v. Dr. T., Chan Taik ...
Bo Aye Ko v. The C9mmissioner 'of Police, Rangoon
53
227

.' and two others 181

Cal'sim Ahmed Soorma and one v. The Controller of
Rents, Rangoon 94
Chakraborty, K. K. v. R. B. Rakshit 233
Chidambaram Chetliar, A.K.R.M.M.K. v. Khoo Hwa Lam 98

Daw Tin Nu v. The Chairman, Public Property

Protection Committee, Rangoon and one 6
Ebrahim Dawjee Jeewa v. Ajam Mohamed Loovawalla 270
Ephraim Solomon v. The Collector of Rangoon 256
Eu Hpe Yar alld One v. Teh Lu Pe 239
Hajee Sahib Hajee Mohamed Bro,. v. Puduveeltu
Abdul Mohamed Sheriff and one 244
Haque, S. (a) Islam v. N. Ahmed 185
Hashim Azam BI13khra v. Ebrahim Arifi Ashraif and
- three others 251
Hewitt, H. J. v. Mrs. H. J. Hewitt (a) Ma Van 202
Hop For v. The Deputy Commissjoner, Insein: and
1 two others . :;' 86
Kamdar, B. R. v. The AssislantController of Rents
and others 50
Rean Gwal1 & Co. v. The Cuc;toc1ian of ivfoveable
Properties, Lunna and .one 41
':Ma r'l'Iy[~
Khin v. The Commissjoner of Police, Rangoon
ancl one 8
- Tin U v. U Shwe Kyu and four others 128
.Mangapathy, G. C. v. The Government of the Union
of Bur""a' 211
l\.1allng H~m Thein v. The Commissioner of Police,
Rangoon a~1cl two others 45
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1\1::lUng Tha Shwe. v. The Deputy COfYlmissioner,

Amherst and one 255:
- Tin Aye v., Maung Maung Hmin and, six others 78:
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.Raju, S. R. v. The Assistant Cantroller of Rents,

,. IJangoon and two others . , 10
'Ranchhoddas Jetllabhai & Co. v. Tbe Secretary of the
" Union Government, Ministry of Judicial Affairs and
two others

Saw Benson v. The Commissioner of Polt..:e, Rangoo.n

and f',>Dr o t h e r s '
68

196,
L
- - Chain Poon and ODe 'Z'. Assistant Controller of
, Rents, RangoOli and eight oU,e,'s 109'
Sei Shengv. U Thein' 139
Steel Brothers & Co. Ltd. v. The Business Premises
Tax Officer, Rangoon 1
v. The Court of Industrial
Arbitration and others 47'
Tan Chit Lye (a) Tet Shin (a) 1\'!aw Pein v. The Union
of Burma 172'
The Burrna Oil Co. '(Burma Concession) Ltd. v. The
Court' of Industrial Arbitration, Burma 'and five
others J 25
-'.- Inc1t.l,s,trial Stare.!}, Products, Ltd. and another v. The
Co~~roller of ~.~ntsl Rangoon and another 64
- - Namtu vVorker:s' Union v. The Court of Industrial
Arbitration, Burma and two others 176
.Thomas De La Rue & Co. Ltd. ;. 'The Court of Industrial
Arbiiation, Burma and One . " . ... 163:
Thukaram} S. v. The Controller of Rents, Rangoon
and one ", '.. 193
Tinsa filaw Naing v. The Commissioner of Police,
Rangoon and another 17'

U Ba Thill) and six others ". !v,a Ama 113

- Ba Yi and eight others v. The Officer-in-charge of
Jail, Yaitiethin . 130,
- lvlaung Maung v. 'Daw Thein' May 151
- Sein tin v. The Controller'~f Rents, Rangoon and
two others ;:; 156
- Tun Tin.v. The Commissioner,. Rangoori'Corporr..tion
and two others" '...." ... 158-
 , TABL~
, ;.' OF CASES
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CITED
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\.
,
." A. v. B, 22 Born. 612
Adkins v.' Children's' Hospital, '(1923) 261 U.S. 525'
... 205

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at 544 ' 28-
Alliance Bank of Simlav. G. Lal, 8 Lah. 373 267
Armory v:'Delamiri~, 93'E.R: 664 ' 101
Babaji Dhondsbet v~ The Collector of Salt Revenne, '
- (1887), 11 Born. 596 288
,Badri Narayan 1/. East Indian ,Raih,~aysl 5 Pat. 755 ... ;1.9$
Barkhndar Shah v. Mst. Sql. 'Bharai, (1934) I.L.R.
15 Lah. 563 ... 120
Barker v. ,Fnrlong, (1891) 2 Ch. 172 28l
Beamen v. A.R.T.S. 64 T.L.R. 285 at 287 ... 26~
Bechu Lal v. Oliullah; 40 Cal. 338 252'
Bhara! Indu v. Hamid Ali Khan, 47 LA. 177 at 184 I,zO
Bhutnath Deb v. Sashimukkhi, A.LR. (1926) Cal. 1042
at 10431044 290
Bodley v. Reynolds, (1846) 8 Q.RD. 7'i9 ... 148-
Bristol and West of England Bank v. Midland Railway
Co., (1891) 2 Q.E.D. 653 at 663 and 664 ... 216,265
'Broadwater v. Blot, Holt N.P. 547 215
'Bullen and Leake-Precedents of Pleadings, 9th Edn .... 26.4-
Bm'jorji .Shapurji v. Madhavlal Jesingbhai, 58 Born.
610 at 618 ' 107
'Burmah Shell Oil Storage and Distributing Co. of India,
55 All: 874" ' 15
.L.R.
'Button
. v. Haviside, ,. (1907)
.2.KB.. 180 at 188 265

Caxton Publishing Co. v. Suthe,land Publisbin~ Co.,

(1939) AC. 178 at 201202 283
Chamarp,lt'e v. Chamarette, A.J.:R:. (1947) Li,ll. 176 208
Cheltyal"Firm, K.s.A:v. ". Mahmoo; 13 Ran. 87 10Z
- - - S...M,A,R: ;,.. 'Ro Teik :k~, 1 Ran. 22 12i
C,h.okalingan" cr.'dty; V.P.R.V. :v. 'Se"tha Aclra; 2 Han.
,. 541; 6 Pan. 29," -". .... .., 294
Ciayton ,,:Le'Roy, Will) 2 :K.B. 1031 283
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viii TABLE OF CASES CITED

PAGE

Coldman v. Hill, L.R. (1919) 1 KB. 443 at 449 263

Consolidated Co. v. Cnrtis & Son, (1892) 1 g.B. 495 at
497 284
Dattatraya Keshav NailL v. Gangabai Narayan Naik, >
A.l.R. (1926) Born. 137 122

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Delhi Cloth and General Mills Co. v. Income-tax
Commissioner, Delhi, 54 LA. 421 293
Donald v. Suckling, L.R. (I866) 1 Q.B.D. 585 .. 263, 26.4,
Dwyer v. Dwyer, 66 I.C. 494 ...
266
205
I
England v. Cowley, (1873) L.E. 8 Ex. 126 .. ~84

Fowler v. Hollins, (1872) 7 g.B. 616 281

Garlinge v. Garlinge, 44 All. 745 204
Goldman v. Hill, (1919) 1 i~.B. 443 215
G\van Kee v. The Government of the Union of Burma,
B.L.R (1949) S.C. 151 221
Hallack and another v. The Chancellor, Masters and
Scholars of the University of Cambridge, 1 Q.B. 593 125,126
Halliday v. Holgate, L.R. (18~8) 3 Ex. 229 264 (,)
Hammersmith Railway Co. v. Brand, (1869) L.E.
4 H.L. 171 at 224 302
Hingu Singh v. Jhuri Singh, 40 All. 590 74
Hiort v. Bott, (1874) L.R. 9 Ex. 86 282
Hollins v. Fowler, (1874) 7 H.L. 757 281
Hurst v.Pictme Theatres Ltd., (1915) 1 KB. 1 92
In the Matter of the Offences against the State
(Amendment) Bill, 1940. 74 Irish Law Times 61 32
Issack v. Clark, 80 E.R. 1143 at 1148 KB. ... 279,280
Iswarayya v. Iswarayya, LA.R. (1930) Mad. 154 205
Jamshed Khoc1aram v. B..lrjorji Dhunjibhai, 40 Bom.
289 at 298 105
Johnson v. Stear, (1863) C.B.N.S. 329 .. 265,267
Kamalakanla Debnathv. Tamijaddin, 61 Cal. 919 292
Kanhaya Lal v National Bank of India, Ltd., (1923)
LL.R. 4 Lah. 284 at 294 ... 121
Kartick Chandra Pal v. Sridhar MandaI, 12 Cal. 563 74
Kent v. Fittall, (1906) 1 K.B. 60 at 69 14
 TABLE OF CASES CITED IX

PAGE
,! 173
King.Empewr v. ;; San Win, 10 Ran. 312 ...
I' 29
I . - - - - - - v. Vimlabai Despande, 73 LA. 144
Kirk v. ('regory, (1876) L.R. 1 Ex. 55 277
Ko Manng Tin v. U Gon Man, (1947) R.L.R. 149 ... 152, 154,
231
Krishna Prasad Singh v. :Ma Aye, 14 Ran. 383 102

p
,:1
- - - Bhatta v. U dayavar Srinivasa Sh~mbag, A.I.R.
(1917) Mad. 730 ... ~
254

Lancashire and Yorkshire R1ilway Co. v. IvIac Nicoll,

88 L.]. K.B. 501 283
Liversidge v. Sir John Anderson, (1942) A.C. 206 29, 35

Ma Lone v. The Commissioner of Police, Rangoon and

one, (1949) B.L.R. S.C. 8 at 11 134
Nn nnd others v. U Nynn, (19j4) I.L.R. 12 Ran.
634 124
Macleod v. The AttorneyGeneral for New Sonth Wales,
(1891) A.C. 4SS . ... .., 27
Madan Lal v. GajendrapaI, 51 All. 575 at ,578 292
I' , Masih v. Masih, (1949) All. 802 ... 204
I 1\Iathradas
,
Girdharidas and
Ramdas, A.I.R. (J 948) Sind 95
others v. Kemchand
120
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! Maung Chit v. Kareem Oomnr, 12 Ran. IS3 241
'I - - Hla Gyaw v. The Commissioner of Police, \1948)
\i B.L.R. 764 at 768 and 769 .... 21
' - - , Po Lun and eight others v. Ma E Mai and three,
1 B.L.]. 111 at 116 155
Monarch Steamship Co. Ltd. l'. A/B. Karlshamns Olje
Fabriker, (1949) 1 A.E.R. 1 ~85
Motital v. Lakhmichand, A.I.R. (1943) Nag. 162 267
,
,.,.: Muhammad [ssa EI Sheik Ahmed L Ali, (1947) A.C, 414 285
Mulliner v. Florence, (1878) 2 Q.B.D. 484 265
lvIuni Lai- and another v. Shulam Hussain-NuT Ahmad
i '>,.J.

! , and olh<rs, 16 Lah. 1019 .. ,

122

') Nathu Piraji Marwac1i and others v. Umec1mal Gadumal,

(1909) 33 Bom. 35 ... ... , ... 120
National Trustees Co. of Australia v. General Finance
Co. of Australia, (190SJ'A.C. 373 293

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x TA~LE OF CASES CLT~D

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PAGE

omcial Receiver v. P.L.-K.M.R.M. Chettyar Firm, 9

Ran. 170 .., . 119
v:
Osborne Commonwealth, (1911) 12 C.L.R. 337 28
Owners of Dredgel<r..eisbosch v. Owners of Steamshit--
Edison, (J933) A.C. 449 148

Parsotam Gil' v. Narbada Dir, 26 LA. 175 7?,

Raiat-1ln-nissa Begum v. Husaini Begum, 47 All. 292

at 294 . 122
Rajendronath Dutt v. Shaik Mohamed Lal,.8 LA. 135 ... 25
Hanchhoddas Jethabhai & Co. v.. The Secretary to the ..,
Union Govermnet;lt, !\'1inistry of Judicial Affairs and
two others, B.L:R. (1950) S.C. 6 8 . . . .., 221
Re: The Mediana Case, (1900) A,C. 113 149
Reeve v. Palmer,S C.B.N.S. 84 262
Rex v. Halliday. (1917) A.C.260 29
- v. Johnson, (1905) 2 K.B. 59 89
- v. Sunderland Justices, (1901) 2 KoB. 357 at 370 ~O
- '<'. The National Arbitration Tribunal, (1948) 1 K.B.
424 169
Robertson v. RobertsRn, (J8S1) 6P.D. 119 209
Rosenthal v. Alderton, (1046) 1 K.B. 374 . 262
Rukia v. Mewa Lal, 51 All. 63 ... 291
Russel v. I,us$el, (1892) A.C. 152 209

S. R. Haju v. The Assistant Controller.of Rents and two,

B.L.R. (J950) S.C. JO 65
Sallowoy v. Mc Laughlin, (1938) A.C. 247 at 258 ." 148, 265
Sarc1ar Ali v. Income-tc..x Cmmissioner, Delhi, 54 l.A.
o42J '. 293
Savuriammal v. Sautiago, 7 L.B.R. 347 205
-
Searle v. Laverick, (1874) 9 g.B. 122 at J30
, " . . ' 3
21;;
Shama Charan Das v. Joyenuolah, (I885) 11 Cal. 750 at
. 754 . . IJ9
Shm'p v. Wakefield, (1891) A.C.J 73 89
Smith v. The Owners-of St. Mitcheal, Cambridge. 3 E.L.
and E.L. 383 ... ... :.. ... 14-
Soe Khin v. The Union of Burma. (I949) B.L.R. 111 13i
Somar Singh v. Musamat Premedi. 3 Pat. 327 at 334 290 f
Ste. Croix v. Ste. Croix, 44 Cal. 35 204
 TABLE'OF CASES CITED

PAGE

Steedman Wheeler, (1944) I Ch.258 20S.

...... Steel Bros. Co, v. The Court of Industrial Arbitration
and others, B.L.R (1950) S.C. 47 169
'Stephen, v. Elwall, (1815) 4 M. & S. 257 280,
Stuart v. Stuar', 57 All. 884 205
Subba Reddy v, Suruva Reddy, A.I.R. (1930) Mad. 425 11 B:
Subramania Chelliar v. SinnammaJ, (1930) 53 Mad. 881 288

.r T. v. Band B, 44 P.R 486

Tan Soon Li v. The Burma Oil Co. Ltd.,
RL.R. 153
(1941)
208,

245
The Federal Commissioner of Taxation v. t\lunro,
38 C.L.R 153 at 180 27
King v. Electricity Commissioner, (1924) 1 ICB.
171 90
v. 'Woodhouse, (1906) 2 ICB. 501 89'
The Queen v. Twiss, 4 Q.B. 407 at 413 126
- Union of Burma v. 1Jaung I\'laung and two others,
(1949) B.L.R 1 (F.B.) at 20 131
Thompson 7'. Thompson, (1939) L.R 1 209'
Towne v. Lewis, 137 K 1<. 241 284

U Htwe v'. U Tun Ohn, (1948) B L.R 541 900

Vimalbai Despande v. Emperor, AJ.R (1948) Nag. 8 13+
\Vardour v. Berisford, 23 E.R 579 302
Wattv. Thomas, (1947) A.C 484 at 493 302"
'VVilkinson v. \ViJkinson, 47 Born. 843 205,
----v. Verit)', 6 CP. 206 262,26B:
Willes, J., (1865) 18 C.B.N.S, 270 7J
Williams . Williams, (1929) Pat. 315 20&
Won Sh\ve Bee v. The Commissioner of Police, Criminal
Miscellaneous Appeal No. 181' of 1949 of the High
Court, Rangoon ... 19,20,56
Wrightson v. lIbc Arthur and Hutchinson Ltd., (1921)
o 2 K.B. 807 280
Young & Co. v. Liverpool Assessment Committees,
(1911) 2 KR J 95 ... i 1 IS.

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 GENEHAL INDEX
PAGE,

ACTS:

BUR;<'fA EXCISE ACT.
---!NDEMNITYAND VALIDATING ACT.

---LAWS ACT.
Busnmss PREMISES ACT.
CITY OF RANGOON MUNICIPAL ACT.

CODE OF CIVIL PROCEDURE.

---CRIMINAL PROCEDURE.

COXSTITUTION OF TUE UNION OF BUR;\fA.

Co:nRA,CT ACT.

CUSTODIAN OP IMMOVEABLE PROPERTIES ACT.

DEFE;>;'CE OF BUR:'IA ACT.
--------RULES.

DlVORCF. ACTS.

GE}/ERAL CLAUSES ACT.

G()VERNME~T OF BURMA ACT, 1935.

l:-:COME TA.x AC1',

JAPANESE CURRENCY EVALUATION ACT.

Keitfimn ADOPTION ACT OF 1939.

LIMITATION ACT.

... '\]ONTHLY LEASES TERMINATION ACT, 1946.

NEGOTIABLE INSTRUlIENTS ACT.

PUBLIC ORDER (PRESERVATIONl ACT.

---PROPERTY PROTECTION ACT.

REGISTRATION ACT.

SEA CUSTOMS ACT.

TRADE DI"PUTES ACT.

" TRUSTS ACT

UNIOY :::ITIZENSHIP (ELECTION) ACT, 1943.

-, URBAN RENT CONTROL ACT.

ACCEPTANCE 227
ADAPTATION ORDEI~ 185
AGbNT OF N ECE3SrT'Y "9&
AGREEMENT OF LICENSE 10

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 XIV GENERAL INDEX

AGRICULTURAL INCo!l{E A~D I~CO:\lE FRm! AGRICULTURE, MEANING

_'\LIMONY. GRANTING OF

- - - - PUJdcnte Lilt
ALLOTMENT OF. ROOUS TQSTRAKGERS BY RENT CONTROLLER
APPEAL, BURDEN IN ..
~

- - - - T O SUPRE:!I[E COURT. CnJJ,lINAL

.AP.PELLATE COURT; POWERS OF

..APPLICATION r'OR WRIT OF !labe::; corplls-public Ordcr (Preservation)

Act, s. 5-A-Dircc.lioJl to detain ontsid~ ill', itirisdiUiou of a
distriet-l1lri.<dicll01L of Supreme GJurt not. like .that cf an
appellate cOllrt. Where the applicant was first detained by the
order of the Deputy Commissioner, Amherst. and the order \vas
withdrawn and the Deputy CommissiQner, Insein, made an order
under s. 5-A of the Public Order (Preservation) Act directing
applicant's detention in the Rangoon Central Jail and later the
President under s. 5-~\ (4) directed his detention in Insein Cell tral
Jail. Held: That an order cnder s. 5-A (1) (b) can specify the
place or places where the cletenue is to be confined and a Deputy
C9mmi~sioner empowered under the Act may direct confinement
.:at u' place outside his district. As the detenuc hact his permanent
Tesidence and carried on business in Insein District, the Deputy
rCommhisioner, Insein, had Jurisdiction to order his detention.
though the detenl!e was at that time in Rangoon. The fact that
an order of detention is passed during the pendency of habeas
cort1ts proceedings bdore the Supreme Court does not necess'arily
make it illegal. "There the Deputy Commissioner carrie to
conclnsions of fact b01Ul fide and reasonably the Order ..... iII not be
interiered with. The Supreme Court does not exercise the
powers of an appellate omrt in habeas. corpus proceedings and
will not embark on detailed exall1inarion"of the evidence.
SAW Bcl\SON 'V. THE COMMISSIoNER OF POLICE, RANGOON'
'.-' ---AND FOUR OTHEkS 196
ARREST.OF.PER.S~NOUTSIDE TER}{ffORIAL JURI~DICTION 181
-ATTOR::-JEy-GENERAL WHEN CAN GIVE ADVICE ... 64
AWARD. POW/:".< T0 S!ODlFY OR TO INTERPRET oR REVIEW 163
BUDDHIST COUPLE. LOAN BY .:.' 239
BURDEN" 11'l ApPEAL ..
-.' 270
!J3URM.~ I!qOE",iXITY AND VALlDATINGACT, 1945
,
139
---ExCls.l:. ACT, s5.18, 28 AND 21} 86 f
---LAWS ACT, S. 13 .. , 17
13URMESE BUDDHIST LAW 139
:BURMESE BUDDHIST LAW - Keittima adopUolt-Apatittha-Comtctitiott
" ' be/wee.'! apatitUm and step-chilrl-L,ettefs of adl/lil1istratioll to
1uflom gJ'al1ted--Rankiug illsllccessiou. Held: 'Under Buddhist
La\v'1he fads -that a person was put to ~school and a person's 4 II
n3l'Qe. is shown,a.s guardian or mother in the school, register and
that marriage Invitations' were issued by the said )2;uardian c> ,
described as mother, that .aIter marriage the couple used to liye
with the g lardian and lived with her d) not suffice t<.. mal'e out
 xv

2 keitlima adoptic:1. The ~ta~ement in a Jet.ter by, tIle alleged'

adopting mother lhat.after her death her nephews and niec~$ will
enjoy Ute properties also sho\V, that there was n9 ke.ilt itna
,;)doption. Though the joinder of the child's name in monetary
tral1sac..~ions might lead to such an inference the absence of the
same is also a fact tendin~ agaim;t keittil1ia ad6illion. An
apalitt/1fl child is not without rights and is one of Ule six classeS
of children entitled to inherit the estate of rarents. In grmiting
letters of administration of a I:tuddhist it is left to the Court to
grant Leiters to any person who \vould be entitled to a share in .
the estate however smal.l it may be. I.n the majority of'
Dha11lmat hats a pubbaka chUrl comes fourth or nUb i'1 the list and <

after him the apntittfJtl child. They may both be cqil?lIy entitled
to inherit but it will be idle to say that apaliltfJa 'child would
e>.clude the step-child. I

~AU~~ TIN .A~E ~: 1\~~U~G M.w};:~ Hl\,uN ~~rt SIX O:rHERS 78

BUSINESS PRUfHiES, ACT, s. ~::-ConslructipJl. of Taxing Stalute_
, Whether retrospccti'lJc-Ta.rable year-S.2 (dl-Burma General
Clclltst~ Act, s.2 (23) s.16 -Rule-making pow:r oj lhe Presidmt.
The,.?usiness P.remises Tax Act ",ame into force ill the City of
Rangoon on 15th'JulY 1949:' The applicants were directed to pay
the tax for the financial ,year commcpci>lg ht Odober. The
applicants sought direction by a wrjt of P 'ohibition for restraining
the lHlsiness Premises Tax Officer from collecting stich tax for
any period priOr .to the commcnccn,ent of the Act. On behalf of
the respondents it was contended that the Ad was retrospecth'e
ann 'was intended to be operative from tjlS: beginning of the
financial year, and tllat tinancial year under the Burma General
Glansc'Act, s. 2 (23) commenced from 1st Ocfobe,r 1948 arid that
the craim had been made reasonably in as much as the President
could give'relief in respect of BlIsines.5 Premises not in existence
for the larger part of the year. Held 1ZCgll.iviJl{; the coulclI!io" ..
Under s. J6 of the Union Constitution, no rer-son could be
deprived of his pmperty unless there \vas clear auth(1rity In law
for such encroachment, and any doubt must be resolved in
favour of the person sought t9 be made liable. Though the
word "Taxable year" under s. 4 of the Act is defined as
equivalent to the financial year,'fhe language of the Stat'ute did
not ha\'e the effect of imposing liability for any period prior
to the enactment of the Statute. The finan!=:ial year un.der the
Burma General Clauses Ad: s. 2 f23) meallS any twelve c;ll~nd'ir
months beginning with the 1st day of Oclo'.Jer. and it COUld. n.qt
be contended that the Assessee was liable also for any period
prior to the 1st' October 1948. The contention on behalf of, the
respondent was .one of doubtful validity and in a t~xing Statute
any doubt must be resolved in fayour of (he party affected.
STEEL BRCiTHEHS & Co. urn. v. THE BusniEss PREMISES
:TAX OFFICER,. RANGOON 1
CI'fY OF RANGOON_ MUNICIPAL ACT,. s. 18 (3) READ WITH RULE 9,
., CIiAPTF.R 9, Jl:HE~ULE I_ltfcr;Uug l./canill-g oJ-Adjonwmellt-
Power of Nayor. \Vhere a meeting- of Councillors' of the
Corporation ot -B-angoon' \Vas 'con':ened for the 7th"l\farch'1950
at 3 p.m. for ~lec(ion of the ivfayor' and' at about 1 p.m. the
Commissioner of the Rangoon Corporation n:ceived a note from
the ~fayor fnstructing hiul to inf6n~ the Councillors that the
meeting COUld not be 'held and had' been postponed till the'
13th of March 1950 but nevertheless at the time mentioned another
Cllai'rm'an was appointed: and a Mayor is eleete.d. HCltl: Under
 XV] .GENERAL INDEX
"
.1
PAGE
s. 18 (3) of the City of Rangoon Municipal Act read with !{ule 9.
Chap~er 9 of Schedule I the Mayor can adjourna 1.1cetine; when
be is present, but by keeping away he cannot do so. E,ver)'
meeting has to be presided over either by'the Ma)or if he is
present Or by one of the Councillors chosen by the meeting to be
Chairman if the Mayor is absent. Hule 9'provides that .....1 y
meeting inay be adjourned by the Mayor or the Chairman.
Though there is authority for the view that in cert<lin circum- .',
stances the warp" aojournmenl" need not be ~iven the technical
meaning usually associated with it, yet having reference to lhe
context, the use of the word" meeting" in s. 18 (31 and reference
in Rule 9 to meeting already in session. the word adjournment
has to be given its teclmical meaning. The meeting held on the -""
7th March 1950 was a competent meeting and the election held~ ~
therein was legaL
U Tu.~ TI::-r 'lJ. THE ComtISSIONER, RANGOON CORPORATION
A~D TWO OTHERS 158 ,<

CODE OF CIVIL PROCEDURE, S. 2 Iii) 19~

S.11, EXCEPTION 4 139

O. I, R 13" 239
0.23, R. 1 68
- - - - - - - O. 30, R. 1 98
0.34, R 4 (2), 13) 227

- - - - - - - - - O. 41, R. 33 ?70
CnI1l11NAL PROCEDURE CODE. s. 523 (l)'_1l1a1Idtl/ory. Held: S. 523
{ll of the Cirn-.in;\l Procedure Code makes it mandatory for ~my
Polict: Officer seizir.~ prcpedy under circumstances which
created s.uspiciQlls of the .ommission of <In "ffence iOithwith to
,
report to a Magistrate. The rVIagistrate to whom such report is
made is the only person competent to make 51 ct.l order <,s he
thinks fit regarding the disposal of s~ch property or the delivery
thereof t9 t,he pers(:l11 ent.itJe,~ t(.tl~_~J:'ossefsion _t~,ereof.
~AUNG HAN THEIN~t'" THE COMMHSI(l!'\fR OF POI ICE 45
... COMPETENCE OF PARLIAMENT Ii'
CO:UPETITION ~ETWEEN Ilpatilt!ta ADOPTION 78
Cl)'!'\DITlONS FOR LIABILITY 211
(,ONFESSION, MEANING OF 172
CONSTITUTION OF THE UNION OF BURMA, s. 16 17"
- - - - - - - - - - - - - - - , s. 25 (2) ',., 1~3
t
- - - - - - - - - - - - - , ss. 23 (4),22" and 226 (1) ... 185
- - - - - - - - - - . , s. 152 218
CONsTITUTION OF THE UNIO!'\ CiFlBuRMA, s. ]50- Wan C,l1t issued tut
not e.wclIlcd-lVltelhC1' certiorari lies. Belli: Any person
admi nistering either the Pt:blic Oreer (Preservation) Act or the
Public Property Protection Act exerciSls limi1ed fur:etiors and
powers of a judicial nature; thuefole, when 1:e issued the' \iI
warrant for arrest applicalion fOr directions in the l1altlre of 0
~
certiorari would be the proper remedy. 'Where the. alleged
prejudicial acts wcr.e cOmmitted before the Public Property
 GENERAL INDEX xvii
PAGE
Protection Act was enacted, he could not be arrested and
detait~ed for such acts and his detention would not be in
accordance with law.
DA~V TIN. Nu '/.I. THE CHAIRMAN, PUBUC PROPERTy PRoTEC-
TION Cm.ll'lUTTEF, RANGOON AND O~E 6
CONSTITUTIO~~ OF THE UNITED STA7ES OF AZlfF:RICA-ARTICLE 14 (l) 17
CONSTRUCTION' OF CONTRACTS 98
DOCUMENT 10
T.UING STATUTE 1
CONTRACT ACT. 55. 55 AXD 74 98
_ _ _ _ _ , s.63 227
_ _- s.151 211
_ _ _ _ _ , s. 189 9~

CO:-l'TJ?ACT FOR EXCHANGE of JAP.-\NESE CURRENCY WITH BURUESF., TF

LEGAL . 233
_ _ _ _ _ _ _ THE.SALE OF IMMOVEABLE PROPhRTY 98
CONTROLLER OF RE:\'TS-HIS POWERS 10
CONvER:SloN OR TRESPASS 270
CONVERSioN-Mililary Proclamation 11 of 19-}5-CAS(BJ taking
possessioll of cargo boats mid deliverint to Restoude1l1-Bur1lla
IndelllIJity amt Validating Ad, lY-J5, 55. 3 '11Id 5-blCflll5istellt
pleas-Bes judicata-So 11. E;rceptio11 4 of the Code of Civil
Procedlll"e. In 1942 appellant left behind in l~angoon three
cargo boats belonging to him owing to circ.umst:mC'es arising out
of the war. After British reoccupation in 1945 of tl:e Rangoon
Area t11C CA0\B) and its officers coJJected cargo boats including tbe
boats oi the appellant and these three boats were handed over to
therespondcnL The respondent repaired these boats and returned
thenl to the appellant on the 12th February 1946. The respon<tcnt
filed Civil !{egldar No: 14 of 1947 against the re:;pondent clniming
compensation under s. 70 of the Contract Ac't for repairs done by
him tn two of the three cargo hoat$. The appellant filed Civil
Regular No. 31 of 1947 for compensation for the USf" of l1is Jaats
from the 1st of May 1945 tiIllhey were retnr.. ed. Suit No. 14 of
, 1947 was decreed by the Trial Conrt and the decree was
confirmed in appeal and there was no further appeal. In Civil
'Regular No. 31 of 1947 the Trial Court gave a decree but the decree
was reversed on appeal. Held: Conversion is wrong done by an
Hnallthllrize ~ act which deprives another of his right permanently
or for an indefin:te time. Pollock on Torts, 14th Edn. 285,
followed. When CAS (B) obtained posses~ion of the cargo boats
belonging to the appellant they were finder of goods belonging 10
another- within the meaning 01 s. :1 of tJ:1e Contrad Act and
were subject to the responsibility of a bailee. The bailee as such
'would not c0mmit any wrong by holding the goods but w hen he
delh'ers them to a third party a civil wrong of conversion is
committed. The question how hr s. 3 of Burma Indemnity and
Validating Act. I:J45. would give protection to a person in the
position of an -officer of CAS(B) did not arise in this case as here
there was ntt order within the meaning of s. 5 because the orders
referred in that section clearly relate to statutory orders. Good
faith would no~ absolve a person guilty of conversion of another's

2
xviii
"
.,

GENERAL INDEX

PAGE
property. Where the boats were not duly requisitioned and they
.belonged to some one else, no question of good faith could be
:ovoker.l,. A person suffering injury by wrongful conversion may
In a speCial case sue for special damage~ and if after converl'ton
the goo~s are redelivered an action will still lie for the original
conversIOn and the re~deIivery will only go in mitigation of
damages. }JeId further: That the contention of the respondent
that one of the boats did not belong to the appellant was
untenable even though the evidence was meagre. There is
implied in the decree in Civil Hegular No. 14 of 19-t7 finding
that all the cargo boats belonged to the appellant and that repairs
to the cargo boats we're done f'.)r the appellant and that the
appellant had enjoyed the benefit thereof. The respondent
cannot be allowed to blow hot and cold in one breath even
where the provisions of s. 11 of the Code of Civil Procedure
may not in term apply. In view of the decree in favour of the .,
respondent in Civil Regular No. 14 of 1947 exception of s.l1 of
the Code of Civil Procedure would operate to make the question
of ownership of the cargo boats involved in the claim in that
suit res judicata as between the parties. Bodley v. Reynulds,
0846i 8 Q.B.D. 779; SalloipQ)' v. Me Lauglllin, (1938) A.C.247
at 258; OWI~ers of Dredger Ldsbnch v. Owners Of steamship
Edison, (1933) A.C.449; Re. The Mediaiza Case. (1900) A.C. 113,
referred to.
SEI SHEXG ~I. U THEIN 139
COURT OF INDUSTRIAL ARBITRATION-DECISION BY 163
CRIMINAL APPEAL TO THE :,UPlmME COURT-Pr1~ciples to be followed
-Question of fact-Whether cai~ be gOllt inlo-Colljcssioll-
MClWillg of. Held: That the principles applicable to the
exercise by the Supreme Court of its Appellate Jurisdiction in
Criminal matters has be"n explained in U Saw and fOllr others v.
The U1lion of Burma, (l948) B.L R. 249. A:rticle 157, Limitatiop.
Act prescribes the period of limitation for an appeal by the
Government against an order of acquittal. No departmental
instr1!cJ!on can overrule the statutory provision. Hl'1d further:
That an appeal on facts against an order ot acquittal is allowed.
Eut il) el{~r~i~ing sudl p.9.wcr~ the High ~_QlIrt shouid and will
<:.lways give proper wei'ght and consideratiOn to such matters as
(i) the views of the Trial Judge as to the credibility of the
witnes!' ..;$, {iil the presumption of innocence in {av()ur of the
acct1sed, a presumptio-' certainly not weakened by the fact that
he has been acquitted at his trial, (iii) the right of the accused to
the benefit of any doubt, and (iv) the slowness of an Appellate
Court in disturbing findings of fact arrived at by a Judge who
had the advantage of seeing the witnesses. These rules anc ,
principles are well known and reco~nized in the adm:nishution
of justice. SheoSwarup v. King.Empcror, S6 '\ll. 645 at 651,
follo\ved. A confession must either admit in terms the offence,
or at any rate substantially all the facts which constitute. the
offence. An admis~ion of a rravely incriminaHng fact, e"en a
conclusively incrilUinatin~ fact if; not of itself a confession. Thus
an admission that the accu:;ed is the owner of and was in recent
possession of the knife or revolver which caused a death with
Ill) explanation of any other man's possession, is not a confession.
\Vhere there were materials other than the allegd confession on I,
which the appellant could be found guilty the Supreme Court will
not interfere \vith the decision of the High Court. o
I
TAN CHIT LYE (a) TET SHIN (aJ MAW PEW 'lJ. UNION OF
BURMA 172
J

GENER"L INDEX .xix

PAGE

CURRENCY. DEPOSIT OF LAWFUL 227

,CUsTODIAN OF MOVEABLE PROPERTY ACT 41

DAMAGES 270
DECISION OF BOM:D UNDER URBAN HE;\IT CO;\lTROL ACT WITHOU'r
NOTICE TO LANDLORD 94
DECREB. FOHM OF 227
.DEFENCE OF BUR!l[A RUL~S 81 (2) (a), 81 {41 AND 83-Custodian OJ
Moveable PrJperty Act, 5S. 7 alld S. Held: Under Rule 81 of
the Defence of Burma I~tlles, calling for information can only be
Ior the p:.trpo3e of Rule 83, namely iorr~quisitioningthe property
on .behalf of the Government and the iniormation as to stocks
held. 1 Government decided to requisition the prope.ly compen
satiOt~ is payable under Sub-Rule 13} of Rule ~3. The applicants
asked for the price of stock of ores delivered in pursuance of
requisition, and the Deputy Commissioner, T:lVOY, in }olis capacity
as Assistant Custodian of Immoveable Property, passed an order
to forfeit to the Government the stock of ores . previously
requisitioned and delivered. H cld : TInt the ores in queSUI)f!
were not delivered to the Assistant Custodian of Moveable
Property unders. 7 (1) of the Custodian of Moveable Property .'\ct
nor were they seized and taken possession of under S. 7 /2J.
Consequently the order purporting lO forfeit to Government
would be quashed by way of dirediUlls in the nature of certiorari.
Law Officers of the Government should <llways advise in such
manner that jllstice should be done to persons concerned.
KEA:-1 GWAN & CO. V. THE CUSTODIAN OF .\-loVEABLE
PROPERTIES, BURMA AND 01'\E 41

DEFENCE OF BmnlA RULES-Rult..> S9-o4 and 96-Lorries reqllisiticlled

1lttdcr by Gov<;r;Wlctlt-S. 151, Contract Act-Dtoty of
Govcrn11lctlt-COllditi01lS for IUlbility. Appelbnt's lorries were
requisitione:l by the Commissioner of Police, Hangooti, on behalf
of the Government of Burma on the 9th December 1941 at Rs. IS
per diem under s. 89-A of Defence of Burma .Rules and the lorries
were left behind by the government on evacuation and the owner
received payment for hire up to the dale of .lbandonment, t.e.,
20th February 1942 and now claimed the value of lorries. Hcld:
That the provisions of s. 151 of the COI'~racl Act would not in
te::rms npply to the facts of the case. The lorri~s having been
lawfully requisilione.d, theirtaking was not an act of bcspass and
the use by Government was lawful. The duty of GO\fernment in
.such circumstances is not higher than that of a person in lawful
posses::;iL..l of another's goods. The government was only bound
to take reason2')le care. Except where the negligence or
wrongful act of the person in lawful possession of another's
.goods had been a proximate callse of the loss or destrnetion
thereof, the damage:: m'_lst lie whe~e it falls. As the government
had taken as much care of the appellant's propel lies as of their
own property, there was no question of negligence or wrongful
act on their part-the government cannot be held liable for the
price of the lorries. Goldmatl v. Hill, {19191 1 K.B. 443;
Broadwater v: Blot, Holt, N.?, 547; Searle v. Laverick, {I 874)
'9 Q.B.D, .22 at 130, referred to and applied.
G. C. tI'lAl\GAPATHY v. THE GOVERNMENT OF~HF; UNION OF
BUU1.fA 211
 "I

xx GENERAL INDEX

PAGE'

DEFENCE OF BURMA H.ULES-Rules 90 (2) (aI, 90 (1) IbJ- Obj(cl 0/-

OccllpatiolJ of BU7ma by mC11Iy-Ij rules suspeuded-Exchflllge
oj Japanese CUrrency wzflt Burmese-Col1tract for-1f legal-
Pleadings il1 Hgh Cottrt should be precise. \\7bcre nppeJIant
allegc.1 that respondent offered to act for him and obtain
Rs. 35,000 in Britbh Burma notes in exchange for Japanese
military papers of the nominal vahle of Hs. 35,000 and the
Japanese note!'l were accordingly delivered and appellant claimc:d
payment of the amonnt in British currenc)'. Held that:
Viewed as a Cop-tract of agency, the object of the contract \Vas
the accept.mee of Rs. 35,000 in British Burma notes in payment
for the true and not the MUonal vallie of Japanese Military Notes
of the nomim'i:'l . . . aIne of Rs. 35,000. Vinved as a contract
between principals, the :lppellant agreed to accept Hs. 35,000 in
British Burma notes in payment of a like sum In Japanese
Currenc), and in either case the object or consideration of the .1
contr:1ct would fall within Rule 90 (2) (bl, Defence of Burma
Rules a"d be illegal. Viewed as an exchange of goods
{Japanese currency1 for cash, it may not fall within Rule 90 (2) (a)
but it offends Rule 90 (2) (bl, The contract is illegal and -..oid.
The object of Rule 90 is to pr.. . vent depreciation of lawful
currency and 105$ of confidence in it. which \vould mean loss of
confidence in the Governnlent to pro:;,ecute the war successfulJ\'.
On Burma being occupied by the cncmv, the necessity to prevel1t
such mischief. would be more pressil]g. It is desirable that in
the High COllrt, original side. pleadings shO<.lld be precise.
K. K. CHAKRABORTY v. R. B. RAKSIJIT 233
DERF.QUlSITION. No DUTY OF COLLECTOR TO 256
DDfA!'i:DS BY EMPLOYEES 163
DIFFEREKCE BETWEEN ENGLISH EXCISE ACT AND BURMA EXClSE ACT 86
DIRP..CTIO!\'S IN THE NATURE OF CERTIORARI 6, J25
DlRF;CTIOXS IX THE NATUHE OF CERTIoRARI AND PROHIBJTI0N-
JAct1~cefor s~!!!._oJliqJLor-.S.s. 18, 2$alld 2911), BI/l:1I1a ExCise
Act-Powers of Colieetor-Analogy 'with English licC11SilJ{;
s,y#c[II-Dtjference between E!lglisJ~_ Uceusi1lg A<;!s and Burma
Exci5e Act-Whether Collector exercises qllasi'Jud,dal or admi-
"1Ust,afive po'wer-Remedy by way of suit_Lice1/ce for comirlera-
tiOI! if I,. e1'oc<1ble. \Vhere the Collector of Insein held an
enquiry under the order~ of the Excise Commissioner acting
under the instructions of the Governmelit of the Vnion of Burma
cancelling the licence of the applicants and accepted a third
party's offer dllrin~. the currency of the licence and the same wa5
challenged by applications for direction in the nature of certiorari
t J have the proceedings of the Collector quashed and direc~ion ~n,
the nature of prohibition prubibiting the Commi~sioner from .r
granting the licence to tht. rival. Held: That the Collector in
deciding to car-cel the unexpired licence uflder s. 29 '1) of the
Burma Excise Act is performing :l, purely administrative funetbn
and therefore his proceedings could 110t be quashed bv the
Court. There is a radical difference between Licensing Acts in
England and the Burma Excise Act. In "Rngland Justices
had absolute discretion to refuse to renew prior to 1904 when this
was taken away and the power to refuse renewal of ::L:t old licence
was confined to certain cases specifie(~ in the Act. As :urisdic-
tion was exercis'ed by two justices of the peace in petty (I
j
sess-ions after hearing evidence it W<lS held to be a judidal
order and that consequently certiorari would lie.. In Burma if
 GENERAL INDEX xxi
PAGE

the licence llas been improperly revoked a right to ~ue would

exist against the Government in the absence of an indemnity in
the Act. The mere fact that the Colleclor is an oflicer of the
Gover"Buenl would not make him amenable to the jurisdiction of
the Court. Under s. 28 of the Burma Excise Act the officer who
granted the licence could revoke it on certain grounds and when
the grounds exist no cGiTIpensatbn can be claimed. Under
s. 29 where a licence is recalled foJT any other re,lson except
those provided for by:s. 28. grant of some COffilJCnsation and
notice is provided. An excise licence gives nothing !uorc th~n a
right ex contractu which is a right 1; personam and not one
coupled with an interest. Therefore no fundamental rights
.assured by the Constitution had been encroached upon. Sharp v.
Wakefield, (1891) A.C. 173; Re.'!: v. JohlJson, i1905\ 2 !LB. 59;
The Killg v. Woodhomc. (l9J6) :1 K.B 501 ; Re.'\: v. SUllderlalld
Justices, (1901) 2 K.B. 357 at 370; U Iitwe v. U Tun aIm, {l9481
B.L.R. 541; The King v. Electricity COJnmis:,iolteYs. (l9Z4)
L ICB. 171; Hurst v. Pictllre Theatres Ltd., (1915) 1 ICB. 1,
referred to and distinguished.
Hup FOR v. THE DEPUTY CmnUSSlONER, INSEIN AXD T\\'O
OTHERs 86
DUmCTlON"S IN THE NATURE OF MANDAMus-Agreement of liceme-
rrovidillg foy 1/0 right u1Ider Urb(lfl Rent COt/trol Act-ContNI-
ley of Rwfs directing payties to Civil Court and 1JOt ji.,\illg
stat/dard renf-Lice/lce-Dejil1iUoll til-True tt.-st ill cOllsiruil1g
a dOCUlllC1lt. 'rhe tenant (f certain properties entered inte. an
agreement with lhe applicaut which proddcd that the agreement
was not ant: 01 sub-tenancy but that the applic:lnt was only a
licensee and that he should have no right to outwit the
.agre~ment and bring thc matter within the Urban Rent COi~trol
Act. The applicant applied {or the sta"ldard rent to be fixed.
Upon objection the Assistant Controller of H.enls, Hangoon
considered that it was a maHer for the Civil Courl and left the
parties to seek relief there. Held: That in granting a 'nanda1l1us
the Court is direchnj! the A~sist<tnt Controllcr to proceed with
1he case and decide tbe question, which it was his duty to
dccide and is not ill any way interfering with his discretion.
JIalsbury's Law of E1Igiand, Vol. IX, paras. 1296 ,llld 1300,
referred to. Licence i,; "that consent which, without passing
any interest in the property to which it relates, merely l"cycnts
ih~ acts for which consent is given frr'll being wrongful."
Pollak on Torts, referred to. It Ii; tbe duty of tbe court to look
not so much at thc words as the substance of the agreement.
Even where the parties call a document as agreement of
licence such recitals can ne\'er be conclusive and the court
will hav. to look to the substance of the terms of the
a,greement and pet to thc name givell by the parties. Smith Y.
Tlte Overseers of Sf. Mitclleal. Cambridge, 3 EL. and EL. 383 :
Kent v. Fdtall, (1906) 1 KB. 60:1.t 69; Young ~ Co. v. Livtl'po;)l
Asscs... /lIt1d Committees, (1911) 2 ICB. 195; BUI"II1alJ Shell Otl
Storage and Dis! ributilll; Co. oj India 55 All. 874, referred to.
o Held: That the Assistant Controller of Rents \'Jas noLjustified
in his view that the Urban Rent Can'traj Act was not applicable
in the case. Tne mandamtls should issue directing him to
~1ispose of the ailplication under s. 19 of the Urban Hent Control
Act.
S. R. RAJU v. THE AS5ISTA"lT CONTROLLER OF RENTS,
R\NGOON A:'iD TWO OTHERS 10
xxii GENERAL INDEX

PAGE

DIRECTIONS FOR MANDAMus-Reqldsitioll by Collectol' No dilly of

Colledor to' de-requ/:dtioll-I/ application Ins. \Vhere the
Collector of Rangoon reqllisitioned certain premises under the
Requisitioning (Emerg~ncy Provisions) Act, 1947 and directed it
to be made available to a Chinese School. Ilcld: That there IS
no duty cast on the Collector to de_requisilion under the Actand
as there was no duty, there could be no application for directions
in the nature of a mandamus. By allotting the premises to the
School, the Collector may have committed a wrong bllt there may
be remedy elsewhere but not by a writ to the Supreme Court.
Facts on which the decision \V<l!O made were as follows :-The"
Applicant Ephru.im Solomon is the owner of the house known as
No. 297, Godwin HO:1c1, Rangoon. gome people trespassed on
this house during the Japanese occupation and ran a school there
known as the Hwa Sha Chinese School. These trespassers never
paid any rent to the applicanl The npplicant then filed a suit
being Ch'il Regular Suit No. 302 of 1947 for reco\cry of posses~
sian of the premises and obtained a decree. He applied for
execution of the decree in Civil Execution No. 19 of 1950. The
jlldgmtnt~rtebtor5took time on sevt::rai occasions for vacating, and
it arpears that they then approached the Government for the
requisition of the said building and al10t it to them for running
the said school. The Collector then requiaitionerl the building in
question and allotted to them for nmninR the Hwa Sha Chines~
School. The applicant then applied under s. 25 of the Constitu-
tion of Burma for a direction in the nature of mandamus.
EPHRAIM SOLOMON v. THE COLLECTOR OF RAl"GOON 256
DmECTIOl'\S IN THE NATUHE OF PROHJB1'fIO!\-Previotls apPlicationfor
certiorari withdraw1l- Effect oj :;lIC!t willuirmC'al-Res judicata-
Principlc of-Whet her nPPlicable_Allalogy ofOrdcr 23, Rule 1 of
Code of Civl Procedurc_Wlletller eml be extended-Colleelor of
.. ,
emioms when 111lpOSWl1 filles if a represcntative ojGoverllmeut-
AddiUollal powers of Presidtmt 111lder Sea Customs Act-Scope
of Supreme Court ill appiicaliol11fllders. 25, C01lstitution oj lhe
Union of Burma. \Vhere the Collector of Custom3 liad applied
to the'Siip-fEine Conrtfor a' writ ofcertiorari to quash an order of
the Financial Commissioner and restore the penalty levied by
him and the application -"'.vas subsequently'dismissed as with-
drawn, and after the enactment 01 Sea Customs {Amendment) Act
of 1949 a nr~ice was issued cnlling on applicants to show cause
why the President should not revise the order of fhe Financial
Commissione-r. 'Held: Tl1at the mntter is not governed by the
principles of res jlJdiwfa because there was no adjudication or
final adjudication and the COllrt did not apply its mind to the
merits of the application. Parso/am Gir v. Narbada Vir. 26 LA.
17 5, applied. The withdrawal of a previous application \vjthollt
leave might bar a fresh ap~'lication UpOIl the same set of
CirC\ll1lstances. BingI' Sin[1h v. Jllllri Si1lgh, 4d All. 59':; [{artiek .'
ClIpl/dra Pal v. Sridhar Mumlnl, 12 Cal. 563, distinguished.
RA!\CHHODDAS JE1H ..l,.BHAI & Co. 'l'. THE SECRETARY OF TrlE
UNION GOVERNilIENT, MINISTRY OF JUDICIAL AFFAIRS
AND TWO OTHERS

DIRECTIONS IN THE NATURE OF PROHIBITION-Trade Disptlte~ Act-

Decision by the Industrial COllrt 011 a refereuce hy i.lle Presidellt
flndcr s. ~ Of llle Act-PoUlaro! thc court to '1llodify or to ':llJ~rpret
Or to rCVlew tile a'lOnrd":-De11lQllds by empJoyees-Disclt.1rge of (I
certain eJllplo)'ee~ thereafter-Whethcr dischargc can be subjeel I
to reference. HeLd: The lndllstrial Court acted in excess of its
 GENERAL INDEX xxiii
PAGE

jurisdiction under s. 9 in granting to employees in the

maintenance section who did llot attend work of their .own
accord. Held: The Industrial Court is not competent to
interpret, modify or review its own award except in circnmstances
specified ill s. 11 (3) of the Act. If employees are discharged
after a trade dispute has arisen between the employer and '~,
employees, the Industrial Court has right to give its decision on
the point of dispute. During the currency of employment, a
demand made by employees would constitute a trade dispute
sufficient to give jurisdiction to the President to make a
reference under s. 9 of the Act and the Industrial Court can hold
an ~nqniry under s. 10. To hold otherwise wadel mean tha t
any employer or any workmen could nullify the wbole provisions
of the Act by terminating tbe contract of service before a
reference was ordered. Steel BrO$. Co. v. The. Califf of lndtlsfdal
Arbitration and others, B.L.R. (1950) S.C. 47; Re. v. The
NaHOl/al Arbitration Tribunal, (19~8) 1 KoB. 424, followed.
The continuance of a strike after reft>rence under s. 9
of the Act is illegal. If some employees voluntarily kept away
they could not be said to have been locked Ol't by the employers
and no compensation can be give~l to them by the Industrial
Court.
THOMAS DE LA RUE & Co. LTD. 'V. THE COURT OF
INDUSTRIAl,. ARBTTRATlON" AND ONE J63
DIRECTIONS IN THE NATURE OF PROHIBITION S8, 125
DIRECTION To DETAIN OUTSIDE THE JURISDICTION OF A DISTRICT 196
DISCHARGE. \VHETHER IT CAN BE SUBJECT OF REFERE~CE 163
_ _ _ _ _ OF CERTAIN EMPLOYEES 163

DISCRETIO=-< OF COURT IN GRANTING OF A LBfONY 202

DIVORCE ACT, ss. 7, 36 AND 55-Reft/sa: Of Applicaitou for costs for
wife's defellce in at: :Jpplic'1/ion f.;:;r divorce Oil the grv1tud oj
adultery-Order 1chelher apper.labl~--Applieatiol: for alimony
Pendente lite-Wh!Jller appeallies.agai1lst such Drder-Granting
of aIimoIlY-] lze discretion of COllrt. Held: That though s. 55
of the Burma Divorce Act provides that all decrees and orders are
appealable. yet the said provisos are subject tu the two
provisos limitin~ the right. The second proviso provides that
there shall be no i1Ppeal as to costs oniy. Hence no appl.,1 lay
against the order of the District Judge refusiTlg an application of
wife for rosts for her defer-ceo But an appeal against the refrsal
of alin10ny pendenfe lite was competent. The granting or
withholding of alimony pende1lte lite is a maHer of judicial
discretion of tbe Court and the appellate com t having exercised its
discretLm f;'rly the decision in respect of that. portion should not
be interfered with. Garlinge v. Gm:iltge, 44 All. 745; $1(.
Croi.\.V. Sfc. Lro;.l,,", 44 Cal. 35 ; .I.1Insilt v. M:lsilt. (1949) All. l'i02;
Dwyer v. Dwyer, 66 I.C. 49.J.; A. v. B, 22 Born, 612 ;Savttriam111al
V. Sanfi..'lgo, 7 L.B.R. 347; Wilkills011 v. WJlkJ1lsol1 , 30 Cal. 48;
IswaraY~hl V. lswarayya, A.I.R. (1930) Mad. 154; stuart \'.
Stuart, 57 All. 8S4; Steedman v. Wheeler, (l944) 1 Cal. 258;
Williams v. Williams, {1929J Pat. 315 ; Russell v. Russt:ll, (1892)
p. 152; Rober/scm v. Robertson, {H'S1) 6 P.D. 119: Thompson v.
Thompson. (l939) p. 1, referred to. T. v. Band B, 44 P.R. 486;
CIza11l1ll"ctfe '\:. Chamorelte, A.I.R. (l947) Lab. 176, dissented from.
The histork.ll back ground of the Divorce Act considered.
H. ]. HEWITT 'V. MRS. H. J. HEWITT (a) MA YAN 202
x,.iv ~lj:NER.AL. lNLlEX

PAGE
EFFECT OF WITHDRAWAL OF C~RTIORAT\I 68
EMPLOYEES. DEMANDS BY 163
- - - - - . DISCHAIWE OF 163
ENGLISH LICENSING SYSTEU HoW FAR ApPLICABLE 86
EXCHANGE OF }AP-.\NESE CUHREKCY WITH BURMESE 233
EXISTING LAW 17, 185

FACT. QUESTIONS OF 172

FEDERATED SUAN STATES 58
FINDER OF GOODS 2H
.1
FIRM-Sun AGAINST 98
FUNCTION OF COLLECTOR UNDER BlJR~~A EXCISE ACT IF JCDICJAL OR
QUASI-JUDICIAL 86

GENEI~AL CLAUSl:.S ACT . 58

- - - - - - - - , 5 . 2 (23) ar:d s. 16 I
-------,s.4 (l)-- 185
GOODS T.-\KEK AFTlth: DoOR B RaKEN 249
GOODS LEli'T AFTER I.DOTING-Respolldent locking prcl1dses ami
oblailliu g permit frolll Commissioll-Collver~il)n Or trcspass-Tc~t
-CO/ltrol-P.:;~vcrs of APPdluteCourl-Ordcr41, Rule 33. Code of
Civil P1"ocedurc-Illlerjercllcc ,(J!zC1"1;- pcymissiblc-Damages-
Presumption against spectator-Bmden in appeal. Goods in
appellant's shop \vere IOvted in part after British evacuation and
a portion was stm in the premise~. The Respondent locked the
premises and handed the kt:y~ to one I. G. Mohamed with
instructions to hand O\'er the keys to anyone he liked or to a
person who. had obtained a permit frolI! the Hirao~a Commission.
The 3rd defendant obtained such permit and the keys were handed
over to him by 1. G. l\Iuhamed and the 3rd defendant sold the
good... A decree was passed against all ddc;nclants by the trial
Court as joint tort-feasors. Respondent alone appe:lled without
m<,.king ...-lher. two joint tort-feasors as parUes andethe trhlJ Court's
judgnHnt was sd aside On further appe<ll to the Supreme Court.
Helli: There was effective exclusion of others when the premiJ;es
were locked and resj)ondent had fnll control and exclusive occupa-
tion. Kirk v. GYl~gory, (1876) L.R. 1 Ex 55, distinguished. A
finder of goods is bound to answer to the true owner and cannot
deliver them to any except the true owner. Issack v. elarl!, 80
E.R 1143 at 1148 K.B., followed. The deliver.:; vf keys gives
the transferee power over goods which he l]ad not before and
amounts to a symbolic declaration that the tramderor nO longer
intends to meddle with the gar ::is. ll'rightsotl v. Me Arthur (lad
HUtClJillSOllS Ltd., (1921j 2 K.B. S07, referred to. The Respondent
was guilty of conversivn when he transferred pos~ession of the
goods to 1. G. Mohamed by handing him the keys \vith instructions
to transfer possession to anyone who brought a permit from the
Japanese Hiraoka Commission. Hiort v. Bott, (U)74) LL.R. 9
Ex. 86, followed. Stephcns v. Ehcall, (1815) 4 1'.1.& S. 2:J7 ; Fowlc1' C
\'. Hollins, (1872) 7 Q.B. 616: Hollillsv. Fowlc,', (187417 H.L 757 : 1
Barker v. Ftl,rlollg, (1891) 2 Ch. 172; ClayttJll v. Le Ro}', (1911)
 GENERAL INDEX }\XV

PAGE

2 K.B. 1031; Cn ..tim Publishing Co. v. Sutherland PublishiugCo.,

(1939) A.C. 178 at 201-202 ; Lattcash ire a11li Yorkshire RailwayCo.
v. MlJcNicoll, 88 L.T. K.B. 501; Towne v. Lewis, 137 E.R. 241 ;
Ellgland v. Cowley, (1873) L.E. 8 Ex. 126; CV1lS,llida/ed Co. v.
CUlilsa1ul"SOIl, ((892) t K.B.493 at 497, discussed. A person is
liable in respect of a wrongful act for all consequences which he
ought reasonably to have foreseen. },il/lIoJll1llad Issa El Sltri'~
Ahmed v. Ali, (1947) A.C.414 ; Monarch Steamship Co. Ltd. \'-AIB
Karlsho1JlffsOlJeFab";kcr, (1949) 1 A.E.N.~, referred to. The
question whether a decree ag~inst joint tort-feaSOTs will be res
jlldJcala against a co.defendant, reserved. The right of appellate
court to interfere witJl the decree of the trial Court where borne of
the parties have not appealed against decrees against them arises
under Order 24, Rule 33; Code of Civil Procedure. There is a fair
consensus of authority in the COllrt~ in India ill favour (If wiele
power, if as a result of the appellate court's interference with the
decree, it is necessary in the end of justice to adjust tbe rights
of the parties. Babaj Dhohsdcl v. The Collector of Salt Revel/lie,
(tf!87) 11 Bom. SQ6; Subral1lf1l1ia Cltettiar v. Sinn /11111101, (19301
53 ,\lad. :>:81; SOIl1//r Singh v. Mttssamat Premedi, 3 Pat.J27 at
334; BIlI/lIIl1tIt Oeb v. Sasllil1lt'kklti, A.I.R (1926) Cal. 10-12 at
1043-1044; Rttkia v. M.u'a Lal, 51 All. 03: Madan Lal v.
Gajuzdrapal, 51 All. 575 at 578; J(f.lJla1akal1la D.;b1zaflt v.
Tmwjt1ddell, 6! Cal. 919, referred to. As in this case, the extent
of appell:mt's liability is co-extenRivc with other dcfencklnts
and arises in the same sllit on the same evidence, if the appellate
conrt comes to the conclusion that the award is excessi\'e, the
ends of justice require variation in favour of the non~appea1ing
partiel:; <lIsa. A right of appeal, under s. 20, Union Judiciary Act
or s. 96, of tll::: Code of Civil Procedure is a substantive right.
NatIonal Tmstus Co. of Austra1ic v. G,"erai Finallce Co. of
Australia, {I90Sl A.C. 373; Dclfti Cloth awl Gencral Mills Co. v.
II/COlllc-Ta:t' Commissioner, Dr./hi. 54 '.A. 421 ; S\ular Ali v.
Dnli'lluddm, 56 Cal. 512, referred to. The right of appeal is a
right to hav~ the decision of an inferior cl.!urt put to judicial
examination by a higher court and 10 have it rectified, if \\'rollg:.
The remedy may not be a\'ailable to some by lapse of time and it
remains Ul1tOtlched but the apf'ellate court can exercise the
power;unless it is otherwise curtaih:rl. The ded~;:on in 2 J. an.
541 and 6 Ran. 290nlv decidethatt'"ection 3, LimHati0n Actshotlld
not be circumvented by adding a respondent against whom the
appeal is barred. Bddri Na1aya v. East l'lldi<11t Rail~~ 'ty Co., 5
Pat. 755, di$tir;gtli~hed. The burden is on th~ party clnllellging
ihe decision of the trial Judge to estahlish that it is incorrect.
Unless the appellate court is of the opinion that no other conclusion
is possible and that t!:e decisivn of the trbi Judge is wrong, tbe
finding on dall1a,~cs should not be interfered with. Tht' J<lT~cst
amOl1l1t A inj Iry which can b~ sustained wO'.llcl probably be
considered to be I,he amount to be awarded by the Tribllnal which
has to award compensation if the party guilty of a wrong: did not
produce the best evidence available of the true .. . aIne ()f goods
conv~rtcd. Armory v. Delanuiril', 93 E.R. 664; Hfl1ltmcrsmilh
Railway Co. v. Brand, (]8691 L.E.4 H.L. 171 at 12l; rVanlouy
v. Berisjo,rd, 23 E.R. 579: Wall v. Thomas, (J9-17) A.C. 48-1 ~\t 493,
referred to.
EBRAHIM nA\VJEF. ]EF.WA v. AJ.ur MOHA:\IED LOOVAW,\LT.A... 270

a 'GOVERNMENT. DUTY OF 211

\ 58
OF BURMA ACT, S. 40
xxvi GENERAL INDEX

PAGS

GOV.l:::HNMENT OF BURMA ACT, 1935, 55. 41 Al\:D 42_Govt:mor's

dec/aralio1l, dated 10th December 1942-Collsf.tlltioTt Ad, 5S. 23 (4).
222, amI 226 lli-Existillg laws-Gc1lctaJ. Clauses Act. s, 4 {l),
tar/ielliar date-meaning oj-Adaptation Order 226 (2)-Urban
RelIt Control Act. 1948,1ultdhcr ultra vire:> of the COllsttt1ltion-
Vdidity of agreemwts generally. Held: The Urban Rent
Control Act, 1948. was enacted by tIle GG'lernar of Burma on the
2nd January 1948 when the Government of Burma Act, 1935, was
in loree. It was made in purSUilllce of the proclamation of
10th December 1942 by the Govtmor assuming to himself nnder
s. 13!) of the Government of Burma Act, all the pOwers vested by
that Act in the Legislature of Burma. Unlike ordinance;; under
55. 41 and 42 of the Government of Burma Act, an act of the
legislature did not require any pllhlic notification. In this
respect the Act followed the English Rule that proclamation or
any other form of publication of an Act of Parliament was never
necessary to make an Act complete. S. 222 of the co:-.stitdion
defines ., existing law" as a law passed before the commence-
ment of the Constih.:tion by any le~islatllre. authority or perSOll,
etc. The Urban Rent Control Act, 1948, complies with this
definition. It provides in s. I (3) th~.t it shall come into force at
Once except the provisions Qf 55. 16-A and 16-B. Though the Act
was not [-ublished in the Gazettt: tiJl the ]7th January 1948 it
cannot be said that the Act could not h:we come inlo force before
that dale. The fact that tbe Act is not specifically mentioned in
the Adaptation of Laws Order made by the President of the
Union of Burma under s. 226 (2) of the Constitution does not
affect its validity because the ~\et shall come into force" at ooce"
are sllflkit.mtly specific taking into contiderafion the fact that the
authenticated copy of the Act before th,~ date the 2n,d Jannary
1948. Held also: Tha: the Act is consistent with s. 23 (41 of the
Constitution. The right of private property is, with certain
re:.'ervations, guaranteed by the Constitution but tbe right 10
contract is not a fundamental right assured thereby. The
central idea of the Urban !{ent Control Ad is the restriction of
rents of premises in urban are;ls, and the Act extends 110 inrther
th'ln placing retraint on tile untrammelled exer~ie of cl;msensual
letting of rcremises in the urban areas. An agreement has no
inherent vitality. Rights and obligations attaching" to one
voluntarily made are creatures uf the statute. The Contract Act
which regulates the subject pdncipaily postulates equality of
stattls bet\\'~en the conlracting p:lrlies. 'Vhere the parties do
not eiljoy ("quality reC'ogr ilion is withheld from agreements.
Again certain rj~hts and liabilities are attached by law to
contracts and they are not allowed to be ....aried by agreement.
Parliament has a right to take measures to pre\ent owners of
premises in residential ;lreas from taking advantage of abnormal
cG.Hlilions, to the detriment of the general public and ex:.ctin~
excessive or unreasonably hign rent anti a duty i;' imposed .on
.,
Parliament under s. 29 of the Constitution to make l.~ws to give
effect to the limits permitted for the use of private property to
the detriment of the general public
S. HAQUE la) ISLAM 11. N. AHMED 185
GOVERNOR'S DECLARATION 185

HEATUi"G BEFolm SECRETARY 218

Habeas Corplts-Wi-iETHE[~SUBSEQUENT APPLICATIO:-i LtES 17
- - - - - W H I T OF 181
 GENERAL INDEX xxvii>

PAGE.

INCOME TAX ACT 58

INCONSISTENT PLEAS 138
Il\TERFERENC3 WHERE POSSIBLE 270'

IAPA:-:;ESE CURRENCY EV~LUAHON ACT ... 151 1 227

". ---MILITAHY NOTES 227
JOIN TORT-FEASORS 244
JUDICIAL PrWCEEDIKGS 218
JURISDICTIO:-: OF JUDGE 53
- - - - - - - HENT CONTROLLER AFTER TIME LIMn 94
- - - - - - SUPREME COURT .,. 181,196

[(cilt ima ADOPTJON'-A patitlJw ADOPTION 78-

Keillt1lJa ADOPTION ACT, 1932, s. 5-Rcf!islratioll-If ?I.:ccssnry hefore
w:.tit1/tioll-Re{!,ist 1"ati'J1J A ct. 55. 32(a) 32 (b) a11d 2 110) represen-
tative-Registration out oj time_DoctHl/ent ,'tIllY/lei. jar want
of proper stamp to advoca!e-E1fet of arvoca!, presc'lliog-
Admtssolt of exe.:utioJl by 11llnor's futher as n'trt:s'11tatirJi:-
Deject in procedure-So S7 of Ihe Regislrafiw Acl-Publidly of
adoptiol1. A minor child six years old was adopted and a deed
was executed signed by the father and the adorting parent with
a ten rupee currency note attached with undertaking to present
the deed for registration and register it when the l(egistratioll
office opened, but before registration the rJdopting parent died
leav:ng the child only as hi:> legal representative. A suit was
filed with the unregistered document and it was then taken back
and reg:istert.'d before the acblal lllaring. Held: That under
s. 5 of the registration of KCltlima Adoption Act, 1932 no dispute
shnll be entertained by any court to inherit as a KeifUma son or
daughter if it was effected after 1st April 19-11 unless the :;am(;: is
evidenced by all instrument as mentioned therein. The words
in s. 5 are" no disputes" and not" no suits." The snit was.
competent when the deed of adoption was returned for registra-
tion before the actual trial and actually registered, then there is
sufficient compliance of the section for a registered instrument
unc!r g. 47 6f the 'Regi~tration Act opcrates from the date .,f its
execution. Held also: That the father of the minor could present
it under s. 32 (11) of the Registration Act as a person who had
executed it alld also under s. 32 (Ill read with s. 2 (10) as the
representative of the minor. 5ubba Reddy v. Surtlva Redrl)'~
A.l.R. (1930) Mad. 425, referred to. QllcstiJns as to when and
by whc..m <' document was presented are questions of fact and
any party challens;ing registr;J,tion Of. the grollllds thnt the
document was not presented in proper timt" or by proper persOIl
must raise such questions in time in the court of the first instance.
If a doc~l1nent when presented is insufficiently stamped there is
no pro\ision that the presentation is not pr0per. The l~egistr?r
should not h::wc returned the document but impmmdedit <'Ind send
it to the Collector himself. Shawa Charall D"s v. ]oj'ellv(Jlah.
(lSSS) I.L.R.l1 Cal. 750 at 754, referred to and applied. There
is nothing in the Registration Act to prevent a person from
showing that the endorsement was inaccurate and proving the
real facts. Official Receiver v. P.LX.M.R.M. ClJetfyar Firm.
(1931) I.L.R. 9 Ran. 170, followed. It is immaterial by whom the
physical aet of presentation of the dOCument was performed.
 xxviii GENERAL INDEX

PAGE

This question is a mixed question of law and fad :lnd a court of

appeal cannot expose a party after he has obtained a decree to
the brunt of a new atfack of Wllich he had not notice at the
hearing. Barkll1lriar Shalt v. Nsf. Sa! B/zarai, (1934) LL.F. 16
Lah. 5(,3; Bllara! II/rill v. Hamid Ali Khau, 47 LA 177 at 184 j
NI/tlm Ptr,lJII Murwadi a1Jd others Y. U11Icdmni Garf/l1J1.111, (19(Y.JJ
LL.R. 33 Hom. 35; lIlatltrudas GhdharidC!s atd otlter'S v.
glicmch1l1t./ Ra-lIIdas, A.,LB:. 11948l Sind 96, referred to. Where
a Registrar did not summon the parties referred to in the mjllor'~
arrlication as entitJed to notice for opposing: the registration it is
on I\' an irre~tllarit~'. Presumption of proper registr.ltion arises
nnder~. 87 of the Regi!:,tratiJ;:l1l Act as" nothing done in good faith
"pursuant to the Act by any registration officer shall be deemed
jll~aljd merely by reason of any defl::ct in procedure." Kallhaya
La: v. National Balik of In.la. Ul:., '1923\ I.L.R. 4 Lah. 284 at
214 . Rafl/t-1/1Z I/is~a Regu'llv. H11.'atlli BCg'l1Il, (1925) LL R. 47 .,
All. ~92 at 294; Datta!laY," Kcshav Naik v. Gangab<li Namyan
NII~, A.I.R (1926) Born. J37; M,mi Lill alld 01lt v. Sfllliam
Hllssaill Nur A'wtad awl t)!'Z:~:rs, 119351 I.L.R. 16 Lah. 1049;
S.M,A.R. C/t.ctlvar Firm v, Ko Tei~ Ka, (1913) I.L.R. t Ran. 22,
referred to. Held further: That ',;then a document of adoption
is executed in presence of :::everal respectable witnesses there was
~\lfficient publicity of the adoption as required by law. Ma Nit \",
U Nyml, (1934) IL.H.. 12 Ran. 634, referred to.
U SA THA~ AND SIX OTHERS V, AlA A:'fA 113

LIABrLtTY-Co:-:mTIONS FOR 211

LiCEXSE-.DEFIXITIO~ OF 10
----FOI~ C'ONSIDERATlO:-< 86
----.-\:--0 LFA~E 64
- - - - F u R SALE OF' LIQU01~ uNDER BUR~IA EXCISE ACT 86
LDIlT.:\TIoN ACT, s,5.-Discrdi:m-Discreti01t whc'l ilt Ilccordallcc
willt lnw.. The.Court of- the Assistant Judge was fi1 St created by
the Act of P45 and in 1946 a:l appp.al was by mistake filed in the
__ i._ . _~District CGurt r when it shOlI:d have been fi led in the- High Court
as the relevant enactments v,,'ere not available to the members
of the J:Sar and the litigatin.e; public and the tlrreal 'was
enlert,titkcl t beard and allowed by the District Judge. On appeal
to the High Court the jlldgtnt:nt of the District Conrt was set
aside b) the High Court on the ground that no appeal Ja y to the
District Court. The Hespondcnt then filed <In appeal to the High
COllrt and prayed under s. 5 of the Limitation Act to excuse the
delay in presenting the appeal and the High Court exc.usedJthe
delay and entertained the appeal and afterwards allo,.... ed the
appeal. Held: Tilat s. 5 of the Limitation Act vets the exercise
of discrclion in this case ill the High Court and as the High
CO:lrt gave due con,;ideration to all the relevant fads a.nd
exercised its discretion in acccrdance with law, such exerCise
could not therefore be interfered with.
:MA TIN U 11. U SHWE J{YU AND FOUR OTHEI~S 128
LOA:-;t BY BUDDHIST COUPLE 239
l)
MANDAMUS. DIRECTJUNStIN THE I'ATuIm OF 10.193
I
:\11LITARY PROCLA:'[ATIO~ 11 OF 1945 139
 GENERAL INDEX xxix
pAGE

MIXED QUESTION OF LA \V AX-D [<~ACT 244

MOH.UIEDAN LAW, RULES OF 251
<I :r-.IONEY' Ii. ORDER 21, RULE 1 (a) 227"
M ONTHLY LEASES TEHM1~ATIOF ACT 109
e.
NEGOTIABLE !;:-;STRU:'lENT. CONSlDE'RATlON FOR LOA~ OR LOAN
FOLLOWED BY 239'
NEGOTIABLE INsTRuJ,fENTs ACT, 4-Promissory llofc-CerlllhL
s.
stl11t-Japaucsc ClIrntlcy (Evaluation) Act,1947. Bya promissory
note executed on the 22nd December 1944 during Japanese
occupation, the appellant promised to pay Rs. 5,000 to the
Hespondent or his agent on Demalld. Held .. That prim'l jacie
the promise is one for payment of a certain sum as required by
s. 4 of the Negotiable Instruments Act: The promise in the
promissory note is to pay Hs.5.000 and the amQunt is not stated
to be payable' ostensibly in ]ap:mese Military currency notes'
and it is a promise to pay ir. legal currency and therefore to pay
a Sllffi certain. If consideration had been recdved in Japanese
currency it does not necessarily follow that the promissory note
is to be discharged by pa)mcnt in the same currency and not by
payment in legal currency in accordallce with the well-knowil
principle that a document shall, if possible. be interpreted so as
to give it maximum validity. After enactment of the Japanese
Currency (Evaluativni Act. 1947 there is no necessIty to depart
from the general proposition that when parties to a contract say
nothing aboht the nature of cun'ent:.y in which the agreed price
is to be paid, the p;"\rlies mus! have intended the price to be paid
in legal currency. /(0 Matlug Tm v. U G.,OIL 1Ifatt. (947) R.L.R.
149 (p.B.) ; Mattug Po LIm alld eight of hers v. Mtl E M,lt flud
tllrt/: olllers, 1 B.L.J. 111 at 116, referred to.
U I\JAUl"G MAUNG v. DAW THEI:\ MAY 151'
NOTIFICATION UNDER GOVERNMF.NT OF BUR1IfA ACT 58~

OCCUPATION OF BURMA BY ENEMY 233

OFFICERS EXERCISI~G JUDICiAL OR QUASI-JUDICIAL FU:-;CJION
SEEKI:-IG LEGAL ADVICE 64

ORDEI~ IN SUBSTITUTION. LATER 181

PLEDGE OF JE\\ELS-DOCI/11IClIt 'l-csiillg properlY on l101zredemptioll

by dale {ixed-V,llidify-Sale 'without llotice-COl1traet Act,
s, 196- Chl':1l for redemption i't 194+-Col1ItTsio1t or wr01Zl!Ju!
detclItioll--Spccijic Relief Ad, 5S. 10 d'Tut ll-C01ltraet Act,
55,39 and 73. Held: A clause in a dGcnrncnt c\'idencing a
coutract or pledge, purporting to vest the pledged articles
absolutely in the pledgee on failure to redeem by end of
April 1942 curtails the statutory right of redemption and is
invalid. The pledgor, coming to know of the sale held without
notice to him could not sue lor return of the specific articles
against the pledgee alone. There is a distinction between the
cause of action for conversion and the cause of action in wrongful
detention. 7'he former is, based on an unequivpcal act of
ownership ty the defendant over plaintiff's goods witholJt any
right or authority while the latter is based on a wrongful with-
holding of the plaintiff's goods by defendant, being in poss.ession
 xxx GENERAL INDEX

PAGE
of the same. Beaman v. A.R.T.S. Ltd., 64 Times L.R. 285 at 287 I
referred to, RosenOwl v. Alder/ou, (1946) 1 K,B. 374, distin-
guished. A bailt:e cannot be heard to plead his own wrong in
discharge of his duty uncler the contrad of bailment. Rc~;,'t v.
Palmer,S C.B.lN.S.) 84; WiJki,l$OIt v. Verify, L.I':', (1871) 6 C.P.,
206; DOllald v. Suckling, (866) L.R.! Q.e.D., 585; Coldman v.
Hill, (1919) 1 K B. 443 at 449. referred to. The courts cannot be
invited to a Inere brutum fllimen nnd HO decree can be passt:d for
-return of moveables not in defendant's possf:ssion. 5s.10 and 11
of the Specific Relief Act apply only to c-ses when defendant is
dn possession oi specific mO\'cabJcs and Order 20, J{ule 10 of tae
Code of Civil Procedure applies only where a decree for posses-
'sion can properly be made. Any excess by the possessor of
rights under a COil tract will be ,1 breach of contract and it lUay
.also be a wrong. A mere irregular exercise of power. by way
of sub-pledge or a prematurt:: sale, is not a conversion. It is at
most a wrong done to the reversionary interest of an owner Ollt
of possession and the owner must show he is really damnified.
Halliday ~.l. Holgate, (1863) 3 Ex. 299; 1Jfllllillcr v. Florctlce,
(t878) 2 Q.B.D. 484; Bri~tol alld West oj EJlglQ1ld Balik v.
Midland Railu.'QY Co .. (1891) 2 Q.B.D. 653; Sfilton v.HafJiside,
(1907) 2 K.B. 180 at 188; So!lOWaj' v. Mclcmgh]illt (938)
.A.C. 247 ; Johllsoll v. Stear, (1863) 15 C.H. \N's.l 329, rderred to.
AIliallc;cBallk of Simla v. G. Lal and Of/e, I.L.R. 8 Lah. 373, not
follow(:d. MoWal 'v. Lakltlllicltawl. A.I.R. (1943) Nag. 162,
distinguished. A comparison of Article 48-.-\ and 48 of the
Limitation Act. 1st Schedule, indicates that the Legislature does
not contemplate a ~ale of the ~ledl?:ed article by the pledgee
o~herwise than in aCCOrdance \yith s. 176, Contract Act. If a
party undertakes to do an act on a future date and zarlier
disables himself from performing the act, it is open to the
injured party to treat that conduct as a violation or wait till the
day fixed. The option is that of the aggrieved party not that of
the r::!.rty committing the wrong. The wrong in this case is
failure to return the goods as contrackd upon tender of money
(Jue ~nJ_~_ .. 73,. Contract Act wou1.r reglilate the rights of the
parties and the- damages: . -- ----- -
ABDUL RAZAKV. UPAw-TuN AuXG & Co.- 258
.1)OSSESSION OF C.A.S. (B) 139
POWER TO MODIFY Oi~ TO J}'TERPRET OR TO REVIF.\V THE AWARD 163

'POWEHS Or' ApPELLATE COURT 270

. - - - - - COLLECTOR UND'!R EXCISE ACT 86
- - - - - INDusTRIAL COURTS 47
----- A JUDGE TO REVIEW ISSl'E OF CERTIFICATE OF
CITIZENSHIP 53
PRESIDENT ACTING UNDER SECTION 191, SEA CUSTOMS ACT 7.18
PRMUMPTJON AG,ul\ST SPECTATOR 270
'PREVIOUS APPLICATION FoR CEHTIORARI WITHDRAWN. Res Judicata
WHETHER APPLICABLE IN WRITS 68
.PRINCIPLES TO BE FOLLOWED IN CRIMINAL ApPEALS TO THE SUPERME
COURT . 172
e>
I
:PROHIBITION. DIRECTIONS IN THE NATURE ()F 163
 GENERAL INDEX XXXI

PAGE

PROHIBITIo:\,-Wril of-Ftdera!ed Shan States-!llcome~tax Act if

c.fc/lds fo-Lett;:r from Chief Secretal'y relied 01l-U1Hl1ltllenti_
eated copy-Effect-Letter if Noti{icaltoJl tlmler s. 40, Govcrll~ .
- i?J.ejtt 1/ Burma Act-Co/1ft gro~vll in Shan Slales-Compal1Y
incorporated ill BriiIslt BUY11/"-S. 4, 1/!col1l!'-Jas Act-
A rriwlfllral il1coll1e_S.2 fl) (b), II/come-Ia.r Act-General

". Clauses Ad-S. 2 ~26)-AgriCl/llllral 11teo11/e and i11c011le (1'0,/1

agrictll!Ilrc.. On the Applicant's petition for a writ of prohibition
to restrain assessment to incumelax for J947-48 and 1948-49
income from business of growing coffee and other produce on
lands in Hsipaw Slate, for which money W;JS paid 10 the Ruler.
Held: That a copy of the letter froill the Chief Secretary to
the Commissioner. Federated Shan States rdied 011 by Governw
ment cannot be acted l'pon and even the original, if produced
could not have the effect of a N(Aification required under
s. 40 of tl~e Government of Burma Ad. E,er:. if the Income-
lax Act did not extend to the Shan States such income might
become taxable under the Act when received in British Burma
unless it was income from agriculture arising in a state in
Burma from land for which any paymelt in kind or in monev
is made to the State. The terms ,. agricultural income" and
"income from agriculture" are differen~. The first is a term of
art while the second is not. Under Burma General Clauses Act.
s. 2 (26) as it was before 4th January 1948, Government includes
a per~on authorized by the Governm( nt of Burma Act, 1935.
to exercise the executive authority of Burma. Tilt:: Federated
Shan States fall within Part I of the Second Schedule of the
GovemOlent of Burma Act. 1935, \;There the Governor exercises
power in his discretion and it was therefore nnder the
authority of the Governor that the Sm~.'b1va exercises executive
authorty and collected revenne on land. The income from
such land is therefore protected hoth under s. 4 12} aIld 4 (3)
pro,'isos. The income after 4th Janndry 194M have the same
protection as also that of s. 4 (3) (viii) as adapted uncler Union
of Burma (~\daptation of Laws) Order, 1948, and is not taxable.
SHA~ l\IOUNTAJN ESTATES, LnnTRD tI. THE INCOME TAX
OFFICEH, COMPANIES CIRCLE, RA:\'GOON 58
PRmnSSORY NOTE-CERTAIN su~r ... lSI
PROl\!ISSO'RY NOTE-Suit all-Sui! for 1II0l1CY ]cnt-ecessary
averments in such case-Negotiable instnllllUJt c;;w:tdcra!iOll for
loal/ Dr lOall follcnvcd by lIegotiable il1s!rtlllletd-Loall by
Buddhist c.oupIc-Col/tract wilh aile aloue-Suit by such party-
N 01JwjoiIJder of others-Order 1. Rule 13, Code of Civil Proccdure.
Appellants borrowed two SUlllS and i'1 consideration thereof
executed two promissory notes in favour of one only of a
Chinese Buddhist couple, and the claim was decreed in two
courts. H cld: That the suit in the case was not solely all the
promissory notes but on the original consideration also. A suit
on a proll:issory note need not aver the loan which formed the
consideration. All that is necessa.y is to plead execution of the
instrument and prove it. while the defendant could prove
absence of consicieration. It is one thing for a negotiable
inslrument to be given and accepted as consideration for the
loan and an entirely different thing for a loan to be made and
in consideration thereof, the borrower making a negotiable
instrument: In the first case, the loan is merged in th.:::
instrument and in the latter case it is only a collateral security.
Matwg Chit v J(areem Gomer, 12 Ran. 153, referred lo. The
respondent alone '" as the party with whom the contract was
 , 0 0

; ..

xxxii GENERAL INDEX

PAGE

made; as he was not acting as agent or trustee of his wife, he

could sue for enforcing the contract, even though the money
Dolonged to the Buddhist c:otiple. The plea was not taken in
the first instance and would not be availahle in appeal.
Eu HPE YAR A~D O~E v. TEH Lu PE 239
PROVISION I}i DEED OF TRUST 251
';,0
PUBLIC ORDER (P1?F.SERVATION) ACT, s. 5-A {ll (b)-PosseSS;O/l of <l
seditious lwfiet, if s1t{fcimt. Held: That if a detenue had been
found in posses!iion of 50 or 100 copies of a seditious leaflet it
might be reasonable to assume that he was in some way respon-
sible for dissemination of seditious literature but possession
of just one copy does not prove <lnything. Held further: The
allegation that the applicant w<!s a desert":f from the Army
could not be sufficient ground for detention in the a;bsence of
proof of !luch desertion .
.iVIA My..\. KIlIN 'fJ. THE COMMISSIONER OF POLICE, RA:,\G.)ON
AND ONK s
PUBLIC ORDER (PHESERVATIOy\1 ACT, 1\l4i, S. 5.A (I)
(b) AND s.7._
Whether withiu Parlialllettl's cOlllpctcttcc-ExJSt111g la7V-COmti-
tf/HOIL of Burma, s. 16 "save ill accorda1Jce with Imt'," ss. 22
and 26 {l)-Article 14 (J) of tlze COnstitution of llze Vuitcd
Slales of America-Burma Lal,'s Act, .1(:198, s. I3-Dismissal of
pre1liolls apflicllfioll for habeas corpus Izow far va,s subsequent
adion. Held: The decisiQIl in WaH Sh~,c Bet: y. The Commis
shmcr of Police lInd Ollf, cannot be extended to exclude
successive applications for directions in :lle natnre of habeas
6JrPlls. \Vherc the subsequent application was based on facts in
I:;xistence prior to the previous applicativn even though such factg
were not then within the kllowledge 01 the applicant, the second
application would be in the natnre of review, which does not
exi'it in the ordinary tlablre of things. \Vhere there is an order for
a term" certain "it cannot be qUf'$lioned more tl~an once by writs
or habeas ct'rpus becal~se the first (lismissal \vould be tantamonnt
to a declarat:Oll that the detention for that term is a legal
dett7.l}tion; but. ve\'entivl?.dt:tt'l1no~for <lniildefiilit"e period is
under an order for detelltion from day to day. In such a c<lse the
dismissal of 1. previous application dnes not amount to lucre than
a declaration that the detention np to that date of dismigsal was
lawful. By a change in th..: relevant cirC\1l1lstauces such detention
may therefore become illegal What is subsequently challenged
is tbe legality of the detention at the date of the application.
Matlllg Hla Gyaw v. T!L~ COl/l1l/issio1Urg of Police, (1948) B.L.H.
I'M at 769, referred to and foJlo\ved. In such sub"equept
application the court cannot <,Uow lhe prcvioug decisions to be
challenged <Iud the leg<llity of the detention lip to tI,e date of the
dismissal of the previous application c.1.11not be canvassed.
Held aIm: III construinl-! th~ provision in s. 16 of the Constitution
"that no citizen shall be deprh'et, of his personal1ibedy save in
accordance with law" it j:; pertinent to examine the sense in
which this term has been understood in this country for many
years before the constitution was framed. The term" LAW"
in s. 13 (1) of the Burma Laws Act, 1898, again repeats the
provisions of the Act Vll of 1872. It is by people who had lived
or who had been trained underthis system that the Constitution
of the Union of Burma was drawn up and enacted and it is there-
fore reasonable to conclude that" LA \V II refers to the will of
the legislatnre enacted in due form, provided that it is within the
 GENERAL INDEX ~xxiii

PAGE

competence of the legislature. To accept nalurallaw as:l higher

law which i.nvalidatcs any' inconsistent positive laW would lead
to chaos a:.d each Judge would be a law linte himself. ULAW"
therefore under s. 16 ot the Constitution is an enactment by
Parliament or qy, other competent legislative body. Their
powers are defined and circumscribed and 'within such limits the
. LA W ,. arc binding on ail
itl the Union of Burma. Held
further: That s. 5A (l) lb) of the Public Order(PreservationJ Act,
1947 is within the competence of the ParJialnent to enact but the
prf)vis-ions do' not grant the President or his delegate arbitrary
powers tv order detention of ~ dti:!en for an indefinite period.
Parliament C:l;n by positive \ nactment define the circumstanc~...
and conditions under which :any authority, it has empowered,
may interJere with the personal liberty of the citizen. T.here is
no distinction in principle between the provisions of the Pt1~Hc
Ord:::r (Preservationl Act and the preventive provisions of the
Criminal Procedure Code. Tlte Federal Commissioner of Ta:ratiQIL
v. Mat/ro, 38 C.L.R. 153 at 180; bfdeleoll v. Attorney-Genera1Jor
New South Wrlles, (1891) A.C. 455 ; Adkins v. Children's Hospital,
(l9231 261 U.S. 525 at 544; Osborne v. Commonwealth, (1911)
12 C.L.R. 337: Reo'\: v. Halliday, (19171 A.C. '?60: Lt"versidge v.
SirJoltn AtJdersol/., (1942) A.C, 206: King-Emperor v. T'imalbai
DesjJallde.73 LA. 144; Ju tlte Matter of the Offellces Against flu
State Ame"di1tg Bill, 1940,74 Irish Law Times 61, rcf~rred to
and distinguished.
TmsA MAW NAIXG V. THE CmtMISSlONER OF POUCE.
RANGOO~ AND ANoTHER' 17
PUBLIC ORDER (PRESERVATION) ACT-Suspicious that dclettue con-
cerlled ill dacoity, Jllllrder. robbery-J~roper remedy. Where the
applicant was dc-t:J.ined under the Public Order {Preservation}
Act, as he was sllspected in series of robbery. daevi':ies and
murders. Held: That the Public Order (Preservation) Act can-
not be applied to such cases. The proper action to take wag
under the preventi\'e sections of the Criminal Procedure Code
.. MAU~u THA SHWE V. THE DEPUTY CQ?,fl>nSSIO~ER, AMHERST
AND OnE .,. 255
PUBLIC PnOPERTY (P~OTECTIONl ACT, s. 7 (3)- Aim. $ctJpe Qud object.
Helfl: To arrive at real meaning of the provisions of an acfit is
always necessary to get an eX<iet 'conception :If the aim, scope
andobjecto the whole'Act. "Construction is to be made of all
the parts together apd not,of one part only bj-itself, even when
the worJ~ ar~,plainest, as the true meaning of any passage is
that which (being permissible) best harOlonises with the -subject
and with eVel yother passage of tht, Statute. The Union of
Burma v. Maut,g J:,ttmg and two others, RL.R. (949) (H.C.j 1
p. 20 IF.B.); Soe Kltin v. The Union of BUrtt/a, B.L.R. (1949)
(H.C.) 111, fol1owe'd. S. 5 II) qf the Public Property (Protection!
Act creates a new c.ffence and und_r s." 5 (2) of the 'Code'of
Criminal 'Peoc,edure in the absence hf enactment to the contrary
that offence will have to be enquired il".tounder the Code and
ill v~ew of the provisions of 59. 61 and 167 of the Code no Police
Officer, would oe able to detain in custody a person- arrested for
an offence,under s. 6 (1) of the Publi'c l Property .(Protection) Act
for a lOIlg:er period than ,24 houTs and no Magistrate would be
a~le to ~uthorize his d~tention for a termexceeding IS,days
on ~he ~vhole unless he taKes action under 5: 344. The Provisions
of ".7. (Jl of the Public Property (Protection} A"cthave 'been
f;m~cted to render 55.,111 and 1,67 of ~h.e Clcle i,na.pJ?li~able to an
3
xxxiv GENERAL INDEX

PAGF.

offence tinder $. 6 (1) of the Act. This section allowed the Police
Officer longer time (up to six months) for investigation when
applying: to any Magistrate for remand. The delel.!ion in
custody is not by way of punishml."nt in violation of the funda-
ment ... l principle that a man cannot be detained on mere
suspicion but can only be for the pUf!1ose oi investigation; even
though rtH prejlldidal ads are not offences yet most of them are
offences and investigation into (he rest may also disclose that
offences have been comlnitted. Ma Lone v. Tile Comm ~sioflcrof
Police, Rangoon a1ldol/c, (1949 a.L.R. (S.C.) M at Il, "referred
to. Virnalbai Despaude v. Emp.:1'or, A.I.R. l19-l5).Nag. 8,
followed.
U BA YI AND EIGHT oTHERS v. THE OFFICF.R-IN~CHARGEOF.
JAIL, YAMlhHIN

QU.ESTIONS OF' FACT

REFERENCE BY PRESIDENT TO INDUSTRIAL COURT

_ _ _ _ WHETHER CONCLUSIVE EVIDENCE Of TRADF- DISPVTE

REGISTRATION ACT, 55.2 (10) 32 AND 87

Rl:.QUlSITIONED BY GOVER!'\:ME~T. Lon HIES

REQUISITION BY COLLECTOR

Res Judicata
RESPONDENT LOCKI~G rRE:\USES AND OBTAINING PER:\lIT FROM
COMMISSION
REVISlO:'l BY MINISTER lW FINANCE AND REVENUE

REVOCATION OF EXCISE LICENS~-REMEDY

RJGHT OF SUCCESSION .,.

RULE MAKI!'\G PO\\'ER OF THE PRESIDENT

RULES OF NATURAl. JUSTICE IN-JUDICIAL PROCEEDH\,GS

'"
HULI!.\'G. SUPlmME COURT WHETHEn-BOUND BY EARLIER

SEA CUSTOMS ACT, s. 167 18)-APPellate order of Ftnall;;tal Cot1Z11lis-

siolle.,.-S.191 (l) amendccf..-Revisioll by Millister Of Finance
and Rtt'enue-Hcaring bf.jore Sccretaly-Proce&dings judiCial_
Prcside1lt actingmtder 5.191 exercises judICial function- Criminal
Procedure Code, s. :i {2}, s. 4S9-RultS of Natural JusficG tlJ
judicial proceedillgs-Constitution Of Buyma, s. ~S2-.suprenze t
COllrt ~ohelher bOlmd by earlilr ruling. ~ The Collector of
Customs when he imposes fines and penalties under the Sea
Customs Act, and Appellate authority acting under s.18 of the
said Act exercise jndicial f'lnctions. Similarly the Prt''3ident' of
the Union, when exercising his powers or revision under s. 191
of the Act exercises under s. 150 of the Constitution limited
functions of a judicial nature. They are all, therefore, bound to
act on judicial principles. Exercise of a judicial function is
individual. Therefore, prior to the amendrn:nt of the General
Clauses Act which <l.me into operation on the 1st ?1arch 1950 the
President w;ts bound to exercise his judicial functio:-:s personally.
But after the amendment all the functions of the President
including judicial functions. can be exerc.ised by lhe Minister-
in-charge of theMinistry concerned. custom Officer exercis:ng
power under s. 182, Appellate Authorit/ acting unner s. 188 and
- -;

GE~ERAL INDEX xx;xv

PAGE

the President acting under s. 191 of the Sea Customs Act

administer criminal justice. A Court of criminal jurisdiction has
ordirarHy no power to H::view its own decision. A review (,f a
decision is not provided for by tht:: Criminal .Procedure eoce btlt
if the power of revision is exercised in a criminal ca~e under a
Special Law, s_ 439 (2) of the Codl. Criminal Procedure would
become apPlicable by reason of s 5 (2) of th~ Code Hules of
natura: justice require that no man shall be condemned unheard
and therefore. before an order to th~ pn:judice of any person is
made he must be given an opportunity of malting his defence
even though there be no pro....ision in the co:it: for s'Jch hl.::aring.
That aite - tht:: 1st March 1950 the Minister of Finance and
Hevenue was tht:: prope'r authority to hear and decide the dispute
in therevislon pi oceedings. The officer who heard the Applicant
and recommended deci:;iOll in his favour had no jurisdiction to
hear the case. Hence the pruceec!ings must be quashed. Held
also: That there is Of) bar either under 5.152 of the Constitllti01l0r
elsewhere to the SuprelUe Court reconsidering its earlier ruling
of law laid down in a previous decision by itself. S. 121 of the
Constitutiofl does not apply to jl1dicial proceedin~s. - Reference to
an inappropriate section in an order due 10 clerical mistake wht::n
~;uch mistake does not prejudi.:e any OIle_ may be ignored. The
effect of decisions in GwatJ }.u v. The Govtrnmtnt of the Ul1i011
of Burma alld Ral1cllll~ddas Jethabhai & Co. v. '.the SfCrelary tv
file Lnioll Government, Mmistr) of Judicial Affairs ami fwo
others. explained. -
AnDUL GAFFAR v. U f{YAW ~YUN AND ONE 218
STATUTE WilEN RETROSPECTIVE 1
SUBSTITUTION. LATER ORDER IN 181
SUIT AGAINST A FIRM, ORDI<:R 30. RULE 1, CODE OF CIVIL
PROCEDURE-Ho~vto be/i-amed-Whether i1Jitials of firmprcjixed
to agml's l1ame i1JdICates a firm in a PlI11lt-COtltract fur sall: of
i'Jl1l10vwule prop,rt,'-Timc wizen of csst:11ce- Construcfioll-Ss. 5S
tltld 74 of lite Contracl Act-RelicfsfOr for/dim', '1 applies to
deposit- Agent of 1Jeccssity, s. 189, Co"trocl Act. Where 10 a suit
directed again:,t the chettyar firm of A.KR.;Vl,l\LK. the defendant
was described in the plaint as A.K.R.M.rvr"K. Chi:lambaram
Chettyar. Jt was contended that the firm had not been properly
impleaded. Held: That nnder Onler 30, Hul.: 1 of the Code of
Civil Procedure, any two or more persons claiming or being
liable as partners may sue or be sued in the name of lhe firm.
The name of the firm was A.K.R.M.M.I:. fil m and as the firm has
not bee: made a party the suit was not correctly framed and the
cllstomary usal{e of the Chettyars l.:ferrtd to in 13 Ran. 87 is not
relevant for this purpose. Provisions of Order 30 of the Code of
Ci-.il Procedure cannot be o"erridden by this l1sa,ge. The
ombsion is not rner~,ly a technical mista1{e because the amendment
if allowed would necessitate the addition or substitution of new
parties who could claim the benefit of the Limitation Act.
J(,S.A.V. Cltelt,ar Firm v. Mahmoo. 13 Ran. 87: J(l'is!Jna Prasad
Si::gll v. lIfa Ayr, 14 Ran. 383, referred ,to and distinguished.
Held "also: ':'he principle applied by the Courts of Equity in
England introducing the presumption in cases of sales of land
betweel. Vendors and Purcha~ers. that time is not of the essence
of the contract is only a presumption which will giv.e way to proof
of a contrary intention by express words or by the nature of the
transaction. As in the present case in th~ written cont"r~ct there
xxxvi 'GENERAL INDEX

I'AGR

are penal dauses binding on both 'the rnrties forfeiting the

depo:;it in the case of non-completion within a fixed date and
providing for refund of the deposit and a further compensation
in ca~e of breach by the vendor it is clear that a contrary
intentipn appears in its wordings within s. 55 of the Contract
Act. The language plainlycxcludes the notion that lime limits (I
were ()f men.: secondary importance. Jamshcd Khodaram v.
Burjor,i Dhtlujibluri, 4U Born. 289 at 298 applied. Held a/so:
That the alleged extension of time by the vendors' representative
was ineffectual as on the alleged date of extension the time, limit
Ilad already expired. The agent cannot .be held to be an a!'ent
of necessity wiUlin the meal1in~ of s. 18;1 of the Contract....Act
empowered to act during the war time as .this is a mixed question
of la\'" and facts and no averments had b~en made in the
pleadings nor in the evidence lcd, upon which to base such a
contention. The purchaser could n(,lt also get relief uJlder s. 74
of the Contract Act as this section has Ill) application for the
purpose of $caling down the amount of compensation agreed
upon. Bftr;iJrja Sllapllrj; v. M.ldhav!aj ],sitlgtllnj, 58 Hom.
610 at 618, r~fcrred lO.
A.K.R,!lJ.1\f.K. CUlDAMBARAM CHETTYAH v. Kaoo H\'lA L)!;){ 9
SUIT {'OR MONEY LENT 39
SUiT FoR REDEMPTION OF MORTGAGF.--Form of dccree"-COde of Civil
Proudrtrc, Ortler 34, Rule 4 (2) (3:-Deposit of lawful c",.;'Ctfcy-
]apllltc$t Military Note:. ofsl~c!ldeposil-" Mo{u:y' '' in Order 21,
Rule 11) fa). Civil ProcedttreCode mtaning of-AccePtallce-S, 63,
COlltract Act and s. 4, ]apauesc Cllrreflcy Ev"lllatiOIl Act.
\Vhere, in satisfaction of a mortgage by deposit of title deeds,
created before the "Var, [de morlgagee deposited I<s, 35,250 into
Court and a final decree for redemption was passed by the City
Civil Court on 23rd April J948, and the decree waS set aside on
~ppe:lI. after reaccl1pation by the High Court. Hdd: ,hat if
- - .-l1rocedure ,fixed by th~ Code of Civil Procedure had been strictly
followed. a preliminary decree under Order 34, Rule 4 (~) should
have been passed and-it could be only in terms of ,the lawful
currency of the land. '1 be only question then WQllid be whether
such a dt:'cree could have been discharged by payment into Court
of Japant:se Military Notes. T.he tdal Judge did not examine
this question. Japanes~ Military Notes were lIot lawful money
and were no better than tokens with an exc 11ange v;tiue.
/(0 Matwg Till ..... U GOII Ml1l1, (1947) Ran. 149 (F.B.', referred tu
and applied. Such deposit cannot disclmrge the decree' unde;r
Order 21, Rule I, Code of Civil Procedure. Held alsCl,: Th;tt if
the deposit had been acceptfoj by the defendant. both under s. 63,
Cvntract and s. 4 of the Japanese Currency (~vaJuation) Act,
such acceptance mi~ht release the mortgagees. The rule,
however cannot ordinarily hI'; extended to cover a deposit, into
Court. Payment into Court u.tder Order 21, Rule I (II (ll), Code
of Civil Procedure can only be by payment into Court of money
payable under the decrc;:e,
ARIFF MOOSAJEE DOOPLY AND ONE 'V.'DR. T. (,;HA:o< TAlK 227

SUPREME COURT. JURIsniCTION OF ... 181

~';""--WIiETHER HOUND BY EARLIER l~ULING US
SUSPICION THAT DETENUE CON,CERNED IN DACO!TY, ,MUIWER,
.ROBBERY. P!{OPER REMEDY 255
 GENERAL rNlilEl( xxx.\TiL

PAGE
TAXADLE YR.-\R 1
TE~HITOIUAL ]UNISDlCTJON._ ARREST OF PERSON IOUTSIDE 181
'rIME WHEN ESSENCE OF CONTRACT 98
TORT-Goods taken alter d0C!T brokm-Whttfltr lakr. finder. oj
gao(ls-Joi lit tortfeasors-Relta~e of Ollt-Find;" g by COtl~ts
o below (l~ Ot11y a C01'etJan! 110t to :>ltt-Mi.wd C]lu,sfiOIl ,of laU!
al/dftlel. Held: That persons, who take possession of goods,
after bre;:;kingdrloTs of the rooms whether such goods are kept,
, \the rooms being: leased by the owner of goorls from the la11d'
lords) and who knew fully that they were the property of others,
C are not innccent finder of goods Ta11'SOOt~ l.i v. Tlte Burma
Oil Co. Ltd.7(I~4J) R. L.R. 1$3. The question whethcra r~lease
deed wher~ by one of the several tort-feasors is released from
liability reserving the rigbt of action ,against otl,ers, amount's to
r"lease of all or only a covenant not to sue th~ party released, is
a mixed question of law and fact. Concur,ent findings of bOUI the
Courts cannot therefore be challen~ed.
HAJ~:E SAHIB HAlER MOHAMFD BRoS. 'iJ. PUDUVEEnu ABDUL
?!!OH4.MED SHRRIFF M~D ONE 244
TRADE DISPUTES ACT 47
8.2 (j) 176
- -_ _- - - 8 . 9 163
TRAnE D1SPUTES ACT, s. 2 (,e)-Writ oj Pro!Jibili011 ami Certiorari":'"
Where the President in exercise of the powers <:onferred
under s. 9 of the Trade Disputes Ad referred 1 J matters for
decision" to the 1nd,ustrial Cour.t ~nd it was contend<;d, that four
matters out of e!ev(fJl referred to, did 0' t come wiihin the
definition of a Trace Dispute and the Industrial Comt had no
jurisdiclion to cnteriain them. Held: That the aprlicaiion for
prohibition and certiorari W<l.S prematnre, The Industrial Court
had not yet opportunity'to consider \\:hdher all or any of these'
matters fell within its jurisdiction. \Vhere having refeH'nee to
seve.~al distinct thiIfgs,mc or more of Wllich is wit};lil1 tli,e
cognizance or qHnpetence of the inferior conrt and the others
are not, the Supreme l(11 It wjJ] not pres'Jme that tDe ilderior
court will go b~yond its j~lri<;dictinn, H'lllack ami one v. The
CfJ tluceilol. Mas/ers anti 8c"01a rs a! t Ite U,1i-['crsi/y Of Cambridge,
1 Q,8.51)3 ; Tlte QIIt'&11 v. Twiss,4 Q.B. 407 a1 413, applied.
THE BUIUI"-H OIL' Co. (BURMA CO~CESSIOX). LTD. V. THE
Cm,lln OF lNDUsTHIAL ARBITR.\TTOX, BURMA AND FI,VE
O....HERS 12.5
TRADE DISPt:TE-Me..~ldl1gof-Trade Et~ptd(s Act, $, 2, ClatlH {J}-
Referellcc by President to Indust rial Court Wlu:tlJcr conclusive of
thee:dsleucc of Trade dispute. When the President of the Union
made 'a referp.nce to the Induslria~ Court regarding a claim of
three ltlonths pay as Evacuation Compensatory allowance m.ade
by the Members of the Union owinJ;! to, the evacuation and l the
consequent closure a! the Burma Corporation Ltd. ill 1942 OIl
acconnt of the war, and the Industrial COI'rl by its Award held
lha~ the claim, made after the war, could not be regarded as
connt:cled with nonemployment or as lI~e subject-matter of a
trade dispute. and the Union applied for a writ of ,mandarpus
agai,nst the'decision ofthe Industrial Court. Held: Thilt a writ
xxxviii

PAGE
"'01 maod:unus Cali. only iss lie to 'direct the ~et'fotrnance of a public
duty where a p:Jblic authoritv h:t.s failed in its legal obligation to
perform such dOIly, \Vhere the President of the Union in
exercise of his powers under s. Q of th~ Trad~ Disputes Act make,
a rcfe.rence to ihe. Industrial Court such reference is not
conclushe of the matter being a trade disp!1te. "Trade
dispute" is defined in ti:le Act elaborately. \Vhere the Industrial 00
Co::!rt properly held that there was no trade dispute it ha9 o:)t
evaded any st...tlltOry duty imposed upon it. It is open to the
o
Industrial Court 33 wen all the Supreme Court to decide whether
there is a trJ.de dispute or not.
THE NAMTU \VORKItRS' UNION V. THE COURT OF INDUSTRIAL
ARBITRATION AND TWO OTHERS .... 176
TRUsT ACT-5s.I. 44, 75-Rulcsof Moltame-ianLaw-Silwt_Effecl_
ProvjsiOfJ in deed/or five trustees-Whether four alo1L~ can file
suit. Where a deed of waqf created by a Mohamedan provided
that there should always be five trustees and in case of vacancy,
the s.univors could appoint to the vacancy, but a vacancy was
not filled up and the remaining four c-ustces alone filed a suit for
recovery of monies, on beh.1f of the Trust. Held: That s. 1 01
the Trusts Act, provides that nothing contained in the Act affects
the rules of Mohamecian Law as to waqf, but there was nOlhing
'ill the rules of Mohamedan Law which cflnAiet with ss. 44 and 75
of the Tru$tg Ad. The provision in the d'1cument of Trnst that
there should always be five trustees does not exclude the opem-
tbn of ss. 44 and 75 expressly or by implication and on the death
of lone of several co-trustees, tbe trnst survives and the trust pro-
perty passes to th~ olhers. RlljClld"ollalh Dull v. Shflik
Mohamed La/. 8 LA. 135, di3tin1uished. Br;clm Lal v. OHll11ah,
40 Cal. 338 ; KrtSlma Bhn[fn \'. Udaya'IJar Srill1vasaShambagtl,
A.l.R. \1917) Mad. 730. refer ed to. By continuing to act Ule
surviving lfllstee.; may have o.;ommitted a breach 01 tru:;l : hut a
strang..:r to the trust cannot S:\V that ill spite of the trust snrviving
and the 5tlrviving trulitees havin~ t:l~ sam~ rights, as the original
trustees. the survivors car,not sue.
HASHI!4: AZAM BHAKHR,\ v ESRAHtM ARtFF ASH~.-\FF AND
TIIREE OTI;J1.:R3 < Z5t
Ultr.l Vires ... 185
UNTO.\' ClnZ~NSl-llp (Er.E~T(o:\') \t.:TI 1948, s. 8-Powcn;ofJlldge to
review is::/lC of cerlifie"fe--Jurisdiclion-Assllmp'io1/. of-Writ
of p,-'ohlbilIOIl--Wlltu catL issue. \Vhere the . applicanl applied
for a Citizenship Certificate and stated that he was born at Mergui
but was residing at l~ang'1on, ?l1d notice wa~ accordingly :issu~d
to the Deputy Commissioner. I{angoon and afkr enquiry a
Certificate of Citizenship was is~ued : and thereafter application
was made to COllrt to revol\e the Certificate. Held: That by
virtue of s. 81 Clause 5 of the U.lion Citizenship (Eleclion\ Act I
1948. the Certificat~ of Citizenship became fully effective. The
leanied Judge who hiS led the certificate. ha1no autllo ity tv
review his order and caned the cerUficate or to h ld a de novo
enquiry. The right of revie... just like the right of appeal is a
creature of Statute. WVIJ SI;10e Bee v. 'he Commlss/oller of Police
lIud O'U I B.L.R. '(19491 (S.C.) 157, followed. A Cuu' t has jurisdic-
tion to decide in any particular case whether it possesses Jurisdic-
tion t6cntertain the suit or not and wh~n a dulv constituterl Court
assumes jurisdiction it must be taken thaI it' has decided the
 GENERA~ INDE,X xxxix
PAGE

Question that it possesses the jurisdiction it has exercised.

S. A. Nalltall v. S. R. Samson, 9 Ran. 480 at 494, followed.
S. 5 of the Act dJes Ol)t require that notice must be issued to the
Deputy Commissioner of the place where the applicant was
bom and to the Deputy Commissioner of the place where he is
for the time being residing. Held further: That where a
definite re nedy is prodded, e.~., appeal to the High Court under
s. ,;76 (bJ of the Code of Criminal Procedure an application
for direction in the nature of prohibition cannot be entert:J.ined.
AH {<'AT {aJ U AUNG THEIN V. U THA \Vm AND ANOTHKK. 53
URBAN RENT CoNTROL ACT, S9 11- (1) !a), 13 (1 lAND 14 {b)-Code
(lj Civil Procedure, s. 2 iH)-ComfiltdiVIl Act. s.2j (2)-
jJireclw1Js ill lite tlll!UYC of mandamus. K. v. S. Iyer, a tenant of
Room No.5 of House No. 231-237, Mogal Street, Rangoon, died
in November 1949, but the rent continued to be received later by
the landlords. They however did not accept it from the
applicant, a son of the deceased tenant and he sought to deposit
the-,ent with the Controller of Rents. The Controller held that
the claimant must first obtain a ded:lration of status as a tep:al
representative from a Civil Court. Held: On an application for
~ mandamus, that at lh~ stage of deposit (,f rent with the
Controller, it is not necessary that the status of the person who
seeks to deposit sholll':1 b~ established. S. '2 {iii of the Code of
Civil Procedure defines legal representative as i'1c1udin~ even a
intermeddl~r. Depo~it of lent can operate as a shield only to
a person who is in occupation of the premises and a tenant's
legal representative is inclnded in the delinHion of t~n:ant. The
deposit ensures for the benefit of the legal tena.nt and does not
.!!ive the depositor any right adverse either to the 12ndlord or to
the lenant. Therefore no enqlliry \....a5 called for as to the statu:.
of a person making depo~it under s. 14 (b) of the Act and the
Controller is bound to :lccept the deposit.
S. THUKARAU 11. THE CoNTROLLER or RENTS, RAXGOON
AND ONE ... 193

URBA~ REST" CONTROL ACT-Mouthlv Leases Termination Act.

1946, s. 4-Mo1tfh1y leases when terminate-Urban Rt1Jt Control
Act, s. I2-C01Jditions (0 be safisfied-Passing of the decree
of tile COllrt. Held: Where a monthly tenant left Rangoon
after December 1941 and there W:1S nobody loclcirg after
or was :n possession of the premise;, from June 1943. S. 4 of
the monthly Leases Termination Ad appli~s and a h:~'fmt
loses his right under the Act. In spite of the fact that a
decree has been pa~sed against a person in pl)sses~ion of a
house on the ground that he is a trespasler he has stili the right
to make "n application under s. 12 of the Urban Rent Control
Act to the Rent Controller. Requirements of s. 12 to justify the
ContrOller Ol Rents are-(l) person making the application must
not be a tenant of the premises; (2) that he must be in occupa-
tion of the premises bond fide for r~sidential or business purpo!'c ;
(3) that he must have made a written appiication of his willingness
to pay the standard rent of such prenise~. On writtt.:n declara-
tion being made by the occupant of his willin~ness to pay the
standard rent the Controlier .of Rents is entitled to give, him
permit.
SAW r,H,\IN 'Po'01i l\ND ONE 11. ASSISTA'ST CONTROllER OF
o REN1S, R\X'GOON 'AND EIGHT OTHERS 109

'*
xl QENERAL INDEX

URBAN RENT CONTROL ACT, s. 16.U (4) (11) AS AMENDED BY ACT.

LUI OF 1948-Jurisdictiol1 of Controller of Rents. Held: The
Controller of Rents has jurisdiction to act under s. 16AA (4) (~)
of the Urban Rent .Control Act only when resident'ial p'remh,es
are either vacant or about to be vacant, He cannot take action
at a time when the prem.ises had already been Occilpied and his
action therefore was without juri:diction.
,,
U SRIN LIN v. The CONTROLLEll OF RENTS, RANGOON AND
TWo OTHERS 156 o
l'"~,
URBAN RENT CONTROL ACT. S. 19~A (l)-Decisiol1 oJ Board without
notice of Imullon/--.,Allotlillg rooms to sfI'4ngers-S. 16-:AA (l)-
Gall for fresh fulfll/tdion 1I1jder~Jut:jsdictioll-tlJter time-limit to Q
make aJlolmerd. ' \\There a landlord setlt~ an intimation under
s. ] 6AA (1) of the Urban Rent Control Act that the building
would be ready at a particular time but the Rent Control1~r asked
the landlord to submit a fresh intimation after comrletion
."
certificate from the Corporation of Rangoon, bu.t nev~rthelelis
the Rent Controller withC?ut notice of the landl,oro arrh'ed at a
decision to allot cerlain rooms to strangere. HeId: That there
is no provision in the Urban Hent Control Act" entitling: the
Controller of Rents to ignore the first intimation by the landlord
and call ior a f'e~h intimation. It is incumbent upon the Rent
Controller to make the .illotment nnder s. 16~AA (4) (a) within ten
days' ;frotn the rcc'tirt of the intimation from the landlord. The
purpose of this enactment is that the landlord c.1.nnot be left
waiting indefinitely with vacant rooms awaiting a decision from
the Controller and his Board. After the statutory period of
ten days after the. receipt of the intimation has expired the
Controller of Rents has no jurisdiction to make all allotment
under s. 16~AA of the Urban Rent Control Act.
CASSH.r AHMFD SOOl-l)fA AND HAwA BIBI 'IJ. THE CO:r\TlwLLER
OF RENTS, RANGOON 94
URBAN RENT CONTROL ACT-Lianee alit! lease-Officers e...."ercisillg
j .. dieial juncUor. 01" 111asijzhhcial !tmCU(l1Z 7uhcllur ClllI seek
le~al advice, at the bnck of lhe AdVOcate 'of lhe (ltlur side mId
utile/her Attor1ler~G~lIeral or GO[It:rtl1lunt Atlvocdc Call give stlch
advice Held: A. licence may comewithi'n definition of
!. Idting" pnder the Urban Rent Control Act. .The distinction
between a-licence and a lease is tha't there must be exclusi\'c
possessinn in the case oi lease <lnd that" element of e:cclu,h'e
pos~essJOn is Absent in the caSe or a licence. Officers exercisin~
judicial or quasi~judid~l fnnction shouldn6t seek for legal ~dvice
especially at the back of the Advoc~te of "the other side; in
proper ca~es he may ask the Attorney-General to appear as an
amicus curia:. and the Attorney-General a.lso should not give legal
<ldv;ice if sought for by pe''Srms exercisng judicial. or 9.uasi~
judicial {unction. S. R.1?aj" v. The A.\sistallt Coillrof1cr of
Rents and t11.10, RL.R. (19:iO), IS.C.l 10. followedl'
. THE iNDIAN STARCH PnonUCTS,. LIMITED AND ANOTHER v.
THt:: CONTROLLER ~..,' RE!':TS. RAKGOON AND A~JTHER 64
URBAN RENT CONTROl. ACT. S. 21-A-Pqmif whseql4cn!ly wlthdrawll ()
-TeIlQllt-Applrcat,on uuder s. 16~:A ouly by teuatlt. \VhereJhe
wife of a tenant of some premises applied to the Controller for

permission to assign tenancy, and the C'ontTOI~er first issued a
:rermitto that effect but subsequently, on the applinlion of the
real tenant, withdrew the permit and the party affec~edapplicd
 :;ENERAL INDEX xli
PAGE

for a writ of certinrari. Held: That the term" tenant" in the

Urban Rent Control Act me:lns cne by whom, or on whose
accoaht rent for the' premises is paid. or the legal representative
of a tenant, or 'a person deriving-title from a tenant. or a tenant.
holding over; and the "df'e of Ute tenant is not a tenant
~ccorring to this definition. An application for permission to
assign a tenanc}' lies only at the instance of a ten;tnt. Conse-
quently the o'rigillal application' for assi~ning tenancy at the
instan"ce o! the wife was incompetent. Even if there had been
irregt!larities in tJ.1,e Re\'iewproceedings before the Controller of
Tents setting aside the original permit, it would be wrbn"g for the
court tl) uphold the originoal order, fUf the original application on
which orders we,re passed is incompetent.
B. R. KAMDAR 11, THE 'ASSISTANT CONTROLLER OF RENTS
AND OTHERS ... 50
URBAN RE?\T CO?\TROL ACT 185

VALJDlTY OF' AGREEMENTS 185

WARRAST ISSUED BUT NOT EXECUTED-WHETHER CERTIORARI LIES!,.. 6

WITHDRAWAL OF APPLICATION WHETHER BAR~ FEESH APPLICATION 63

WRlT OF CERTIORARI .. > 6,125

WRIT OF CEflTIORARI A!'\D PROHIBITION-Trade Dhtmtes Acf-
Where Ihe employers published a warning notice on 7th March
1949 that they would close their business as Saw Millers early in
April 1949 and gave notice 10 all their workers that with the
exception of some, other wOlkers \.... ould ce.aSt to be em'ployed
with effect hom 12th April 1949, but before that date the 'Workers'
Union formulated their demands and presented them to the
employers and the demands were ref }rred to the Industrial
Court for determination. Held: That on the 6th April 1949 the
demands made on behalf of the Workers and rejected by the
applicant would c)nstitute a trade dispu:e. And the reference of
the trade dispute to the Industrial Court was eorrect.
STEEL BROS, & Co. LTD. V. THE COURT OF INDUSTRIAL
ARBITRATI(IN AND OTHERS 47

'VRIT OF Habeas Corpns-Public Order (Preservation) Act, s, 5~A (4)_

Arrrst oj PC~S01t olltside territorial Jurisdiction-Later onia in
stlbsti/ufioll-Wlu;iher )urisdicti<J1l ul Supreme COllrt affatcd.
The ddenlle was arrested at Hmawbi on the 26th of May 1949
and was detained in the Rangoon Central Jail under the order
dated the 30th May 1949 of the Deputy Sommissioner of PQUce,
Rang?on '1l1der s, 5-A (I} (b) of the Public Order (Preserva-
tion) Act. On 20th March 1950 t:.e detenue applied to the
Supreme Court fOT a writ of habeas corpus :md while the
proceedings were in the Supreme Court the Deputy Commissioner
of police, Rangoon. cancelled his order and the Deputy Com mis-
) sic'mer, Insein, passed an order directing the detention of the
applicant in the Rangoon Central JaU until further orders and
then passed another order under sub-so 4 of $, 5-A of the
said Act transferring the applicant to Insein Jail for further
detention. H!:l(I: That the present confinement of the applicant
on the date" of the hearing in an"'area under military administra~
tion is an attempt to evade the jurisdiction of the court in an
 >.

xlii -GENERAL- INDEX

PAGE

application already within its seizin and such jan attempt by the
executive authorities interiering with the rights assured by the
Constitution could not be encouraged. The mere tact that the
applicant is a 'White PyHhu Yebaw Leader would not bring the
applicant within the purview of s. S-A (1) {bl of the Public
Order (Preservation) Act.
Bo AYE Ko v. THE CO:,>[l'I!ISSIONER 01: POLICE, RANGOON
AND TWO OTH-ZRS 181
\VH!T OF MANDAMUS 10
-----PROHIBITION 12

.r

(
 BURMA LAW REPORTS

SUPREME COURT.

STEEL BROTHERS & Co. LTD. (ApPLICANTS) j-S.C.

1950
v.
Jau. 2.
THE BUSINESS PREMISES TAX OFFICER,
RANGOON (RESPONDENT).*
Business Pr~mises Act, s. l-Conslrtlc!iOll of TIlt:I1J/t Sfatu(e-WIJelllt:r rdros~
Pccti7J:--Tllxable year-So 2 (d)-BtlY1T"l Gwerlll Clauses Ad. s. 2 (23),
.~. 16_l?llfe_makmg power of the Prts;delli.

Tile Business Premi~es Tax Act came into force in the City of Rangoon on
15th July 19~t). The applicants were directed to pay the t:\X for the financi:J.1
~.::ar ,commencing 1st October. The applicants sought direction by a writ of
nrohibition for restrOl.ining the Business Premises T::l.x Officer from collecting
stich tax for any period prim" to the commencement of the Ad.
On behalf of the re!:'ponclents it was contended that the Act was retrospec-
th'e and was intended to be operative from the be!Z.inning o[ the financial year,
am] tlmt financial rear under the Hanna General Clauses Act, s. ? (13)
-eomlll~nced fro1111st October 1948 .md that the claim had been made reasoll-
ably in as much as the President could giYe rclief in re5ped of Business
Premises not in existence for the larger part of the year.
Held 1tcgativillg tht; r.ouftntiun : Under s. 16 of the Union Constitution,
no p:;:r:30;1 cO!.lld b~ depri"ed of his property unless ther~ \'\'-a8 clear alltho~
rHy in law for such cllC'"oachment, and ;;lily doubt must be resolved in favour
of the penwn sought to bc m~dc liable.
Though the word II Taxable year" under s. -4 of the Act is defined
as equivalent to the financial yt':ar, the languOl.ge of the statute did not have the
effect of imposing liability for any period prior to the enactment of the Statute.
The financial year under the Burma General Clauses Act, s. 2 (23) means
:my twelve calendar months beginning with f'H;: 1st day of October and it
COllid not be contended that the Assessee was liable also for any period prior
to Illt 1st October 1948.
The contention on behalf of the responde..t was one vf doubtful validity
and ina taxing Statute any doubt must be resolved in faYOllr of the party
affected

... Civil Miec. Appl}L.Jtion No. 75 of 1949.

t Prr;s~Jtf : U E l\'1AUN"G , Chief Justice of the Union of Burma, MR. JUSTICE
1{YAW MY1~T ;;lncl V ON PE, J.

2 BURMA LAW REPORTS. L1950

;9~O Horrocks and [(yaw Min for the applicants.
STl!.F:L BROS. Chan Tun, Aung (Assistant
. . Attorney-General)
. '. for
& Co., LTD. '

l'. the respondent.

'I'm':
BCSINESS
PHEMJSES The judgment of the COUl~t was delivered by the
'fAX
OFFICER,
Chief Justice of the Union.
R\l'\(;OON.
U E MAuNG.-The applicants seek a directio.n in
the nature of a writ of prohibition calling upon the
respondeut to refrain from levying, in respect oJ the
premises held by the applicfintS for b,usiness pi1rposes,
a tax under the Business Premises Tax Act of 1949
for any period prior to the 15th July 19-1-9.
The Business Prer.lises Tax Act,. in section 1,
provides that it shall come into force in such area or
areas and on such date or dates 'as the President
may in respect of such area or areas specify and it is
COlD man ground that the Act was directed to come
into force in the City of Hangooll on the 15th July
1949. The applicant's case shortly put is that their
" ,
business premise~ situ,ated in the City of Rangoon
would not attract the tax under the Act till the Act
was put into effect in the City of .Rangoon and that
for the period prior to that they could not be held
liable to pay any tax under the Act.
At (he hearing before us the learned c9unsel for the
applicants offered to support by authority the propo-
sition that taxation statutes require to be construed
strictly; but as it is an obvious prol''Jsition flOWing
directly from the provisions of section 16 of the
Constitution we have not troubled him on this aspect
of the case. Before any person can be deprived of
his property there must be clear authority in law for
such an encroachment : any douht must be resolved
in favour of the person who is SOUg:1t to be made
liable in property.

1950J BURMA ,LAW REPORTS; 3

It is, sought, however, on behalf of the Union to s,c.

1-950
persuade us tha,t the Act read as a whoie, and espe-
~;rEc~cnLROS,
cially the prov,isions of secti"on 4 thereof, make it clear 1.\': 0., TO.
that it was htended to, be .retrospecfiveand to operate ,j;;E
from the oeginning of the fimmcial year 1948-49. BUbONESS
Pm":MISES
The learned Assistant Attorney-General, who appears TAX

f or, the (Tnl'on,

.
claims that uilder sectl'on 4 of the OI'FleER.
HAN GOON.
Act the assessment and the levy of the t<.x is to be
for the" taxable year" and that the term "taxable
year" is under section 2 (d) of the Act defined as
equivalent to the "financial year." Applyinl( next
the provIsions of section 2 (23) of the Burma General
Clauses Act, the learned Assistant Attorney-General
sought to deduce that the Business Premises Tax Act
cleady authorizes, the- assessment and levy of the tax
under the Act from a date prior to the 15th July
1949, z'iz, , as from the 1st of October 1948.
We do not deny the possibility that this result
was in the mind of the law officers of the Union who
were responsible for the drafting of the Act when they
prepared the Bill for presentation in Parliament But
it is not what was in the mind of the legal draftsmen
that is material wJ1en we have to decide what the
Act has really achieved. The test is iyhether the
Act, taken by itself and given its plain lllea:Iing-
subject to such rules of legal interpretations as are
applicable-would beyond reasonable doubt operate
to attach a liability on a citizen to pqy the tax or llOt.
The ar,guments of the learned Assistant Attorney-
General at first sigh t appeared attractive but we are
constrained +0 s<ty that they wonld n at bear a close
examination. It must be remembered that section
2 (23) of the Burma General Clauses Act cloes not
say that the "finallcial year "shall mean the year
beginning with the 1st October 1948. It merely says
in general terms that it shall mean any twelve c.\lenclar
 l' ,..

4 !fUR:MA LAW REPO'RTS. [1')50

month's beginning with the 1st day of October.

Bearing that in' mind and beanng also in mind the
S':l'EEI. J'.j{QS. provisions of section 12 (2) of the Burma General
& Co. LTD.

THE
Clanses Act the Assistant Attorney-General, if he is
)3.USINESS to be consistent in his contention before u~, must go
:1"'r~EMI8ES
TAX
further than he has done and claiin that the applicants
OFFICEk,
RA~GC:ON.
are liable to be faxed under the Business Premises
Tax Act, not only froni the 1st of October 1948, but
from the 1st of October of Buch previol!s " financial
year" in which the applicants first began operating
the btisiness \vhich would attract the Act if it had then
been in force. That dearly wOllid be a demonstration
?'edt/clio ad abSlitdtl1n of the Union's case as presented
before us'.
We have been told on behalf of the Union that the
President has in the Rules made under section 16 oi
the Act enabled relief to be given in respect of business
premises which had not been in existence as such for
the larger part of the assessable year and it is said by
the learned Assi~tant Attorney-General that such
provisions are clear indications of the reasonableness
of the claim now made on behalf of the Union in this
case. It is not necessary for us to say in the present
case-.and' therefore \\'e refrain from considering-
wheth~r it is within the power of the President, under
section 16 of tile Act, to make such provisions for
relief and condoilations. In any case, we do not
consider this corisideration at all relevant in the pr,esent
proceedings. It is clear to us that the most that
can be said,in support of the contention made on
behalf of the UnioL, is that there can be some
doubt in favour of that contention. But that is not
enough. As we have already said, a doubt, if any,
must be resolved not in favour of the Union but
in favonr of the party sought to be made liable to
taxation.
1950J BURMA
. LAW .REPORTS. 5

We accordingly direct that an order be issued to s.c.

1950
the respondent ~<li!ilig I!pon j)illi .to refrain from
STEEL UROS.
levying on the applicants any tax under the Business & eg. LTD.
v
Premises Ta'( Act of 1949 for any per-iod prior to the THE
BUSINESS
15th of July 1949. PREMIS.ES
There wiN be no order as to costs. T .u :
OTJo'ICER,
RANG.oN.
 t,..

6 BURMA LAW REPORTS. [l <:50

SUPREME CO(;RT.

l' s.C. DA W TIN "NU (ApPLICANT)

1950
v.
JO!I. 6.
THE CHAIRMAN, PUBLIC PROPERTY'
PROTECTION CQiVIMITTEE, HANGOON AND ONE
(RESPONDENTS)."
Warralit iss"ed bllt 1101 e.t'cCl/lcd-W!lc!!lcr certiorari lies-So 150, COlIStilll-
liolt of the Uniolt of Burma.
Held: Any pers':m administering: either the Public Order (Pre:>ervabonl
Act or the Public Property l)rolection Ad exercises limited fnl1ctions and
powers of a judicial nature; therefore, when he issued the warrant fOT
<irrest application for directions in the nature of certiorari woulci bl:: the
proper remedy.
Where the alleged prejudicial acts were committed before the Public
Property Protection Act was enacted, he could not be arrested and detained for
such acts and his detention would not be in 2,:cQrd;l.l1ce with law.

Tilein Maul7g for tbe applicant.

Ba Seitl (Government Advocate) fortbe respondents.

The judgment of tbe Court was delivered bv the

Chief ]u>tice at the Union.

U E MAUl';.-Tbe only point in this case that

gave 'IS any trouble was the question whether an
application for directions in the nature of certiorari
would be tbe proper remedy. Tbe applicant's busband
bas not yet befn arrested but a warrant for bis arrest
has been issued l'y the Cbairman . of' tbe Public
Property Protection Committee. On tbis point it
seems to us that section 150 of tbe Constitution would
supjJly the required answer. 'vVe bave beld in several
cases tbat any person administering either the Public
* Civil Misc. Application Ko. 48 of 1949.
t Pleseul : U E MAUKG, Chief Justice of the troion of Burma. flIp. JUSTICE
KyAW ~IyJNT and U O}\ PE,].
 , '

BURMA LAw R'EPORTS. 7

Order (Preservation), j\ct,()rthe, Public Property S,C.

19jQ
Protection Act would be a person coming within the
DAW TIN Nu
meaning of persons auth6rizedt6:, exercise limited . v.
1~~1Jj'.
functions and powers of a judicial nature. That being CHAilmAN,
~o, ditections in tI,\e' nature of certiorari can issue to the . Pt'HLIC
PHOl'E:ny
Chairman of the Public p,roperty Protection Committee. PIWl'ECTlON
COMMITTEE,
That point being settled, the case is really covered RANGOO:S-
A:-;n ONE.
by our decision in CriminallvIiscellaneous Application
No. 175 of 1948. The prejudicial arts a~cribed to
the applicant's .husband are supposed' to ,have been
committ~d before the Act was 'enacted. 'We accor-
dingly quash the order issuing a, warrant for. tile
:arrest of the applicant's, husband.
8 BURMA .LAW REPORTS. [1950

SUPREME COURT.
tS.C. MA MYA KHIN (ApPLICANT)
-1950

J'fln.6.
THE COMMISSIONER OF POLICE, RANGOON
p.
\ .

AND ONE (RESPONDENTS)."

PI/bIte Order (Prr-servatiQ1/l Act, s. SA (l-) (b)-Posses~ioll of a seditio/ls

leaJld, if ~1lffidellt_.
Held: That jf a detenu had been found in possession of 50 or 100 copies
of aseditiolJs I-e.dlet it might ~he reasonable :to assume that he W<l$ ~in some
w.:l)' rel",ponsible fOT dissemination of .Ieditious literature but posscs;siQn of just
one copy dOl;:::; not prove lUI) thing.
Htld furtlter: The allegation that the applicant was a deserter from the-
Army could not be sufficient gropnd for detention ion the .ab:!ence of proof of
stich desertion.

Applicant in person.

Ba Seill (Government Advocate) forthe respondents.

The judgment of tbe Court was delivered by the

Chief Justice of the Union.

U E MAUNG.-In this case lvlyalvIaung who has

been detained under section SA (1) (b) of the Public
Order. (Preservation) Act, is- alleged by the Sllb-
Inspector of Police l\'!aung Tin NYllnt to have been
found in pos,es~ion of one copy of a seditious leaflet,
a letter to his wife into which the Police Inspector
Ilad read something sinister and a diary in whic,h are
two entries evidendng the vist of ;vlya l\'!aung to
Okkan when that town was occupied by the insurgents.
It is also stated that Mya Maung is a c'Jntact of one
Tin Myint, alJ.eged in the affidavit of U Tin Nyunt to
be a deserter from the 3rd Burma Rifles.
'* Criminal Misc. Application No. 385 of 1949.
t Present: U E MAUl>\G, Chief JlIalice of the Union ~f Burma, ~R. JUSTICE.
KYAW MYIN1' and U ON PE, J.
1950J BURMA LAW REPORTS. 9

If it can be said that Mya Maung was found in S.C.

1950
P ossession of 50 or 100 copies of .the seditious leaflet
t\IA l\'1YA
it might be reasonable to assume that he was in some KHIN

way resporsible for the disscmination of seditious TilE c'~,",~IS-

literature; but to be in possession of just one copy !!IIONER OF
P-oT.ICE,
does not prove anything. The letter to his wife, which RASGOOJi
AlfO ONT..
has been produced before us and found in his
possession when he was arrested, also docs not suggest
that Mya Maung is a person who requires to be j,ept
in custody Ullder the Public Order (P.reserya.tion) Act.
Nothing also turns on the diary entries evidencing his
visits to Okkan. But what ha, been of great influe.nce
(In us in coming to the decision wbich we hav.e arrived
at is that Tin Myint who is stated in the affidavit of
the Sub-Inspector of Police to be a deser.ter of the
Army, is anephew of MyaMaungand even if Tin Myint
had been a deserter nothing sinister can be inferred
merely from My,l Maung remaining friendly with him.
But this is not the e.nd' of the matter. Mya Ivlaung's
wife has sworn an affidavit in which she definitely stated
that Tin Myint, far from being a deserter from the
Army, i~ still a member of the Army and in .operation
insome part of Burma. We have given the learned
Government Advocate an opportunity to verify the
truth of this allegation and all that, after four days
adjournment, he has been "ble (0 tcll us is that [he
Army authorities find it very difficult to trace Tin Myint
and that they would not be able to ttollus today whether
he is a desertel' or whether he is "till in the Army, Jr.
this state of aff'lirs we must come to the conclusiou
that Mya Maung's cc'ntinl1cd cletention is in no way
justified.
We accordingly order that the detenu Mya Maung
be forthwith released.
10 BURMA LAW REPORTS. [19S0

SUPREME COD.t{T.

ts.c. S. H. RAJU (ApPLICANT)

i950.
z~.

THE A~SISTA.NT CONTROLL:e;R Of RENTS,

RANGOON AND TWO OTHERS (RESPOND1';NTS).*
. . .
JllllldmJltlS-Agrul1tcllf of licwse--Providillgfor 110 right 'l1Ide,- Ur9au Relit
Control Act-Colltrolier ~f Rmls directing' parties to Civil Coui-t ,~'f1d- 710t
fixing slnlldard rwf.-Licence-Dcfl11itt"oll of-True "sf i11 cOll.$fruillg tl
dOCltmcl1t.
The Tenant of certnin properties f;nterec1 into an a.g.;cem.cnt' with t~le
Applicant which provided that the :1grcement was not one of sub'~tei-lancy but
ib-at the Appll,cant WaS only a licensee and that he sl10uld have no right to
'Outwit lhe.agreement ,mel bring the matter, within the Urban Rent Control
Act. The Applic.anl applied for the standard ren! to be fixed. Upon. objection
the As,s{sl::lllf Conlroller of Rents, Hangoon CoTlsidered t11a"t it was a matter for
tile Civil Court and left. the parties to ~eck relief there.
Held: That in granting a mandamus the. Court is dJreciing the As:;istant
'Controller to proceed with the case and de~ide the question. which it is his
<luly to decide and is not in any way interfering with his discretioll.
HIIl;,bllry's Law of England, Vol. IX, paras. 1296 and 1300, referred to.
Lict:.l~,:e is- "that cpnsent wJ1ich, without p.t;ssing any interest in lhe
IJr\_perty to which it relate;,;, merely prevents the acts for whi.. . il COIl5cnt is
given from being, wroilgfllI." ".
Pollock on Torts, referred "to.
It is the duty_of the, court to lOt knot s.o much at the words as the substance
of ~he ag.r;cement. E\-en where the parties call a doc~ment as agreement of
-liCt nce sud, recitals call never be conclusive and the court will have to look to
1he s,lbstance of the terms of the agreemcnt and not to the name given by
.the p:lrlies.
Smitll v_ Tlte Ovascas of Sf. Mifchcal, Cambridge, 3 EL. and EL. 383;
Fltttlll, {I906\ 1 h..B. 60 :It 69,. YOUNg and Co. v. Liverpool AoSSlSS
J((1J{ \.
~l1Wt Committees, (1<){1) 2 K B. 195 ; Burma S/I<Jll Oil. Sfor;f>~e aHd Disfri-
.ouling Cv. of lI/{'f,I, 55 All. 874. referrcd 10.
H tid : That the Assisl,ll1t Controller of Her.ts" was not justified in ,his view
that the Urban Hel1t Control Act was not applicable in tlle case. Thc
m,llldamlls should iss Ie direding: him to dispose of the aprlication tinder
s. 19 oi the .Crlj:m Hent Control Ad. -" i

1\ Civil i\I!sc Application 1':0.58 of 1949.

t Preullf: U E iIIAU:\G, Chief Justice of the Union vf Burl1l:l, MR. JUSTICE
I{VA \V l'v!ytxT and U 0;.; PE, J.
 1950J HURMA'LAvJ REPCJRTS. 11

C. C. [{hoo for the applicant.: s.c.

1950

S. R RAJU
l?aShein (GovernmenJ l;\.dvocate) for the' 1st :1. .
res,:>ondenl. THE
ASSISTAIS"T
CONTROLLER
pFRENTS.
M. E. Dawoodjee for the,2nd respondent. RM\GOON
A!\,D T\VO
OTHERS.
J. N. Dull for the 3I'd respondent.

The judgment of the Court was delivered by the

Chief Jus(iceof the lJnion..
~

:u
I

E M!,uNG.~In this applicaiion for ,direclion.s in

the nature of mandamus two quest.ions arise for our
,consideration... .,
The first i's' a preliminary question, viz., whether in
the circumstancesobtaining in tqis case directions in
the nature' of mandamus would be an appropriate
lemedy. Mr. Dutt, ,the learned. counsel for ,the third
respondent, claims that an appiicatlon of this nature
would not be competel}(in this case.. ' To decide this
point and also for the purpose. of determining the
issue on th'e merits, if on this preliminary objection
we hold against the res'pondents; ilis necessary to set
out the 'essential facts of the case.
1'he second respondents are the owners of premises
in No. 99-101, Fraser Street, I~angoon, and. the third
respondent is the tenant thereof from the owners.
On 20th Octuber 1948 the third respondent and th~
applicant executed' what was described as an
H Agreement o:f License." That document contains
21 paragraphs :'or clal1~es and' it. is not necessary to
reproduce it in extenso.' What is clear is that the third
respondent did n0t wanf the transaction to amount to
,one of lease a:ld thif'the 'karned counsel advising him
in ,that transaction has' eniployed his ingenllity '~nd
lZ BURMA ;LAW REPORTS, [W50
S.C.
1950
learning to avoid that h<\ppening. Incl/l.l,lS\l 17 of the
agreement appears the following:
.
S. R.o R,AJU
:rHE
"That both parties bave expressly agreed and understood
I
~SS,18TAXT that ,this agreement is not one of sub-tenancy and that tl:e
CONTR,qr.L,ER
OF i<,ESTS,
licensee is not the sub-tenant of the licensor. n
~A}.GOOS
AND TWO This is folIo wed by another provision is clause 18:
OTHEnS.

II That the Licensee s,h:l.ll have no right to outwit this

agreement alld to bring: the Oll'ltter within the operation of the
G1lqan J~ent.Col1trol Act."

That the third respondent desired to keep this

transaction outside the meaning of a lease can be
clearly understood, for he was' paying to'the second
respondent Rs. 14 J per mensem fOf the whole ground
floor of house No. 99-101, FraserStreet, Hangoon, and
was by this transaction obtaining a fee or rental of
Rs. 500 per mensem for a part only of the same
tenancy.
The applicant in Proceedings No, 319-E of 1948-49
made an ap,plicat'on to the ControlIer of Rents,
Rangoon, to have the standard rent fixed for what he
claimed to his sub-tenancy under section 19(1) of the
Urban Reil(-ControiAct. This applic~tion \Vas strongly
... contested by the third respondent and on the !7th June
1949 the Assistant Controller rejected the application.
The material poriion of the order of the Assistant
ControlIer of Rents reads as follows:
" . -. . . I am clearly of th~ opinion tha.. it tS qutside the
sphere of my ,dllties ~s Controller of ,Rents ,to do a,n)thing which
w0111c1,bavethe effect of reckoning the a,I.!J.:eement between the
p3.rties as null and void. 1 his is obvio~lS1y a matter for the Civil
Court, and 'I shall leave the petitioner to seek relief there."

His at .this stag<; ,th<lt the applicant bas .come to

this Cuurt to seek dir.ectiol1s ,in tbe natu.re of l11anqan:lI.js
caIling ,\\po.n the .contro!Ier of Rents to fix the stanqard
1950] BURMA LAW REPORTS. 13

rent for what the petitioner c1a~rris to his sUb-tenancy. s.C.

1950
The secorrd respondents, the owners of the premises,
S.R. RAW
support the application. v.
Mr. Dutt, who' appears for the third respondent, THE
.~."~SISTANT
-developes' his case on the preliminary objection on the CONTJ(OLi.ER
07 N'F.'f'TS,
authority of Halsbury's Laws of England, Volume Y. RANGf.ON
AXD Tv,0
He relies on paragraphs 129& and 1300. We aloe OTHERS.
definitely of the opinion that these' two paragraphs in
no way Sllpport the preliminary objection taken on
behalf of the third respondent. In paragraph 1296 it
is said:

"In cases v.'here application is made for the issue of a \vritof

'mandamus to tribunals of a judichl chara('~er, the writ will oIlly
be allowed to go commanding such tribunals to hear and decide
a particular matter. No writ will be issued dictating to them in
"'what manner they are to decide."

Here we have not been asked, and we do not

propose, to tell the COlitroller of Rents how he is to
decide this particular application w"en it goes back to
11im. All that we are asked to do is to direct him that
it is his duty to decide the question, which he' thought
<could not be decided by him till the parties had first
received an adjudication in the Civil Court, <'iz.,
\vhetber to fix the standard rent or not.
Paragraph 1300 relates to matters wbere a tribunal
has a discretion and has already exercised that
-discretion in an honest manner. In sucb cases, of
-eource, it is elementary that tbis Court wiHnot
substitute its discretion for that of the authority W110
is entrusled with the exercise thereof. The present is
not a case belonging to that class.
Accordingly, the preliminary objections fail and are
rejected.
.Pollock in his treatise on the Law of Torts has
defined II license" as "tbat consent which, without
 '.

14 BURMA LAW REPORTS. [195()

S.C. passing any)nterest in. the prope.rty. to which it relates,
1950
merely prevents the. acts for which consent is given
. as the' ca~e .of Smith
S. R RAJU
v. from being wrongful." As early
THE
.4.SliISTANT
against The Overseers 0/ St. Mild/eal, Ca:nbridge (I} ,'.
CONl'RoLLKR Hill J. said: "We think that we must look not so
OF HE:-<TS,-
RAXGOO}; much at the words as the substance of the agreemen!."
A~D TWO
OTllJd~s. In that case the o\vners of a house contracted to give
to the Board of Inland Revenue the use of five rooms
and a closet in the house in .return. for an ilnnual
consideration of 90. The contract provided that this
sum of 90 was to include all expenses, namely, rent,
rates, taxes, gas, wood, coals, also providing a trust-
worthy person to reside on the premises, to keep clean,
light fires' and att~nd to the same. This transaction
was held to be only one of license. A distinction was
drawn between possession and control in the owner of
the house and mere use of five rooms and the closet in
the licensee.
In the case of Kel/t v. Fittall (2) Collins, M.R said:
II It has been pr.:::ssecl upon liS in argument that a person
who resides in part of a house cannot claim as an iBlJabitant
occupier if his lanellord lives in the same house, because the
residence of the landlord is iI}compatible with the claim. It
seems to me on principle thaL it cannot be affirmed as a matter of
law that - the co-existence of the landlord as an occupier of
another and a distlnGt suhject-matter is a bar to the claim of
the tenant to a separat:e tenancy. any more than if the Jandlord
lived next door or in the next street. The law has created a thing:
which is capable of being the subject-malter of a separate
tenanc:v, and the only bar to a claim in respect vf it ;is that it has
not been occupied in such a way ~s to show that the occupation
has been free and 11l1controIlec1. The occupation may be subject
to stipulations, such for instance as would give the landlord a
right to enter the tenement for the purposes of repair; but that is
compatible with an independent occupation l such as would give
the francise to the tenant l and that is the occupation that the
revising barrister has found to exist in this case"
(1) 3 EL. & EL. 383. (2) (1906) IKE 60 at 69.
19Sq] BURMA LAW REPORT.S. 15

The case of Young & Co. v. Liverpool AssesSlllent s.c.

1950
Committees (1) is of "orne assistance in the decision of
$. R. RAW
the application before us. In that case it was held that v.
ther'" mayb~ exclusive occupation. in the tenant even THE
t\ SSISTi\:-l"T
if. the clauses cODtained in tlie deed are consistent CO~TROLLER:
OF H1o:NTS,
with the privilege being given to the landlord for use RANGOON
AND TWt)-
of certain parts of the demised premises. Lord OTHERS.
Alvers(one C.J. says at page 209 ;
"The position seems to me "Very analogons to that where a
house is let in ordinary circumstances, containing a passage
through to some private room or safe of the landlord which he
does llot desire to demise. He does not want to go to -it
regnlarly. "and accordingly he reserves a right to go through the
p<issage in the hOllse and open the safe at reasonable times in
order that he'may avail himself of the 'use of that safe. That is
the class of privilege.here gh'en to the landlord, \vhich is in no
\vay inconsistent \vith the exclusive occlJpation by the tenanl."
The judgment of Sulaiman C.}. in the matter of
BUr/uah Shell Oil Storage and Distributing Company of
India (2) is pertinent in this connection. At page 87g
the learned Chief Justice says:
I'No doubt the parties c::lll this document an ~greement by way
of license; and thro\1ghol1t that document tile same phraseology
has been used and the parties are calle.d licensor and Hcensee.
There is also a ciear statement that this deed should not be
construed to create a tenancy in favour of the Oil Comp'.ny. It
is, however, clear that such recitals in a dOCl"ment can never be
conclusive, and \ye have to look to the substance of the terms
agreed upon and not to the nomenclature giyen to the deed by
the parties."
Applying these principles to the present case it is
clear to us that what purported to be a transaclion
creating a license only in the agreement between the
applicant and the third respondent did in fact create a
tenancy. Clause 9 oJ the agreement recites that as
between the" licensee" and the" licensor" there shall
(1) 11911) 2KB 195. (2) 55 All. ~i4.
16 BURMA LAW REPORTS. [19,<:0

S.C. be no interference and interruption of each other's

1950
business. There is also in clause 6 a provision that out
..
S. R. RAJU of the 14 almirahs in the said premises the" licensee"

THE shall be entitled to havethe exclusive use'0f12 almiiahs.

ASSISTANT
(:;GNT!WUER There is_also another provision that the "licensee"
OF HE~'fS,
I~A:\f;:JON shall be entitled to keep his employee or employees
ANDTWO
OT}fEHS,
or men to reside in the premises, to enable him to run
his own business. There is, further, another provision
that the "licensee's" representative wIll be jointly
responsible with the "licensor's" representative for
theft or loss of goods at night time on the premises.
All these provisions are inconsistent with the applicant
bei ng a mere licensee.
Mr. Dutt for ihe third respondent relying on the
definition of the term "premises" in sectiol'l 2 (d) of
the Urban Rent Control Act claim, that there can be
no lease except where a building or part of a building
had been let separately. The learned counsel appears
to have overlooked the amendments made by Act LIII
of 1948 which POW includes in the definition of
"premises," a building or part of a building let or
occuRied or intended to be let or occupied separately
for ;y{y purpose whatsoever. In s6 far as that part of .
the ground floor \vhieh is occlipied oylh" 12 almirahs
exclus:vely allotted to the lLe of the applicant this
definition clearly wOllld fit.
In the result we hold that the learned Controller of
Rents was not justified in taking the view that the
. Urban Rent Contrvl Act is not applicable to the
relation that subsi'3ts between the applicant and the
third respondent and consequently we direct that he
do proceed to dispose of the application made by the
applicant to him under section 19 of the Urban Rent
Control Act in accordance with law.
The third respondent will pay the eosts at the
Applicant. Advocate's fees ten gold mohurs.
 1950J BURMA LAW REPORTS. 17
SUPREME COURT.
TINSA MAW NAING (ApPLICANT)
v.
THE CQMlvIISSIONER OF POLICE, RANGOON
, tS.C.
1950
F,b.18.

AND ANOTHER (RESPONDENTS).*

PtlbUcOrder (PreSlJ'vation) Act, 1947, s. SA (ll (bJ ami s. i-Whether wi/hin
Parliat1twt'~ compclellcc-E.nsting law-COl1sfitutiou of BurwfI. 5._16
"save ill accordallce wi/It law," Ss. 22 fIud 26 (I)-Article 14{l) of tlte
Consfilulion oj/Ile U1lited states of Americ(I-Burma Laws Act, 1398,
s.13-Dismissal of prc7Jiolls .appUcation for habeas corpus how far bars
sllbseq!J~;tl (felrat'.
H clef: The decision in WOIl Sliwc Bee v. The Commissioner of police aud Dill
cannot be extended to exclude successive alplications for directions in the
nattlre of lIilbc(/s corpl/s. \Vhere _the subsequent application was based on
facts in exislence prior to the previous application even though stIch faets
were not then within the knowledge of the applicant, the second application
would be in the nature 01 review, which does not exist in the ordinary nature
l(f things. \Vhere there is an order for a term ,I certain" it cannot be
"
questioned mort: tlran once by writs of habeas corpus because the first
dismissal would be tantamount 10 a declaration that the detention for that
term is a legal detention; but preventi\'e detention for an indefinite period is
under an order for detention froin day to day, authority for each d:l.~'s,
detention operating separately from that from any other daY'. In such a case
the dismissal of a previous application does not atllount to marc lhan a
declaration tll,lt the detention up to that date of dismis:;al was lawful. By a
change in the rcle\'ant circnlllstant)es such detention may therefore become
illegal. \VlIat is sub~equently challenged is the legalHy of the detention
at the date of the application.
},fa/till! HIa Gyaw v. The COIl1/J1i!>sioJlcr oj P(lace, (1948) B.L.R. 704 at 769,
referred to and followed.
In such subsequent application U;e court cannol allow t1~e previous
decisions to be challenged and the lCJ.!ality of the detentioll up to the date of
the dismisS"tll of the previous applico1tion cannot be canvassed.
H cla also: In construing Ule provision in s. 16 Jf the Constitution H that (10
. citi;lcn shall be dt'prived oJ his personal liberty save in accordance with law"
it is pertinent to examine the sense in which this term has been understood in
this-country for ll1allY years before the cOllstitu~;on was framed. The term
"LA\V" in s. 13(1) of the BU!"ll1a Laws Act. 189~ again repeats the provisicns
of the Ad VII of 1872. It is by people who haci lived or who had been trained
under this sj'stelfl. that the Constitution of the Union of Burma was drawn up
and enaded and it is therefore reasonable to conclude that LAW" refers to
L

.. Criminal Misc. Application No. 426 of 19"'9.

t Present: U E MAUNG, Chief Justice of tbe Union of Bnrma, Mr. JUSTICE
l(Y.HV l\fYIN'l' and U ON PEl J.
2
18 BURMA LAW REPORTS. [19;50

S.C. the will of the legislature enacted in due {nrm, provided that it is within the
p)50 competence of the legislature. To accept natmal1aw as a. higher law which
invalidates any inconsistent Jlositive law woulcllc':H! to chaos and each Judge
1'JNSA 1\1.WI
NAI:-\G would be a law unto himself. "LA \V " tllcr~fore under 5.16 of the Constitu-
v. tion is an enactment by Parliament or by other competent legisla!ivt; body.
THE COM ;.1 IS- Their powers arc defined and#ircumscripcd and within Sl eh limits the
SIO:-;ER Of
H LA'V" are bindinl.! on all in tile Union of Bu"ma.
POI.lCF: 1
RANGOON Hddjllrtllcr: That s. SA (Il (ll) of the Public Order (Preservation) Act! 1947
A:\]) is within the competence of the Parliament to enact but the provi"ions do not
ANoTHRI?,
grant the President or his delegate 'arbitrary powers to order detention of a
citizen for an indefinite period. Parliament can by positive enactment define
the circumstances and cOnditions under \vhich nny authority, it has
empowered, may interfere with the pe, sonalliberty of the citizen. There is
no distinction in prinriplc br:twecn the provisions d Ihe Public Order
(Preservation) Act and the preventive provisions of the Crimina: Procedure
Code.
The Federal Commissioncr oj Ta:o:afjolJ v. Mlml'o, 38 C.L.R. 153 at 180,
Maclcod v. A tlOY/1 ey GC11crai jor Nc'iiJ Souih Wales, 11891) A.C. 455: Adkins\!.
ChiJdl'elt's Hosptlal, (1923) 261 U.S. 525 at 544; Osborn, v. (oI1l1llo11'iC'e,fllll,
l1911) 12 C.L.R 337 ; Rex v. Halliday, {J917l A.C. 260; Li'/Jersidgc v. Sir John
AndersoIJ, (1942) A.C. 206; Ki1Jg~Empelor\'. Vfmlnbat Despallde, 73 LA. 144;
In the matter of Ihe Offences Ag,linst the Stnte (Amending) Bill, 1940, 74 Irish
Law Times 61, referred to and distinguished.

Dr. Ba MalO, P. K. BasIl, K. R. Venko/ram

N. C. Sm, [{yaw Din and Chmmg Po for tbe applicant.

Chan HtOOtl (Attorney-General), Chan T1IIl Aung

(Assistant Attorney-General), Till ]v[awlg and Sa Sein
(Government Advocates) for the respondents.

The judgment of the Court was delivered by . tbe

Chief Justice of tbe Union.

U E lvlAUNG,-Bo Van Naing, qn \I'bose behalf

his wife has applied to tbis Comt for directions
in the nature of habeas COI'PUi, has been in detention
in the Central Jail at l~angoon since the 14th July
1948 in pnrsuance of an order of detention made
by the Commissioner of Police, Rang60n, under
section SA (1) (b) of the Public Oreer (Preservation)
Act, 1947, in exercise of the powers delegated to {
him under section 7 of the Act.
1950J BURMA LAW REPORTS. 19

On the 21st July 1948 an application for directions s.C.

1950
in the nature of habeas corpus was made by the
TINSA MAW
present appl;cant in Criminal M.iscellaneous Applica- NAING
v.
tion No.) 5 of 1948 of this Court. That application, THE CO?I:MIS-
SIONER OF
after a hearing, was dismissed on the 11 th August 1948. POLICE,
The present application was instituted on the 7th RANGOON
AND
December .1949. ANOTHER.

The first objection raised on behalf o"f the respon-

dents by the learned Attorney. General is that the
dismissal of the previous application operates to bar
the present application. Reliance has been placed by
him on the decision of this Court in Wall Shwe Hee v.
The C011lmissioner 0/ Police and am (1) where on a
second application for directions in the nature of
habeas corpus in respect of the same detenu, this Court
said:
,

'I A second application cannot also be treated as an applica-

tion for review because the right of revie\v, just like the ri~ht. of
appeal, is a creatlll'e of sbtute ar:.d there i~ no statute giving a
right of review."

It was also said in the course of the judgment in that

case that this Court, in respect of the same subject-
matter, become/une/us ojjicio after it had pas~ed an
order or judgment therein and that this is one of the
rea.sons why a second application on the same subject-
matter, whether it be for directions in the nature of
habeas corpus vr in any other criminal proceeding,
cannot be entertained by the Court which had passed
final judgmept on a previous occasion. The learned
Attorney-General relies also on section 138 of the
Constitution wherein it has been laid down that "tbe
decisions of the SUiJreme Court shall in all cases be
11na1. "

(1) Cr. M.A. 186 of 1949.

20 BURMA LAW REPORTS. [~950

,C. This objection on behalf of the respondents is

1950
countered on behalf of the applicant by the claim that
'1)~SA !\JAw
NATNG the subject-matter for decision in the present applica~ I
V.
THE CO:\I:'I;l8- tion is not the same as that arising for examination in
SIOXER OF
POLICE,
the previous case. Reference was nTade to the~e words
I~A~GOOX in Wall Shwe Bee's case (1) :
A;iD.
AXOTlITm,
"The grollnd put forward in support of the present applica-
tion is that new faets have'now been discovered and that if these
facts had been available at the time of the first application the
result of that application \vould haVf~ been different."

It seems to us that the ruling in Won Shwe Bee's

case cannot be extender! to exclude successive applica-
tions for directiOl,s in the nature of habeas corpus in all
cases. vVhere, as in Won Shwe Bee's case, the subse-
quent application was based on facts in existence prior
to the previous application which had been rejected,
even though these facts were at the time of that applica-
tion not within the knowledge of the applicant, clearly
the second application would partake of the nature of
review which, as has been rightly pointed out, does not
exist in the ordinary nature of things. Again, an order
for a term certain cannot be questioned more than
once by way of directions in the nature of habeas
corfu::. This must be so because the first dismissal of
the application in such cases would be tantamount,
in any event, to a dechration by this Court that the
detention for tlMt term is a legal qete,ntion. That
decision, in view of section 138 of the Constitution,
is final and cannot be questioned in a further applica-
tion. That detention is under a single 'inseparable
order and the validity of the order having once been
upheld is final. But preventive detention for an
indefinite period is under an order fo~ detention from
day to day, authority for each days's detention
(I) Ce. M.A. lS6 of 149.
 1950] BURMA LAW REPORTS.
operating separately from that for any other day i and S.C.
1950
the dismissal of an earlier application for an order of
T1N~A MAW
release does not amount to more than a declaration NAIXG
that the detention continued to the date. of the v.
THE COUUI8-
dismissal was a lawful one. That dismissal cannot be SIQ:-;EH OF
POLICE,
!nterpreted as justifyilig fmtiler detention for an HANGCON
indefinite period however lengthy it may be. AND
ANOTiJEH.
Detention which is legal to a certain date may there-
after, by a change in the relevant Gircnmstances,
become illegal, and, when an application for directions
in the nature of habeas corpus is bled, what is being
challenged by that application is the legality of the
detention at the date of the application. As has been
said in English cases, what the Courts require in
similar proceedings would be causam captioJlis el
detention is. As we have said in Maung Hla Gyaw v.
The Commissioner of Police (1) :

'I In answer to some of the allegations in the return made by

the CQmmissioner of Police it is said on Lehalf of the prisoner

that l 'whatever l1l;J)' have been the position On the 20th july 1947
when' the prisoner \\"~s taken into custody and his detention
ordered) circumstances have since changed anel that by the
4th Augnst 1948, when the application for directions in the nature
of habeas corpus wa~ filed in this C.?urt, the continued detention
of the prisoner on the grounds alleged could no longer be
justified. These allegations and counter allegations give rise to
the question if, assuming the detention to be legal in its inception l
the Court call consider in these proceedings whether because of
events subsequently supervening the continuance of the detention
is legal or justi:l:<lbh. On principle. it is clem' that the Court
mllst ha.ve that power. In an application for directions in the
nature of habeas corpus tht: return must state not merely the
cause of the caplion or the original arn;dt but also the cause of
detention at the date the retnrn is made. If by the tirne the
retnrn-is nl1de l either bec:1Use of lapse of time' or because of
events supervening, the continued detention' becomes illegal,
there can be no doubt th~lt in spite of the legality of the original

(ll (948) B.L.H. 764 at 70S and 769.

22 BURMA LAW REPORTS. [1950
S.C. arrest and detention in its inception, the Court has the power and
1950
is under a duty to direct the release of the prisoner."
TINSA MAW
NAING It must be remembered, however, that in such
".
THE L.v:MMlS- subsequent application the Court cannot allow the
StONKR OJ'
POLICE,
previous decision in respect of the same detention, so
RANGOON far as is relevant to that previous application, t-o be
AND
ANOTHeR. challenged. The legality of the detention to the date
of dismissal of the previous application cannot be
further canvassed. Within these limits we are satisfied
that we have jurisdiction to entertain succeSSIve
applications in repect of a continuous preventive
detention.
The learned counsel for the applicant proceeding
with his arguments ~laim that the Public Order
(Preservation) Act, 1947, under which the applicant's
husband has been detained, is unconstitutional and
that it is therefore invalid. On the other hand, the
learned Attorney-General claims that not only is the
Act within the legislative powers of the Union of Bnrma
but also' that this Court cannot go behind the order of
detention if mad-" in due form under the Act. The .'
learned Attorney-General claims that this Court, in
seeking. to examine the nature of the materials on
whi.chan authority empowered to direct the detention
of a person has acted, has in many previous applications
for directions in the nature of habeas corpus exceeded
its jurisdiction and powers.
These contentions, which the learned counsel on
both sides tried to support with a weal\h elf authorities,
are of the greatest moment and w~ have folIowed the
arguments of the learned counsel with the greatest care.
In view of the importance of the proble.ms we have
taken time to consider our decision in this case.
vVe shall first consider the claiP1 of the applicant's
learned counsel that the Public Order (Preservation)
Act, 1947, is not within the competence of Parliament
 1950J BURMA LAW REPORT.S 23
to enact and that therefore it does not form part of the s.c.
1950
body of existing laws continuing to be in force in the
TJ:-;SA \tA.\\'
Union of Burma by reason of section 226 (1) of the NA!NI'
Constitution. The basis of this claim is said to be 0.
THE Gor.nHS.
section 16 of the Constitution. Leavi.ng out the parts sroNER OF
POLIO;,
not relevant, section 16 reads: RANGUOX
AND
i\NuTIIEH.
" No citizen shall be deprived of his personal liberty
save in accordance with law,"

It is said that the qualifying words "save in

accordance with Law" require an Act which authorizes
interfere"nce with the personal libe~ty of a citizen to
provide that such deprivation of personal liberty shall
be made only after an cnquiry at which the person
~ proposed to be detained is given the right to attend, to
he informed of the charge against him as also of the
., .evidence against him and to be given an opportunity of
adducing evidence in his own defence. It is claimed
that anything short of these requirements would offend
"- the principles of natural justice and tbe rules of natural
law and that when the Constitution in section 16
speaks of " law" it is not merely positive law that is
being contemplated but that term would extend to
embrace in its meaning principles of social and political
justice. Many decisions of the Supreme Court of the
United States of America have been cited before us in
support of this claim but these decisions turn on the
interpretation of Article 14 (1) of tbe Constitution of
the United States of America. The relevant part of
tbe Article for our purpose rearls :
" Nor shall any state deprive any person of life, liberty, or
property without due process' of law. n

The learned At~orney-General contends that the

difference betw,:en section 16 of our Constitution and
Article 14 of tbe American Constitution is so great that
24 BURMA LAW REPORTS. [1950

S.c. no assistance can be had from the American decisions

1950
in seeking to interpret section 16 of our Constitution.
TI.NSA,MAW
NAING
He says that in our Constitution the term "law"
V. Gan only mean positive law evidencing the will of t',
THE COMMIS-
l:iJONER of Parliament, the legislative organ of the Onion, and
POLICE,
enacted in dne form, provided that such enactment does
RA::~PN ....
A~OTHE~
not contravene any prohibition in tbe Constitution
,itself, We would go further and say that for any Act of
Parliament to be invalid it must run counter to an
express, and not merely an implied, prohibition in
the Constitution. Section 222 of the Constitution
has been relied '1)pon the learned Attorney-General.
" Existing law" isthere defined and from this definition
he seeks to deduce that the Constitution wherever the
term" law" appears must be read to have contemplated
a positive enacfment of a legislative authority in the
Union having power to enact it.
In seeking the true meaning of the tenh " law"
as used in the Constitution, it appears to us to be
pertinent (0 examine the sense in which that term has
been understood:n this country for many years before
'the Constituti0n was framed. The Burma Laws Act of
1898 has in sec'ion 13 the following provisions:
fl 13. (1) whei'e -ih- aliY sliit-or other proceeding in Burma' it

is nece~'iary for the Court to decide any question regarding

successioIl} inheritance, marriage or caste, or any religious usage
or institution , -
(a) the Buddhist law in cases where the parties are
Buddhists}
(b) t.he IvluhammaeIan law in cases where the parties are
l\'Iuhammadans, and
(d tbe Hindu Jaw;o cases \vbere the parties are Hindus,
shall form the rule of decision, except in so far as such law has
by enactment been altered or abolished, or is opposed to any
custom having the force of law.
(2) Subject to tlie provisions of sub-section (J) and of any
other enactment for the time being in force. all questions arising
 !950] BURMA LAW REPORTS. .25

in Civil cases instituted in the Courts of Rangoon shall be dealt

I S.C.
with and determined according to the law for the time bein~ 1950
administered by the High Court of Judicature at Fort William in TUlSA MAW
NAING
Bengal in the exercise of its ordinary original civil jurisdiction.. V.
:'.
(1) ]n cas,s not provided for by sub-section W. or by any THE COMMIS'
other enactment for the time being in force, the decision-shall be sIONER OF
POLICe,
according to justice, equity and good co uscience." RANGOO~
AND
ANOTHER.
It must be remembered that this Act of 1898, so far
as sectiol'l 13 is concerned, repeats the provisions of
Act VII of 1872. Customary laws, the Common Law of
England and the principles of justice, equity and good
conscien-ce were nur applied by their inherent force
but were made applicable by enactment. It is by
people who had lived or who had been trained under
this system that the Constitution of the Union of Burma
was drawn up and enacted and it is therefore reasonable
to conclude that when the Constitution speaks of
'" law" it speaks of the will of the legislature enacted in
due form, provided that such enactment is within the
competence Qf the legislature.
On principle also it seems to uS difficult to accept
.. the suggested contrary concept of "law" equating it
with principles of absolute justice or the rules of
natural justice as they have sometimes been called.
With changing social and political conditions notions
regarding natural law change; all that remains constant
is the appeal to something higher than positive law.
Rules of natural law are as the mirage which ever
recedes fror.1 the traveller seeking to reach it. They.
are no doubt ideals to which positive law should strive
to conform. But to accept natural law as a higher law
which invalidates any inconsistent positive law would
lead to chaos. There is no certain stanc13rc1 and no
measuring rod by which the so-called principles of
natural justice can .be ascertained or defined. Each
judge administering, natural justice would be a law
26 BURMA LAW REPORTS. [1950

s.c. unto himself. In se.;king to escape from the arbitrary

J950
exercise of power by the State tl,e exponents of this
TiNS" MAW
~:AING principle would but place themseIves un d er t Ile
u ,. exercise of arbitrarv powers by the Judges. The
TH E c oll'" 15- .J
'lONER OF burden on judges also would be intolerable. No
::;~~~~ judge worthy of his office relishes the exercise of
AN~~'~ER. arbitrary powers whether by himself or by any other
person.
In our opinion, therefore, when section 16 of the
Constitution speaks of "law" it is an enactment by
Parliament or other competent le&islative body that is
contemplated. The Parliament and legislative bodies
have their powers defined and circumscribed and
within the limits so defined and circumscribed they
make laws, binding on all in the Union.
In this view it would serve no useful purpose for us
to discuss in detail the several decisions of the. Supreme
Court of the United States of America which have been
cited by the learned counsel for the applicant. This
does not mean, however, that we have not examined
these decisions; we have examined them, but, as we
think that the problem which faced the learned Judges
of the Supreme Court of the United-States of America -
.is radically different from the problem which faces us
in tbis "ase, we refrain from discussing these decisions
here. In our view section 16 of the Constitution of
the Union of Burma, so far as is relevant to the present
case, should be paraphrased in the following sense:
No citizen shall be deprived of his !Jer~onalliberty
except in such circumstances and under such
conditions as Parliament or other competent legislature
by an enactment made in due form specifies,
provided that in so specifying the circumstances
and conditions Parliament or other legislature has not
acted beyond the limitations which t!1e Constitution
has set.
 1950J BURMA LAW REPORTS. 27

This brings us to the consideration of the learned S.c.

1950
Attorney-General's j:-oint that only express prohibitions, TIXSA :MAW
and not a prohibition by implication in the Constitu- NAING

tion would invalidate an Act of Parliament or other

THE CoM!oUS
competent legislature in the Union of Burma. He SlO:":ER OF
POLleF-,
relies on the dictum of Isaacs J. in The Federal RANGOON
AND
Commissioner of Ta.'mtion v. Munro (1). The learned ANOTHP.:R.

Judge says:
It is always a serious anel responsible duty to declare invalid,
regardless of consequences) whal the national Parliament,
representing the, whole people c.f Australia , h3S considered
necessary or desirable for the public welfare. The Court charged
\vith the guardianship of the fundamental law of the Constitution
may find that duty inescapable. : .. pproaching the cl1a!lenl.~ed
legislation with a mind judicially clear oi any doubt as to its
propriety or expediency-as we must, in order that we may not
GUl"selves trangress the Constitution or obscure the issue before
.us-the question is: Has Parli::ul1ent, on the trne constrnction of
the enactment, mistlllderestood and gOlle beyond its consfitution;tl
powers? It is a received canon of judicial construction to apply
.. in cases of this kind with more than ordinary anxiety the maxim
Ui res magis valwi quam perea!. Nullificatbn of enactments and
confusion of public business are not lightly to be introduced.
\< Unless, therefore, it becomes clear beyondreasol1<lbJe c1m.lbt

tll3;t th~ legi~lation in question transgresses the limits laid down

by the organic, law of the Constilntion, it must be allowed to stand
as the true expression of the national will. Construction of an
enactment is acertaining the intention of the legislature from the
words it has used in the circumstances, on the occasion and in the
collocation it has lIsed them. There is always an initial
presumption that Parliament did not inte:1cl to pass beyond
constitutional bounds. 1 the language of a statute is not so
intractable as lO be incapable of being consistent with lhis
presumption the presumption should prevail. That is the
j

principle upon which the Privy Council acted ill Macleod v.

Attorney-General for New Sal/Ill Wales (2). It is the principle
which the Supreme Court of the United States has arpliecl, in an
unbroken line Qf deC':isions, from Marshall C.J. to the present day

Ii) 38 C.L.R. 153 a1180. (21 (1891) A.C.455.

 BURMA LAW REPORTS.

S.C. [see Adkins v. Cluldre1l'S Ii ospital (I).] It is the rule of this

1950
Conrt [sec, for iustance, per Griffith C.]. in Osborne v. Common-
TINSA MAW wealth (2)."]
NAl:\G
'.f!.
THE COllIMIS~ vVe see nothing, however, in this dictum-even though
SIO:-.'EH OF
POLI~E,
we feel that certain passages in it has gone beyond what
HANGOON we would have been able to subscribe to completely-
AND
A:-:OTHEI~. in support of the learned Attorney-General's claim '
vVe are of the opinion that no distinction can b~
drawn between a prohibition in so many words and a
prohibition clearly implied.
The relevant provisions' of the ,Publir, Order
(Preservation) Act, 1947, reads as follows:
" 5h. (1) If the President is satisfied with respect to any
particular perSOll that with a view to preventing him from acting
in any manner prejudicial to the public safety and the
maintenance of public order it is necessary sO to do, the
President may make an orc1er-
(aJ . . . . .
(bi directing that he be detained; " (\

As we h8ve noticed earlier these provisions have been
attacked on behalf of the applicant as being ueyond the
powers of Parliament under. the Constitutiun of t.he
Union of Burma to enact. Qn the othechand the learned
Attorney-General has claimed for these provisiuns
not merely constitutionalit.y but also as vesting the
President-and by virtu,e of section 7 of the Act any
such officer to whom the President may delegate his
powers under section SA-with the right without any
question by t.he Supreme Court. or any other authority
to detain a citizen for an indefinite term.
Both claims, in our opinion, are misconceived. On
the on~ hand we are satisfied that section SA (1) (b) of
the Public Order [Preservation) A.ct is within the
competence of Parliament to enact. On the other hand
(1) (1923) 261 U.S. 525 at 544. (2) (1911) 12 C.L.R. at p. 337.
 1950J BUR,MA LAW REPORTS. 29

we are satisfied that these provisions do not grant to the s.c.

1950
President or his delegate arbitary powers to order the
TINSA MAW
detention of a citizen for an indefinite period. In the NAING

s
. view we take of the effect of section SA of the Public TH E CoMl\fI
Order (Preservation) Act it is not necessary for us to SIONFH OF
PoLICE,
consider the larger question which has been propounded n.\NG loN
AND
at length before us, namely, whether Parliament under A).IoTHER.
the Constitution of the Union of Burma can grant to
any authority, however highly placed, the exercise of
arbitrary power of arrest and detention.
The Jearned Attorney-General relying on Rex v.
Halliday (1) and Liversidge v. Sir John Anderson (2)
contends that the President or his delegate is the sole
judge of the necessity to act under ,ection SA of the
Public Order (Preservation) Act and that once the
President or his delegate has stated in the order of
detention that he is so satisfied the matter is at an end
and that neither this Comt nor any other authority in
the Union can challenge that statement. We notice
that the Privy Council in King-Emperor v. Vimlablli
Despande.(3) appears to be willing to follow Liversidge's
case in the interpretation of Rule 26 of the Defence of
.. India Rules, the terms of which are substantially the
same as those of Rule 26 of the Defence of Burma
Rules. Section SA of the Public Order (Preseuation!
Act, enacted on the 31st May 1947 reproduces
'substantially Rule 26 of the Defence of Burma Rules,
whieh had been repealed only a few months earlier.
It would appear, therefore, as if the learn ed-
Attorney-General has strong JU4icial support for his
contention. But Lord Shaw, in the earlie,' case, and
LordAtkin, in the iater one, have thrown their great
weight, though without avail, against the subjective
interpretation of phrases such as "is satisfied or has
(I) (1917) A.C. 260. 12) (104") A.C. 206.
13) 73 loA 144
30 BURMA LAW REPORTS. [1930

S.C. .reasonable grounds to believe" in whatever collocation

1950
they may, appear ; a'ld we cannot brush aside the very
TINSA MAW
close reasoning of such eminent Judges in their .
N.o\.ING
r
V.
THE COM~IIS
speeches before the House of Lords. Moreover, in
SIO~ER OF spite of the superficial similarity between the wording
POLICE.
RANGOON of the English l~egulation 18B or Rule 26 of the
,J,1'\E
ANoTHER, Defence of Inelia Rules or Rule 26 of the Defence of
Burma. Rules and section SA of the Public Order
(Preservation) Act, 1947, a careful examination of these
enactments in the light of the sentiments of the
learned Law Lords in the English cases make~ it clear
that section SA of the Public Order (Preservation) Act
is not ad idem with tce English Regulation 18B or
Rule 26 of the Defence of India Rules or Rule 26 of
the Defence of Burma Rules.
In Liversidge's case the key note to the majGrity
view was struck by Lord Macmillan at page 252:
"It is, therefore, proper to consider with wllat object
,'
the regulation was lnnde. This appears clearly from the terms of
the empowering: statute, the Emergency Powers (Defence)

Act, 1939. By section 1, sltb-section 1) of that Act I His rVfajesty
may by _9rc!eT in coun.s;il n~ake :3Ucl1 reW1I'l~isms . . . . as
appear tohim to "be necessary or expedient for securing the public
saTet~; tllecTefence or-the r-ealrn, the maintenance of public order
and the 'efficient prosecuCion of any war in whiCh His Majesty may
he engaged, and for maintaining ~upplies and services essential to
the life of the community.' The second sub-section in particulilr
authorizes the making of Defence Regulations (inter alia) I for the
detention of persons whose detention appears to th,e Secretary of
State to be expedient in the interests of the public safety '01"

the defence of the realm.' There could be no clearer evidence
of the intention of }-'arlimre'nt to authorize the abrogation in the
public interest and at the absolute discretion of the Secretary lif
State of the ordinary law affecting the liberty of the subject, II

Viscount Maugham at page 219 of the report says:

" The language of 'the Act of 1939 (above cited) shows beyond
a (lEmbt that Defence Regulations may be made w:lich must
 1930J BURMA LAW REPORTS. 31

deprive the subject 'wbose detention apppears to the Secretary of s.c.

1950
State to be ~x:pec1ient in the interests of the public ~afety 1 of ;:111
his liberty o(movcment while the regulations renl1in in force. TINSA MAW
NA1},'G
There-can plairly be no presumption applicable to a regulation
made under this extraordinary pow~r that the liberty of the person THE COMM1S-
SJONF,:P. 0F
in qL1estion will not be interierecl with, and equally no prtStlll1ptioll POT.ICE,
that the detention must not be made to depend (as the terms j.'A~( oox
AKD
of the Act inch'eel suggest) on the unchalJenge<1ble opinic,n of the AXOTHEH
Secretary of State. The legislature obviously proceeds on the
footing that there may be certain persons against whom no
offence is proved nor any charge formulated, but as regards whom
it may be expedient to authorize the Secretary of State to make an
order for (~etention. The only ~afegllards) if they be safeguards,
is that detention 'appears to the Secretary d State to be
expedient in the interests of the public safety Or the defence of
the realm,' and that he himself is subject tv the control of the
Parlinn;en t. "

Lord vVright at page 260 puts the l'alia decidendi

very clearly thus:
'ol . q Parliament is supreme. I[- can enact extrnorclinary powers
of intedering with personal liberty. If an Act of Parliament} or a
statutory Regulation, like Regulation 18B, which has admittedly the
. force of a statnte, because there is no suggestion tJlat it is ll/[rn
vires or outside the Emergency Powers (Defence) A-<;t, _Ul)der
which it was made} is alleged to lin'lit or curtail the liberty of
the subject or vest in tlle executive extraordinary powers of
detaining a subject, the only question is what is the precise
extent of the powers given. The answer to that question is only
to be found by scrutinizing- the language of the enactment in the
light of the ci'cumstances and the general policy and object of
the measure. I have ventured on these elementary and obvious
observations because it seems to have been suggested on behalf
of the appellant that this House was be:ng asked to countenance
arbitrary, despotic or tyrannolls conduct. But in the constitution
of. this country there are no guaranteed or absolute rights."

It is clear fron~ these extracts that it is not so much

the actual wording of Regulation 18 B as the wording of
the Act which authorises the making of the regulation
 32 BURMA LAW REPORTS. [1950

S.C. which swayed the House of Lords into giving a

1950
subjective operation to the words in question.
TJNSA MAW
NAING
The Defence of Burma Act under which Hule 26 of ,.
THE
V.
C OM~IJS
the Defence of Bmma Rules was made has in section 2
SION"ER 0,"' the following provisions:
POLICE,
R-\:->GOON
AND I'The Governor may, by notification, make such rules as
ANOTHER, appear to him to be necessary or expedient for securing the
defence of British Burma, tbe public safety, the maintenance of
public order or the efficient prosecution of war, or for maintaining
supplies and services essential to the life of the community."

We find nowhere in the Public Order (Preservation)

Act any provision such as formed the deciding factor
in the deliberatio'1s' of the House of Lords or the Privy
Council in the three cases noted above. It is' clear
that but for these provisions in the English .Act the
ordinary rule tint the objective test is applicable would
have been accepted in all cases. Moreover, the right
of personal liberty is a funcbmental right assured to
every citizen by the Constitution .of this country. The
learned Attorney-General relies also on a decision of the
Supreme Court of Eire In tlie Matter of tlie Offences
Against tlie State (Amend11lent) Bill, 1940 (1). The
question propounded by the President of Ireland was
whethe:' the Bill was repugnant to the Irish Constitution
or any provision thereof. By a majority of three to
two, the Supreme Court of Ireland answered that
....
question in the negative. The decision itself, namely,
that an Act-similar in many respects td OUf Public
Order (Preservation) Act but providing greater
safeguards in the inte"ests of the person ordered to be
detained and providing machinery for an independent
examination of the materials or. which the order of
detention is made-did not offend the Constitution of
Eire, we have no reason to challenge. But in the course )
,
(11 74 Irish Law Times, p. 61.
 lYSO] BURMA LAW REPORTS. 33

of the judgment dp.livercd by Chief Justice Sullivant . s.c.

. 1950
was foreshadowed-unnecessarily it seems to us-the
.'1)85..\ MAW
'doctrine of subjective interpretation of words such as NAING
"is satisfied" or "has reasonable cause to believe" , ;. II.
THE"C01IJJ lS
appearing in enactments providing for the adminis- 'SH)N.lR OF
'POUCE,
tration of what is often.called ,t preventive justice." RANGOON
,AWD
We think that to seek to apply the subjective test .piOTHER.
, to the" satisfaction" or the "belief" of the Minister
in cases following under the Irish Bill then, under
consideration before the Supreme Court would clearly
be agail~st the provisions of that Bill taken as a whole.
If the subjective test is the proper test and rightly
applicable the detention must be made to depend on
the unchallenged opinion of the Minister empowered.
But under the Irish Bill (1) there is an immediate
appeal from the order of detention made by the
'Minister to an Appeal Commission; (2) the personnel
of the Commission is such that there is ample safeguard
of its independence of the Government; (3) it is the
duty of the Commission to investigate and to make a
report; (4) the Commission has the right to call On the
Minister for such information and documents as they
require; and (5) if the Commission reports that there
is no reasonable ground for the continued detention of
the prisoner he must be released with ali speed. To
no "satisfaction" or "belief" which can thus be
enquired into and overruled by an extraneous authority
can the subj~ctive interpretation be applicable.
If, as we hold, scction SA of the Public Order
(Preservation) Act does not grant arbitrary and
uncoe-trolled powers to the President or his delegate,
the contention of the learned counsel for the applicant
that this Act is Ul'.constitutional falls to the ground,
We have said that Parliament can by positive enactment
define the circumstances and conditions under which
any authority which it, in due cJl;ercise of its legislative
3
 ..
"

BURMA LAW REPORTS. [19;50 ,

"
..
.s.c, powers, has empowered may interf~re with the personal
; 1%0
liberty'of the citizen. We can see no distinction. in
ti~:,rGkivprinciplebetween the provisions' of the. Public Order
." , "v" '(Preservation) Act and the preventive provisions of the
SIi'NUR'OF 'C'0 d eo f C'
THI;.Co""IS_ '. 1 Proce d ure.
nmlna
'l~L1~~~ In the view we take of the Public Order (Preserva,
"A':.4N:~, tion) Act the question whether the administration of
NOTHE".!., preventive justice:" falls' within .the' purview. of
'section 133 or of seciion150'of the Constitution is',not
-necessary to be decided. All that we need note :here
-in this connection is that the provisions.ofsection.150
,()f the Constitution are' radically different frorri-:the
torresponding provisions in the Irish Constitution .
.Neither is it riecessary to scrutinise the definition
which the High Court of Australia in The Federal
Ci:J1llmissioner of Taxation v. MU11ro (1) has given of
:the term" judkia.l' power" appearing in the Australian
:Constitution, Here again it may be noted that the
Irish Constitution of 1922 used the term." judicial
i '

.power" but .tbat this. term was abandoned in the
.Constitution of J 937 and it is in tbe Constitution' of
'193'7 tbat we find the closest resemblance so far as. the
. judiciary of the Union': of Burma is cQllcerned. 'Why
:the:.term "judicial power" was abandoned and what
-effect in law the change. in tIle wording frolIl the
Constitution of 1922 to the Constitution ]ras are
'qiJestions which we may have to consider'on a siJitable
occasion but tbey do not arise now.
It now remains to examine if the facls disclosed in
,the affidavits are such as to justify the. continued deten-
,Ho ll of the applicant's husband. The test appears to us
to' be whether it can be said that the. Commissioner
of Polic.e;.on the materials which ~e had placed.before
.the Court, can be reasonably satisfied of the necessify'
.hi .keep the applicant's husband furtber detained.
Ii} 38 C.L.R. 153 ,( 180,
 1950] BURMA LAW REPORTS.
~.

, A few words in p,xpJaliatioJi of tlie test we 'have just ,s.c;

1958
propounded: The notion, of reasdnableness' ~ust be ~,(.
preshmed in the exercise of such grav'e powers"as TI~~,~~w
interference with the fundamental right of personal .,. . '" ....
liberty which the Constitution has' assured to'''encn T~~~;::'~~~
'citizeil. If' authority for what appears tobe aI'l'ob~ious . ri;:;:~~~
pio';o,sition
Y
is needed,,'e
,
have the' 'authority
.
bI~ "Ldid ~""'KD,,.
AN.THER.
Wright In Liversidge's case (1\; strongly leaned. tipon
by the learned Attorney-Seneral. ',' ~,,;... L:' ->.:.:
Again, if as we hold; the objective test is applici'tble
to,:d~termine whether ~he Com~issionerofPo'li'i,vil>
.satisfied" or not; of the necessity toaet; werri!5\lt
examine the materials to see i-they are such astould
-have satisfied theCommissionef'of Polici\:'" We'fliily
'tealize that we are not sitting ,here. i,; apD~al 'from'{'f!'e
commissioner of 'Police and' that we; are notentiiIedtb
'substitute our conclusions on faets'-:f~r 'his;': 'Btitrra
distinction must be dni\vn andm~st'be ktJpt'ev~r'pr~sent
:before mir minds between reasonable' satisfaCtiori~ii'd
apprehension born of vague anticipation. .-R casorJ'a,ole
.satisfaction of the necessity to direct detentiori is Hie
basis of the exerCise of Jiower uJ;der section :'S~<\' 6 tlTe
Public Order (Preservation) Act. ,leis an'ahuse'6f
.. that power to exercise it on an apprehension born :0[
vaguf,.anticipation. ' > "'.

. .' ., The .Commissioner of Police has stated' in 'his

':affidavit 11 grounds dHogeth'erin s~lpport'ofCtb:e
.continued 'eetention of the applicant's husband.'" Th~
:first ground \\'e" consirler entifely irrelevant. 1p
paragraph 6 (1) (a) is mention'edthe incident 'whic'h
was alleged tohaye occurredl'sometime in 'f9'47: ';'It
'must be remembered that the applicant's:liusoah'dw~s
:ar,rested and detai~ed" under seCfion:SA of the :PubilJc
Order (Preservation) Act on the 20lh uJuly 1947~;{d
th<ithewas released late~ on the 8th 'May 1948: What '. 0,

" . . d.
36 BURMA LAW REPORTS. [19:;0
..
ssc.0
19 happened before his first arrest and detention cannot
,-
TUtU- AlA w
be of any weight in this case. These allegations _can
,NAm. hardly be relevant for consideration in July 1948 when I'
Tn~~",,", the applicant's husband was re-arrested or at this
SJONJ[R :OF
. ',POUCBj
present date when the application for release is made.
IUNooolll Coming to the second ground placed before usin
, ~"Nn
ANOTHER. support of the detention, it is said that in June 1948,
after his release from the first detention he rallied
round him ex-yebaws who had grievances ag;J.inst the
Government and who would obey him blindly for the
purpose of overthrowing the Government by violent
means. That may be true; but that was in June 1948.
.We are not told what hrlS happened to these ex-yebaws
after the expiry or one. year and eight months. We are
not told that they are still banded together and that
they are as such a menace to public safety or pu::';ic
peace to this day.
The third ground is that on the 7th July 1948 there
was ameeting at the residence of the applicant's husband I'
l.
when ex-yebaws, who were said to be notorious
criminals, and other.s were present. 'But the affidavit
of Thakin Ba Sein is before us to show that it was
.merely an ordinary political meeting. Every citizen in
.this country has a right to convene or to be present at
a pomlcal meeting. The fact that some..of those who
.attended were criminals would not make everyone who
.attended liable to be detained under the Public Order
(Preservation) Act. It is said that Ba Kyi and Kyaw
Than, who were present at the meeting, were wanted
by the police and that Ba Kyi was arrested after the
.meeting. We are liot told, however, what has since
happened to Ba Kyi. The arrest was made one year
and .eight months ago. Has Ba Kyi been convicted?
.We do not know.
In clause (d) is made an allegation for the first time J

in the present proceedings. When the first application

 BURMA LAW REPORTS. 37
for the release of the applicant's husband 'was made', s;c.
1950
after hiS detention on the 14th July 1948, the Commis-
Tlj.;s~ 'MAW
siOiler of Police who directed the detention did not in N.tIl~G
his affidavit seek to justify the arrest or detention on V.
THE "C6MMI$-o
the ground, set out in that clause by his 'successor. SIONER OF

Besides we see no reasonable connection between thes~ POLlCE,

RA~CiOO1C

facts and the detention of the, applicant's husband. AND

AKOTIIER.
a
What was said iS,that on the 10th JuJ.y 1948 party of
five men were arrested with an unlicensed pistol and
cartridges in a jeep. We do not know definitely what
has happened to these people j whether they ,have been
convicted or not It was said from the Bar that Turi
Kyaing, one of the five men, has been discharged and
that the other four persons were nev~r sent up for trial.
But since it has not been shown that they have been
c::''1victed'for any offence an allegation like'this cannot
'0
be taken into serious consideration. The n'ecessity
ever to bear in mind the distinction between reasonable
satisfaction and mere apprehension on vague anticipa-
tion is made apparent by such allegations often relied
upon before us in support of detentions under
spction SA of the Public Order (Preservation) Act.
The personal liberty of a citizen, guaranteed to him by
the Constitution, is not Iightly to be interfered with
arid the conditions and circumstances under w}.ith the
legislature allows such interference must be clearly
satisfied and be present.
In clause (e) it is said that Bo Yan Naing is also
connected with the "Yebawhaung" Association of
Pegu District of which Bo Tun Shein is the local
leader. That may be so. The Commissioner of Police
goes on to say that in J1.lly 1948 Bo Tun Shein was
arrested with three hand-grenades and as he went into
the Police lock-up he shouted out that he was a real
Communist, rebel. Even granting' this, ,we see no
connection between this incident and Eo Yan Naing.
 :
BURMA, L~WR;EPORTS, [1<;50

S.C." Tl;Jjs-.incident ,was referred to for the first time by the

..
l~?:~ P~~ne~t ~C,ommissi01m of Police. His predecessor
TI\:i:lt~}V eit~~r, fprgot ?rdid, not think it imlJortantenouKh to
",
THE {.O~l1>flS-'
A.j
q)ce;,ve, menbon.
.
. .'

"QN~' il~.' ,: In .cla\lse' (j) we find an extreme case of an appre-

l'k~~~ ~en,sion on vague anticipation. It reads:
AND,
~~I;I.~R.. :'>:'HRegarding' Jilis .LYeb:l\\'haung I or '.E.t,.,Yebaws' Associa.
tl"on ':le~cl bi' B'd' Yan
NaiI1g, there "fas info'rmation that "B'o Yan
Nalhg., fei th~ present, will not show his hand but will remain
beh'i'ntl the :sc:ene until the opportune mOl,nent comes. An'the
<jj.gl")jntled, ;,.."BDA, c,f-I'BF and persons ,who ,thought they had
q~eI!' l~t ,~~o~n~ by: the. Pfese~t Goyernment were recrnited a~d
s.i,ns:~ :t.h~y .h~ye no: other: vocation .or profession they live .on
ci"ime..'li- ~ ; .
: r "." t

,",' 'Beirig imperfect, it can be presaged orevery man

~ . l.' .", . ' " . ~ '.

that he is a potential criminal but that would not

.1'!sfjfY each one of bS, being detained in cllstody on
fh<it bare possibility: ,
~';>'tn cIa\lse (g) it is saie) that there were~mplegrounds ( ,

to'.sho\v'tha.t Eo Yan Naing had been rallying around

i'l1;l;J.criminals
1-
and desperadoes. If ,that, w<\s'
so:
','"
the
pr'Oper. COurse woiild have, been to take action agaii)t
~r\'I;.:j.i~d~~ sectiorl i 1Q'of t~e CriminalProcediire
C9P~: ~,we !lave in many previous cases said that, the
P,iibl['c;"6f,cler (Preserv;tion) Act is not intended to b~
ii~hnh place of the prev~ritive sections ofjhe'Criminal
PJ;oct<dure Code. ,,' , "
"', In-. ,cl<\use Jh), it is said. that Eo Yan Naing had, .'.a
~,'~' ~. ''',' '" ;

,con!.aCt,.iilSiaJ11 ,in tli e, persdn qfone Thein" Hlamg
tll!;_b~gll \~liom'e.\:- BIA personn el in SiaJrt \yere beihg
~-:t'":1" " >, , ., ": -' ' , > :.

rotihde'd: (lp to joil) Dr. Ea' Maw's party and that 'they
'Ui~tei\\'diting for an opportune moment andd \ignal
froM'Eo Van' 'N"ing to, march into Burma in 6t~er to
'o\iJrihioii tliepreseilt Government When, oli tlie
'f4th.jtJ1)' 194~,o'r shortly before, the Com,missioner of
i>Ait'cbhi& 'r~'ceived this information; it in~yhave
 1950J BURMA LAW REPORTS.

justified the action he took then to direct the detention ~g~&:

qf ~oYan N"aing. But a year and eight months. halle ::.:.'
. . b y .an d th e. Com mISSIOner
gone .. 0 f P 0 I'Ice has no t b een TINSA
. NM'v." M-IlV.

ableto tell 'IS in his' affidavit or through the learned T"E:g~,;".1S'

Attorney-General of any materialisation' in pursuance slo;if~. 'oF-
- . PO,LlyE,
.of thIS. alleged' contact between Bo Yan Namg and R~NG(>0i\
'Lhein Hlaing in Siam. Nothing in the. least tangible ANji~.~. I':... .,~

has .come' out of this information so far as thi':

record shows.
The present Commissioner of Police. has added four
further grounds in support of his claim. to. ke'ep:the
ap'plicant's husband further detained. In clause (a) of
the' :additional grounds it is said that 80 Yin Naing
.hadcolLected and concealed:a large quantity 'of anus
and. ammunition for the purpo~e of overthrowinghy
force of arms the Government. It is said. that these
ar~s and ammunition are hidden 'somewhere in
Rangoon and are still intact. The Commissioner. 6f
Police does not tell us whether he claims that this
" collection of arms and ammunition in large quantities
:was made prior to the first detention or after: the' first
detention .of the applicant'~ husb"nd. Remembering
that'the applicant's husband was at liberty onlyfor two
. months and six days after l1.i5 first: detention; and:.in
the absence of, any definite statement 10 the contr;fry
in the affidavitof the Commissioner of Police, w<,;:musl
presume that:what he intended to say was that this was
.prior.to the first arrest in J 9 4 7 . " ,
In clause (c) of the additional. grounds itis:said tha~
Bo ;Yao' Naing's followers,. who were detaine.d" and
subsequently released, headed by 80 Mo!.,e Sein;:'are
trying their best to secure Bo Yan Naing's release by
all means, including a jail-break, with a view to
re-organizing 5l1bvcrsive activities which Bo Yan Naing
had in view before his arrest and detention. These
" followers" were detained under section SA of the
 .,"

40 BURMA LAW REPORTS. [1950

s.c, Public Order (Preservation) Act presumably because

..
1950
the Commissioner of Police wa, satisfied that they
TI~:'~~A\V would be a menace to public order and safety~ But
I' .
...
TilE Co~n'1I5-
they
__
were
. /' .
subsequently
.,
released, not by .l1f but b" the
J.

SIONER,'OF. CommrsslOner of PolIce hImself, presumably because

:'';.~Jb;;':'' he was satisfied that they were no longer such a menace.

AN~~~E.. It is very difficult to understand why, if these persons
had been released by the Commissioner of Police
because he did not think them to be a menace 10 the
public safely and order, he should still regard them as
constituting a menace if Eo Yan Naing should be
released. The fact that no action against tnern has
been taken or alleged to be taken in respect of the
allegation that tlJey are trying their best to secme
Bo Yan Naing's release by all means, including a
jail-break, is the best evidence that this allegation is not
worthy of serious consideration for the purpose of
justifying the detention of the applicant's husband.
Lastly, the Commissioner of Police said that
Eo Yan Naing's release will serve as a signal for all his
followers to rally around him and carry out their plan
to rise in arms against the Government and that there
is every reason do appr<:.hend that there will be a
.. widespread uprising by his men under his leadership.
This' is another instance of apprehension based on
mere possibilities and we are satisfied that Qn such
apprehension the Commissioner of Police had no right
or authority to act under section SA of the Public
Order (Preservation) Act.
In the result we direct that Eo Yan Naing be
released forthwith.
1950] BURMA LAW REPORTS. 41

SUP:6.EME COURT.

KEAN GWAN AND CO. (ApPLICANTS) ts.c.'

1950
v. Feb. fl.
THE CUSTODIAN OF MOVEABLE PROPER.IES,
BURMA AND ONE {RESPONDENTS).'"
Defence of Burma R1Ik~ 81 (2) (al. 81 (41 awi B3_ClIstodialJ of Mot'eaMc
Properly Act, $:>. 7 and 8-D1lly of Law Officers.
Under Rule 81 of the Defence of Burma Rules calling for information can
only be for the purpose of Rule 83 , namely for requisitioning: the property on
behalf of t1:~ Government and the information as to slocks held. If
Government decided to requisition the property, compensation is payable under
Sub-Rule (3) of Rule 83.
Whell the Applkants asked for the price of stock of Orcs delivered in
pursuance of and the Deputy Commissimlcr, Tavoy, in his capacity as Assistant
Cnstodian of ~Ioveable Propedy, passed an order to forleit to the Government
the sto?k of Ores previollsly requisitioned and deli ... ered.
Held: That the Orcs in questkm were not delivered to the Assistant
Custodian of Moveable Property under s. 7 (1) of the Cu~todian of Moveable
Property Act nor were they seized and taken possessibn of under s. 7 (2).
COO::leql1ently the order purporting to forfeit to Government would be quashed
by way uf directions in the nature of certiorari.
Law Officers of the Government should ahvay;:; adVise in stIch manner that
justice should be clone to perllons concerned.

P. K. BaSil for the appiicants.

Choo11 Foung (Government Advocate) for the
respondents.
The judgment of the Court was delivered by
the Chief Justice of the Union.
U E MAUNG.-This judgment will apply to Civil
Miscellaneous Applications Nos. 18, 19, 20, 21 and 42
of 1949.
These proceedings disclose the most sorry state
of affairs amI, if we are-to accept in its entirety the
.,. Civil Misc. Application No. 18 of 1949.
t Presml : U E MAUNG, Chief Justice of the Union of Burma, .MR. JUSTICE
THEIN MAUt\]j ;mcl U THAUl'\G SEIN, J.
42 BURMA LAW REPORTS. [JvSO
S.C.
explanation offered on behalf of the Government
..
1950

KEAN GWAN
by the learned Government Advocate, there appears to
&,.Gp. have been a serje,s of attemp!t;d frauds on behalf
~.' I'
tlii of the Go1iernmerif.' There' was issued on th:: 23rd
CUS'l"ODIAN
. i 'c.f' ~ December 1945 a notice under Hule 81 (2) of the
MOVFABLE
PRUPERTIR~,
Defence of Burma Hules by the then Senior Civil
HURMA Affairs Officer; Tavoy, calling upon all persons who had
ANn ONF..
,ill their possession tin ores or tin concentrates, OJ
wolfraOJ to' declare their stocks to him within'lS
days. It was said in that notice that persons failing to
;decbre ,w,ould be prosccuted under section 81 (4) a'nd
:s:eyerely, punished. This was followed by a subsequent
notice issued on the 2nd April 1946 by the Deputy
C?i~lrnissioner, TavoY.' This' notice was also under
: Hule 81 (2) (il) of the Defence of Burma Hules and
called upon the person holding stocks of " lon\ed
Japanese ores" lo sell the;n before the 21st April 1946
'to, His Majesty's Government. It threatened the
:'seizure or confiscation of such stocks as remain nnsold
to ~ Mr. A. P. Ruddy, Tin Purchasing Agent of
'Ris Majesty's 'Governnwnl by tlnt date. The notice
also stated that those persons who could not make
, immediate 'deiivery to' Mr. Huddy should 'regisler
their' stocks, with him and he would arrange to .collect
them. , " ,
A reference to Hule 81 of the Defence of B1,1ima
Rules" makes it deal-that the .notice calling for the
information could hav'e only been for the pur~o'se ,
:of Rule 83. Information would have 10 be supplied
,when called' ,;pon by the, Government and onc.e it
is declared Governnent can, under Hule 83, requisitiun
.stocks so declared. But it is clear that if Government
decide'd to requisition the.. property, compe~satio,n
is payable under sub-rule (3) of Hule 83. In respect.of
requisitioning of the stocks in exercise of the
po;~ers under Hule 8:3, Mr. Huddy entef~d Into a
 1950:1 BURMA LAW REPORTS, 43

transaction o"n behalf' of his Majesty's 'Governrri'ent 8;C;',

' h' 'b' d 'b d
W h lC can onIY e escn e as one '0 pure ase, f ' h 'l'h"
IS' 1950,
-
is ' clear, from: the letters' written by Mr. Ruddy; KEA:,g,~'''''
wl1ieh' are fiIt.d .. in the proceedings, ',For instance,' ThE'
i'n 'the letter' of the 20th 'April 1946 addressed, to'- CUST"OIA""
OF'
o' the;'applicants in this case, Annexure" D,!'to, the MOV",BLE'
' 0,f th e app I'lcants, "
a ffid aVlt It IS d
state' : PROPERTIKSr
BURMA
\';:,' '. '.: ,,;' . : _ ".;" AKDONE;.
.. r, ~I I informed you verbaJly on the 17tl,1 illstant that YfJ,J.;lr.
iii'e ' would be taken over by the Millistry co. Supply' at the
scheduled tate for official ore buying} lai~l (rOWn by the
Gbve~nmen~, 'ill T-a.voy- at the present Hme...;,' , .

It i,s,-, 'clear th6refore--\vhatever.' the' conce'aled

iJltention, of the officers then concerned 'might have
been'-'i-the' ttansactionthat was entered, into between
the'lpplicahts and Mr. Ruddy 'was one of'sale and
purchase.
Later, when the applicants 3sked for, the price
of the o.res delivered to Mr. Ruddy, the Deputy
Commissioner, Tavoy, opened .what, purported, to 'be
pruceedings under the Defence of Emma Rules.:" The
relevant provision would be Rule 83. On the 6th
October i 947 there is a diary entry under the hand of
the Akunwun of Tavoy as follows:
II As verhally ordered by the Deputy Commissioner proceedi.ng

is transferred to Custodi:m Department for necessary action. I}

Then on the 13th October 1947 the Deputy

Commissioner, Tavoy, in his capacity as the Assistant
Custodian of Moveable Property for T<lvoy District
passed an order purporting to forfeit to the Government
the bulk of the ores which had been delivered to
Mr. Ellddy in 1946 <lncl accordingly rejecting the
claims of the applicants for payment in respect of such
ores, It is this order which we are asked to quash by
way of di:'<:ctions in certiorari.
 : ..

4+ BURMA LAW REPORTS. [[950

S.C. The learned Government Advocate has not been
1950
able to point to any provision in the Custodian of
KE~ i1~~AN' Moveable Property Act which authorizes the Assistant
l'
T~'B' Custcdian of Tavoy to act in the manner '; he did.
CUSTOIJI'N Half-heartedly he sought to rely 011 sections 7 and Il
MIJV'::..LE of the Act. But section 7 is clearly inapplicable. The
PROPERTIES, power of disposal which section 8 gives cannot also be
BURMA
AND 0''''. said to be applicable. The ores in question were
not delivered to the Assistant .Custodian of Moveable
Property under section 7 (1) of the Act. Neither were
they seized and taken possession of under section 7 (2).
It folIo\\stherefore that the 0rder now questioned
must be, and we hereby direct that it be, quashed.
We must say we are very much surprised,Oat the
Government of the Union being advised by its law
officers to contest the persenf applications. T~ is
evident that gross injustice had been done to tEe
applicants and we would have expected the law officers
to advise that justice should be done to them. In the.
circumstances we allow Advocate's fees twenty gold
mohurs.
1950J BURMA LAW REPORTS. 45

SUPHEME COURT.
MAUNG HAN THEIN (ApPLICANT) t s.c.
1950
v. ]i',b.21.
THE COMMISSIONER OF POLICE, RANGOON
AND TWO OTHERS (RESPONDENTS).*
Criminal Procedure Code, s. .'iZ3 (l)-Mandlltory.
Held: S. 523 (l) of the Criminal Procedure Code makes it mandatory
for any Police Officer seizing property under circumstances which created
su.picions of the commission of an, offence should forthwith report to a
Magistrate. ~he Magistrate to whom such report is mad~ is the only person .
competent to make such order as he thinks fit regarding the disposal of such
property or the delivery thereof to the person entitled to the possession
thereof.

B. W. Ba Tun for the applicant.

.respondents.
,Sa Sein (Government Advocate) for the

The judgment of the Court was delivered by

the Chief Justice of the Union.
U E MAUN&.-On the 9th September 1948
U Bil Thein, an InspJ':ctor of Police of the Criminal
Investigation Deparment, seized 53 one hundred-rupee
notes from the possession of the applicant as it ap~eared
to the police officer that there were circllmstances which
created sllspicions of the commission of a theft by the
applicant. The police officer then asked for the orders
of U Han, Superintendent of Police, Western Division,
Rangoon, and on the 15th June 19+9, over six months
later, U Han sent a telegraphic message to the District
Superintendent of Police, Pyapon, asking him,
according to his affidavit, "whether these 53
currency notes were, wanted
,
in any criminal case," in
Civil Misc. Application ~o. 53,oll!;49.
fPresent : U E MAUNG, Chief Justice of the UlliQ:l of Burma, MR, JUSTICE
THUIN MAT,)'l\G and U THAUtiG SEIN, ,.
 \

.'
;'.

46 BURMA .LAW REPORTS. U950

....
'

....
.
 1'lSO] BURMA LAW REPORTS. 47

SUPl<EME COURT. i..,.: ..

STEEL BROS. & Co. LTD. (ApPLicANTS) . . .'t,S.C,.

1950
v. .. ,-,.,_... ;
Feb. 22.
Tim COURT OF INDUSTRIAL ARBITRATION
,,:. . ,",
. AND .OTHERS (RESPONDENTS).* .
lVrits of Certiorari and Prollibitioll.-Trade Dispu/c~ Act.'
:. ,Vhere the ell1ploycr.s pllb:ished a waming llotil.:e on 7th 1\Iarc h"1949.iilat
they wo ..ld close thdr business as Saw Millers early in April 1<):19 -~tnd' 'g!ive
notice to ail their workers fhat with the exception of some, biller \~oj-ke;s
\vould ccase 1'" be employed wilh dfed frOIll 12111 ApJil1949, but before that
dale the Workers' Union formulated their demands and presented them to the:
e,mployers and tbe demands Wcre referred to the Imlllstrial Court for
dekrmination .
.~ Helll: That on the 6th April 1949 the demandsm~de' on behalf 'of {he
\-Vorkers and rcjlcted by the Applicant would constitute a trade dispQlc.
And the reference of the trade disp\\te (0 the Industrial Court was correct.

E.C. V. Foucar for the applic:ants.

, BII SeiH (Government Advocate) for the respondents
.
" '. N.os. 1 and 3.

YaH .dung for the responder.t No.2.

The judgment of the Court was delivered by the

Chief JlIstice of the Union.
U E MAUNG.-This application for directions ill the
nature ef certiorari and prohibition must be dis l11 issed.
" On the 7th March 19,',1 the applic<wts pubIished,a
,warning notice that their business as saw miIler$ would
have to be closed down early in Apri11949., It.is
admitted that this is not a notice oi termination of t.he
~ervices .of the workers employed by the applicants.
On the 4th April 1949 the WOi'kers' Union met and

~:Civil "}ii~c. Application No. 72 1949.

f
Pr~setJt .. U E MAU!'-_, Chief Justice of the Union Of Btlnna .\JR. JUS!'JCE
THEn\' MAUN':; 'and U TUAU:-:G SEIN, J.
 \

:'.
"
48 BURMA LAW REPORTS. [1950

s.c. decided to formulate certain demands in anticipation

1950
of the threatened closing down of the saw mill.
STEEL BRoS. Before these demands could be presented to the
& Co. LTD.
, v. applicants, the applicants apparently in pursuance of
T:::/;::'~~~ their warning given on the 7th March 1949, gave
ARll;~~~~'O< notice to all their workers that, with the exception of
.<0 oT~ERS. such persons as they would specify within a day or
two, the Y'0rkers would cease to be employed with
effect from the 12th April 1949. On the 6th April
1949 the demands which' were formulated on the
4th April 1949 by the Workers Union were presented
to the applicants.
These demands w~re not accepted by the applicants
in their entirety and on the 9th May 1949 the
President, in exercise of the powers under section" of
the Trade Disputes Act, referred the demands 0: the
workers which were rejected by the applicants to tte
Industrial Court for determination.
At the hearing Mr. Foucar for the applicants
frankly, and in our opinion rightly, conceded that on
the 6th April 1949 where the workers demands were
presented to the applicants, all the workers could not
be said to have had their employment terminated.
Accordillg to hinithei-i \\;ere still 180 workers in the
saw mills and in the office still in employment at that
date. U Van Aung, who appears for the Saw Mill
Workers' Union, claims that there were more than 180
workers who conld rightly claim that on the 6th April

1949 they were still in employment. This, however,
is not a matter which is relevant in th" present
proceedings but wiii have to be adjudicated upon later
when the effect of the award made by the Industrial
Court under section 13 (a) of the Trade Disputes Act
comes to be considered. _.For our p:lrpose, all that is
necessary to say is that on the 6th April 1949 there \
were still some workers employed by the applicants
1950J BURMA LAW REPORTS. 49

and that the demands made on behalf of these workers s.C.

1950
and. rejected by the applicants would constitute a vade
" .t STEEL Enos.
d 1Spll ,e. & Co, LTD.
Mr. Foucar does not contend that the claims made v,
THE COURT
on behalf of such workers would not, amount to a OJ' I'o!:s-
TRIAL
trade dispute merely because the payments contingent ARBITRATION

on later termination of their services are described as AND OTHERS,

" bonuses" or" gratuities." He agrees that they can

be terms of employment in respect of those workers
who were, when the demands were made, in employ-
ment ana continued in employment.
The respondents, when the case was first called for
hearing, were not prepared with the necessary
affidavits to meet the applicants' case. Time had to
be granted 'to them to enable them tq file the affidavits.
Accordingly we do not consider that they are entitled
to costs in these proceedings.

4
 \

'.
50 BURMA LAW REPORTS. [1950

SUPREME COURT .

t ".C.
1950
B. R. KAMDAR (ApPLlCANTJ
'l'.
Feb. 22.
THE ASSISTANT CONTROLLER OF RENTS AND
OTHERS (RESPONDENTS). *
Urban Relit C01Jtrol Ad, s. 21A-Permit 'subscqllcufly wilhdraum-TC71(l1l1-
Applicatioll1111du s.!6A 01l1y by (cllallt,.
\Vllere the. wife of a tenant of some premises applied to the Controller
{o~ permission to ;lssi~n tenancy, and the Controller first issued a permit to
that effect but subsequt::ntly, on the. application of the real tenant, withdrew
the permit and the party affected applied for .1 writ of certiorari.
Held: That the term Ll tenant' in the Urban Rent Control Act means 'one
by \vhom, or on whose account rent for the premises i~ paid, or the legal
reprC5entative of a tenant, or a person deriving title frorg a tenant, or a
tenant, holdin.e; over ~ ;tnd the wife of the tenant is not a ter.:lnl according:
to this definition.
An application for permission to assign a tel1an.cy lies only at the
instance of a tenant. Consequently the original application for assigning
tenancy at the instance of the wife was incompetent. ,
i'.. . ,.
Even if there had been irregulnrities in the Review procecdbgs btfore ,
tile Controller of rents setting aside the original pennit.it would be wrong for
the court to uphold the original order, for the original application on \\-'hich
orders were passed is incompetent.

Aultg Milz (2) f~rthe Applicant. .

Ba Sein (Govemnent Advocate) for the respondent

No. 1.

M. M. Raji for the respondent No.2.

A hilled for the respondent No.3.
,
The judgment of the Court was delivered by the
Chief Justice of the Union.

U E MAUNG.-This application must be dismissed .

... Civil :Misc. Application t\o. 73 of 1949. 1
l' Presellt : U E MAUNG, Chief Justice of the Union of Burma, MR. JUSTICR
THEIN MAUlSG 2nd 1\IR, JUSTICF THAUNG SF.I~, 1.
 V V(y
1950] BURMA LAW REPORTS. 51

One Daw Mi !vii Gyi, otherwise calling herself s.c.

1950
1I1rs. S. E. Bhaiyat, applied to the Controller of Rents
of the City 0: Rangoon on the 19th November 1948 for KA~IDAR
B. R.

permission to sublet in favour of the present applicant v.

THE
Room No.5 in House No. 192-194, Barr Street, ASSISTANT
CONTROLLER
Rangoon. She made the application describing herself OF RENTS
as the t~nant of the premises and attached to the AND OTli'ERS.
application a letter she had written to the owners of
the p(emises and the reply she received \vhich stated
that the rent for the said room had been paid up till
the 31st October 1948. On this application the
Controller of Rents passed the following order: ." Issue ,
permit. Assign tenancy." The aplJlicant in conse-
quence of this order came into occupation of the
premises.
Daw Mi Mi Gyi thereafter apparently disappeared
from Burma and went away to India. On the 18th
February 1949 S. E. Bhaiyat made aD application to
the Controller of Rents stating that he was in fact
the tenant of the premises in question and that
Daw Mi Mi. Gyi, who is his second wife, had no
right whatsoever to represent herself as the tenant of
the premises and to make the application of the 19th,
November' 1948. The ControHer of Rents, ~cting
under section 21A of the Urban Rent Control Act,
withdrew the permit which he had .previously given
on the application of Daw IVIiIlfi Gyi. It is against
this order of the Controller of Rents that the present
application is rnade. .
U Aung Min (2), who appears :or the applicant, has
drawn our attention to the fact that under section 21A
of the Urban Rent Control Act review proceedings are
required to approximate to review proceedings under
Order 47 of the Civil Procedure Code. He claims
that only on such grounds as are mentioned under
Order 47 (1) of the Civi~ Procedure Code would an

..
.;-
"
/ {'
52 V BURMA LAW REPORTS. [1950

s.c. application for review under the Urban Rent Control

1950
Act be maintainable. He also claims that a review
B. R. application under the Act must be mad" withi:J. the
KA:-'IDAR
v. period prescribed by Article 173 of the Limitation Act.
THE
ASSISTANT He has placed many authorities before us which he
CONTROLLER
OF .1~ENTS
contends support the claims we have stated above.
AND oTHERS.
It is not necessary, however, to discuss the decisions
in detail. It is clear from a reference to the 'definition
given in the Urban Rent Control Act of the term
"tenant" that Daw Mi Mi Gyi was not a tenant. She
was not a peI'son by whom or on whose account rent
for the premises was paid. She was not a legal
representative of the tenant nor a person deriving title
from the tenant. She was clearly not a tenant holding-
over. That being so, the original application under
section 16A of the Act filed by her was not a
competent application j an application to the Controller
under this section can only be made by a tenant.
Once we hold that the application under 16A of the
Act is not competent, it would be thoroughly wrong
for us to uphold it even if there had been irregularities
in the review proceedings which set it aside. As we
~ha:ve said ar the beginning of the judgment, the
application must be dismissed. The applicant must
pay the costs of the respondents. Advocate's fees five
gold mohurs. ,

,,

 \

10 50] BURMA LAW REPORTS. . 53

SUPREME COURT.

AH FAT (a) U AUNG THEIN \ApPLICANT) tS.C.

1950
. I

v. Jall. 25

U THA "VIN AND ANOTHER (RESPONDENTS).*

U'1iOll Citize11ship (ElhliOll) Act, 1948, s.8-Powcrs of Iuti!!.c to revic';} issue of

ccrUjicale-]ltrisdiclio1t_AsSlllllPlioll of- Wra oj plohib,fi, n-H'Jwl can
issue.
The applicant applied for a Citizenship Certificate and stated that he
was born at I'll erglli but was residing ,It Rangoon, and notice \Vas accordingly
issut:.d to the Deputy Commis~ioner, Rangoon, and after enquiry a Certificate
of CHi zenshij1 was isaucd ; and therenfter application was made to Court tc
revoke the Certificate.
Held: That by virtue of s. 8, clause 5 of the Union Citizenship (Election
Act. 1948, the Certificate of Citizenship became fu1'yeffective. The learned
Judge who issued the certificate, had 110 authority to review his order and
cancel the certificate or to hold a dt '/IOVO enquiry. The rigbt of rt view just
like the right of appeal is a creature of Statute.
~ WOIl S/mJC: Bee v. Tlle CommissiOllu of Po/i,e allrl Olle, B.L.R. 19";9,
S.C. 157, fol1owed.
A Court has Sjurisdiction to decide in any particular case whether i~
possesses jurisdiction to entertain lhe suit or not and when a duly constituted
Court assumc~ jurisdiction it must be taken thai it has decided the questi()n
thal it possesses the jurisdidior:. it has exercised.
S. A. Natllm! ". S. R. SlI11ISOII, 9 Ran. 480'at 494, followccl.
S.5 of.the Act does not require that notice must be issued to the Depnty
Commi:.>sioner of the place when: the applicant was born and to the Deput~~
Co:nmissioner of the place where he is for tb~ time being residin~.
Hel:lJ}/tlher: That where a definite remedy is provided, e.g. lappeal to
the High Court under :.>. 476 (b) of the Code of Criminal Procedure .t'1 applic:l.-
tion for direction in the naiu.e of prohibition cannot be entertained.

Thein MoulIg for the applicant.

A. H. Paul for the respondents.
The judgment of the Court was delivered by the
Chief Justice of the Union.
.. Civil Mhc. Application No. 66 of j 949.
t Pres"t! : U E MAYN,~, Chief Justice of the Union of Rurma, MI~. JtiSTICE
, KYAW MYINT and U THAUNG SEIN, J.I

54 BURMA LAW REPORTS. [1950

s.c. U E MAuNG.-In this application two reliefs are
1950
sough t: the first by way of directions in the nature
Aa FAT (it)
U AUKG of certiorari and the second by way of directions in
THEIN
v. the nature of prohibition. r.
U THA WIN
A~D
The. applicant, claiming to be a p~rson entitled.
ANOTHER. under section 11 of the Union Constitution to elect for
citizenship, applied to the 3rd Judge oi the Rangoon
City Civil Court for a certificate under section 3 of the
Union Citizenship (Election) Act, 1948. In his original
application the applicant had stated that his place of
residence was Mergui and the learned 3rd Judge
made the foHowing diary entry:

(( AccC?rding to the application, the petitioner is a Chi.nese,

born at lVlergui. It is state...! in par<1grap!J 3 of the application
that the permanent residence of the petitioner is at Mergui and
therefore tbis application does not come under section.3 of the
Union Citizenship (Election) Act, 1948. The appJication may
be put down for admission. J I

On the date fixed for hearing as to admission the i .....

learned Counsel for the applicant stated to the Court
that the applicant is also residing at No. 143, Maung
Khine Street, Rangoon, and asked lor permission to
amend paragraph 3 of the application. This was
,granted and notice was directed to be issued to the
Deputy Commissioner, Rangoon.
Notice was directed to be issued to the Deputy
Commissioner, Rangoon, apparently in view of section
5 (1) of the Union Citizenship (Election) Act, 1948,
where it was laid down that on an application being
wade for a certificate of citizenship notice of su ch
application shall be issued to the Deputy Commissioner
of the district where the applicant resides. No objec-
tion was made on behalf of the Deputy Commissioner,
Rangoon, to the grant of the certificate sought with the
result that un the 15th January 194',1 the learned

 1950J BURMA LAW REPORTS. 55

3rd Judge held that the applicant had established his s.c.
1950
right to the certificate and had a copy of his findings
AH FAT (a)
sent to the Ministry for Judicial Affairs. U AUNG
.\ The Minister for Judicial Affairs accepted the THEIN
v.
findings of the learned 3rd Judge and issued a U THA V/IN
AND
certificate-in terms (\f section R (1) of the Act. This ANOTHER.
certificate was received by the learned 3rd Judge
and on the'28th January 1949 the applicant appeared
before the~Court and subscribed to a declaration on
oath renouncing any other nationality or status as
citizen of any foreign country that he may at that time
possess.. Consequently, by' virtue of section 8 (5) of
the Act the certificate of citizenship became fully
effective.
Some time later and on the 16th March 1949 the
leamed 3rd Judge received instructions, as he ca]]s
> them, from the Ministry of' Judicial Affairs asking him _
,to hold an enquiry into the allegations of U Tha Win,
the 1st respondent before us. The learned 3rd
Judge accordingly issued notice to' the applicant to
show cause why the certificate of citizenship issued
to him should not be cancelled. After hearing Counsel
the learned 3rd Judge set aside the finding arrived
at by him on the 15th January 1949 and stated his
intention to hold a de 1l0VO enquiry into the application
after issuing notice to the Deputy Commi.'sioner,
Mergui. .
Simultaneously with the application \)'{ U Tha' Win
to set aside the grant of the certifi-::ate of citizenship
there was also filed an application for an enquiry under
section 476 of the Criminal Procedure Code with a
vielv to haviug the applicant prosJcuted for perjury in
respect of certain statements in his criginal applicatioIL
for a citizen'certificate. .
The applicant now desires the order setting aside
the finding of the 3rd Judge of the 15th January 1949
56 BURMA LAW REPORTS. [19S0 "

S.C.
1950 quashed and an order by way of directions in the
AH FAT (a)
nature of probibition restraining the further progress
U AUKG in the proceedings. under section 476 of the Criminal
THEIN
V. Proced ure .Code.
U THA WIN
AND Mr. Paul who appears for the first respondent bas
ANOTHER.
not been able to point to any provisions in_ tbe Union
Citizenship (Election) Act empowering the learned
3rd Judge to review his own order. As has been
said by this Court in Wall Shwe Bee v. The Commis-
sioner oj Police and one (1) the right of review, just
like the rigbt of appeal, is a creature of Statute and it is
not inherent in any proceeding before a Court of
justice. The learned 3rd Judge appears to have
realized that he has no power to review his own
previous decisiol1s. For reasons which we have not
been able to appreciate stated in his len.ethy judgment,
he appears to have come' to the conclusion that by
the action proposed to be taken by him he is no:
reviewing his previous order.
It .cannot be said' in this case that tbe 3rd Judge
when he held the first enquiry and came to a definite
finding was acting without jurisdiction. A Full Bench
of the Rangoon High Court in S. A. Nathan v. S. R.
Sams01i (2) has held-and rightly in our opinion-that
a Court has jurisdiction to decide in any particular case
wbethF.r it possesses jurisdiction to entertain the suit or
not, and when a duly constituted Court assumes juris-
diction to try a suit it must be taken thereby implicitly
to assert that it Fossesses the jurisdiction which it is
exercising. All that Mr. Paul has been able to stress
before us is that because a notice under section 5 of the
Act-.as he reads it- -has to be issued tv the Deputy
Commissioner, Mergui, and as this was not done tbe
proceedings in the original application were void. He

(I) B.L.R. (1949) S.C.1S7. (2) 9 Ran. 480 at 494.

 1950J BURMA LAW REPORTS ~7

has, however, not been able 'to place before us any s.c.
1950
authority in support of this proposition. Besides it
AH FAT (U)
will be found that section 5 does not require that" U AUI'\G

notice must be issued to the Deputy Commissioner of THEIN

.....
the place where the man was born as well as to the U THA \VIN
AND
Deputy Commissioner of the place where he for the ANOTHER.

time being resides.

It is clear therefore that tne application for quashing
the proceedings in Citizenship Application No.1 of
1949 must be, and it is hereby, granted.
Different considerations will, however,. apply when
we come to consider the other application, viz., the
application for an enquiry under section 476 of the
Criminal Procedure Code. That application is a
distiner application and the 3rd Judge is competent
to hold the enquiry. Further, a definite remedy is
provided to the applicant before the High Court under
section 476B of the Criminal Procedure Code if at any
time a complaint is made.
The application for direction in the nature of
prohibition in respect of Citizenship Application No.2
of 1949' of the 3rd Judge of the Rangoon City Civil
. Court must therefore be dismissed.
There will be no order as to costs.
58 BURMA LAW REPORTS. [1950 "

SUPREME COURT.

I.
t s.c. SHAN MOUNTAIN ESTATES, LTD. (ApPLICANT)
19,0
Jan. 30. v.
THE INCOME-TAX OFFICER, COMPANIES
CIRCLE, RANGOON (RESPONDENT).*

Frohibitio i-Writ .oj-Feduflt,(/ Slum Statts-Income-tax Acl if extends 10-

Le//cr from Chief Secretary reliecl 01l-UtUl1tt!tm!ica!rtl copy-Effccl-
Ldter if Notification tmder s. 40. Goverllllle;J/ oj Burma A cl-Coffec grod_'ll
in Shalt Sill{es-Ccmpauy itlCorpora!ed ill Britisll Bllrma-S. 4, l/1c01lle-
ta,>: Ad-Agriwllflr.al iUC01J.C-S. 2 (J)(bl 1 II/come-1m,," Aet-General Clauses
Act-S. 2 (26)-Agriwitura! iI/come and il/coml from agdclIltflre.
On the Applicant's petition for a writ of pro:1ibition to restrain assessment
to Income.tax for 1947-48 and 1948-49 income from busine$s of gmwing coffee
and other produce on lands in Hsipaw State, for which money \Vas paid to the
I~tller.

Held: That a copy of the Idter from the Chief Secretary to lhe Commis-
sioner, Federated Shan States relied on by Government cannot 1;le acted lipon
and even the original, if produced, could not have the effect of a Notification I '
required under s. 40 ot the Government of Burma Act.
Even if the InCome-tax Ad did not extend to the Shan States such inc01ne
might become taxable ullder the Act when received in British Burma, unless it
was income frern agriculture arising in a st,ite in Burma from lan0 for which
any pay:nent in kind or in money ism"dc" to the Slate. "The tenns" :lgricultural
income" and" income from agriculture ,. are different. The first is a term of
art while the second is not. Under Burma General Clauses Act, s. '2 (26) as it
stuod buore 4th January 1948 Government includes a person authorized by the
Government of Burma Act. 1935. to exercise the executive authority qf Burma.
The Federated Shan States fall within Part 1 of the Second Schedule of tbe
Go\ernment of Burma 'Act, 1935, where the Goycrnor exercises po\yer in his
discretion and it was tl'erefore under the authority of the Governor that the
Sawb'il'a exercises executive authority. and collected revenue on land. The
income from such land is therefore protel'ted both under s. 4 (2) and 4 (3)
proviso:-. The income after 4th January 1948 have the SdlTIe protection as also
that of f. 4 (3) (viii) as adarted under Union of Burma (Adaptation of Laws)
Order, 1948, and is not taxable.

*" Civil I\Jisc. Application No. 77 of 1949.

t Prlsenl: U -E MAUNG, Chief Justice of the Union of Burma, MR. JUSTICE
KYAW l\fYINT and U THAfJNG SEIN, J. j
 1950] BURA LAW REPORTS. 59

G. Horrqcks for the applicant. S.c.

1950
SHA~
Sa Sein (Government Advocate) for the respondent. MOUNTAiN
ESTATES,
LnfITED
Tlfe judgmp.nt of the Court was delivered by the v.
THE INCOME-
Chief Justice of the Union. TAX
OFFICER,
COMPANIES
U E MAUNG.-:-By this application for directions GIRCLE,
_ HANGOO~.
in the nature of prohibition the applicants seek to
restrain the Income-Tax Officer, Companies Circle,
Rangoon, from proc~eaing with the assessment of
income-tax in respect of the income for the years
194748 and 194,~-49, which the applicants claim they
. derived from their business of growing coffee and
other produce on certain lands in the :-Isipaw State.
The applicants claim that prior to the 4th January
1948 the Income-Tax Act did not extend to the Hsipaw
S,tate which was then part of the Federated Shan States
and did not form part of British Burma. For this
proposition reliance is placed on the provisions of
section 1 of the Act as it stood before the 4th January
1948 and to section 40 of the Government of Burma
Ad, 1935.
. .The Income-tax Officer in his objections to the
application before US relies on' a letter from the Chief
Secretary to the Government of Burma, Horr,,, and
Political Department, to the Commissioner, Federated
Shan States, dated the 16th September 1929.
Unfortunately, neither the original of that letter nor a
. duly authenticated copy of it appears to be available to
him, for, at the hearing the learned Government
Advocate produced for our inspec.tion what purports
to be an 'unauthenticated copy of the letter. Apart
from the fact that we nnd it impossible to act on such
a/ document, even the original of it, assuming every
thing in favour of the respondent, is not sufficient
 .
60 BURMA LAW REPORTS. [1')50 "

S.C. to effect an extension of the Burma Income-tax Act to

193IJ
the Hsipaw State. It appears to be' merely a
SHA}l
i10UKTAIN communication stating the inexpediency of extending
ESTATES, the Act as a whole to the Shan States and
LI)lITED r.
V. indicating the Governor's decision to apply the
THE INCO)lE
TAX provisions of the Act to certain classes of persons
OFFICER,
COMPANIES
and to certain classes of income only. This com-
CIRcq;:. munication could not have the effect of a notification
RANGOON.
required under section 40 of the Government of Burma
Act, 1935.
That consideration, however, is not conclusive.
The applicants are a company incorporated and having
its headquarters in what was then British Burma
aiid even if the I ncome-tax Act did not extend to the
Shan States, on ,he income accruing in the Shan States
being broug!1t into British Burma it would be
exigible-other things necessary for the purpose being
present-to income-tax in British Burma under oection
4 of the Act. It is therefore necessary to examine the
provisions of section 4 of the Income-tax Act. Before
the 4th January 1948 the second proviso to the section
read as follows:
II Provided further that nothing in this sub-section shall
apply to income i"Om agriculture. arising or accruing in a State in
Burma from land for which any annual payment in money or in
kind ic made to the State. I>

F.rom the loaterials on the record it appears-and

in fact this is not challenged on behalf of the
respondent-that the applicants were under a duty to
make and have been making annual payments in
money to the Hsipaw Slate for the lands on which they
had been growing coffee and other agriculture produce.
It will appear therefore that this proviso would operate
to save the income from agriculture arising or accruing
in Hsipaw State prior to the 4th January 1948 from the
I
1950J BURMA LAW REPORTS. 61

operation of section 4 (1) of the Act, even if tbat s.c.

1950
,
income was brouglit into British Burma.
SHAN
The learn"d Government Ad\'ocate, relying on the MOU'"TAIN

definition of " agricultural income " i~ section 2 (1) (b) ESTATES,

LIMITED
of the Income-tax Act, contends that since the annual v.
THE INCOME~
local payment was made to the H.sipaw Sawbwa or the TAX
OFFICER.
Hsipaw State tbat payment cannot be said to be one COMPA~IES
CIRCLE,
" assessed and collected by tbe officers of Government RANGOON.,
as such" and that the second proviso to section 4 (2)
of the Act would not apply. Tbereare two fallacies in
tbis argument. In the first place the second proviso to
section 4 (2) does not speak of" agricultural income" ;
it speaks of " income from agriculture." The first is a
term of art, tbe second is not. Secondly, section 2 (26)
of the General Clauses Act, as it stood prior to the
4,th January 1948, defined tbe term" Government" to
mean" a person authorized by or under the Govern-
ment of Burma Act, 1935, to exercise the executive
authority of Burma but shall not include the Railway
Board." Under section 7 of the Government of
Burma Art executive powers in th.e areas specified in
Part J of the Second Scbedule to tbatAct were to be
:exercised by IheGovernor in his discretion and the
Federated Shan States fell within the said Part I of the
Second Schedule. It was therefore under the
authority of the Governor that the Sawbwa of l-Isipaw
State exercised the executive authority in that State and
tbe col1ection of revenue on land by his officer would
appear to US to satisfy the requirements of section
2 (1) (a) of the Income-tax Act.
In respect of tbe income derived from the same
sources by the applicants after the 4tb January 1948,
they would appear to'have the protettion of not merely
the second proviso to section 4 (2) of tbe Income-tax
Act but also that of section 4 (3) (viii) as adapted under
the Union of Burma (Ada;Jtation of Laws) Order, 1948,
 "

62 BURMA LAW REPORTS, [1950

S.c. and promulgated by His Excellency the President of

\ 1950
the Union of Burma under section 226 (2) of the
SH,\N
MOV'TAIN Constitution.
ESTATES.
LIMITED
The second p'roviso to section 4 (2) of the Income-
v. tax Act now reads:
TH E INCOME-
. TAX
OFFICER, ,. Provided further that nothing in this sub-section shall
COMPANIES
CIRCLE,
app'ly to income from agriculture arising or aecruing in a State in
R,l,XGOON. the Union of Burma from lanel for which any al1l1u:lI payment in
money or in kind is made to the State. "

Under section 96 (1) of the Constitution" AI; revenues

from the sources enumerated in the. Fourth SChedule
to this Constitution shall form part of the revenues of
the State in or by which they are raised or received,"
and item 1 of the Fourth ScheduIe refers to " Land
Revenue," and article (i) of the same item refer;; to
" Land revenue proper."
The exemption granted to agricultural income by /-c;. _
section 4 (3) (viii) of the Income-tax Act also must
apply.. Section 2 (26) of the Burma General Clauses
Act now reads:
-

I'(26) 'Government' or .1 the G)vernment ' sh211 meln the

personauthorizecllJY or urider the Constitu::ion of the Union of
Burma ~o exercise the executive authority of Burm3.. "

The executive authority of that part of the Union of

Burma which lies in the Hsipaw State, so far as the
collection or assessment of land revenue is concerned,
would., by reason of section 162 (1) of the Constitution
read with section 92 (2) and item 2 (3) of List II of the
Third Schedule of the Constitution, vest in the Shan
State. The officers of the .Shan State would be officers
of the Government.for such purposes.
Accordingly we order that directions do issue to
the Income-tax Officer, Companie.s Cirole, Rangoon, i.
restr.ainiI1g him from .assessing .to tax under the
1950J BURMA LAW REPORTS. 63
Income-tax Act in respect of such income of the s.c.
1950
applicants for the years 1947.-48 and 1948-49 as was
SHAN
derived from lands which the applicants hold under a MOUNTAIN
lease from the Sawbwa of Hsipaw State under an ESTATES.
LI)JITEIJ
instrument of lease executed in 1933. v.
THE fNCmlE_
Advocate's fees ten gold mohurs. TAX
OFFICER.
CO~1PANIPS
CIRCLF.,
RA~G(;O:-<.
 "

64 BURMA LAW REPORTS, [1950

SUPREME COURT.
"
ts.c. / .
1950 THE INDIAN STARCH PRODUCT~, LIMITED
AND ANOTHER (ApPLICANTS)
Jan. 30,
v,
THE CONTROLLER OF RENTS, RANGOON
. AND ANOTHER (RESPONDENTS).*

Urball Relit COlllrol Act-Licetlce (Iud lcase':-Officers exercising judicial

funetiotl 01 quasiwjudicUlI jUllcfion whether can seek let-at advice at the
back oj lllC Advocate of the otlter side l'nd whdher At:oJ'llcj'~Gencral
or Govfrtl111el1t Atlt'ocafr (alt give stich advice.
Held: A licence rna)' cr.me within definition of" letting" under the Urban
R~nt Control Act. 1 he distinction between a licence and a lease is that
there- must be exclusive possession in the cast: of lease and that element of
exc1\\?ive possession is abseni in tJ'e case of a licence.
Officers excTcising judicial or quasi-judicial function should not seck for
legal advice especially at the back of the Advocate of the other sidl'.l ; in proper
cases he may ask the AttorneyGeneraJ to appear as an ~11Iiclls ClItia: and
the A ttorney~General also shOuld not give legal advice if som~hl lor by
persons exercising judicial or quasi-judicial funetion3.
/ .....
S. R. Raju v. The AssistllJlt COlztroller of Rents :lncl two, B.L.R. (H'501,
S.C. 10, followed.

Ba Win for the applicants.

Ba Sein for the respondent No. l.
K)aw Myill for the respondent No.2.
The judgment of the Court was delivered by the
Chief Justice of the Union.
U E MAUNG.-This case is in many respects the
converse of the case of S. R. Raju v. The Assistant
Coniroller of Renls and 1100 (1) which this Court
disposed of rel;;ently. In that case what purported to
be a licence was claimed to be a' " letting" within the
Civil Misc. AppJicatiCio No. 70 of 1949.
i Prese"t : U E MAUNG, Chief Justice of the Union of Burma, MR. JUSTICE I
KYAW M':YINT .md U THAUNG SEll'<, J.
. (1) C.MA 58 of 1949.
 1950J BURMA LAW REPORTS. 65

meaning of the Urban Rent Control Act and we ~i;~o

accepted that contention. In the present case the -
. . 'THE INDIAN
words used III the agreement between the partles STARCH
" ,
, are' consistel.t with "letting." The terms used, for ~~;:'~~T;,
instance, in the receipts for the payment of the A'OTHEj,
use of the land reserved under the arrangement were
TH"
H (j d ' . CoNTRnLLER
rent "and rent for Ian " so that thereby the parties, OF R.'TS,
or those who were responsible for theSe documents, H.~~~ON
intended the transaction to be, or thought the transac- ,"OTHER,
tion amounted to, a "letting" within the meaning of the
Urban Rent Control Act. But, as we have'laid down
in- Raju's case (1) it is the essence of the transaction
which we have to look into.
The learned Advocate for the app:icants, basing his
contention mainly on the definition of "premises"
appearing in section 2 (dl (iiI of the Urban Rent Control
{\ct, claims that his clients had a right upder the Act to
have the standard rent for the land in question fixed.
But the learned Counsel has overlooked one very
important word in that definition. The definition of
" premises" for the purposes of this rase would read:
" any land let or occupied or intended to be let or
occupied separately for any purpose whatever." The
essenc'e is that there must be exclusive occupation,
otherwise that occupation cannot be said to be's<:paratc
occupation in the person to whom the property is let.
If the word" separately" did not appear in the definition
the learned Counsel's contention may be of substance.
As we have carefully discussed the position in Raju's
<case (1), the underlying difference between a "license"
and a "Iea~e", is that in one there is exclusive
possession in the person who is in occupation and
in the other there is not this exclusive right of
possession. It is frankly conceded for the applicants
that they cannot exclude the owners from using the
(11 B,L R. (19501 S,C.I0.
5
 "
66 ... ,'. ' ....
B!JRMALAW
-' '.'
R~~ORTS.
. . . [1950
S,C,
1950 land in qt.1estion or from allowing other people using
it for the same purpose for which it is claimed to be let
THE"'tm:nAN
STARCH to them.
PRODUCTS,
The learnec! Counsel for the applicants}>as also relied !
.,
LTIl. "\~D
A~OTHER

Tag:
on several deCisions of the Indian High Courts and of
the King's Bench in England for his interpretation of
CONTROLLER
OF RI'NTS, the word" let" appearing in the Urban Rent Control
RANGOON
AND
Act but it must be remembered that "letting" ,of
ANOTHER. property in law amc'~lDts to a lease. There is no lease
here. At best what was g,anted to the applicants
under the arrangement evidenced by the various
receipts, which are wrongly called rent rece;pts, is a
grant of a right of way and this right of way was granted
as a mere person21licence.
In these circumstances the application must be
dismissed.
Before we part with this case, however, we have to
make a few obs'ervations on the course the proceedings
took before the learned Controller of Rents. His diary
entry of the 10th May 1949 reads:
" U En Win for applicant present. U KYllW Min for
respondents present. Arguments heard. I propose to refer lhis
case to Government for'legal-advise; Case is therefOre adjourued
S111e die. ' Parties informed. "-

Follow;ag this entry the learned Controller of Rents

wrote a letter to the Secretary to the Government in the
Ministry of Finance and Revenue, in the last paragraph
of which he says:
l'As this cas.e is of some importance and is of a complicated
nature, I shou)d like to seek the legal advice before I proceed
further with the case. I would therefore request that the advice
of the AttorneY'~General, Burma, may please be obtained on the
point raised In"paragraph 3 above."

Now the point 'raj,sed in paragraph'3 of that letter is.

I
exactly the point which the learned C;ontroller of Rents
 1950] BURMA LAW REPORTS. 67

was called upon to decide and which we are now called s.c.
1950
upon to decide here. The learned Controller of Rents
THE hmlAN

'. \
had apparently forgotten that he was exercising judicial STAllCH

functions and, as we have had occasion to remark only P.ROPUCTS.

LTD.AXD
this morning, under section 150 of the Constitution the ANOTHER

exercise of a judicial or a quasi-judicial function is ;;E

- d'lVl.d ua I tn
tn - 1-t s na ture. Th e Iearne d Con t ra II er a f R en tS CONTROLl Ell
uF REN;S,
was therefore wrong in seeking legal advice, especially RA~~~ON
at the back- of the learned Counsel in this "case. If he ANOTHER,

had asked the learned Attorney-General to appear

before him, either in person or through one of the
"officers of his department, as amicus curia there would
be no objection. But to seek legal advice after the
learned Counsel in the case had presented their views
before him and to act on that legal advice, from however
eminent a source it may have come, is thoroughly
n,prehensible ..
vVe are also surprised to note that at th e request
made tD him, though it may have been through the
". Secretary to the Government of the Union of Burma,
the learned Attorney-General saw fit to give the lega!
advice. It would have been more proper to have
directed the Controller of Rimt;' into the right course
he should take and to have informed him that as a
judicial officer or an officer exercising" quasi-jndicial
functions he should not seek advice from a strange
source.
As we have said, this application must be dismissed.
The applicants will pay the 2nd respondents' costs.
Advocate's fees ten gold mohurs.
68 BURMA LAW REPORTS. [1950
SUPREME COURT.
t s.c. RANCHHODDAS JETHA~HAI & Co. (ApPLICANT)
1950
v. I .
Jan. 30.
THE SECRETARY OF THE UNION GOVEFm-
MENT, MINISTRY OF JUDICIAL AFFAIRS
AND TWO OTHERS (RESPONDENTS)."
Din:cft'olt 11 tlte llattlre oj proltibttiol1-Prc1,jOltS aPPlication jar cerlio(ari 'iJ.}jllt
drawlI-Effect oist/elt withdrawal_res jutljcata- Principle of-Wile/her
applicable-analogy of Order 23, Rule 10f Code of Grv"il Procedllre-
Wltether call be extended-Collector of CustO/IIS lr,!lm imposwg filles If a
rcpl'tscntative of Govenwient-Additiunal pJwcrs 'of Prcsidc,d ul/der Sea
Customs Act-Scope of Supreme Court ill applicalioll "'Ider s. 2j, COl/sti-
tl/lion ojihe Union of Burma.
Where the Collector ufCustom3 had applied to the Supreme Court for a
writ of certiorari to quash an ord.~r of the Financial Commissioner and restore
the penalty levied by him and the application was subsequently dismissed as
withdrawn, and after the enactment of Sea Customs (Amendment) Act of 1949
a notice was issued calling on Applicants to show cause why the President
should not revise the order of the Financial Commissioner.
Held ~ That the matter is not governed by the principles of res judicata
because there \Vas rio adjudication, or final adjudication and the Court did not
appiy its mind to the merits of the application.
?arsota11l Gil' v. Narbad,l Dlr, 26 LA. 175, applied, ,. ~,,, ..
The withdrawal of a previous applicatbn without leave might bar a frcf'h
application upon the same set of circumstances.
fliltt!.11 Siugh v. JlII"i Singh, 40 All. 590; J{arlick Cltcwrira Pal v.
Sridhar JIm/t/ai, 12 Cal. 563. distinguished.

Foucor and Horrocks for thl' applicant.

Chan Tun AUl1g,.(Assistant Attorney-General) lor the
respondents.
The judgment of the Couri. was delivered by the
Chief Justice of tr.e Uni':Jn.
U E lVIAUNG.-The applicants seek directions III
the nature of a writ of prohibition restrainIng the
respondents from further action by way of revision
proceedings contemplated in the notice issued by the
Government of the Union of Burma in the Ministry of
.. Civill\Usc. Application No. 54 of 1949.
t Presets! : U E MAUNG, Chief Justice of the Union of Burma, MR. JUSTICE f
l{Y.lW i\!YiNT and U THAUNG SEIN I ] .
 1950] BURMA LAW REPORTS. 69

Judicial Affairs on the 14th July 1949 calling upon the S.C.
1950
applicants to show cause why the President of the
RANCHJfOD~
Union should not revise the order of the Chief Customs DAS ]l:."I'HA-
." \
authority (the Financial Commissioner, Commerce) in BHAI v.& Co.
THE
Revenue Appeal No. 4C (230) of 1948. " SECRETARY
The essential fads necessary for the disposal of this OF THE
UNION
application are simple. The applicants imported into GOVERN-
liENT,
Rangoon on the 8th November 1947, 48 bales of jute MI~]STHY
gunny bags from'India. The Control of Import and OFAFFAIRS JUDICIAL

Export (Temporary) Act, 1947, and orders made there- :"ND TWo
OTHli:NS.
under require such import to be covered by an import
licence and under section 3 (2) of that Act such goods
w!).en not covered by an import licence would be deemed
to be prohibited articles within the meaning of section"
19 of the Sea Customs Act. On the 23rd December
1947 the applicant produced before the Collector of
<;;ustoms an import licence dated the 14th November
1947 together with a letter from the Director of Civil
Supplies, Commerce and Supply Department of the
Government of Burma, purporting to instruct the
Collector of Customs in exercising his powers under.
sections 182 and 183 of the Sea Customs Act to
impose a token fine of Rs. 1,000 only and to allow
redemption of the gunny bags, which uncler section
167 (8) of the Act were liable to be confiscated, on
payment of that token fine. The fine was paid and the
goods were released.
Eight mont hs later the Collector of Customs called
upon the applicants to show cause why, in addition to
to the fine already paid, a ftHther penalty should not
be imposed on them for the import of the gunny bags
without the cover of the requisite import licence. Cause
was shown by the appiical1ts but the Collector of
Customs, apparently considering that sumcient" cause
had not been shown, imposed "a penalty. of Rs. 44,544
being twice the value of the goods imported.
 "
70 BURMA LAW REPORTS. [1950
S,C, The applicants appealed, as they clearly were
1950
entitled to do under section 188 of the St:a CU3toms
RANCHHOD Act,. to the Chief Customs authority, namely, the
..
DAS JE.THA-
BHAI & Co Financial Commissioner, Commerce, Burma. That !
THE appellate authority by an order' of the', 25th January
SSCRETARY
OFTHE 1949, in Revenue Appea! No, 4C (230) 194R set aside
G~~~R';,. the order of the Collector of Customs imposing the
ME'T,
MINl~TRY
penalty of Rs, 44,544, For reasons which will appear
OF JUDICIAL later it is not necessary to examine the groundson which
AFF.A.IRS AND
TWO OTHER',
tl Je Iearne d . F'manCIa
'I C "
OmllllSSlOner camt: to the
conclusion that the order of the Collector of Customs
imposing the penalty was erroneous, It is sufficient
for the disposal .of the present application to note that
the order of the Sollector ofCustoms was set aside by
the Financial Commissioner, Commerce, Burma.
On the 19th April 1(}49 the Collector of 'Customs
applied to this Court for directions in the nature of
certiorari in Civil Miscellaneous Application No. 29 of
19+9 and impleaded as respondents the Finan6al
Commissioner, Commerce, Burma, and the present
iipplicants. It was then claimed 00 behalf of the
Collector of CustO!J1S that his order, which was set
aside on appeal by the Fioancial Commissioner, was
a correct order and that the Financial Commissioner
had allowed himself to be influenced by extraneous and
irrelevant mat.ters and had not taken into consideration
certain matters alleged to be relevant, and that accord-
ingly the order of the Financial Commissioner was one
proper to be quashed by this Court in exercise of the
power which the Constitution has granted to this Court
under section 25. To this application, objections were
taken by the second respondents (the present applicants)
challenging inter alia the right of tbe Collector cf
Customs to move this Court for directions in the na(ure
of certiqrari, the jurisdiction of the Court to entertain
the applicatiqn and the competence of the Collector of !
 1950] BURMA LAW REPORTS. 71
..
'Customs, in view of the earlier infliction on the applic~nts S.C.
1950
of a token fine, to impose on them an additional penalty.
HA:,\CHHOD-
'. 1
. What happened on the 6th June 194CJ when the DAS JETHA-
BH~I & Co.
application came UP for hearing before this Court v,
appears fr~m the order which reads : THy'
SECltETARY
Ql'THE
l!NION
" U Chan Htcon , Attorney-General asks for permISSIOn to GOVERN-
"\vithdraw the applications beginning with Civil MisceJl3neous MENT,

Application No. 26 to 37 0(1949 in the list.

l\lI:\ISTHY OF
JUDICIAL
The application for withdrawal is opposed by Mr. Faucar on AFFAIRS ANJ)
TWO OTHERS.
behal of the Znd respondent in Civil l\'Iiscel1aneolls Application
Nos. 26, 28, 29 and 31 of 1949 and he submits that the applications
should be d"ismissed. .
This application is dismissed as being withdrawn" Cosh
seven gold mohurs in favour of the 2nd resr~mdel1t."

Soen after the proceedings in this Court terminated,

,Parliament enacted the Sea Customs (Amendment) Act
of 1949 and it was promulgated by the President of the
Union on the 24th June 1949. On tbe 14th July 1949
the Secretary to the Union Government in the Ministry
of Judicial Affairs called upon tbe applicants to show
cause why the President should not exercise the powers
of 'revision under section 191 (2) of the Sea Customs
Act ' a~ amended in respect of the Oider of the
Financial Commissioner of the 25th January 1949 above
referred to.
Bdore us it has been claimed on behalf of the
applicants that directions restraining furtHer proceed"
ings in this matter by the President of the Union should
issue and that claim is made on two main grounds. It
has been urged' firstly that the dismissal of the
application before this Court in Civil Miscellaneous
Application No. 29 of ,1949 on that application being
withdrawn by the learned Attorney-General, operates
by way of res judicata to bar further agitation of tbe
points that were taken or could have been' taken in
 .,
72 BURMA LAW REPORTS. [1950
s.c. those proceedings on behalf of the Union of Burma.
1950
It has also been urged that the Cullector of Customs
RAN'CHHOD~
D'S JETHA' had no jurisdiction to impose the additional penalty
BHAI ~ co. and that the revision proceedings iniFated by the I
THE
SECRETARY
President of the Union of Burma to examine the'
OF THE legality or correctness of the appellate ::>rder vacating
UNION
GOVERN. the order of the Collector are incompetent and should
MENT.
MINISTRY OF
be restrained.
JUDICIAL
AFFAIRS AND
What was' said to be a preliminary objection has
TWO oTHERS. been raised on behalf of the respondents by th" learned

. Assistant Attorney-General. It is claimed by him that

since all that has been done to this date on behalf of
the President of the Union is to issue a notice calling
upon the applicants to appear before the Secretary to the
Government of the Union in the Ministry of Judicial
Affairs, the application for directions in the nature of
prohibition would not be competent. He suggests
that the applicants shonld wait till the proceedings in
revision has progressed further but he does not tell us
at what stage of the revision proceedings the applicants / "
would become entitled to seek prohibition. 'We
cannot see a'ny substance in this preliminary objection.
If the applicants are right in their contentions
they would clearly be entitled to seek prohibition
the moment the President initiates the revision
proceecimgs. We aI''' not entitled to assume that
the President in directing the Secretary to the
Government of the Union in the Ministry of Judicial
Affairs to call upon the applicants to appear before the
btter does not intend to take further steps in the
revision proceedings once the applicants have put in
their appearance before that officer.
Mr. Foucar, with whom Mr. Horrocks is associated
in presenting the applicants' contentions, has taken us
through several decisions of the Judicial Committee of
the Privy Council and of the various High Courts in r
1950J BURMA LAW REPORTS. 73

India. It is not necessary for us in this judgment to s.c.

1950
examine these decisions in 'detail, for, they enunciate
nothing more than accepted principles ~
on the appli- DAS RAKCHHOJ)'
JE1HA-
cation of tbe Joctrine of res judicqta.. We agree with BHAI v~ co.
the learned Counsel that the principles of res judicata THE
SF.,CRET,\RY
should not be administered in a technical and narrow OF 1"IlE
.spirit and that these principle'; are principles of justice. G~~~~~-
The principle of finality of an adjudication by a MINISTRY '''"T, OF
competent Court is one to which we readily subscribe; JUDICIAL
h th 1't b e for tl1e app I"lcatlon 0 f sec t'Ion 11 0 f AFFAIRS
. b 11 t weer TWO OTHERS.ANn

the Civil Procedure Code or, of the general principles

of res j1lliicata, one thing is essential, namely, there
must have been \
a decision either express or implied,
on the questions which arise in the l.tter proceedings.
If authority for this is at all necessary Pm'sotam Gil' v
N arbada Dir (1) would clearly be in point. At page
1,83 Their Lordships said:
'I It is enough to say that there is no such thing known to the

law as constructive estoppel, and if there were it would not satisfy

the requirements of section 13 of the Code of Civil Procedure
(XIV of 1882). I The COnditions for the exclusion of jurisdiction
on the ground of res judIcata are, I as \.Villes J. (~) s~ys, I that the
same identical matter sh1.11 have come in question .11ready in a
Court of competent jurisdiction} that the -matter shall have been
controverted, and that it shall have been finally decided.' That
is just what section 13 requires: there must be a final decision. II

It is clear to that the principles of res judicata

tiS
can have no application to the facts Gf the present case.
If any analogy is to be drawn <)t all from the Civil
Procedure Code it'is to Order XXIII, Rule 1 of that Code
that we must go. There was a wiC1drawal of the appli-
cation by the Attorney-General and on that withdrawal
his application was dismissed. This Court did not
apply its mind to the merits of the application.

(Ii 26. LA. 175. (21 (1865) 18 C.B. (N.s.l 270.

 "

BURMA LAW REPORT.S, [1950

s.c. Accordingly, there was not and cannot be deemed to
1950
have beell a decision by this Court on any matter in
RANCH HOD-
VAS JETHA- controversy, It may weU be that, applying the
BH'\lv& co. principles of Order XXIII, Rule 1, the withdrawal of a
THE
8J:CRETARY
previous application' without . leave granted 15"J the
OF THE Court for the institution of a fresh application may
UNiON
GOVE"". 'operate to bar a fresh application based on the same
MI~~:;';~ OF set of circumstances and in the same right but this is a
JUDICIAL
;\,FFAms A~'D
different thing altogether from the principle of finality
TWo OTHE!:S. of a decision or what is implied in a decision of a
competent tribunal. Withdrawal, for instance, of a
suit for cancellation of a document withoutleave being
granted for the institut~on of a fresh suit, clearly does
not bar the plaintiff, when he'is later sued on the same
document, from taki\l)1the plea in his defence that the
documen t was void.
The decision in Hingu Singh v. ]huri Singh (n
relied upon by the learn~d Counsel for the applicants
does not support the claim for application of the
princ.iples of res judicata here. In that case' the SUlt
was dimissed for want oJ prosecution; the plaintiff
was present in Court and he had all opportunity of
proceeding' ex parte against tbe defendant who was
_0_" absent; but he did riot addute evidence with the result
tilat the Court had to dismiss thc 'suit under Orckr
XVII, Rule 3. A decision under Order XVII, Ruk 3,
is a decision on the merits.
Kartick Chandra Pill v. Sridhar Mandai (2}, again
is not very apposite. .At page 565 it was said:
" It appears that in the' former suit between t?e parties issues
had been "xed On the queslion of title. " In that suit the plaintiffs
having failed to adduce evidence, which 'it waS incumbent upon
them to do, the suit was dismissed.; and must be held to have
been dismissed on the merits. lJ

(1)'40 An. 590. (21 12, Cal. 563.

!
 1950] BURMA LAW: REPORTS.. 75
The applicability of the principle of l"eS judicata b.C.
1950
where the previous proceedings terminated on a
RANCHHOD-
withdrawal did not arise for discussion in these cases. DAS JETHA-
Another fallacy which we trace runnillgthrough-the BHA! & CO,
V.
contentions of the applican.ts has been to identify the THE
SECRr..TARY
Collector of Customs with the President of the Union OF'l'HE
UNION
or with the Government of the Union. It has b~en GOVERN-
-said on - behalf of the applicants that the Collector MENT,
1\1 l~", 5TRY OF
of Customs in making his application to this Court JUDICIAL.
AFF~ms AND
must be deemed to have been acting on behalf of the TWO oTHERS.

Governm~nt of the -Union and that the Government

of the Union must be regarded as bouoo, to the extent
that the Collector of Customs is; by what has happened
in these proceedings. The principle respondeat superior
cannot be applicable here and it is difficult to see on
what principle the claim can be justified. ,It has also to
Qe borne in mind that the Collector of Customs when
he imposes fines and penalties under the relevan t
.. provisions of the Sea Customs Act is exercising a judicial
function and the exercise of a judicial function is
individual. In that capacity the Collector of Custom,
is not a representative of either the President of the
Union or the Government of the Union 01 Burma. He
is for the time being a judge bound to act in his
individual judgment, subject, of course, to control by
other authorities exercising judicial functions to whom
he may be subordinate. -
The second line of attack on th~ competence of
the revision proceedings is due, in our opinion, to the
not unnatural confusion between the President as the
executive head of the Union and :he President -who,
when eJ!:ercising his powers under section 191 of the
Sea Customs Act, functions as an authority vested
.under section 150 of the Constitution to exercise
-limited functions and powers of a judicial hature and IS
bound therefore to acton- judicial principles. That
 "
76 BURMA LAW REPORTS. [1950
S.C. the Customs Officer exercising the powers vested in
1950
him by section 182 of the Sea Customs Act, the
RA~CHHOD
D.A.S lETHA- appellate authority acting under section 188 of the
BHAI & CO.
V.
Act and the President exercising powers under section
THE 192 are all judicial functionaries clearly emerge from
SECRBURY
OFTHR the fact that they are administering criminal justice,
UNJON
GOVERN- Section 167 refers to the acts falling within the First
MENT,
MINISTRY OF
Schedule as "offences" for whicli, in the words of the
JUDICIAL same section, the person" responsible" is" punishable"
AFFAIRS AND
TWO OTHERS. with the" penalties" set out in the third column of the

Schedule. The learned Assistant Attorney-General

has frankly conceded that this is a proposition which
he is not prepared to controvert.
By tbe Sea Gelstoms Act, as it stood before the
,amending Act of 1949, the President of the Union h~d
been made the revising authority in respect of decisions
of the Chief Customs authority. Hence, apart from the
fact that Parliament has given-.and there is no queslion
that it is competent so to do-retrospective operation to I '\

the amendments introduced by tbe amending Act of

1949, it cannot be said tbat the decision of the Chief
Customs authority under consideration in this c"se
was in law a final decision at the time it was made.
While it is true that but for the amending Act. the
President's revisionary powers were to be exercised
only when invoked by " a person aggrieved" it would
be incorrect to confine the term" a person aggrieved"
to one on whom tpe penalty or fine or both had been
imposed. Circumstances' c~n be easily envisaged of
others having a grievance in law witb the order of the
Customs OJEcer or of the Chief Customs authority.
The amending Act merely extends the .exercise of
jurisdiction in revision, already vested in the President,
(0 enable him to act suo motu.
From this it follows that the contention on behalf
of the applicants that the Collector of Customs acted in
1950J BURMA LAW REPORTS. 77
excess of his jurisdiction in imposing the additional s.c.
, ]950
penalty on the applicants is clearly irrelevant in these
proceedings. This is a contention which under the Sea RA'CrJSOD_
CAS ]ETH,\-
Customs Act is properly and primarily within the "HAl & co.
competence of the President as the revisional authority T~'E
to decide "and we can see no J' ustification at this stae
L'
SECRETARY
OFTHE
for taking the decision of this issue out of his hnds. U"ON
GOVI!RN-
The essence of revisional jurisdiction consists in - "EXT,
examining the competence of the subordinate tribunal M~';}~;~I:LDF
and .the legality and correctness of the decision of such- AT \\HAIRS AND
G OTHERS
tribunal. To deny 'to the revisional authority the .
exercise of its f\lnctions on the ground that the
subordinate tribunal had acted beyond its competence
would be to nullify the jurisdiction of the revisional
"uthority.
'vVe do not conceive it to be within our functi9ns as
tpe dtimate supervising authority over all judicial and
quasi-judicial tribunals in the Union, in the exercise
of the powers which the Constitution has reserved to
us to issue directions in the nature of certiorari or
prohibition, to anticipate the dccision of any issue within
the competence of a judicial or quasi-judicial tribunal
before whom that issue properly arises. If after the
decision is made and if good cause appears for
quashing the decision of a judicial or quasi-judicial
tribunal we shall not hesitate, however eminent that
tribunal may be, to do our duty. But we refuse to
presage of any judicial or quasi-judicial functionary,
however limited its P9wers and howevcr humble it
may be, the least propensity to act other than on
judicial principles in matters withi" its jurisdiction,.
The application fails and is dismissed. In the
special-circumstances of this case we make no orders
for costs.
 "

78 BURMA
. ,_.. LAW REPORTS:
.. ., [1950

SUPREME COHRT.

ts.c MAUNG TIN AYE (ApPELLANT)

1950
v.
Feb. 1.
MAUNG MAUNG. HMI"f AND SIX OTHER"
(RESPONDENTS)."
BurmtSC Buddhist Law-Keittima adopliou- Apatilha~Ccmpt:!ifioll bcfw~(.Il
apatitha tWa. step child-Lclters . 0/ ~l(i1m:llisfraljo;1 tlJ whom grdtl(ed-
Ra1Jking in succession.
Held: Under Buddhist Law the Cacts that a person was put to school
and a person's name i~ ~howl1 as guardian 01" mother in the school register
and that marria~e invitations were issued by the said guardian 1escribed as
mother, that aiter marriage the couple used to live with the guardian and
lived with her do not suffice to make Qut a k::ittima adoption.
The statement in a 'etter by the alle;!cd ",clOpting mother that after ber
death her nepht'w5 and nieces will enjoy the properties also show that there
was no keifl111la adc.ption. .Though the joinder of the child's name in
monetary transactions might Je;td to such an inference the abgen(.e of the same
is also a f:act tending against kcittimll adoption.
An aprdlflta child is not withrlUt rights and is one of the ~ix classes 01
children entitled to inherit the estate of parents.
In granting letters of administration of a deceased Buddhist it is left to the , ,
Court to grant Lc.-lttrs to any person who wouid be cnti tIed to a share in
the estate however smail it may be.
In the majority of D/Jammathat:; a pUhbaJw child cumes fourth or fith in the
Jist and after lJim the apatilha child. They may both be equally, entiJed to
inherit but it willb..: iJ!l; -to say tbat <lpMi(ha child would exclude tbe
step-child.

P. B. Sen for.tbe appellant.

P. K. Basu for tbe respondents.
The judgment of tbe Court was delivered by the
Chief Justice of the Union.
U E MAUNG.-This appeal relates to the estate of
one Daw Khin Hta who died at Singaing in Kyaukse
District in 1944. The first respondent Maung lVIaung
Hillin is a son of one M?ung MaL1ng Hla by his first
-II Civil Appe;;(l No.1 of 1948.
t Prtse111 : U E I\IAUNG, Chief Justice of tile Union of Burma, MR. JUSTICE I
I{YAW i\IY1N1 ana U THAUKG SF.I:s', J.
 1950J BURMA L~W .REPORTS. 79

marriage. ]\faung Maung Hla, after the death of his first s.C.
1950
wife, married Daw Khin Hta 'and he died some tim.e in
MAUNGTTN
1930. There was no is~ue to the marriage of Maung AYE
V.
Maung Hla and Daw Khin Hta, and Daw Khin Hta did MACNG
not remarry after the death of Maung Maung Hla. l\IA~'% HMIN
A;:.;'f) SlX
Shortly after the death of Maung Maung Hla, Daw Khin OTHERS.

Hta effected a partition of the joint estate of herself and

her late husband with her step-sons Maung Manng
Hmin and Maung Maung Kyin. Maung Maung Kyin
has since died. The document of 'partition is an exhibit
in the case, being Exhibit 1 filed by the appellant.
It has been suggested on behalf of the appellant that
the terms of this deed of partition are such that Maung
Maung Hmin and Maung Maung Y.yin would be
precluded by complete severance from their step~
mother to take any further steps in the step-mother's
estate on her subsequent death. vVe have carefully
perused this document and the evidence relating to its
execution and these materials do not, in our opinion,
support the contention that there was such a complete
serverance of all relationships between the step-mother
and the step-sons, foHowing on this document, that
there can be a sembiance of a reasonable claim of
complete failure of filial relationship. We do not
mean to suggest by this that we take the view that
maintenance of filial relationship would be essential
for a stepochild to inherit from the step-parent.
The appellant, who is a nephew of Daw Khin Hta,
lost his parents when he was very young. He tells us
that he lost his. parents when he was under three
years of age and that when he was about three years of
age he was taken into the family of Daw Khin Hta and
her husband Maung Mauog Hla and was brought up by
them along with the two sons of l\ilaung Maung' Hla.
We -have no reason to doubt the substantial correctness
01 the story told by the appellant on this part of the

 "

80 BURMA LAW REPORTS. [1950

s.c. case though it may well be that he was taken into Daw
lY50
Khin Rta's family a few years later than he suggests.
MA';\:;'/'~ We say this because there is conclusive evidence that
) .
v.
MAU1\G
before the appellant was taken into the family, bv.; Daw
M;UNGH'><IN Khin Rta he had already been shinpyued by another

~~~:~~. couple. The appellant in his statement before the Court

suggested that the shinpyu ceremony took place when
he was younger than three .years of age. That, as
Buddhists, we are not prepared' to accept in the absence
of very convincing proof. But nothing turns on this
because the appellant admits that till 1932 there was no
question whatsoever of his having been taken in adop-
tion by Daw Khin Ria. Daw Khin Rta, according to
the appellant, w~nted to keep from the knowledge of her
husband any intention-that is if she had any such
intention-.to take him in adoption. The appellanfs
case is that in 1932 Daw Khin Rta for the first time
disclosed her intention of treatin.g him as an adopted
child. The appellant, supported by a few witnesses
whom he had called, tried to establish that in April
1932 there was a formal announcement made by Daw
Khin Hta of her having taken the appellant in
keittima adoption. If he had been able to establish
that, it would conclude the present case. But unfor-
tunately for him both the trial J nd~e and the Appellate
Bench of the late High Court of Judicature at Rangoon
came to the conclusion-and rightly in our opinion-'
that this branch of the appellant's c-ase is not
true.
The appellant, in addition, tried to prove his
keittima status by certain other circl'm'stances and
these circumstances amount only to (1) that'he was put'
in Mandalay school where Daw Khin Rta's name was
entered in the register of the school either as the
mother or the guardian ; (2) that when later he was
hansietred to Maymyo school Daw Khin Rta's name
r
 i950J . BURMA LAW REPORTS. 81

continued to appear in the school register as the S.C.,..

1950
guardian or the mother; that when the engagement
.
MAUNOTIN
of the appellant to the daughter of U SlIn Shwe, AYE
a witness for the appellant in the case, was announced MAUNG
in the" Sun" newspaper of Mandalay, the appellant MAUNG HMIN
AND SJX
was described as son of Daw Khin Khin Hta of OTHERs.

Zigon Quarter, Maymyo, and brother of U Ba Thwin,

broker, and his wife Ma Khin Sein of Htendan
Quarter, Mandalay. It may be mentioned here that
Ma Khin Sein referred to in the announcement is a
:sister of the appellant. The marriage invitation issued
. in the joipt names of Daw Khin Hta and U San Shwe
described the appellant as the son of :paw Khin Khin
Hta and brother of Ko Ba Thv:in an<f Ma Khin Sein
of Malun, Mandalay. The invitation issued by U San
Shwe to the reception following the marriage again
described the appellant as the son of Kyaung-ah-ma
Baw Khin Khin Hta of Zigon Quarter, Maymyo, and
brother of broker Ko Ba Thwin and Ma Khin Sein of
Malun Quarter, Mandalay. (4) That after the marriage
tbe appellant and his wife used to live for the most part
with Daw Khin Hta and (5) that the time of Daw Khin
Hta's death, she having tben evacuated to Singaing
during the Japanese occupation, the appellant was living
together with her.
The learned Counsel for the appellant contenas that
these circumstances taken together with the oral testi-
mony proffered by Brother Clementian (D.W.4), Ma
Khin Sein (D.W.2), U San Shwe (D.W.5), and certain
admissions which he had referred to us made by the
witnesses for the 1st respondent Maung Maung Hmin
are sufficient to' entitle the Court to deduce that the
:appellant was .the keil/ima adopted son of Daw Khin
Hta. The evidence of Brother Clementian does not,
in our opinion, carry the appellant's case any further
than the entries in the school register. This witness,
6 .
 BURMA LAW ~EPQRTS. [195C} "

S.c. who is now the Director of St. Peter's High SC)1001

1950
at Mandalay, admits that he .'lad no recollection
M.AUNG TIN whether or not Daw Khin Hta of her own accord
AYE
v. said to him that she was the adoptive mother of Maung , '

MA~:~~c;.1N Tin Aye. He also admits that his conversations with

~~~:~~.' Daw Khin Hta were made through a Burmese
interpreter. \\That is more important is that this witness
admits that the impression he had that Daw Khin Hta
was either the parent or guardian of Maung Tin Aye
was the result of her settling all the bills of Maung Tin
Aye and because he had seen her come and visit
Maung Tin Aye on three or four occasions.
Ma Khin Sein's evidence will have to be accepted,
jf we can do so at aU, with a great deal of c,aution.
She was the main witness in support of the story that
there was a formal announcement of Maung Tin Aye
havi1)g been taken in adoption as the ktittima son of
Daw Khin Hta. This part of the case has been
r'ejected as false by the trial Judge and also by the
Appellate Court. It follows therefore that Ma Khin t

Sein on one material point in this case has given

false testimony. There is another point that mustlbe
remembered~ .. Suon after Daw Khin Hta's death,
when the appellant claimed that he was the sole heir
to' the estate of DawKhin Rta. Ma Khin Setn
protested very strongly. Mr. Sen contends in explana-
tion of this protests, that Ma Khin Sein even though
she realized in law that her brother would be the sole
heir to Daw I(hin Hta's estate, might well feel
aggrieved at his exercising his legal rights. But we
are not prepared to accept this explanation. Not only
that; there'is on the record a document,' Exhibit A,
signed by this witness and also by the appellant
amongst others. This document, which was'
apparently written after due consideration ill reply to
ce,tain overtures made by the respondent Maung .I

j
 1950J BURMA LAW REPORTS. 83
S.C.
Maung Hmin as to the ultimate disposition of the 1950
estate of Daw Khin Hta, again disproves Ma Khin MAUNG Tnil
. Sein's case that they had throughout Daw Khin Hta's AYE
v.
lifetime' and thereafter acted on the hasis of the I\.fAUNG
J\.1AUNGH:hHN
appellant having been taken in keilfima adoption by AND SIX
Daw Khin Hta. The relevant portion of that OTHERS.

document reads :.
II From the time of c1i~isi~n of propert.i~s after the death of

Bagyi (uncle), the aunt had been living with nephews and niece3
fOf'better and for' worse llP to t:he time of her death i moreover
she had always been telling us, I If I die, you-nephe\v and
nieces-wiH enjoy the pI:0perties.' This was -also told to other
persons."

The statement in the letter Exhibit A is true or it is

false. If it is true,' Dave Khin Hta never intended
Maung Tin Aye to inherit her estate to the exclusion
of everybody else. If it is false it would be impos~ible
to act on Ma Khin Sein's and [iaung Tin Aye's
te.stimony now. .
There is also one important consideration which
has influenced us a great deal in this case. D3W Khin
Hta' admittedly was engaged in money-lending
business, either with or without security.' ~everal
documents executed in her favour at these money-
lending transactions have been produced before the
Court. In not one of these trans~.ctions has Maung
Tin Aye's name appeared as one of the lenders. It is
true that this in itself would not be conclusive but
taken with the other considerations which we have
mentioned above, we are forced to the conclusion that
.- Maung Tin Aye was never intended to be a keittima
adopted son of' Daw Khin .Hta. [n our opinion, what
. has happened' here is tpat Daw Khin Hta, seeing an
orphan nephew at a very tender age left \vithout a.
home, had taken him into her home and had brought
him 1,lp frominfahcy practically. She had treated him
 "
84 BUR:MA LAW REPORTS. [1950
s.c. no doubt as it son j she had educated him and given him
19;0
in marriage and he had been li':ing with her till she
MAUNG TIN
AYE died. It may well be that in these circumstances
v, Maung Tin Aye 'would be able to claim that he is an .1 ..
MAUNG
MAUNG HmN a/alif/ha son of Daw Khin Hta.
rANDSIX
OTHERS. An apatiffha chilo is a person not without rights.
He is one of the six classes of children entitled to
inherit the estate of the parents. But Mr. Sen would
not be content with .that position. He goes further
and says that an at Itittha child would excIude a step,
or to be more technically correct a dway-poppakara,
child. We do not propose in this case to p;o deeply
into the question of the rights of an apaiittha child.
It must be rememberecl that the appeal arose out of an
,application under section 218 of the Succession Act.
The estate in question is that of a Buddhist deceased
and it is left to the Court to grant letters of administration
to any person who would be entitled to a share in th~
estate, however small that share may be. Once the
respondent has shown that he has a share in the estate, , ,
however small, his application for letters of administra-
tion, in the absence of a counter affidavit, must neces-
sa,rily be,granted. Moreover, if there had been a
counter application it would be in the discretion of the
, Court to grant 'It to anyone 'of the persons who are
entitled to a share in the estate of the deceased.
There are certain decisions of the High Court 'of
Judicature which suggest that a'n apatittlia child would
be in a position ir.ferior to that of a kitifa child evep.
But it is not necessary for us in this case to say whether
we agree with these decisions in that respect. But it
seems to us that for the purpose of the present case,
the Manugye and other Dhammathats, where they
speak of the six classes of c1).iidren who are entitled to
inherit, would conclude the matter. , In the majority
of the texts a poppakara child comes fourth in the -'
 1950J BURMA LAW REPORTS. 85
list, in a few others he comes fifth and the apatittha s.C.
1950
child comes siXth. They may both of them be equally
.. , .
entit Ied to lllherit or it may be t h at t h e rights of t h e MAUNGTLN
AYE

step-child or poppakara child are higher than that of the M'A~NG

apatittha child. But it would be idle, in our MAUNG HMrN
opinion, to say that the apatittha child would exclude ~~~E~~.
the step-child.
. In this view of the case the appeal must necessarily
fail and is dismissed. Advocate's fees ten gold mohurs.

i
 "

86 BURMA LAW.REPORTS. [1950

SUPREME COURT.
ts.c. HUP FOR (ApPLICANT)
1950
Feb. 8. v.
THE DEPUTY COIvIIvIrSSIONER; INSEIN AND
TWO OTHERS (RESPONDENTS).*

Direc/iolls in tlte 11<l/llre oj certiorari and pro!libitiou-Lzecllce Jar sale oj

lic)tlOr-Ss.1S, 28 (I/ld 29{1), Burma E:rcise Acl""':"Powcrs ofCoileclor-AJltl/ogy'
,d.th EtlgllS!1 liccllswg sys(e.1Il-DiffCJ'ence bt/wec1J English LfCellsi,Jg
Acts atld Burma E.1,'CI5& Act-Whether Colleclor exercISeS qU'lsi-Judicialor
administrative power-Remedy by way of sItII-Licence/or COttsiderallMl
if Irrevocablt.
Where the Calledo. of Insein held an epqniry Undf'T lhe orders of the
Excise Commissioner acting u:nder the instnJetions of the Go\'ernment or the
Union of Burma, cancelled the licence of the applicants and accepted a third
party's offer during the currency ofthe licence and the same was chaJ]en~ed
by applicati'ms for direction in the nature of certiorari to have' the proceedi ngs
of the Colleclor quashed and direction in the nature of prohibition prohibitin~
the Commissioner from granting the licmce to tile rival
Hdrl : That the Collector in d~ciding to cancel the unexpired licenc~ unc1tr
s. 29 (1) of the Burma Excise. Act is nerfor,niDg a purE:ly administra-
tive function and therdore his proceedings could not be quashed by Ih<:: Conrt.
There is a radical difference between Licensing Acts in England and the
Burma Excise Act. In England Justices had absolute discretion to refuse to
renew prior tp.J904 when this was taken ~\Vay and th~ power to refnse reo
newal of an old licence was confined to certain cases specified in the Act. As
ji.lrisdietion ,"vas exerdsed by two ju~licf:s of Hie' peac e in' petty se!';siOllS after
hearing evidence it was held to be a judicial order and that cOl!seque'ltly
certiorari would lie. In Burma if the licence has been improperly revoked a
right to sue would exist against the Government in the absence of an indemnity
in the Act. The mere fact that the Collector is an officer of the Government
woufd not make him amenable to the jurisdiction of thp. Court.
Under s. 28 of the Burma Excise Act, the e>fI1ccr who granted the
licence could re\'oke it on certain grounds and when the ground exist 110
compensalion can be claimed. Under s. 29 where a licence is re-called for
any other reason except those provided for by S. 2M, grant of some com-
pensation and notice is provid~d. An excise licenc e gives nothi ng more than
a right e.'; cotJtraetu which is a right in.
personam and not one coupled with an
interest. Therefore no fundamental rights assured by the Constitution bad
L'een encroached upon.

Civil Misc. Application No.3 of 1950.

It
J
t Presmt : U EMAUXG, Chief Justice of the Union of Burma, MR. JUSTICE
KYAW 1\!YINT and U THAUNGSEIN,].
1950J ;i3URMA LAw' REP0RTS. &7
Sharp v. Wakefield, (1891) A.C.173 ; Rex v. Jo!tnson, (1905):2 K.B. 59; Tlte S.C.
19~O
King v. Woodhouse, (i906) 2 K.B. 501 ; Rex v. SllnderltnzaJm!iccs, (1901) 2 K.B.
,.-.-
357 at 370; U Htwc v.U TUlI Oltn, (1948) B.L.R.541; The Kilzg v. Electricity Hup FOR
-CommisSioners, (1924) 1.' K.B. 171; Hurst v. Pict1fr~ Theatres Ltd., (1915) .~.
1 K.~.l, referred to and.distinguished. THE DEPUTY
COMMIS-
SIONER,
P. K. Basu for the applicant. INSEIN AND
TWo OTHERS.

Chan TUI1 AUllg (Assistant Attorney 7 General) for the

respondents 1 and Z.

Kyaw iVIin and C. C. Khoo for the respon qents

No.3. .

The judgment of the Court was delivered by the

Chief Justice of the Union.

U E MAUNG.-Hup For is the firm name for

certain persons \V'ho acting in partn ershi p had been
granted licences for the sale of' alcoholic liq.uor
under CFL2!CS2 for Kamayut, Kanbe and Thingangyun
areas in lnsein District. The firm obtained these
licences at an Excise auction sale held by the
Collector of rnsein District on the 18th October 1949
and the term under the licences has not yet expired.
On the application of the third respondent the
Collector of rnsein District held 'an enquiry in his
Didrict Office Miscellaneous Proceedings No.2 of
1949-50 It appears from the materials' on the record
that this enquiry was initiated by the Collector under the
(orders' of the Excise Commissioner who again acted
under the) instructions from the Government of the
Union in the Ministry of. Finance and Revenue. From
the certified copies of the diary entries in the enquiry
proceedings it appears that nine witnesses were
examined and the CJllector ultimately decided under
the pfOvisi'ons of section 29 (1) of the B~rma Excise Act
to canceLthe'licences granted to theapplicarits and still
in force with effect from the 31st' January '1950 and
 "

88 BURMA LAW REPORT,5. 1:1950

s.c, accepted provisionally the third '"espondent's offer for
1950
these licences with effect from the 1st February 1950.
HU~,FOR The acceptance of the third respondent's offer was
THE DEPUTY provisional as it was necessary for the Commissioner of
COMMIS-
SIONER, Pegu Division, who..has been made the second respon-
T:;~'~~:;~" dent in the case, to confirm the issue of licences to the
third respondent.
It was at this stage that the applicants came to Jhis
Court to seek relief by way of certiorari and prohibi-
tion. They claim that they are entitled to have the
proceedings of the Collector of Insein cancelling the
licences granted to them quashed and to have the
Commissioner. of Pegu Division prohibited from
granting the licences to their rival the third respondent.
Needless to say the second prayer is bound up with.
the first, for if the decision of the Collector of Inse:n
to cancel the licences in favour of the a pplican~s
is quashed the Commissioner of Pegu Division cannot
grant the licences to the third respondent. Similarly,. , .
if the decision is upheld, the applicants can have no
further interest in the proceedings before the Commis-
~ioner of Pegu Division,
The Collector of Insein and the CommisRioner of
Pegu through the learned Assistant Attorney-General
have taken a preliminary objection to the application
and the third reSPOndent through U Kyaw Min has
supported the objection taken by the other respondents.
Shortly put, the objection is that the Collector in
deciding to cancel the unexpired licences in favour d
the applicants under section 29 (1) of the Burma Excise
Act is performing a purely administrative function and
that therefore the proceedings in which the Collector
came to the conclusion now attacked before us by the
applicants would not be within the cognizance of this.
Court in certiorari It was also further said that in any i
event section 29 (1) of the Burma Excise Ad granted
 1950] BURMA LAW REPORTS. 89
an unfettered discret:on to the Collector to revoke or s.c.
1950
not to revoke an Excise licence and that accordingly

there is no justiciable issue on which this Court can Hupv. FOR
make a pronouncement one .
way or the other THE DEPUTY
COMMIS
- Mr. Basli who appears for the applicants, has, with SlONE',
. . f INSEIN AND
hiS usual thoroughness, taken us th rough a senes 0 TWo OTHERS.
decisions of the English Courts on the position of
licensing justices in England. 'He has called our
attention to Sharp v. Wakefield (1) , Re,r; v. Johnson (2)
and The King v. Woodhouse (3). It is true, as the learned
Counsel h'ls pointed out, that while for a long time there
was in England a considerable body of opinion that
licensing justices were exercising an administrative
rather than a judicial function it has not been doubted
since the decision in The King v. Woodhouse (3) that
licensing jurisdiction under the English system of
licensing is essentially judicial dnd subject to certiorari.
But the radical differences between tbe licensing Acts in'
England which have been consolidated by the Licensing
Consolidation Act of 1910 and the Burma Excise
Act must be borne in mind in attempting to apply
English precedants in this country. In England, prior
to 1904 justices had an absolute discretion to refuse to
renew general public house licences though the usual
practice was to renew such licences in all cases except
. where actual 'misconduct on the part of the holder
was shown. But by the Licensing Act of 1904 this
absolute discretion was specifically taken away and the
power in the licensing iustices to refuse the renewal of
an old licence was co;fined to certain cases specified
in the Act. Moreover, as has been said by Lord
Alverstone C.]. in Rex v. Johnson (2) ;
".Considering that the persons by whom the jurisdiction i. to
be exercised are two justices of the peace in petty s"fssions
II) (1891). A.C. 173. (21 (1905) 2 K.B. 59.
(3111906) 2 K.B. 501.
 .,

90 BURMA; L.AW' REPQRTS. [1'950

S.C. assembled, and. that they are to: hear evidence for the purpose,
1950
I sho\11d certainly be of opinion, apart from authority, that the
Hup FoR justices in exercising this jurisdiction are sitting as a Conrt} and
v.
THE DEPUTy that the order made by them is a judicial order, and consequently
COM?nS~
that certiorari would lie."
gIONER,
INSEIN A}.'D
"TWO OTHERS. In the same judgment the learned Chief Justice quoted
a statement of Vaughan, Williams L.J. in Rex v.
Sunderland Justices (Ii :
H I can only say. speaking for myself, that; having reg:.rcl to

the general principles of the 'common Jaw, I should-"hchre been

disposed to think tInt wherever a body such as JtlstiCLS have under
the provisions ofa statute to grant or withhold a certificate. such
as a certificat~ for a licence, and it appears from the statute that
they had to exercise a judicial discretion in so doing" a certiorari
w0111dlie to bring IIp proceedings before them, in the case of
erroneous exerci~e or excess- of jurisdiction) whether they could
at 90u1d not be said to h.1ve acted as a COLl'rt in the strict sense
uf the term."

\\ e can see no parallel between the licensing justices

in E l1 gland and the Collector exercising functions
nnder tbe Burma Excise Act so as to justify our hold-
ing on the anthority of these ca~es that the Collector.
-iIi deciding to revoke or suspend an unexpired Excise'
licence is amenable to the jurisdiCtion "Of this Court by
way of certiorari or prohibition. NIr. Basu however
relies on a decision of this Court in U Hfwe v. U Tun
Dim (2) and on The King v. Electricity Commissioners
(3) in support of !lis thesis that the Collector under the
Burma Excise Act is exercising a quasi-judicial and not
.
a purely administrative function. . If we do not do'any
injustice to Mr.. Basll, his case on thisaspeet appears
to be that the Collector being an officer oUhe Govern-
n1entempowered by an Act of the legislature to decide
whether to cancel or not to cancel an existing Excise
/
0) (19011 2 K.B. 357 at 370. (21 11948) B,L.R. 54!.
131 (1924) 1 K.B.171.
 19:5QJ BU.RMALAW .R~:P.CD'RTS. 91'

licence must, within t~e meaning of U Htwls case, act s.c.

1950
.according to law and that therefore . he would be
qercising quasi-judicial powers. It appears to us HUP/OR
that the learned Counsel has overlooked one essential THeEOMMIS-
DEPUTY

concomitant for a Judicial or quagi-judicial proceeding. "lONER.

It is this: a judicial. or quasi-judicial tribunal has to T:~~~;H~~.
adjudicate; and adjudicate finally, no doubt subject in
proper cases to an appeal or other supervisio~ by higher
jUdicial bqdies, upon the rights of parties before .it.
By a wrong decision so long as it is made in good faith,
that. authority would not be liable in any action
at the instance of the party suffering damages. .
Every person before acting hr.s in a sense to decide
for himself whether the action which he intends taking
is witllin the law or not but that would not necessarily
make him a judge or a quasi-judicial tribunal. Only
'when the deCision would have a binding force on a
third party, so that the decision cannot be challenged
'except by way of an appeal, revision or other modes of
supervision by a higher judicial tribunal in proper
cases, can that person or th8t authority be properly
described as' a judicial or quasi-judicial authority.
.In the present case if the licences have been impro-
perly revoked a right of. suit would clearly have existed
against the Government of the U !lion of the Collector
in the absence of any indemnity provision in the Act
itself. 'The fact that the Act has a. specific indemnity
,provision for actions in good fai~h. by officers in
discharge of their duties under the Burma Excise Act
is also a point against SUGh officer~ being deemed to,
be acting in a judicial or quasi-judieial capacity.
We can see no diff.erence in principle between a
p.erson wh('!"has.gran~ed a licence revoking the licence'
and the. Colle.ctor revoking ali Excise licence. If:
the licence was one which cannot be lawfully:revoked
the prbpe~"r'einedy is by. wayo.f a suit for damages.

"

92 BURMA LAW REPORTS. [1950

s.C. Mr. Basu frankly conceded that i; the person revoking
1950
the licel)ce had not been an officer of the Government
Hup FOR f .
. 0 the Union no certIOrari would lie tothis Court. But
TH;O~~;S~TY we see no reason why the mere fact that the CoIlector
SIONER, is an officer of the Government of the UniOl! slrould
INSEIN . A N D . . . . . ..
TWO OTHERS. make hIm amenable to the ]uflsdlctlOl1 OUhlS Court.

The terms of section 29 (1) of the Burma Excise Act

also seem to US to be conclusive against the applicants;
for, if we compare the provisions of section 28
with the provisions of section 29 we get the position
very clearly as follows: section 28 makes it lawful for
the officer who has granted the Excise licence to revoke
the licence on ceortain grounds and when these grounds
for cancellation exist no compensation or remission is
due to the licensee who has his licence recalled;
section 29 allows the authority who has granted the
Excise licence to recall the licence in' all cases not
provided for by section 28 but, since the licence is to
. ( .
be revoked or recalled without any fault on the part of
the licensee, this section provides for notice and
remission of licence fees.
It has been contended also before us by the learned
Counsel for the applicants that the licence being one
which had been granted for a consideration is not
revokable. We are aware that there is a conflict of
judicial opinion in England on this point, but even the
case of Hurst v. Picture Theatres Ltd. (1) cannot be
read as clear authority for the view that the licensee for
consideration thereby obtains an " interest." Section
18 of the Burma Excise Act seems to us to be sufficient
authority for the view that an Excise license gives
nothing more than a right ex-contractu which is a right
in personam. There is no room u~der the Excise Act
for a licence coupled with an interest. It 'is therefore
very difficult for the applicants successfully to clai m i

(1) (1915) I K.B. I.

1950] BURMA LAW REPORTS. 93

-that any fundamental rights assured to them by the s.c.

1950
Constitution have b-.:en encroached upon by the
'Collector when he decided to revoke the licences in Hup FOR
V.
their favour. THE DEPUTY
C01::MIS-
It follows therefore that the application is not SIONER,
~aintainable in this Co.urt and -is rejected. The INSEIN AND
TWO OTHERS.
.applicants will pay the costs of the respondents.
Advocates' fees ten gold mohurs. .
, The order of stay is discharged..
 "
94 BURMA LAW REPORTS. tl950

SUPREME COURT.

ts.c. CASSIM AHMED SOORMA AND HAWA BIB!

1950.

Feh.15. (ApPLICANTS)
V. '.

THE CONTIWLLER OF RENTS, RANGOON

(RESPONDENT). *
Urba1l Rent COIJtrol Ad, S. 194. II) Decision of ,Board 'i/)iUW!lt l/oticl:
ojlandlord-41Iotti/lg rOOI1J~ /0 sfrollgers-S. 16AA" (I)-Call for frrsh
intimatioll Il1ldcr-JutisdictiOtl afltr lime limit to make allotment
\Vhere a landlord scnt an intimation under s. 16AA (1) of the Urhan
H~nt
Control Act that the building would be ready at a particular time but th~
Rent Controller asked the landlord to submit a fresh intimation after comple-
tion certificate from the Corporation of Rangoon, but nevertheless the Rl:nt
Controller without notice to the landlord arrived at a decision to allot certain
rooms to strangers
Held; That there is no provi\;.ion in the Urban Rent Control Act entitlinl!:
the Controller of Rents to ignore the first intimation by the landlord and ,all
for a fresh intimation. It is incumbent upon the Rent Controller to make the
allotment under s. 16AA (4) (a) within t. n clays from the receipt of the
intimation from the landlord Th~ purpose of this enactment is th:'lt the
landlord c;:).nnol be left waiting iridefinitely with vacant rooms awaiting a
decision from the Controller and his Board. After ihe statutory perioo of
ten days after the receint of the intimation has expired the Controller of
Rents has no jurisdiction to make an aIJotmei1t under s. 16:\:\ of tile
Urban Hent Control Act.

Kyaw Din. for the appFcants.

Ba Sein (Government Advocate) for the
respondent.
The judgment of the Court was delivered by the
Chief Justice of the Union.
U 'E MAUNG.- This is an application to quash the
pwceedings of the Controller of Rents, City of Rangoon,
in Proceedings 5AA and 7AA of 1949-50, in so far as
'" Civil Misc. Application No. 88 of 1949.
t Prescnt. U E
MAUNG, Chief Justice of the Union of Burma. MR. JUSTICE
I
KYAW MYINT and U. THAUNG SEIN, J

.'
 19$0] BURMA LAW REPORTS.

they relate to rooms 4 and 6 in the three-storey pucca s.c'.

[950.
building known as 78/80, 43rd Street, Rangoon .
. There. are in that buildin
'-'
four rooms vacant and CAS""
AHMED
the Controller of Rents has permitted the applicants, SOOR"., ANI>
HAWA
who are the landlords thereof, to let roons 3 and 5 to BIB!

tenants of their choice. But against the suggestions i~E

made by the landlords the Controller .
of Rents decided CONTROLLEI<
OF RENTS!'
to.let room 4 to one Maung. Kin Maung On and room RANGOON.
. "'
, 6 to one L. F. Beck. The Controller of Rents acted
with the Advisory Board the other two' -members of
which were Thakin Pan Myaing and Mr. Modan. It
appears from the note made by the Controller of Rents
that the decision in so far as rooms 4 and 6 are
concerned was a majority decision of the Controller and
Thakin Pan Myaing. Before us U Kyaw Din, who
appears for the applicants, filed two affidavits alleging
that the allottee of room 4 is a brother of Thakin Pan
M,yaing. Thakin Pan Myaing has, however, filed an
affidavit denyil~g that he is related to Maung Kin
Maltng On. It is not necessary therefore to consider
this aspect of the case any [uriher. .
U Kyaw Din then drew our attention. to section
19A (1) of the Urban Rent ContrQI Act and. claims
that as the mandatory provisions of this. section have
not been complied with the Controller of Rents and his
Board acted irregularly in the exercise' of their jurisdic-
tion. From the Rent Controller's proceedings it is
clear that.no notice was given to the landlord prior to
the decision being arrived at by the Rent Control1er
and his Board. If the case had rested there it would
be our duty to quash the proce'edings and call upon
the Controlleo 0f Rents to hold a rebular enquiry after
.issue of nCltice to the applicants.
But the intimation sent under section 16AA (1) of
the Urban Rent Control Act is dated the 11th October
1949. In that intimation it was said that the building

t,
 "
96 BURMA LAW REPORTS. [1950

S.C.
would be ready by the first week of November. The
1950. Rent Controller directed the inti:nation to be put up at
CASSIM
the following meeting of the Advisory Board.- O'n
AHMED
'SeOR),fA AND
the 1st November 1949 he passed the following'order : ,I -",'
HAWA
BIBI " The intimation. sent is too premature. Ask Mr. Soorma
THE
to submit a fresh 'intimation with a- completion certificate from
CONTROLLnR the Rangoon Corporation."
OF RENTS,
RANGooN.
In compliance with this order the applicants on the
21st November 1949 submitted a fresh intimation
attaching to it a certificate from the Building Engineer,
Corporation of Rangoon. On the 26th November
1949 the Board met and, as we have said before, by a
majority decision the rooms. were allotted.
We find 110 provision- in the Urban Rent Control
Act which would entitle the Controller of Rents
to ignore the earlier intimation and call upon - the.
applicants, as he did in this case, to submit a fre~h
intimation. The proviso to section 16AA (4) (el makes
it incumbent upon him to make an allotment under
section l6AA (4) (a) within ten days of the receipt of
the intimation from the landlord. The purpose of
this proviso is clear : the landlord cannot be left waiting
indefinitely with vacant rooms on his hands for a
decision- from the Controller of" Re-nts and his Board.
Section 16AA (2) (e) sets the extreme limit of time
within which the intimation by the landlord is to be
given to the Controller of Rents. It does not prevent
the landlord from giving an intimation at an earlier
date.
It is clear that the Controller of Rents and his
Board, once the st<:tutory period of ten days after the
receipt of intimation has expired, has no jurisdiction to
make an allotment under section 16AA of the Urban
Rent Control Act. The allotment in this case was
made one month and fifteen days after the first-and in {
 ~
1950J BURMA LAW REPORTS. 97
our opinion, effective-intimation was given by the sc.
1.0950
landlords. It follows therefore that the Controller of
. . ;~
Rents and his Board when they purported to allot the CASSIM
AHMED
rooms in the premises on the 26th November 1949 SOORMA A~D
HAWA
acted without jurisdiction. BIB!
v.
We accordingly quash the Proceedings 5AA and THE
CI)~TIWl.LFR
7AA of 1<)49-50 'of the Controller of Rents. There OF HENTS,
c will be no order as to costs. RAXGOON.

7
 "

BURMA LAW REPORTS. [1950

SUPREME COURT.
ts.c. A.K.R.M.M.K. CHIDAMBARAM CHETTYAR .
1950 I
.~

(ApPELLANT)
Mar.l.
7',

KHOO HWA LAM (RESPONDENT).*

S1lit agaimt a (irm-Orda30. RI/le 1, Code of Cit'II Procedure-Houl to be
!rMllcd-lVJze/luT initials oj firm prt'ji,wd to agent's 1lame Indicates a
finn in a Ploill/-Co7ltrad for salev! immoveable. pFoperty~Til1lt- ~iJltCIl Of
esse/lce-COllstmctil'/I-SS. S5 and 74 of tJ'e COil tract Ad-Reliefs, for
forfeiture if aPPlicsta deposil_Agmf of lIecessify-S.lR9, COlltract Act.
\Vhere in a suit directed ag'linst the chettyar finn of A.K.R?l1.)'1.K. the
rlefendant was described in the plaint as \.K.RM.M.K. Chidambaram ChettY3r
it was contended that the finr. had not beelt properly impleaded.
H e/d: That under Order 30, Rule 1 of the Code of Civil Procedure, any two
or more persons cL.iming or being: liable as partners may sue or be sued in
the nam~ of th(~ firm. The name of the firm was A.I{,R.M.M.K. firm and
as the firm 11a3 not been made a party the suit was net correctly framed
and the customary 118a.;:e of the Cheltyars referred to in ]3 Ran. 87 is
not rc.lev;lnt for thi::! purpose. Provhjions of Ordl::f 30 of the Code of Civil
Procedure cannot be over-ridden by this usage.
The omission is not merely a technical mistake becanse the amendment if
allowed would necessitate the :lddition or :mbsHtlltion of new parties who
could chlhn the benefit of the Limitation Act.
K.S.l1.V. Cht/lym- Firm v. Ma/rmoo, 13 Han. 87 ; Krj~'ma Prnsad Si:lglt
v;--,i\l (I, A }'t'. 14 Ran. 3H3. referred to rtnd distinguished.
Held a/So; The principle applied by the Courts of Equity in. England
introducing the presumption in cases of sales of l<'.nd between "endors and
Purchaser~, that time is not of the es~ence of the contract is only a presumption
which will ~ive way to proof of~ cuntrary intention by express words or by
the nature of the trailS3.ction.
As in the prescnt casc in the writlen contract there arc penal clauses
bind~ng on both the parties forfeiting: the deposit in the case of non-completion
within a fixed date and providin'g for refund of the deposit and a further
compemation in case of bre~ch by the Vendor it is clear that a contrary
intention ;lppears in its wordings within s. 55 of the Contr:let Act. The
language plainty exclude<; the notion th.lt time limits were of mere secondary
imporlance.
Jams/teli KhodiJr.11Il 1/ Umjorji DhJJ1;;h!tai, 40 130m. 2;:;;9 at 293, applied.
Held a/so: That the alleged extension of time by the Vendor's
representathe ,'as ineffectual as on the alleged date of extension the time

Civil Appeal No. 14 of 1948.

t Pre.wlt : U E i\fAUNG, Chief Justice of the Union of Burma, 111\, JUSTIC,E
i
THIHN ),.lA-UNG and U THAUNG SKIN, J.
 v i1f'-,
y
19501 BURMA LAW REPORTS. 99
limit had already expired. TIle agent cannot be held to be an agent of S,C.
necessity within the meaning of s. 189 of the Contract Act empowered to 1950
act during the war time as this is a mixed question of law and facts and nO
A,K.RM.lI1.
. ::t.vermenls had been made in tile pleadings nM in the evidence led, upon which K. CHIDA~f~
c._',
to base such a conteution. . BARAM
The purchaser could not also get relief under s. 74 of the Contract CHETTYAR
V.
Act as this section haS no application fur the purpose" of scaling down the KHOO HWA
amount of compensation agreed upon. LAM.
Bllrjorjee ShapllrJi v. MlldlJav/n[ hSiugbltai, 58 Bom. 61 0 at 618, referred to,

K. R. Venkatram for the appellant.

T. Wan Hock for the respondent.
The judgment of the Court was delivered by the
Chief Justil:e of the Union.
U E MAUNG.-The facts necessary for the deter-
mination of this appeal lie within a very narrow
c(lmpass. On the 4th December 1941 the respondent
entered into an agreement with A.K.I<.M.M.K. Chettyar
Firm acting through its partner A.K.R.M.M.K. Chidam-
baram Chettyar (the appellant in this case) for the
purchase of a house and site in Rangoon 'and executed
the document Exhibit A before us. In paragraph 5 of
this document appears the following provision:
:1 If the Purchaser shqll fail to 'purchase the said property
within the time mentioned herein the earnest money paid to the
Vendor by the Purchaser shaH be forfeited. 1I

Paragraph 6 reads:
II If the Vendor shall fail to selllhe property to the Purchaser

within the time mentioned herein or .should he sell the same to a

third party or fail to give a good, clear and complete title then the
Vendor shaH return t1:e sum of Rs. 5,000' (RupLes five
thollsai1d) herein paid by the Purchaser to the Vendor as 'earnest
money together with a fur~her sum of Rs. 5,000 as compensation
damages making in ali Rs. 10,000."

The time stipulated within which the sale was to be

completec1 WilS 00 or before the lOth January 1942.
 "

100 BURMA LAW REPORTS. [1950

S.C. The respondent's case is that some time before the

1950
10th January 1942 he sent the broker who negotiated
A.K.R.M.M. the contract between A.K.R.M.M.K. Chidambaram
K. CHIDA;\{-
BARAM Chettyar and himself to see the agent ofthe firm, who
CHETTYAR
P. was then in Rangoon, and to obtain an extension of
KoiOO HWA
LAM. time for the completion of the agreement and that
Radha Krishna Pillai, a witness examined on
commission i!1 the City Civil Court of 'Rangoon, was
the then agent. According to the broker he saw the
agent sometime before the 10th january 194~ but it
was not till the 12th January 19+2 that he could
take to the agent a letter, which Las been strongly
relied upon in this case by the respondent, seeking
extension of time sine die. On this letter, Exhibit
B, appears an endorsement in Tamil characters over
the date" 12-1-42" and it is admitted that they
represent the signature of Radha Krishna Pillai.
Later and during the occupation of Burma by the
Japanese Army, the building was burnt in a bombing
raid. vVhen, after the war, the .responden t who went
away to China early in February 1942 came back to
Rangoon, he was not prepared to pay 1~s.40,000 agreed
upon for ... tI1e -'site . aiolle. Accordingly some
correspondence passed between the parties and their
advocates before the suit was finally filed by the
respondent for the return of the earnest money of
Rs. 5,000 which A.K.R.M.M.K. Firm claimed to forfeit
in pursuance of the agreement Exhibit A.
When the suit was filed the plaint was drawn
up as if A.K.R.M.M.K. Chidambaram Chettyar was
made the dcfendani. The written statement filed by
A.K.R.M.M.K. Chidambaram Chettyar through his
agent Chintamani Chettyar drew attention to this
defect. In paragraph 1 it was said:
"The plaint is not correctly framed. The properly, tIle 1

subject matter of the suit, belongs lo the firm of A.K.R.M.M.K.

 v~
1950J BURMA LAW REPORTS. 101
of which A.K.R.M.M.K. Chidambaram Chettyar is only one of s.c.
the partners. The plaintiff onl(ht to have sued the firm of 1950
AK.Ri'lI.M.]{."and not A.K.R.M.M.K. Chidambarm Chettyar." A.K.RM.~1.
K. CIIIDAM-
BARA~r
The reply to this filed on behalf of the respondent CHRTTYAR
v.
reads: KHOO HWA
LAM.
"The plaintiff denies that the plaint is not correctly framed
inasmuch as the initials of the firm combined with the name of
the agent, for that matter the partner I represents the llrm which
is the custom and usage amongst the Chettyars and he has no
knowledge 6 the other allegltions contained in paragraph 1 of
the written statement of the defendants"

The matter does not end there. When issues were

framed on the 29th August 1947 Mr. Vlan Hock, who
appeared then for the respondent and appears now
before us, said that" the suit is against the firm known
as A.K.R.M.M.K. and not against Chidambaram
p~rsonally." We find also on the record a note made
by the learned Judge of the City Civil Court on the
16th March 1948 in the foilowing terms:
",11'. Venkatram on behalf of the defend3nt !":'!!sed the
11 1

point HHt the f!uit as framed was not maintainable as it (laes not
purport to sue the defendant firm but a p:lrticular member- of
the firm only. \Vhen the suit was originally heard on the
29th August 1947 by my predecessor immediately after tIle issues
were framed there is a note to this effect: 1\'1r. \Van Hock says that
the suit is aga,nst the firm kno\\'n as A.K. R.M.M.K. and not
against Chic1ambaram personally. Oil that date 1'\'lr. Ba~m was
appearing for the defendant and nothing seeins to have been done
fllrther after that note. In view of this fact I am of the opinion
that this point had already been decided by my predecessor and
no further issue need be framed on this point."

It is therefore dear that from the very beginning

till the 16th March 1948 the plea that the' proper
parties \yere not before the Court had been raised.
The trial Court framed three issues and came to
the ccinclnsion firstly, that though there were in the
 "

iOz BURMA LAW REPORTS. [i950

S.C. agreement (Exhibit A) the provisions in paragraphs 5
1950
and 6, time was not in fact the essence of the
A.K.R.M.M.
IL CHIDAM- contract; and, secondly, that even if time had been
13:\J~AM
CHE'fl'YAR
the essence of the contract an extension had been
". granted on behalf of the Chettyar firm by its agent
Kuoo EWA
LAU. RadIn Krishna Pillai Accordingly the trial Court
granted a decree for Rs, 5,000 against the firm though
it was drawn up against A.K.R.M.M.K.- Chidambaram
Chettyar. .
An appeal was preferred to the High Court and a
Bench of that Court upheld the decree of the City Civil
Court. Dealing with the plea that the suit had been
instituted against wrong parties, the Hon'ble Judges
of the HIgh Court took the view that that was at best
merely a technical plea and, relying on the decisions of
the High Court of Judicature at Rangoon in K.S.A. V.
Chet~var Firm v': Mahmoo (1) and Krislma Prasad
.<Singh v. ilIa Aye (2) rejected it. vVith great respect,
it seems to us that the Hon'ble Jl1dges have
misconceived the true effect of these two decisions.
They have no relevance, in our opinion, to the
circumstances of 'the present case. What was held
in tile fitst. case was that by a seWed usage of
. Chettyars iri India and Burma' the agent contracting
on behalf of the firm prefixes the vilasam of the
finn to his signature. It does not follow from this
that the agent is ihe proper party to be sued by the
plaintiff. The prlvisions of Order XXX of the Civil
Procedure Code cannot be overridden by this so-called
usage. Again, Krislll1a Prasad Singh's case (2) dealt .
with circumstancec which do not arise in this case.
There the amendment a!lowed would not be under
Order J, Rule 10 of the Civil Procedure Code and
section 22 of the Limitation Act would not apply. The
amendment if allowed would be infrLlctuous in the
(1) 1311,n, 87. (2) 11 &,n. 383.
 ,/~
1950J BURMA 'LAW REPORTS. 10~

present case hecause the amendment necessary would s.c.

1950
be the addition or substitl,ltion of parties ann the new
A.K.R.M.M.
parties added or substituted would be entitled to claim K. CHlDAM-
the benefit of tile Limitation Act. It must be remem- llAI~.-\M
CHlnTYAlt
bered that the suit was filed on the last day allowed for v.
KUDO HWA
the institution of suits. LAM.
Before us it has been strenuously contended on
o behalf of the respondent that even if there had been a
technical irregularity, the snit was clearly one against
the firm. We regret that we have not been able to see
eye to eye with the learned Counsel for the respondent
in this matter. Order XXX, Rule 1 of the Cil'il
Procedure Code is quite clear. It reads:
"II Any t.wo Or more persons claimiilg or being liable as
partners . . may suc' or be sued in the name of the
Jirm tif :my} of which such persons. were pilrlners at the time of
the accruing of the C:111Se of action, and any p'arty to a suit may in
sneh case apply to the Court, for a statement of the names and
acldresse~ of the persons who were. af the time of the ,lccruing
,'. of the C:lt1;:,C of acdon, partners of such firm. to be furnished and
verified in such lllanner as the Conrt may direct. "

It is admItted that the nall1e of the firm in this case is

A.K.R.M.M.K. Firm. On that ground alone it would
seem to us that the suit should fail.
But on the merits, also we cann0t see how the
respondent can succeed. Reliance has been placed Of!
the proposition that in respect of sales of immoveable
property time is not normally the essence of tlie
, contract. The learned authors of Pollock and Mulla's
Contract Act \7th Edition) have at page 301 the
following:
H In England accidental deLlys in the complction~of contracts
fOJ' the sale of land wilhih the time named are frequent by re;lson
of unexpected dif-ficlllties in ve.dfyin~ the seller's title under the
very peculiar system of English real property law. Sharp
practi..;e wOI.11d be undu~y favoured by strict enforcement of
 "

104 BURMA LAW REPORTS. [1950

S.C. clauses limiting the time of completion, and accordingly Courts

1950
of Equity have introduced a presumption, chiefly, if not whollYl
A.K.il M M. applied in' ('uses between vendJ~s and purcha~ers of land, tha(
l{. CiiwAM-
MAlUM
time is not of the. ess~nce of the contr:lct~ Blt~ this presumption
CHETTYAR will give way to proof of a contrary intention by express words or
V. .
KHoo HWA
by the nature. of the transaction."
L~HI.

In the pre~ent case the principle that sharp practice

would be unduly favoured by strict enforcement of
clauses limiting the time of completion of the contract
would be thoroughly inappropriate. There are penal
clauses binding on Qotl1'parlie~. If th e pu rc haser failed
to co'mplete the pUl'chase b"efore the lOth January 1942
the vendor was to forfeit the deposit of Rs. 5,000 in his
hand. On the other hand, if it was the vendor who had
been delaying the completion of the transaction he had
entered into he would be liable not only to refund the
deposit of Rs. 5,000 but also to pay a compensation bf
another SlIm of Rs. 5,000. The very fact that there are
reciprocal agreements to compensate each other would
make it clear, within the ambit of section 55 of the
Contract Act, that the intention of the parties was that
time should be the essence of the contract.
. 'the "evidence on the reco~d als~' supports this
conclusion. The respondent's son, as agent and attorney
of the respondent in this case, has stated; II The contract
should have been completed by 10th January 1942."
Sai Choo Twan, witness No. 2 for th~ respondent, has
said: II the plaintiff was afraid that if
there was no extension of time the earnest money
would be forfeited." These statements, added to the
fact that the respondent did get his Counsel to write
to . A.K.R.M.M K, Chidambaram Chettyar on the
12th January 1942 asking for e'l:tension of time, are
cogent grounds in favour of the claim that time was
understood between the parties to be of the essence of .
.'
\

the contract.
 lii'" ~i
1950] BURMA LAW REPORTS. 105
The learned Judg~s of the High Court relied on the s.c.
1950
decision in Jail/shed KlJodara11l v. Burfolji Dhunjibhai
A.K.R.l\J.M.
(1) in coming to the conclusion that time was not of K. CHID,\M_
the essence of the contract in this case. But the BAR.ur
CHETTYAH
ob~ervation of Viscount Haldane, quoted by the learned v.
KHOO HWA
Judges is, in our. opinion, authority for the opposite LAM.
view. It reads:

H The special jurisdiction of equity to disregard the leUer of

the contract in ~scertaining what the parties to the contract are to

be taken as having really and in substance intended as regards
the time 0: its performance may he excluded by any plainjy
expressed stipulation. But to have this effect the language of
th~ stipulation must show that the intention was to make the
rights of the parties depend on the observance of the time limits
prescribed in a fashion which is llnmistak3.ble. The language
win have this effed if it plainly excludes the notion tInt these
time limits were of merely secondary importance in the bargaint
a"nel that to disregard them would be to clisreganl nothing that
lay at its foundation.!!

Apply this test to the provisions of the contract

(Exhibit A) in this case and we are clearly of the
opinion that there was plainly expressed stipulation
.. that time was. of the essence.
That takes us to the further question whether there
had been any valid extension of time granted by or on
behalf of the Cheltyar Firm with whom (he respondent
had contracted. Radha Kri,hna Pillai was examined
on commission and he stated that he was approached
by the broker who negotiated the sale for a month's
extension and that in view of the circumstance that the
respondent was not ready with the purchase price at
that particular juncture he agreed to grant one month's
time. The respondent's case, however, was that time
was extended sine die. The trial Judge iG his judgment
was not quite definite whether he accepted the
II) 40 BOL". 289 at 298.
 "

106 BURMA LAW REPORTS. [1950

S.C. respondent's version or the vef'3ion given by Radha
1950
Krishna "but from the trend of the judgment it would
A.K.H:.AI.l\I.
K. CHlDAM- appear that he \Vas in favour of Radha Krishna's
BARAM
CUE1TYAH
version. The relevant portion reads:
V.
Kuoo HWA II It was admitted that the onlv responsible person left in
LA~f.
charge of the defendant's business was this Hac1ha Krishna who
endorsed the letter Exhibit B, and lherefore laking Radha
Krishn"l's evidence as correct there does appear to be some
justification that the sale which was originally agreed between
the parties to be completed on the 10th January 1942 was
cxtetlded further at lea~t for a month if Raclha Krishna's evitlence
is to be accepted. As he was the only person left in c:large of the
business whatever may have been, the extent of (his ftuthority,
it mLlst be held that uneler the circumstances enumerated above,
the w:tr having broken out and the principal having left Burma
hurriedly, Ulis extension On the part of the representative of the
c1efenc1;1nt must be helel to be a proper extension given by the
c1ef~ncllnt.'1

There are tll'O things to be said about this. Though at

the trial and before us it was claimed that negotiations "1

with Radha Krishna for the extension of time were

initiated before the 10th January 1942, Exhibit C written
by Mr. Daniel, Advocate for the ~espondent, to the
appeUant says:
II A request [Ol~ extension o( the period of the verformance
sill~ die W,15 al50 gi"a.nted by you on the 12th Jannary 1942."

l~adha Krishna puts the interview between himself

"nd respondent's broker on the 12th January 1942.
Accordingly, if we are to accept Raclha Krishna's
evidence, when he agreed to the extension the time had
already expired for the purposes of the contract.
Further, though the learni:dJrial Judge appears to have
accepted what the learned Couns~l for the respondent
before us has stret;luously pressed, namely, that Radha
Krishna in the circumstances must be treated as an /
agent of necessity within the meaning of sedion 189 of
 ",'~f
1950J BURMA LAW REPORTS. 107
the Contract Act, it is clear that the necessary founda- s.C.
1950
tion for such a claim had not been laid either in the
A.K.R.l\I.M.
pleadings or in the issues or in the evidence before the K. CHIDAM-
trial Court. Whether an agent cail be said to be an BARAM
CHJ-.TTYAI{
agent of necessity coming within the meaning of section V.
{{uoo II\VA
189 isa mixed question of law and fact. No averments LAM.

are made in the pleadings and no evidence led from

which it woulrl be possible for the learned Counsel to
base his contention that Radha Krishna if he did not
have authority otherwise to bind the Chettyar Firm
could still act on its behalf as an agent of necessity.
Moreover, it is clear from section 189 of the Contract
Act that for an act by an agent of necessity to bind the
principal it must have been performed for the purpose
of protecting the principal from loss. There have been
no averments on this point, no issues (ramed, and we
are merely asked to surmise at this stage of the
proce~dings tha~. what Radha Krishna did on the
12th January \942 coul f possibly be for the good of his
principal.
\iV~ therefore come to the conclusion that time was
of the essence of the contract, that time had nqt been
validly extended by the firm and that section 74 of the
Contract Act would be the only refuge for the respon-
dent if circumstances had justified it. Section 74 would
enable him to claim before us that there should be a
relief to a certain extent from possible forfeiture of the
whole amuunt of Hs. 5,000. Bnt what arc the
circumstances here? There was a contract for the sale
of the property in question for Rs. 40,000. The
resprmdent had failed to complete it. The vendors
would have at the time found it very difficult, if not
impossible, to get allother purchaser. The principle
which was laid down in Burjol}i Shapllrii v. Madhnvlal
Jesil1gblzai (1) appears to us to be relevant. It was
(tl 58 110m. 610 at 618.
 "

108 BURMA LAW REPoRTS. [1950

s.c. there said that if the contract is for payment of the
1950
larger sum with a concession enabling a smaller sum lo
A.K.R.M.l\L
K. CHIDAM- be paid in a particular way in fnIl satisfaction, then
DARAM
CUE'f'fYAR
section 74 of the Contract Act would not apply for the
v. purpose of scaling down .the amount of compensation
Knoo Hw,\
LAM. agreed upon.
In the result the appeal is ailowecl with costs
throughout.
 v'dy-
1950J BURMA LAW REPORTS. 109

SUPREME COURT.

SAW CHp IN POON AND ONE (ApPLICANTS) ts.c.

1950
- lI. .Mar.6.
ASSISTANT CONTROLLER OF RENTS,
RANGOON AND EiGHT OTHEHS (RESPONDENTS)."

Mouthly Leases Ter11liuatio,: Act, 1946, s. 4 - MOl/thl)' leases ~blteJl termilltlte-

Urhat! Relit Control Ad. $.12 -ClIII Ji!iOl1S 10 be Slltlsficd-~Pdssillg of lhe
Decree of lite Gour/.
Held: Where a "monthly tenant left J~angoon after December 1941 and
there was nobody looking after or was in posse:ision of the premises fro~
June 1943. S. 4 of the Monthly L~ases Termination Act applies and a
tenant loses his right under the Act.
In spite of the fact that a dt:cree ha$ been passed against a person in
posse!;sion of a hou::;e on the ground that he is a trespasser he has still the
right to make an application under s. 12 of the U rba!1 Rent Control Act to
the H.ent Controller. Requirements of s. 12 to justify the Controller of
R(~nts arc-

H) person makil1~ the application must not be a tenant of the premises;

{2} th:lt he lUust be in occupation of the premises bona fide for
residential or bllsines:> purpose;
\3) that he must have made a written application of his willingness to
pay the 5t~ndard rent of such premises.
On v.'ritten declaration bdng made by the occupant of his willingness to
pay the standard rent the Controller of Rents is entitled to grant him a permit
to occupy the premise;;.

Ba Ttl for the applicants.

Ba Sein (Govern ment Advocate) for the respondent
No. 1.
[(yaw Myinl for the 2nd, 3rd and 4th respondents.

The judgment of the Court was delivered by

the Chief Justise of the Union.
U E MAUNG.--This is an application for directions
in the nature or c~rtiorari in respect of an order
of the Assistant Controller of Rents, Rangoon, in
\ * Civill\Hsc. Application No. 82 oi 1949.
t Present. U E 11AUNG, Chief Justice of the Union of Burma, MR. JUSTICE
'rHEIN l\JAUNG and U THAUNG SEU". ;. .
 "

110 BURMA LAW REPORTS. [1950

s.c. Proceedings No. 653W of 1948-49, of the 1st August
1950
1949. This order was sought to be reviewed before
SAW CHAIN
POON AND the same officer but by his subsequent order of )
ONE
V.
the 24th Octpber 1949 it was confirmed,
ASSISTANT
CON'fROLI.ER
The state'ment of facts made in the application
OF I~F.NTS. before' liS shortly would amount to this: that the
HANGOON
AXD l~IGHT applicants claim to have been in occnpation of the
OTHEI~S.
premises in question as tenants of the owners for
many years prior to December 1941 and that when
war broke out with Japan they went to Upper Burma
leaving in the premises, furniture and fittings to the
value of Rs.I0,OOO and certain other goods. Later they
requested a nephew and that nephew's father-in law to
look after the premises and, according to the applicants,
they did so until June 1943 when they discontinued
looking after the' premises and respondents 2, 3 and 4
>"
came into occupation, paying rent since then to tlle
owners of the premises.
'_. t
If the matter had stopped there it would seem that
the applicants would have no right whatsoever to make
the present application before us. The Monthly
Leases {Tenllination) Act, 1946, would appear to apply
to,deprive them of any title in the premises. Section4
oftlieXct is quite clear on thepoin!.' 'If reads:
(t Notwithstanding anything contained in any law for the
time being in for~e) if a le3see ceases to occupy or be in
possession of an immovclbJe properly by reason of the occupation
by the enemy of the place where the immoveable property ,,.-hich
is the subject of a lease is situate. the lease of such immoveable
properly shall be deemed to have been determined with effect
from the end of the month in wh'ich the Ies~ee so ceased to
occupy or be in possession of the property."

On the allegations in t he application itself it is clear

that after June 1943 there was no one acting on behalf
of the applicants in occupation or in possession of the J
prem ises.
 1950J BURMA LAW REPORTS. 111
But the matter is complicated by the fact that a S.c.
1950
suit was filed in the High Court by the applicants
against respondents 2 to 9 for possession of the SAW CHAiN
POON A7':.'D
premises on the basis that they are still the tenants ONE
v
. thereof from the owners. The defence provided by ASSISTANT
the Monthly Leases (Termination) Act: 1946, was CONTRoLLEROF RENTS,
apparently taken and the Appellate Side of the High R\NGOO~ .-\~D
EIGHT
Court has held that the applicants have still it right, OTHEHS .
subsisting to the date of the decree, as lessees from the
owners and that respondents 2" 3 and 4 are trespassers
against Hte applicants. That decision is binding on
the parties and we must proceed in dealing with this
application on the basis that that is the true state of
affairs.
. The Assis.tant Controller of nents acted on the
basis of the position as defined by the High Court and
proceeded to apply sectioa 12 of the Urban Rent
Control Act. The learned counsel fl'r the applicants
strenuously argued before us that section 12 (I) of the
Act cannot apply to the facts of the present case.
\Ve have listened to him very carefully but we have
not been able to agree with him. The requirements
of section 12 to justify action by the ControHer of
Rents would seem to be: (1) that the person making
the application must not be a tenant of the premises,
(2) that he must be in occupation of these premises
bona fide for residen tial or business purposes, and (3)
that he must make a written af'plication of his
willingness to pay the standard rent of such premises.
The decision of the High Court that the respondents
2 to 4 are trespassers is binding not only on these
respondents but also on the applicants. Tbese
respondents have been in occupation since June 1943
and there is no suggestion that they did not enter these
premises for their residential or business purposes or.
that they did not use the same for such purposes.
 ..
112 BURMA LAW REPORTS. [1950
S.C. As the Assistant Controller of Rents has stated in his
1950
order, a written declaration of their willingness to pay
SAW CHAIN
POONA}(U
the standard" rent has been made before him. That
/
O:\:E seems to be the end of the matter.

ASSISTANT In these circumstances we hold that the order of
CONTROLLER
OF RENTS, the Assistant Controller of Rents cannot be said to be
RANGOON
,\ND EIGHT
incorrect. It was within his jurisdiction to make the
OTHERS. order he did and accordingly the application before us
fails. Respondents 2, 3 and 4 will receive costs.
Advocate's fees five gold mohurs.

 1950] BURMA LAW REPORTS. U3

SUPREME COURT.

U BA THAN AND SIX OTHERS (ApPELLANTS) ts.C.

1950
v. Mar. 8.
MA AMA (RESPONDENT).'"

Keittima Adoption Act,_ 1939, s. 5-Regtstrafi"m-If llece~'Sary beJore

. instItution-Regis/rat tOIl Act, s. 32 (al, 32 !b) /!Jut 2 (10) rcprcsc1ftative-
Registratiolt.ollt o/timt-Dc'cul1le1It rttlJYJ,ed for waul of troper stamp
to advocate-Effect of advocat~ prese1zttllg-Admissio1l of c.\.'CC/lliOIl by
l/IillOr's fdNur as repl'cselltative-Defect ill procedllre-S. 87 of the
RegistratIon Act-Publiciiy of adopfiofl.
A minor child six yet'lTS old ~vas adopted and a deed was executed signed
by the father and the adopting: parent with a ten rupee currency note
attached with undertaking to present the deed for registration and register
it \Vh~n the Registration office opened, but before re~istration" the adopting
parent died leaving the child only as his legal representative. A suit was
., filed with the unregistered document and it was then taken back ru-:.d
reglstered before the actual hearing.
Held :Tbat under s.5 of the Hegistration of Kdttima Ado,;tion Act, 1939
no dispute shall be entertained by any comt to inherit as a Keifl:n1fi son or
dau}?;hter if it was effected after 1st Al'ri11941, unless the same is evidenced by
an instrument as mentioned therein. The \vords in s. 5 <.lre "no disput~s '.
and not" no suits." The suit was competent; when the deed of adoption waa
retUl'ned for registration before the actual trial and actually registered, then
there is sufficient compliance of the secti.on for a regi::ltered instrument under
B. 47 of the Registration Act operates from the dale of its execution.

Held also: That the father of the minor could present ii under s. 32 (a) of
the Registration Act as a person who had c"xecllted it and also under 5.32 (b)
read with s. 2 (to) as the Nprcscntative of the minor.
Subba Reddy v. S14r1J;z.'t~ R~ddy, A,I.R. (1930) Mad. 425, referred to.
Qilestions as to when and by wholn a document was presented are
questions of fact and any party challenging reg"istmtion on the grounds that
the document was not presented iJl prorer time or by proper pC'rson mllst
raise sl1ch questions in time in the court of the first instance. If a document
when presented is insuffiCiently stamped there is no provision that the
presentntion is not proper. The Registrar should not have returned the
document but impounded it and sellt it to the Colleelor himself.
SIU1tJ1a Clu;ml1 Dasv. Jo}'tJloolalt, (1885J I,L.R. 11 Cal. 750 at 754, referred
to and applied.

'" Civil Ap~eal No. ~ of 1948.

t Present: U E l\'Iaung, Chief Justice of the Union of Burma , MR. JUSTIc;J
THEIN MAUNG and U THAUNG SEIN, J.

8
 .,
114 BURMA LAW REPORTS. [1950
S.C. There is nothing in the Registration Act to prevent a person from showing
1950 that the endorsement was inac~urate and proving the real facts.
U BA TUAN Official Receiver v. P.LX.M.R./IJ. Chcttyar Firm, 0(31) I.L.R. 9 Ran. J70
AND SIX ~I~ed. ' t
oT1:-IERS
V. It is immaterial by whom the physical act of presentation of the document
M"AAMA. was performed. This question is a mixed question of law and faet and a court
of appeal cannot :::xpose a party after he 11a8 obtained a decree to the brunt of
a new attack of \vhich he had nut notice at the hearing.
Barklwdar Shah v. Msl.Sal Bkarai, (1934) I.L.R IS Lah. 563; Bha'rat
Indll v. Hamid Ali Khan, 47 LA. 177 at 184; Nal/w Phaji Uarwadi and
others v. U1IIcdlllai GadulIlal, f1909j I.L.R. 33 Born. 35 j jl1atlUddllS
Girdlzaridas alld otlzers v. Klzemclzand Ra11ldas, A.I.lt [1948) Sind 95,
referred to.
Where a Regish'ar did not summon the parties referred to ill the minor's
application as entitled to notice for oPPo3ing th~ registration it if> only an
irregularity. Presumption of proper registration arises under s. 37 of the
Hegistration Ad as " noth'ing done in good faith pursuant to the Ac.t by any
registedng officer fihall be deemed invalid merely by reason of any defect
in procedure."
Kalllzaya Lal v. National Bank of l/ldia, Ud., {1923}, I.L.R. 4 Lah. 284 at
294 ; Rafai-II1t-7Iissa Begum v. Hlfsail1t' Begum, (1925) I L.R. 47 AIL 29,2 at
294: Dattalraya J(eslzav Naik v. Gl1ugabai Naraya11 Naik, A.I.R. (1926)
Bom. 137 : llill1d Lal and a'llolher v. Sill/lam Hllswill Nur_Ahmad and
otllers, (1935) I.L.R. 16 Lah. 1019; S.M.A.R. Chetty Fum v. Kv Tcik Ka, 4.L
(1923) I.L.R. 1 Ran. 22, referred to.
Held further: That when a document of adoption is executed in
pn:sence of sever2.i respectable witnesses there was suffiCient publicity of the
adoption as lequired by law.
Ma Nit alai others v. U Nyun, (1934) I.L. R. 12 Han. 634 1 referred to.

P. K Bast! for the appellants.

P. B. Sen for the respondent.

The judgment of the Court was delivered by

MR. JUSTICE; THEIN MAUNG.-This is a:1 appeal,

filed with the necessary certificate of the High Court
under section 5 of the Union Judiciary Act, 1948 from
a decree declaring that the respondent Ma Ama as the
keittima adopted daughter of the late U Ba Lun, is the '
sole owner of.his estate,
1950J BUR,MA LAW REPORTS. 115

Ma Ama who was about six years of age, at the time s.C.
1950
of the alleged adoption,' had been living in the same
U BATHAN
house with U Ba Lun since she was aboudour months AND SIX
OTHERS
old as her father Thet Pe left her with her mother v.
Ma Mya 'and U Ba Lun employed her shortly after 1\IA AMA.

their separation, which according to Thet Pe himself

was on account of a divorce by mutual consent.
Ma MY2 continued to live there even after she had
married Thein Tin, and Thein Tin continued to live
there even after Ma Mya loss her life in an air raid
about five months before the alleged adoption.
On the 12th August 1945 which is the date of the
alleged adoption Thet Pe sue denly appeared and
proposed to take Ma Ama away from U Ba Lun. So
in the presence of elders whom Thet Pe had to fetch
at his instance U Ba Lun offered to adopt Ma Ama as
hil; keitlima daughter, the elders persuaded Thet Pe to
accept the offer and leave her with U Ba Lun and
Thet Pe agreed to do so. So the deed of adoption
Exhibit'A was executed by U Ba Lun and Thet Pe
and attested by the eiders. A ten-rupee currency
note signed by U Ba Lun and Thet Pe was attached
to the deed j and the deed itself contains an express
undertaking by U Ba Lun "when the Registration
Office opens, I will go along with him (Thet Pel to the
Registration Office and register the deed on the day
approved by Ko Thet Pe." U Ba Lun died of a
sudden illness on the 12th October 1945, i.e., before
the Registr"tion Office is reopened; and the suit for
declaration was instituted on the 5th December 1945
against the first two appellants who are the brother
and the aunt respectively of U Ba Lun. Thereupon
they pleaded that the other appellants (who are the
children of the first respondent) also should be made
parties to the suit as they had been adopted by
U Ba Lun as his keittl11la rhildren by a,deed dilted the
 ., " '

116 BURMA LAW REPORTS. [195.0

s,c. 19th September 1945 (Exhibit 111). Incidentally this

1950
deed contains the following clauses as regards stamp
U BA THAN
AND SIX and registration :
OTHERS
P.
MA AlIA. " As it is not possible to purchase the Government stamps at
present, one len-rupee curre;lCY note being No. 250823 has been
affixed instead of the said stamp.
As the Registration Offices have no1. yet opened at present, I,
U Ba Lun undertake that I will have this deed registered as
stated above in the Registration Office -when the Registration
Offices open in future."

After the plaint had been amended and the said

appellants had been made parties all the defendants
appellants filed a common written statement in which
so far as the respondent's acoption was concerned
they merely pleaded that the deed was unstamped and
unregistered and that the adoption was improbable
and remained to be proved. So the only issue framed
with reference to it was:

u 3. 'VVas the plaintiff adopted as a kciJtma daughter of

U Ba Lun. l1

Some time after the settlement of issues but before the

actual hearing of the suit, the learned District Judge
drew the attention of the lea;ned Advocates for both
parties to section 5 of the Registration of [{eiitima
Adoption Act, 1932 which reads:

" 5. No dispute as to the right of any person to inherit as

or through a [{eitfi1Jla son or daughter shail be entertained by any
Court unless the fact of the adoption, if it was effected after the
1st April, 1941, is evidenced .by all instrument-
(iJ executed by the person making the adoption and
(n) by the person who is adopted if ilOt less than
18 years of age at the time of such ~e9~.ti9n ,.
or (b) if les', than thaI age, then by t!l~
af~re~aid,
 1'950] BURMA LAW REPORTS. i17
person or pers'ons, if any, whose consent to the S.C.
1950
adoption is required by the Burmese Buddhist 1<m,.-,
and U BA THAN
AND SIX
(ii) atte~tec1 by at least two witnesses, and . OTHERS

(iii) registered in Book 4 of the books referred to in sub-

MAAMA.
section (J) of section 5 of the Registration Ad."
The learned Advocates accordingly took back the
, deeds of adoption for registration ; and the respondent
and the appellants filed them again after registration
en the 6th May, 1946 and the 25th June, 1946
respedively. No further written statement was filed
and no fu~ther issue, e.g. as to the validity of
registration was framed thereafter. The suit was
tried on the original issues and a declaratory decree
was granted to the plaintiff respondent as the deed of
adoption of the last five appellants was not executed
by.the person who was alleged to have given them
away as required by section 5 of the said Act.
Incidentally it also appears from the evidence of the
handwriting expert (Mr. C. E. Hardless) that it was not
executed by U Ba Lun at ,,11. After confirming the
said decree on appeal the High Court has certified,
for the purposes of this appeal that it does involve
some substantial questions of law.
The first contention of the learned Advocate for
the appellants is that the court of first instance
should not have entertained the respondent's suit since
her deed of adoption had not been r~gistered at the
time of its institution. However, as the High Court
has rightly pointed out the words used in section 5 of
the said Act are" No disputes" and not" No suits."
Besides no registration office was open at the time of
the institution of the suit, the deeds of adoption were
returned for registration before the actual trial as the
registration office at Henzada, the district headquarters
opened on the 25th . .
March, 19-16 although the
 .,
itS BURMA LAW REPORTS. [1950
S.C. registration office at Ingabu, where they should
1950
ordinarily have had to be registered was not open yet
U BA THAN
AND SIX and section 47 of the Registration Act provides:
OTHERS i
V. (i A registered document shall operate from the time from
MA AMA.
which it would have commenced to operate if no registration
thereof had. been required or made , and not from the time oE its
registr~tion. "

The second contention of the learued Advocate for

the appellant's is that registration of the respondent's
deed of adoption is vitiated by the fact that Thet Pe'
who presented it had no right to do so. However, he .
could present it under section 32 (a) of the Registration
Act as a perso!: who had executed it and also under
section 32 (b) read with section 2 (10) thereof as the
representative of the minor respondent who was claim-
ing under it. See Subba Reddy v. SUrlIVa Reddy (1).
The third contention of the learned Advocate for
the appellants is that the documents were presented for
registration out of time. He admits that its presentation
(
. ,.
on or before the 12 April, 1\146 would have been within
time: but he relies on the endorsement on it that it
was presented for registration by Thet Pe on the 23r<1
.April, 1946. The .learned Advocate for the respondent
has submitted in reply, we think rightly, that the
question as to when and bv whom the document was
presented is a question of fact and that if the question
of fact had been raised in time in the Court of lirst
instance he could have led evidence to show that the
document was in fact presented by Thet Pe on the 4th
April, 1946, i.e. well within time. Thet Pe filed an
application under sections 25, 30 and 34 of the
Registration Act in the office, of the Registrar,
Henzada on the 2nd April, 1946. to receive and'
register the dOClmlent on presentation; aud an
I
{II A.I.R (1930) Mad.425.
 i950j bURMA LAW REPORTS. 119

endorsement of the Joint Sub-Registrar on the said s.c.

1950
application reads:
U 13A TI'JAN'
AND SIX
II4-4-46-Document proclucrd today and returned to OTHERS.
Mr. Sen as requested for production before the Collector under v.
MAAMA.
section 41 of the Burma Stamp Act. Await."

Mr. Sen was the advocate for Thet Pe and there is

o nothing to show that Thet Pe himself was not there
with Mr. Sen. The High Court of Calcutta has pointed
out in Sha1lla Charan Das v. ]oyelloolah (1).
II But th'lere is no provision in the Registration Act or i~ the
Stamp Acts which says that if the document when presented is
insufficiently stamped, the presentation shall be no presentation.
On the contrary, the procedure provided is wholly inconsistent
,vith that idea, because what the rfoceclure requires (and the
procedure was carried out in the present instance) is that the
registering officer to whom the document is presented receives it
and makes his entry accordingly; he impounds it and sends it to
the Collector; the Collector takes the necessary steps- to compel
p=l.yment of the proper stamp duty and tile penalty; he then returns
the document to the Registering Officer} who shall proceed with the
matter. The effect is fhat the presentati('n is 1 good presentation
though the aetnal registration is delayed."

So the Joint Sub-Registrar made a mistake in returning

the document. He should have impounded it and sent
it to the Collector himself. As has been held by their
Lordships' of the Privy Council in Official Receiver v.
P.L.K.M.R.M. Chetlyar Finll (2) there is nothing in
the Hegistration Act to prevent a pers0n from showing
that the endorsement was inaccurate and proving the
real facts.
Learned Advocate for the appellants has suggested
that Mr. Sen who was Thet Pe's advocate must have
handed over the docurnent to the Joint Sub-Registrar
on the 4th April, 1\146. However, the High Court at

(1) (1885) I.L.R.ll Cal. 750 at 754. (21 (19311 I.L.R. 9 Ran. 170,
 .,
120 BURMA LAW REPORTS', [HI-56
S.C. Lahore has held in BarkhudarShah v. Mst.Sat Bharai (1)
1950
" Even if the lady did not personally hand the paper to
U BA THAN
AND SIX the Sub-Registrar, the presentation was by her; it is
OTHERS
V.
immaterial ~y whom tbe physical act w.s performed."
M,A AMA. See also [Bharaf Indu v. Hamid Ali Khon (2), especially
tbe observations of their Lordshi ps of the Privy Council
at page 184thereof.] Havingregarct to the above rulings
and the circumstances of the case, we are of the opinion
that it is now too 'late for the appellants to raise the
mixed questions oflaw and the fad about presentation
[Cpo Nafhu Pira}i Marwadi and others v. U1l1edmal
Gadumal (3), where the High Court of Bombay -held] :

tI A litigating p:1rty can only succeed s,cltntlufIl allegata

et probata, and the Courts should check the tendency of defeated
litigants to evade their defeat by devising a new case which was
never set up \vhen it should have been set up.
A Court of :1ppe.ll is not justified in exposing a par~y
after he has obtained his decree to the brunt of a nc\y attack of
whicb he had never had notice during the hearing of the suit."

See also MatMadas Girdharidas and others v.

Klzelllchand Ra1l1das \4).
In view of the above finding, it is not necessary for
us to consider v{hether registration of the document is
not valid under. section 3 of the Registration
(Temporary Provisions) Act, 1947 which provides for
acceptance for registration beyond time of documents
executed during the emergency period, i.e. the
period commencing with tbe Ist December, 1941 and
ending with the date on which the Registration Office
is reopened.
The fourth contention of the learned Advocate for
the appellants is that registration of the document is
invalid as Thet Pe had no right to admit execution on
(1) (934) 1,l;.R. 15 L'h, 563. III !1909) I.L.R. 33 Bom/oS
(1) 47 I.A. 177, P 184. (4) A.I.R. (194S1 Slocl 95
 1950] BURMA LAW REPORTS.
behalf of U Ba Lun. In his application, dated the s.c.
1950
2nd April, 1946 in the office of the Registrar, Henzada,
Thet Pe stated: U BA THAN
AND SIX
OTHERS
"That U Ba Lun, the other executant to the Deed of v.
I\IA AMA.
Adoption, died on or abont the 14th October, 1945. He canuot
therefore personally appear in the Registration Office to admit his
execution of the document. His representative in law, is his heir
, Ma, Ama. the Keitlima daughter adopted by him by this deed of
adoption, and she being a minor, this petitioner her natural father
and guardian, is competent to admit execution of the deceased
U En LUll, as representative on her behalf, for purpose of
registration.
Tha( the deceased U Ba Lun also left behind his brother
U En Than, Head Clerk, Excise OHlce, Herzada, who claims
that his minor children were also adopted as keiUimG by U Ea Lun.
Although this petilioner c1enies the altegecJ adoption as fabricated
and untrue, still if this Hon'ble Office cleem~ necessary, under
the Jaw of registration} summons may be issued to the said
UBa Than to enforce his appearanc.e at the Re~istraticn Office,
to admit the execution of the Deed of Adoption of Ma Ama, by
U En LUll, as representative of his minor children. "

However, the Joint Sub-Registrar did not summon

U Ba Than and proceeded to register the document
on Thet Pe's admission probably because he was aware
of the litigation that was pending between the parties.
Their Lordsbips of the Privy Council have stated in
Kanhaya Lal v. Na/ional Bank of India, Ltd. (1) :

I' Now by section 34, the duty of inquiring as to execution

isput upon the Registeri~g Officer, and by section 35 it is provided
ihnt if he is satisfied as to various p_-:rticulars he shall register the
documents. Here again tbe presumption from registration of
omnia praeSU111Ull[ur rite et solcmlliler ada would apply; but the
matter is finally set at rest by section 87 which provides that
I nothing done in good faith pursuant to the' Act by any
Registering Office, sh~ll b~ deemed invalid merely by reason of
any defect in his appointment or procedure."

(8) (1923) I.L, R. 4 Lah. 184 al p. 294.

 ..
12:2 BURMA LAW REPORTS. [1956
S.C. The High Court of Allahabad has held In
1950
Rafal-tm-nissa Begum v. Husailli Begum (1):
U BA THAN
AND SIX
OTHERS "That the deed having been pl'esented fOl' registration by
v. a person duly authorized lo present it) any error Or defect in the
1\J" Ar.fA.
procedure of the Registering Officer, subsequent to the"presentation,
\vas a defect in procedure \vithin the meaning of section 87 ~f the
Act and that therefore the lower appellate COllrt had rightly
admitted Ihe document in evidence. 1I

The' High Court of Bombay' also has obs~rved in

Dattatraya Keshav Naik v. Gangabai NarayaH Naik
(2) :
II But assuming that the registering officer was in error in
accepting her as Kdshav's I representative' for the said purpose,
it was only a defect in procedure which \Vas not sufficient to
invalidate the registration.!!

Even in a ca~e where a mortgage deed had been

registered in the absence of the executant, the High
Court at Lahore has held:
., That the deed having been p,-esented for regislration by
a pp.1"son duly authorized to present it, any error or defect in the
procedure of the Re-gistering Officer, subsequent to thE: presentationl
WCIS a defect in procedure within the meal1ing of section 87 of the
Act and that therefore the lower appellate COllrl had rightly
admitted the document in evidence."

[See ilIuui Lal al1d another v. 5hulll111 Hussaill-Nur

Ahma.d and others (3).J
Besides, a Bench of the late High Court of
Judicature at Rangoon has held in S.ivf.A.R. Chefly Firm
v. Ko Tcik J(a (4) and others:
'I \Nhere a document is presenter} by a person duly
authorized to present.it, who thus initiates the jurisdiction of the
Registering Officer, and who does all that he is required to do

(1) (1925) I.L.R. 47 All. 292, p. 294. (3) (1935) I.T..R 16Lah. 1019.
(2) A.I.R. (1916) Bam. 137. (4) (t923) I.L.R. 1 Han, 22.
 J950] BURMA LAW REPORTS.
under the Act ane! is guilty of nO shortcoming thereunder, it s.c.
1950
wonld be contrary to the scheme of the Act, and it could not have
been the intention of the Legislature that he should be punished U BA THAN
AND SIX
for any error or defect in the procedure of the Registering Officer, OTHERS
subsequent tn the presentation." v.'
MA AMA.

Moreover at the time of registration there was already

a dispute pending in a Court of Justice as to who was
, entitled to represent U Ba Lun. So registration of the
document withotlt admission of execution by a qualified
representative of U Ba Lun, who was one of the
executantsthereof, is a mere defect in procedure within
the purvie\v of section 87 of the Registration Act.
The fifth contention of the learned Advocate for
the appellants is that the adoptio.l was not voluntary.
However, the appellants did not plead any coercion or
undue influence in their written statement. They
'.< merely pleaded that it "was improbable and remains to
be proved." There is no issue as to whether it was
voluntary or not. Besides, the evidence clearly shows
that U Ba Lun offered to adopt the respondent as his
keitli111a daughter as he could not part with her and
that Thet Pe accepted the offer only when the elders
intervened on behalf of U Ba Lun. U Net for instance
says" He (U Ba Lun) remarked that if the child was
taken away from him he might die of a broken heart."
Even Soe Ivlyint (D.W. 2) had to admit "u Ba Lun
explained that the child's mother died at the bombing
under his eyes, that Thet Pe did not look after the
child well and that he took pity on the child."
The sixlh contention of the learned Advocate for
lhe appellants is that Ma Mya was not Thet Pe's
lawfully married wife and that Thet Pe accordingly had
no right to give the respondent in adoption. However,
the appellants did not plead in their written statement
that Ma Mya was ,1 mere mistress of Thet Pe. Thet Pe
himself has given evidence of her having been his
 ..
i24 BURMA LAW REPORTS. [i 950
S.C. lawfully married wife. His evidence is supported to a
1950
certain extent by Exhibit 1 j and there is no evidence
U BA THAN
AHD SIX to the contrary. Besides Thet Tin, the second husband
OTHERS (
V. of Ma !\Iya who was present at the adoptiOl), has by his
l\fA AMA. conduct thereat acknowledged Thet Pe's right to give
her in adoption j and what is more U Ba Lun, with
whom Ma'Mya lived about five years, clearly recognized
Thet Pe's right to take the child away from him and
Thein Tin.
The seventh and last contention of the learned
Advocate for the appellants is that there is no repute of
the relationship by adoption and no evidence of the
respondent having been treated by U Ba Lun as his
own child. However, he offered to adopt the'
respondent in the presence of the elders, 7I iz., U Net,
trader (P.W.2), U Ba Thoung, Headman of the village
'(P.W.3), B. B. Moideen (a) Ko Thar Li Kar, trader
(P.W.4), Mr. Charles, Pleader and U Ba Thoung, S.I.P.,
and the deed of adoption has been attested by aIr of
them. Besides, as we have stated above Thein Tin,
the step father of the respondent, was present at the
adoption; and both U Soe Myint (D.W.2) and U Po Thet
(D.W.3) say that U Ba Lim i'nforined them of the
document having'been executed. So we are of opinion
that there was sufficient publicity of the adoption. [Cpo
Ma Nu and others v. U NYll11 (l).J As regards
treatment, U Net, U Ba Thotlng and Thein Tin have
deposed that U Ba Lun brought the rp,spondent up as a
child of his own and there is no evidence to the
contrary.
vVe accordingly over-rule the contentions of the
learned Advocate for the appellants and dismiss their
appeal with costs.

([I (1934) LL,R 12 Ran. 634

 19501 BURMA LAW REPORTS 125

SUPREME COURT.
THE BURMAH OIL Go. (BURMA CONCESSION\' -t s.c.
1950
LTD. (ApPLICANT)
Mar. 9.
v.
THE COURT OF INDUSTRIAL ARBITRATION,
BUR1vIA AND F!VE OTHERS (RESPONDENTS).*
Wyil oj Prohib,tio/t mul Certiorari-So 2 (gl, Trade Disputes Act.
Where the President in exercise of the powers conferred under s. 9 of the
Trade Displlte~ Act referred 11 matters for decision "to the Industrial Court
and it was cOntended that four matters out of cleven referred to did not come
within the definition of a Trade Dispute and the Industrial Court had no
jurisdiction 10 entertain them.
Held: That the application for prohibition and ccrtior2ri was premature.
The Industrial Court had not yet opportunity to consider whethc:- all or any
of these matters fell within its jurisdiction .
. Where several distinct things arc referred one or morc of which is within
the cognilance or competence of the inferior Court and the others are not,
the Supreme Court will not presume that the inferior Court will go beyond
ibl jurisdiction. '
\
Hollack lind (lllotlter v. The Cltancellor, Masters alld Sc!wInl'!> of the
University of Cambridge, 1 Q.B. 593; Tlte Queett v. T,lJiss, 4 Q.B. 407 at 413,
applied.

E. C. V. Foucar (for the applicant).

Chan H/oon (Attorney-General, Burma) for the
respondents Nos. 1 and 4.
1'ln Aung for the respondents Nos. 2 and 3.
G. Horrocks for the respondents Nos. 5 and 6.
The judgment of the Court was delivered by the
Chief Justice of the Union.
U E MAUNG.-We are of the 0plmon that the
decisions in Hal/acll and another v. The Chancellor,
* Civil Misc. Application No.5 of 1950.
t Presenl .. U E MAUNG, Chief Justice of the Union of Burma, MR: JUSTICE
THEIN 1t~uN~ and l,J THAUNQ SEIN, 1.
 .,
126 BURMA LAW REPORTS. [1950
S.C. Masters and Scholars of the University of Cambridge (1)
1950
and Tile Queen v. Twiss (2) are conclusive authority for
TUEBuRMAH
DILeO. the view that the application now bdore us is
(BURMA
CONCESSJON),
premature. As was said in the latter case:
LTD.
V. " Where proceedings arE' pendi~g before tlle inferior court,
THE
havin~ reference to several distinct things, One or more of which
COURT OF
INDUSTRIAL is within the cognizance or competence of the COlirt and others
A~BITRATIONI
. BURMA AND
are not , this court ought not to assume that the infc;rior court
FIVE OTHERS. will go beyond its competency ana jurisdiction;' and therefore
we ought not to interfere at the present stage of the proceedings."

In the present case all that has happened sc far is that

the President, in exercise of the power that has been
conferred upor, him under section 9 of the Trade
Disputes Act, has referred eleven matters for decision
to the Industrial Court. The learned counsel for the
applicants claims that the first four matters referred
to the Industrial Court do not come within the meaning
of a " trade dispute" as defined in section 2 (j) of the
Trade Disputes Act. He was, however, constrained to I
admit that the other seven matters may come within
the competence of the Industrial Court. That Court
had, at the stage at which the application to this Court
was filed for directions in the nature of prohibition
and certiorari, merely the general statement of claims
filed by the employees' Unions before it. The appli-
cants have not filed their reply to this statement of
claims and the Industrial Court has not yet had an
opportunity to consider whether any of the eleven
matters referred to it fall within its jurisdiction or not.
In his affidavit the Secretary of the Industrial Court
also says:
II I further say that the Court is not bound to give an award

unless it is fully satisfied that a matter referred to it is trade

dispute within the meaning of section 2 (j) of the Trade Disputes
Act." /
(1) 1 \I,B, 593, (2) 4 \I,E. 407 ,t 41Y.
 1950J BURMA LAW REPORTS. 127

. In these circumstances we mnst dismiss the s.c.

19.')0
application as being premature.
THE BUP-MAII
Mr. Foucar for the applicants and !vIr. Horrocks OIL co.
for respondents five and six have 5uggested that we c~~~::':~'NI.
retain the proceedings on the file of the Court inspite LTU.
v.
of our finding as recorded above. They make this THE

request on the ground that if hereafter the Industrial l;~~::R:;"FL

Court were to come to a finding which they would like T1~~~~~~;IA
to test before us, it wuuld save time and labour to aU AND FIVE
~IB.
concerne d to be able to make use of the present ~
voluminolls proceedings. But that purpose can be
served if at the filing of any future applications a
request is made to use in connection with that
application the papers in these proceedings and such a
request can be granted by the Court in proper cases.
The respondents 1 and 4, who are represented by
t11e Attorney-General, wiU get five gold mohurs as
Advocate's fees. Respondents 2 and 3, who are
represented by U Yan Aung, wiU get another five gold
I'~
mohurs.
The order of stay is discharged.
 .,
128 BURMA LAW REPORTS. [1950

SUPREME COURT.

ts.c. MA TIN U (ApPELLANT)

1950
v.
Mtlr.13.
U SHWE KYU AND FOUR OTHERS (RESPONDENTS).*
Limitation Act, s. S-Discrclioll-Discretioll wilen in accordatlce with law.
The Court of the Assistant lodge was first created by the Actof 1945 and
in 1946 an appeal was by mistalte flied in the District Court, when it should
have been filed in the High c.:ourt as the relevant enactments were not avail-
able to the members of the Bar and the litigating public and the appeal was
entertained, heard and allowed by the Ditsrict Judge. On appeal to the
High Court the judgment of the District Court was set a~ide by the High
Court on the ground that no appeal lay to the District Court. The Respon-
dent then filed ;'til appeal to the High Cenrt and prayed nnder s.S of the
Limitation Act to excuse 11le delay in presenting the appeal and the High
Court excused the delay and entertained the appeal and afterwards allowed
the appeal.
Held: Tha't s. 5 of the Limitation Ad vests the exercise of discretion~il1
this case in the High Court cufd as lhe High Court gave due consideraUon to
all the relevant facts and exercised its discretion in accordance with law.
such exercise could not therefore he interfered with.

Leong for the appellant.

The judgment of the Court was delivered by the

Chief Justice of the Union.
U E MAUNG.-The only question that has been
taken up in this appeal before us is whether the
Bench of the High Court, whose judgment is being
qLlestioned here, has exercised the discretion vested
in it by section 5 of the Limitation Act wisely or not.
The appeal preferred to the High Court was no doubt
barred by time, it having been filed 320 days after the
date due for filing of the appeal. But, as has been
noted in the judgment under appeal, the Court of the
Assistant Judge was first created by the Act of 1945
* Civil Appeal No.7 of 1949. l
+ PresetJt ..
U E MAUNG, Chief Justice of the Union of Burma l MR. JUSTICE
THEIN MAl,lNG and U THAUN'G SEIN, J.
 1950J BURMA LAW REPORTS. 129

and when in 1946 the appeal from the decree of that s.c.
1950
Court was filed in the District Court at Myingyan,
MAo TJN U
the relevant enactments were not easily available to the v.
U 8HWEKyu
members of the Bar and the litigating public. The AND FOUR
learned Judges of the High Court have carefully OTHERS.
considered the circumstances obtaining in the country
at that time and have also discussed in detail the
> relevant decisions on the subject. As the learned
Judges pointed out, "in the circumstances in which
the parties were placed at the time, the question
relating to the proper forum to which the present
appeal lay could well have been a matter of justifiable
doubt." Neither the District Court nor the counsel
appearing for the appellant and for the respondents
noticed, at the time the appeal was pending in the
District Court, that it was not the proper Court to
which the appeal should have been filed.
Section 5 of the Limitation Act vests the exercise
. }.
of discretion in the High Court to which the appeal
lay. The High Court has exercised that discretion
fullyawa.re of all the relevant facts and we cannot say
that this discretion has been exercised otherwise than
in accordance with law. Moreover, substantial justice
has been done in this case. The decree of the trial
Court was obviously one which could not have been
supported in law, it having granted a mortgage degree
against persons who were not parties to the mortgage
and who were merely claiming adversely to the
mortgagor.
In these circumstances the appeal must be
dismissed.

9
 ..
130 BURMA LAW REPORTS. [1950

SUPREME COURT.

ts.c. U BA YI AND EIGHT OTHERS (At'PLICANTS)

1950
V.
Mar. 13.
THE OFFICER-IN-CHARGE OF JAIL,
YAMETHIN (RESPONDENT). "
Public Property (ProtectiOIl) Act. s. 7 (3)-Ahn, scope fwd object.
H tId: To arrive at the real meaning of the provisions of an a~t. it is
tilways necessary to get an exact conception of the aim, scope and object .0
the whole Act. Construction is to be made of all the parts tvgether and not of
one part only by itself. even when the words are the plainest, as the true
meaning of any parsage is that which (being permissibla) best harmonises
with the subject and with every other passage of the Statute.
Tlte UniOn of Burma v. Mall1lg Matmg and two OlltelS, B.L.R. {1949} H.C. 1,
p. 20 (F. B.) ; Soe Khi1t v. The Union of Burma, B.L.R. (1949) H.C. 111,
followed.
S.6 (1) of the Public Property (Protection) Act creates a-new offence ,and
under s. 5 (2\ of the Code of Criminal Procedure in the absence of en.tctment
to the contrary that offence will have to be enquired into under the Code and
in view of the provi:sions of 5S. 61 and 167 of the Code no Police Olficer
would be able to det,lin in C~15tody a person arrested for an offence under
5 6 P) of the Public Property (proteeticn) Act for a longer period than 24
hems and hv Magistrate would be able to anthorize his detention for a term
exceeding 15 days on the whole unless he takes actior. under s. 344.
The Provisions-ofs-:-7-(3) of the Public Property (ProtecticnJ Act have been
enacted-to render ss. 61. and 167 of the Code inapplicable to an QJfence under
s.-6 \1) of the Act. Tbis section allows the Police Officer longer time (up to
six months) for investigation. The detention in custody is not by way of
punishment in violation of the fundamental principle that a man c:\.nnot be
detained on mere suspicion but can only be for the pnrpose of investigation:
even though all prejudicial acts are not offences yet most of thenl are offences
and investigation into the rest may also disclose that offences have been
committed_
ilIa Lonev. Tlll Commissioner of Police, RatlgOOtl and on" (1949) 8.L.R.
(S.C" 8 at 11, referred to.
VilJlalbai Despatule v. E1IIPeroJY, A.I,R. (1945) Na~. 8, followed.

P. K. BaSil for the applicants m Cr. Misc.

No. 433/49.
Criminal Misc. Application No. 433 of 1949.
'II

t PresenJ: U E IVIAUNG, Chief Justice of the Union of Bllnn!l, !vIR. JUST~Cf:

;
'ffI~IN IVIAU1'1G and U 1H~UNG SE~N, J.
".
1950] BURMA LAW REPORTS. 131

O. S. WooII for the applicant in Cr. Misc. 13,14 s.c.

1950
and 15/49.
U BA VI
AND EIGHT
Ba Seill (Government Advocate) for the respondent. OTHERs
V.
The judgment of the Court was delivered hy THE
OFF.lCER-
IN~CHARGE
MR. JUSTICE THEIN MAUNG.-We have heard this OF JAIL,
YAMETHIN.
\lPplication together with Criminal Miscellaneous
Applicatioils Nos. 13, 14 and 15 of 1950 so far as the
common question as to the object, scope and'
interpretation of section 7 (3) of the Public Property
Act, 1947 is-concerned; and we have accordingly
had the benefit of a thorough discussion thereof not
only by the learned Advocates fOl the applicants but
also by the learned Attorney-General, whom we had
requested to appear personally for the respondents.
To arrive at the real meaning, it is always
necessary to get an exact conception of the aim,
scope and object of the \vhole Act. (See Maxwell
. -\.
on Interpretation of Statutes, Ninth Edition, page 22.)
It is an elementary rule that construction is to be
made of all the parts together and not of one part
only'by itself'even when the words are the plainest, as
the true meaning of any passage is that which (being
permissible) best harmonises with the subject and with
every other passage of the statute. [See Ibid, pages
30-31 and The Union of Burma v. Maung 1lfaung and
t-WO o'thers (1), Cpo Soe Khin v. The Union ofBurma (2).J

SO section 7 (3) of the Act must be interpreted in

the light of the other provisions of the Act and
especially in the light of (1) the provisions of the other
sub-sections of section 7 itself and (2) the provisions
of the other sections which are referred to therein.
Sub-section (3) provides for detention in custody
of two classes of persons, viz: those who are arrestee!
ll) {1949J B.I,.R. 1 If.B.1 at p.20.
132 BURMA LAW REPORTS.
..
[1950
S.C. under sub-section (1) and those who are arrested under
1950
sub-section (2); sub-sections (4), (S) and (6) provide
U BA YI
AND EIGHT for what can or should be done about those two classes

THE
..
01'HERS
of persons after they have been arres:ed and taken into
custody; and these sub-sections do not draw any
OFFICEH-
INCHARGE distinction between those two classes of persons.
OF JAIL,
YA.METHIN. However, the matter will be much clearer if we
deal with those two classes separately.
Sub-section (1) provides:
(I Any police ofJlcer not below the rank of a Sub-Inspector
or any other officer of Government empowered in this behalf
by general or special order by the Governor, may, with the prior
approval of such authority as may be prescribed by the Governor,
arrest without warrant any person whom he snspects of having
committeu or of committing any of the offences mentioned in
sub-seclion (II of section 6 in respect of any Public property."

And section 6 (I) reads:

'I Notwithstanding anything contained in any other law for j-;'
the timE being in force I if any person is in unauthorized posses.
sian of any Public property, or commits theft, misappropriation
or mischief in respect of ;.ay Pi.1blic property, he shall be
punishable \vith imprisonment tor a term which may extel1d to
seven yelrs, 6i w-ith \vhipping, oJ.: with both imprisonment and
whipping, and shall also be liable to nne. "

Section 6 (1) creates a new offence; and according

to section 5 (2) of the Code of Criminal Procedure it
will, in the absence of any enactment to the contrary,
have to be investigated, inquired into, tried or otherwise
dealt with according to the provisions of the said Code.
In that event sections 61 and 167 the,eof would have to
be complied with. No police officer would be able to
detain in custody a person arrested for an offence
under section 6 (1) of the Public Property Protection
Act, i 947 for a longer period than twenty four hours, I
find no Magistrate would ;be able to a!jthorize hi


1950J BURMA LAw REPORTS.

detention in custody for a term exceeding fifteen days S.C.

1950
on the whole, unless he takes action under section 344
U BA Yl
thereof and even then he would not be able to .r~mand AND E1GHT
OTHER')
him to custody for a term exceeding fifteen days at V.

a time. So section 7 (3) of the Public Property Protec- TltE

OFFICER-
tion Act provides: IN-CHARGE
OF JAIL,
YAMETHIN.
!l {IAny officer who makes an arrest in purSl1ance of
sub-section (I) or sub-section (2) sball fOlthwith report the fact of
such arrest to the Governor, and pending the receipt of the
orders of the Governor, he m;y, by an DreIer in writing, commit
(lny person so arrested to such custody as the Governor may,
by general or special order, specify:

Provided-
0) that no person shall be detained in custody under
this sub-section for a period exceeding fifteen days
without the order of the Governor;
(ii) that no person shall be detained in custody under
this subsectioll for a period exceeding six
months."

Jt is fairly obvious that the sub-section has been

enacted to render sections 61 and 167 of the Code
inapplicable and to Jet police officers have longer time
for investigation without applying to any Magistrate for
remanel.
We are fortified in this view by the facts \a) that
the arrest is only on suspicion, \b) that sub-section (4)
provides that if any arrested person is prepared to
furnish security, the officer who has arrest~d him may,
subject to such general or special instructions as
may from time to time be issued by the President
or any person authorized by the President in this
behalf, release him on his executing a bond, with or
without sureties, undertaking that he will conform
to such conditions or directions as the President
may from time to time make, (c) that sub-section (6)

134 BURMA LAw REPORTs. [1950
S.C. provides that such a bond shall be deemed to be a
1950
bond taken under th'e Code of Criminal Procedure
U BA YI
AN'D EIGHT
and that the provisions of section 514 thereof shall
OTHERS
v.
apply to it, (d) that detention in custody under sub-
TIlE' section (3) is referred to as "temporary custody"
OFFiCER-
IN-CHARGE in sub-section (5) (~) that sub-section (5) also
OF JAIL,
YAME.THIN.
contemplates a final order being passed by the
President in addition to tIle order for tempor,!ry custody
under sub-section (3) where he is authorized to
do so by any law for the time qeing in force, which', as
the learned Attorney-General has admitted, must be
some law other than the Act itself inasmuch as it
does not contain any provision like section SA of
the Public Order (Preservation) Act, 1947. [Cpo
Ma Lone v. The Commissioner of Police, Rangoon and
one (1)J and ((} that reference to a final order in
sub-section (5) indicates that an order under -sub-
section (3) is only an interim order. Besides, there is
a presumption that the Legislature does not intend
to make any substantial alteration in the law beyond
what it expressly declares, either in ~ypress terms or
by clear implication or, in other worrls, beyond the
imniediatescope and object of the statute. On all
general matters outside those lilnits 'the law remains
undisturbed. It is in the last degree improbable
that the T~egislature would overthrow fundamental
principles, infringe rights or depart from the general
system of law, without expressing its intention with
irresistible clearness. [See Maxwell's Interpretation of
Statutes, Ninth Edition, pages 85-86. Cpo Vi171albai
Despal1d~ v. Emperor (2).J It cannot be the intention
of the Legislature that" temporary custody" under
sub-section (3) should be by way of punishment in
violation of the fundamental principle that a man
cannot be punished on mere suspicion. There is
(I) B,L,R. (1949) (S,C,) 8 alII. 12) A,LR. 11945) Nag, 8,
 i950] BURMA LAw REPORtS. 135

no reason why a man should be detained by way s.c.

1950
of punishment foran offence under section 6 (1) of the U BA VI
Act, if the case cannot be sent up for trial before a AND EIGHT
oTHERS
-I
Magistrate j n0r is there any reason why he should be V.
THE
let off with "temporary custody" for at most six OFFJCER-
months only, if the case can be sent up for trial" in IN-CHARGE
OF JAIL,
as much as the offence is punishable with imprison- YAMETIIIN.

, ment for' a term which may extend to seven years

or with whipping or with both whipping and imprison-
ment and also fine; and there is a presumption
against intending injustice or absurdity. (See ib.,
p. 207 et seq.)
For the above reasons we are clearly of the
opinion that detention in custody under section 7 (3)
for an offence unde. section 6 (1) can only be for
the purpose of investigation and not for the purpose of
pu.nishment and that a person who has been arrested
for it under section 7 (1) should either be sent up for
c-
trial or released as soon as investigation is complete and
that such a person should not be detained in custody
for the maximum period of six months automatically.
The President's order under Proviso (1) to section 7 (3)
is only an order in the nature of remand. It cannot by
any means prevent the accused being produced before
a Magistrate for trial; and the Magistrate who has
seisin of the case may either remand him to custody or
grant him bail in accordance with the provisions of the
Code of Criminal Procedure.
At one stage of the hearing it was suggested
that detention in custody under section 7 (3) might be
for the purpose of prevention. However, this sugges-
tion has been dropped as sub-sections (1) and (2)
provide only for arreft of persons who are suspected
"of having committed or of committing any of the
offences mentioned in sub-section (1) of section 6" or
'" of having committed or of committing any prejudicial

136 BURMA LAW REPORtS. [1950

s.c. act" i.e., as they do not contain the words "or of

1950
being about to commit." The omission of these
U'BA YI
AND EIGHT
words must have been deliberate since section 5 (1)
OTHERS
V..
of the Public OreIer (Preservation) Act, 1947, which is
THE an earlier Act, contains the words "or of being about
OFFICER
IN-CHARGE to act." (See also Rule 129 of the Ddence of Burma
OJo' JAIL,
YAMETHIN.
Rules.)
As we have stated above sub-sections (3), (4), (5)
and !-6) of section 3 contain provisions rela'ting to
persons arrested under sub-section (1) or sub-section (2)
without any distinction. So they cannot be interpreted
in one way as regards persons arrested under sub-
section (1) and in another way as regards pe~sons
arrested under sub-section (2).
It has been contended that arrests uncler sub-
section (2) are for prejudicial acts and that all
prejudicial aets are not offences. Now section 2 Oi) of
the Act defines prejudicial act as follows:
"(a) any act directi)' or indirectly connected with, or -<'>.'

relating to, any unlawful activity having for its object

the smuggling of any property in and Qut of Burma in
contravention of import and export orders and rules
duly made by the Government ttnder the Import and
Export Control Act,.1947, and Control of Imports and
Exports (Temporary) Act, 1947 ; or
(b) any act which directly or indirectly abets 01' incites or
facilitates the commission of any offence in respect
of any Public property or the contravention of any
rule or order made uncleI' this Act, the Export and
Import Control Act, 1947, and Control of Imports
and Exports (Temporary) Act, 1947, the Public Utilities
Protection Act, 1947, the Essential Supplies and
Services Act, 1947; or
(c) any wilful negligence, mismanagement or default on
the part of a person who has l or has had, the custody
charge or control of any Public property, resulting
directly or jY{directly in loss, deterioration or I
destruction of any such Public property;
 1950J BURMA LAW REPoRtS. 137
(d) any dealing by any pers;'n directly or indirectly in any s.c.
1950
Pnblic property which gives rise to a suspicion that
the person concerned has obtained such Public U BA VI
AND EIGHT
'propertv either by commission of theft, misappropria- OTHEHS
tiqn, mischief, breach of trust or by ahy wrongful v.
THE
means." OFFICER- .
INCHARGE
01<' JAIL,
I t will be seen that most of the prejudicial acts are YAMETHlN.

, offences and that investigation into the rest may also

disclose that offences have been committed.
vVe now proceed to deal with the application for
habeas corpus in the light of the above decision on th~
object, scope and interpretation of section 7 (3) of the
Act.
The applicants were arrested on the 26th Septem-
ber, 1949, for having committed an offence under
.section 6 (1) of the Act by "breaking open the
Py,awbwe Treasury Vault and looting away all the cash
nearly amounting (0 Rs. 2,00,000." A reporf of the
arrest was made but the President's order for their
detention in temporary custody for six months under
the Proviso to section 7 (3) of the Act was not received
before the expiry of fifteen days from the: date of their
arrest. So the case had to be sent up for trial before
investigation was complete. However, the expected
order of the President was received before the case
was heard in Court j and on receipt thereof the case
was withdrawn expressly for the purpose of completing
investigation. The learned Attorney-General has stated
that the investigation is being proceeded with; the
period of six months has not expired yet and the delay
in completing tbe investigation may be due to the state
of affairs that has been prevailing in the district for
some time.
- So having regard to all the circumstances of the
case we are satisfied that the applicants are being
detainecl in temporary custody under section 7 (3) of
 .'
BURMA LAW REPORTS. [1950

S.C. the Act not by way of punishment but to complete the

1950
investigation with a view to their being sent up for
U BA YI
AXD EIGHT
trial for an offence under section 6 (l) thereof.
OTHERS We accqrdingly dismiss the applicativn.
v.
THE
OFFICER-
nl'~CliARGJt

0" JAIL,
YAMETHIN

I
 1950] BURMA LAW REPORTS. 139

SUPREME COURT.

SEI SHENG (ApPLICANT) ts.c.

1950
v. Mar. 20.
U THEIN (RESPONDENT).'"

, Conversion-Military P1'ocla11lali011 11 of 1945-CASfB) faking possessioll of

- cari,0 boals mid deliv~rillg to Respoudent-Burma indemnity alld
Validatillg Act, 1945. 55. 3 and S-lnco1lSisttut plcas-Res jl1dicata-S.l1,
E~:cepfioll 4 of lite Code of Civil Procedure.

In 1942 appellant left behind in Rangoon three Cargo boats belonging himto
owing to cit"(;umstances arising out of the war. After British reoccupation in
1945 of the Rangoon Area the CAS{Bf and its officer collected cargo boats
including the boats of the appellant and these three boats were handed over
to the respondent. The respondent repair~d these boats and returned them
to the appellant on the 12th February 1946. The respondent filed, Civil
Regular No. 14 of 1947 against tbe resPQndent claiming compensation under
s. 70 of the Contract Act for repairs done by him to two of the three cargo boats.
The appellant filed Civil Regular No. 31 of 1947 for compensation for the use
, of his boats from the lsI of May 1945 till they were returned. Suit No. 14 of
1947 was decreed by the Trial Court and the decree W::I.S confirmed in appeal
and there \vas no further appeal. In Civil Regular No. 31 of 1947 the Trial
Court gave a decree but the decree was reversed on appeal.
Held: Conversion is wrong done b)' all unauthorized ad which deprives
another of his right permanently or for an indefinite time.
Pollod ott Tor's, 14th Edn. 285, followed.
\Vhen CAS(Bl obtained possession uf the cargo boats belonging to the
appellant thc.y were finder of goods belonging to another within the meaning
of s. 71 of nie Contract Act and were subject to the responsibility of" a bailee
The bailee as SlIch would not commit any wrong by ho!dingthe goods but
when he delivers them to a third party a civil wrong of conversion is
cOlumitted.
The que!:'tion how far s. 3 of Burma Indemnity and Validating Act,
1945, would give protection to a person in the position of an oBieer of CAS (B)
cUel not arise in this case as here there was no order within the meaning: of s. 5
because the orders referred in that section clearly relate to statutory orders.
Good faith would not absolve a person guilty of conversion of another's
property. Where the boats were not duly requisitioned and they belonged to
some one else, no question of good faith could be invoked.
A person suffering injury by wrong(~ll conversion may in a special case Slle
for special damages and if after conversion the goods are rcdelivered an
action will still lie for the c.rlginal conversion and the re-delivery will only go
in mitigation of damages.
 .'
i4d BURMA LAW REPoRtS.
S.C. Held illy/her: fnat the contention of the respondent that one or the boatll
1950 clid not belong to the appellant was nntenable even though the evidence was
SEI SHENG
meagre. TllCI'C js implied in the decree in Civil I~eUtllar No. 14 of 1947
V. findings tilat all the cargo boats belonged to the appellant and that repairs
U THEIN. to the cargo boats were done for the appellant ancl that the appellant had
enjoyed the benefit thereof. The responclent cannot be allowed to blow hot
and c<!.ld ill one breath even where the provision of s. 11 of the Code of Civil
Procedure may not in terms apply. In view of the decree in favour of the
respondent in Civil Regular No. 14 of 1947 exception of s.11 of the Code of
Civil Procedure would operate to make the question of owners:lip of the cargo
boats invoh'ed in the claim in that suit Res judicata ~as between the parties.
Bodley v. Reynolds, (1846) 8 Q.B.D. 779; Sal/away Y. J.1JcLallghlil1, {1938J
A.C. 247 at 258 ; OWlIers of Dredger L~isbosch v. Owuers Of Steamship Edison,
(1933) A.C. 449 ; Re : The Jl1r:diaua Casco (1900) A.C. 113, referred to.

Leong for the appellant.

Dr. Ba Han for the respondent.

The judgment of the Court was delivered by the

Chief Justice of the Union.

U E lVIAUNG.-In Civil Suit No. 31 of 1947 of the

High Cuurt of Judicature at Rangoon the appellant
brought a suit against the respondent for recovery of
compensation or reasonaple hire for use of three cargo
boats and for recovery of accessories to the cargo boats
or-fheir value. The amount claimed was Rs. 18,161.
The trial Judge granted the appellant a decree for
Rs. 10,580 with costs. The appellate Bench of the
High Court set aside the decree of the trial Jlldge and
dismissed the appell,.nt's suit.
The relevant facts are simple and hardly in contest.
The appellant's case in its essence, as disclosed in the
plaint, is that the appellant, who was the owner of the
three cargo boats, bearing at the date of the suit
Nos. CAS(B) 95, CAS(B) 149 and CAS(B) 150, left
them in Burma in or about 1942 owing to the CirCllh1-
stances arising out of the last war, and went away to i
China. When he came back in 19-15 he leamt that
 1950J BURM-i\. LAW REPORTS. 141

they were in the possession of the respondent who s.c.

1950
had been making use of them as a rice miller. The
8m SHENG
appellant averred that the boats were illegally and V.
U THEIN.
forcibly taken possession of by the respondent for the
first time in June 1942 arid that they were all of them
returned to him by the 12th February ] 946 at his
demand. He therefore claimed compensation for
their use by tl)e respondent from the 1st May 1945 till
they were finally returned to him.
The respondent by his written statement disputed
the appellant's title to all three cargo boats but at the
hearing 'it was conceded on his behalf that the
appellant was the owner of two of th-;m, namely, those
bearing the numbers 149 and 150. The appellant's
title to the third boat bearing the number 95 \vas not
admitted either at the trial or before us. The respon-
dent does not deny having taken possession of and
used in his business as a rice miller the three cargo
boats from June 1945 till they were returned by him to
the appellant. But it was claimed by him thafhe took
possession of lhe cargo boats under the authority of
the Rice Area Officer, CAS(B), Hice Project No. 1
Area SEAC and that consequently his. possession and
use were hnvful and he is not liable to pay compensa-
tion to the appellant.
The trial Judge held that the three cargo boats are
proved to belong to the appellant. The Appellate
Bench, however, held that the 'lppellant had not
established his titie to cargo boat No. 95. Before us
it is contended on behalf of the respondent that we
should accept the view taken by the Appellate Court
in respect of this cargo boat. Attention was drawn at
the hearing to the very sketchy nature of the evidence
adduced on behalf of the appellant to establish his
title to this boat. If the matter had rested there, we
mi~ht have fm,md ourselves able to support the finding
 .,
142 BURMA LAW REPORTS. [1950
S.C.
1950
of the Appellate Court i but in Civil Regtrlar Suit
No. 14 of 1947 of the High Court of Judicature, which
SEI SHENG
v. was tried together with the suit now under appeal, the
U THEIN.
respondent sued the appellant for compensation in the
sum of Rs. 6,980 under section 70 of the Contract Act.
It was then claim~d by the respondent, and his>claim
has been upheld by the trial Judge as also by the
Appellate Bench of the High Court, that having
repaired the three cargo boats he was entitled to
receive from the appellant the cost of repairs in the
sum of Rs. 6,980. The compensation which the
respondent received in respecct of cargo boat No. 95
was Rs. 3,662-8-0
Now, for a right to compensation to accrue under
section 70 of the Contract Act the person who claims
that compensation must have la\vfully done" anything
for another person, not intending to do so gratuitously,
and such other person enjoys the benefit thereof."
There is then implicit in the decree in the connected
suit a finding that the repairs to the cargo boat No. 95
were done for the appellant and thal the appellant had
enjoyed the benefit thereof. The respondent cannot
be allowed to blow hot" ani.! cold in one breath even
where the provisions of section 1f <in1i.e" Code of Civil
Procedure may not in terms apply. In the present
case, however, it seems to us that Exception 4 to
section 11 would operate to make the question of
ownership of this r.argo boat one not open to question
as between the parties.
The ownership of the three cargo boats being thus
beyond dispute and the respondent having admitted
to have taken possession and to have made use' oE
them in his business as a rice miller, it is c1.ear that it
would be for the respondent to justify his action, for to
take possession of another's property and use the same (
in one's business, as in this case, is prima facie an
 1950J BURMA LAW REPORTS. 143

infringement of the property rights of the owner and s.c.

1950
would, if not justified, be an actionable wrong.
SF-I SHENG
Sir Frederick Pollock in his treatise on Torts (1) v.
has said" Conversion mcy be described as the wrong U THEIN.

- done by an nnauthorized act which .eleprives another

of his property permanently or for an indefinite time."
It is claimed in this case on behalf of the respondent
, that in respect of the averments in paragraph 3 of the
written statement, namely, "that in or about June 1945
Rice Area Officer CAS(B), Rice Project No.1 Area
SEAC (whose authority has always been valid)
authorized defendant to use without payment three un-
seaworthy cargo boats for the purpose jf collecting and
supplying paddy and rice as required by the said Rice
Project No.1 Area, " the appellant has not in his reply
specifically challenged the authority of the Rice Area
Officer referred to and that therefore the legality of the
respondent's action in taking possession of and using
the cargo boats cannot be said to be in question at the
trial. But this argument overlooks the fad that the
appellant had, in his plaint, claimed that the action of
the respondent in taking possession of and using the
cargo boats was illegal and forcible and, as already
noticed, ilJterference with other people's property
always requires justification. True it is that the aver-
ment of forcible taking has been found to be without
substance but a mere surplusage would not vitiate the
claim, especially as to complete the cause of action for
conversion an allegation of employment of force is not
necessary.
At the trial the respondent called, in support of
his claim that he came into possession of the cargo
boats in a lawful maimer and that their use by him in
business was one for which he cannot be liable at the
instance of the appellant, two witnesses Hin Wor and
III 14ft- Eon., p. 285.
 .'
144 BURMA LAW REPORTS. [1950

s.c. Aung Tin. Hin Wor was a civilian gazetted officer

1950
in the CAS( B) Rice Project. Aung 'Fin claimed to
S.EI SHEt\G I .
v. lave held an appoIntment under a Major NevI'11 e In
.

U THEIN. the CAS(B) though it is impossible to' find from his
evidence the true nature of his appointment. A11 that
he cmiJd say when asked a definite question: "Did
you get any appointment under him ?", was "He
appointed me verba11y. He simply aske.dme to
co11ect these materials and the gigs. Subsequently he
gave me an appointment."
Hin Wor referred in his evidence to a letter,
Exhibit 10, written to the respondent from the officer
in charge of the CAS(B) Rice Project No.1 Area
wherein appears the following passage: "These C.Bs.
were allowed you to use without payment to CAS(B)
Rice Project on the condition of ' C. Es. to be returned
to the original owners on their arrival'." To the '.
question put to this witness: "And you did not give a
guarantee to U Thein that if the owners came back and
claimed the hire of the cargo boats you would be
responsible for it?". the 'answer was: "We did not
hold ourselves responsible in any way." All that
Aung Tin could say on this aspect of the case was that
he found 12. cargo boats, including the three cargo
. boats in question, adrift and under instructions from
Major Neville he collected them and kept them until
under the orders of the officer in charge of the Rangoon
Rice Area he har.ded over the said three cargo boats

to the respondent.
The following questions and answers from the
respondent's examination at the trial are iJluminating :

"Q. You did not find out whe:her CASE had authority
to give you thp, use of these cargo boats without payment to the
owners?
{
A. I did not,
 1950] . BURMA LAW REPORTS. 145

Q. What CASE said in their letter was that YOll need not s.C.
pay any(hini( (0 CASB, but that does not mean that you need 1950
not pay anylhing ~Q the owners if ther t~lInccl. u~ ? SEISHEXG
i'.
A. That is_,;o." D THEIN'.

What is established beyond dispute in this case

then is that scon after the re-occupation of the
:- Rangoon area by the Allied Forces in 1945 'Aung Tin,
acting under the instructions of a Civil Affairs Officer,
Major Neville, collected together several cargo boats
found adrift round about Rangoon area and that later
when Major Paine, another officer in the same service,
instructed him so to do Aung Tin delivered to the
respondent the three cargo boats in respect of which
the suit under appeal was instituted. The arrangement
between the officers of the Civil Affairs Service and
the respondent, as the respondent himself admitted,
was that the Military Administration would not
themselves charge any hire from the respondent in
respect of these cargo boats, but, as also admitted by
the respondent, the question of the respondent's
liability to the true owners for their use was left
entirely open.
The CAS(B) Rice Project or Aung Tin (it does not
matter which) was a find"r of goods belonging to
another within the meaning of section 71 of the
Contract Act and accordingly that Project, by itself or
through its servant Aung Tin, becaple subject to the
same responsibility as a bailce in respect of these cargo
boats. The bailee as such, by holding the goods,
would not commit any "Tong but when these cargo
boats were delivered to the respondent and the
respondent having tabn possession of them used the
same in his business the respondent has prima facie
committed the civil wrong of conversion.
It has been strenuously argued, however, on behalf
of the respondent that the respondent's acts 1V0uid not
10
 ..

146 BURMA LAWREPORiTS. 11950

S.C.
1930 amount 111 law to conversion as the Rice Project of the
CAS(B) was ill law within its rights in delivering
St-:t SllEN.i "
V. possession of the cargo boats [0 the respondent who
U 1'HEIX.
acted under that authority in using_ them in his
business. It was faintly contended that the Rice
Project and its officers mmt be deemed to have
requisitioned the cargo boats which they found
drifting without allY watch and that following such
requisition they had a perfect right to allow the
respondent to use them in his business without
attaching any liability to him for so doirig. But
there was no ,ttempt on the part of the offIcers to
comply with Military Proclamation 1l of 1945 which
authorized the reqllisitioning of property under the
Military Administration and these officers never at
any time purported to act in exercise of the powers
given by that proclamation. It is therefore idle to
contend that these cargo boats must he treated as
requisitioned articles within the meaning of thal
Proclamation.
Heliance is placed, in the alternative, on the
provisions of sections 3 and 5 of The Burma
'Iiidemriity ancl Validating Ad, 1945. The reference to
sedion 5 is farfetched; the word "orders" in this
section clearly relates to sbtutoryorders. Section 3
also can have no application to the fads 01 the present
case. As the respondent himself adinilted in cross-
examination, the question of his liability to the trlle
owner of the cargo boats [or what would amount to
acts of conversion was left open at the time he
received delivery of the cargo boats from Aung Tin.'
It, is not necessary therefore to consider in what
circumstances sectiGn 3 of the Burma Indemnity and
.Validating Act of 1945 would give protection to a
p~rson who acted under the authority of "a person
holding offIce or employed in the service of the
1950] BURMA LAW REPORTS. 147
Crown in any capacity, whether naval, military, ,tlr s,c,
1950
force or civil during tbe war period."
SIn SHENG
It is also claimed before us that the respondent ".
U.TI~H1N
throughout acted in good -faith and that he is not
therefore liable to pay compensation to the appellant
for his acts. No authority has been cited to support
o the proposition that good faith would absolve a person
who has committed an act of conversion of another's
property. ,On the other hand, therc are authorities that
run in the. opposite direction. In any event it is
impossible to see on the facts of the case how the
respondent can be said to have acted in good faith.
He knew very well that the boats were not duly
requisitioned by the Rice Project and that they
belonged to somebody else. In fact the evidence on the
reGord shows that in respect of two of the cargo
boats at least he. knew at the time he took them over
hom Aung Tin, (lnd even before then, that the
appellant was the owner. It was also said that the
reWQndent dared not disobey the directions of the
officers of the I<ice Project to take possession of tbe
cargo boats and to use them. There is no evidence to
support the suggestion that any disobedience would
have entailed serious consequences to the r~spondent.
Evtm if serious consequences other than in due course
of law would bave followcd the refusal, that would not
afford the' respondent 'protection agaimt the appellant's
claim. Moreover, we are satisfied that this is ~ IT.Ost
fiims; pr~fext. It; was to the rcspond~,nrs interest to
have in his possession as many cargo boals as he could
get and to use them in his business as supplier of rice
to the Rice Project. There was no room really for
threats or coercion..
It h~s been strenuously contended before us tbat
the respondent, having at tbe demlnd of the ~ppellant
restored possession of the three cargo boats to the
 .'
148 BURMA LAW REPORTS. [1950
S.C. appellant prior to the institution of the suit, is not
1950
liable to pay compensation for the use of the same
SRI SHENG
v. before such restoration. In support of this contention
U THEIN.
it has been said that the form of action proper fOf_
the wrong of conversion i~ that of trover and that in
trover the wrong doer is purged of what was a wrcng
by delivery of the goods in respect of which c~mversion
had been commilted. This argument overlooks the
fact that the person suffering injury by the wrongful
conversion may in proper cases sue' for special
damages. For the conversion in an action for trover
for carpenter's tools, where the declaration stated that
the plainltff had been prevented from working at his
trade, 10 above the value of the articles was given.
[See Bodley v. Reynolds (1).] In fact, as has been
noticed by Mayne in his treatise on Damages (2) 1.1 if
the defendant, after conversion, redeliver the goods,
all action \\"ill still lie for the original conversion, and ;,.\
the redelivery will only go in mitigation of damages."
III Sollowa)' v. McLaughlin (3) the judgment of the
Privy Council has thi~ passage:
- -- - "-Ho-\\'rthenl--is his -position- affected by the fact that, not
knowing of the conversion, he received from the wrongdoer,
and has retained, the very gaeds cOllvertt'd or their equivalent?
It appears to their Lurdship::; th"1t the only effect is that he must
give credit for the value (,f what he has received at the time he
rec.eivec1 it, and that the damages are reduced by this amount."

In Owners of Dredger Liesbosch v. OWllers of

Steamship Edison (4) the House uf Lords awarded by
way of damages on an action for trespass to a dredger,
ending in a total loss of the dredger, not only the
market price of the dredger lost but also compensation'
for disturbance and loss to the owners in carrying out
their contract, over the period of delay between the (
(II (1846) 8 Q.B. 779. (3) i193l:\) A.C. 247 at 258.
(" 11th Edn. 422. (4) (19331 A.C. 449.
 19501 BURMA LAW REPORtS.

loss of the dredger and the time at which the substitute s.C.
1950
dredger could reasonably have been available for use
SEI SHl(NG
under the contract, including in that loss such items , v.
as overhead charges and expenses of staff and If THEI:-J,

equipment and the like thrown away.

On general principles also it seems clear that the
respondent's contention must be rejected. The wrong
of conversion was complete with the unlawful
possession of the appellant's property by the
respondent, especially, as in this case, when that
possession was acquired for the purpose of user not
authorized either by the appellant or in law.
Following that act of conversion th"re had been
subseq uent user for several mon ths. In respect of
such ullauthorizedllser which constitiltes, apart from
the original conversi()n, an infringemen't of the right of
property of the appellant the respondent should be
liable to pay compensation. In" The Mediana" (1)
the Earl of Halsbury L.C. said:
,'. 'I Lord 1-] fT5cheil in terms did lay dO\V1l a I11l1cb broader
principle, and I may say that 1 myself intended to lay it clown,
thOUgh I may have expressed myself imrerfecUy, namely, that
where by the- wrollgful act of one mall something belonging to
an('tller is either its-elf so injl.lreet as 110t to be C:lP;l b!e of being
lIsed or is taken away so Ihat it cannot be lU-ed at all, that of
itseH is a ground for damages."

At page Il8 of the same report the Lord Chancellor

went on to say:
I' It appears to ine, therefore, that what the noble lnc1
learned Lords \\-ho gave judgment in your Lordships' House
intended to point out, and what Lord Herschell gives expression
to in plain terms, was that the unlawful keeping hack of what
bel.'ngs to anotller person is of itself a ground ior real dam1.ges,
not nominal damages at all. Of course I observe th~t it has been
suggested that thi~ was not an action for travel' or c;etinue; but
(II (19001 A.C.1l3.
150 BURMA LAW REPORTS, [1950
S.C. althougll those are different forms of ;lction l the 'principle upon
-1950
\vhich damages are to he assessed cloes not depend l.lpon .the
SE! SHE~G form of action at all. 1 pnt aside cases .of trespass where a
v.
U Tl!EI\'. highhand('d proceciure or insolent behaviour Lns been held in Jaw
to be a subject of a~gJ'a..rlfecJ damages, <lllcl the jury might ~ivc
what are called punitive damages. LeaYing I hat aside, \\haie"er
be the form of ::tetian, the principle of assessing damages mnst be
the sa.me in all Conrts ;lnd for ~Il forms of what I may call the
unlawful detention of another man's property."

\Ve are therefore of the opinion tbal the appellant

is eiltilled not merely to tbe restOration of the cargo
boats but also to damages for wrongful use by the
respondent of the' same in his business during the
period he had posse3sion of them.
As regards the amount of compensation, all that
has been said before us on behalf of the respondent is
thai the evidence on which the learned Judge asses~ecl
the compen~ation is meagre. We cannot agree Wi!h
the learned Counsel in his claim that there is 1J0t
sufficient materials from which the learned trial Judge
..
could ha\"e arrived at the figure he did. Three
witnesses were c,dled to prove reasonable hire
for cargo boats similar 10 those in the present case.
These witnesses are in the trade and they supported
their evidence with documents which have not been
seriously challenged. No evidence in rebllttal was
adduced Oll behalf of the respondent.
The result is that the appeal is a]Jowed,aud, the
decree of the trial Judge is restored with costs
throughout.

'.
 1950J BURMA LAW REPORTS. 151

SUPREME COU RT.

U ~lAUNG MAUNG (ApPELLANT) t s c.

19~O

l' . NflT. ZOo

DAW THEIN ~IAY (RESPONDENT).*

Negotiable .Instruments Ad, s. 4-PttU1/i~sorj' "ol,-C(.r/o;" Stllll--]apn'lese
Curro,,}' (E'Ilalrwliott) Ad, 1947.
By" promis::;ory note executed on the 22nd LJecemhcr 1l)-l4 during: ]01rar;<;se
lJCCllpa;lon, th'e appellant prOlnltlcd to pay H~. 5,oeo to tt.e !~esp(.ndcnt lIr his
agent on Dt'mo1-'ld.
Helti: That primt' /dcic the prvll'ise is ant: for payment of a certain sum as
requi' ed by s. 4 of the X'egotiable InstTllments Act. The promife in the
proll1i~6ory note is to pay Us. 5,000 and the amOlll1t is not slatett to be payable
. ostensibly ill].,pallcse i\lilitary ;:urrcncy nO!C$ ;lIld it is a Im)lllise to pay in
legal CUrrtllcy and thtrdorc to pay a :ltlln certain.
H cOllsider;ltiun had becn reccived in japanese C'lrielJCy it dot'S not
ll~ct:ssa::i1)' foll"w that the promi:;:;ory nolC is to to be disc.h;lr~e I by paymenl
, .... in the same Carrenc)' and not by payment in le.~al lllrrt'l1l::y in a\",:nidancc wilh
the well known principle that ~ (h)camenl shall, if pu:,si0Ie, b~ inteq.rdcd ~o
as to gi\c it m~:dmllm validity.
"" After enactment of the japan(sc Currency (Evalnatiol1) Ad, 1947 there is 110
," necc5~ity to depart from the ~t:llcral propo~ition that W1H.'1l parlits 10 a controld
say naUling ;l.bolli ihc naturc of (.llrnmcy in which the agreed price is to be
paid. the parlies mu~t h<"l.\"c intended the price 10 be paid ill kg,tl currency.
Kv Mmmg l'in v, U GOII M,w, (l9~ij RL.R.149 (F.B); MllllIIlJ, Po LlIl/ <ll/d
cigltf olhtrs v. M,~ EMili tllld t!l rce otlieTS, 1 n.L.]. 111 at 116. referred !';J.

Dr. Thein for the appellant.

Tun Mml11{{ for the respondent.

The judgment of the Court was delivered by

MR. JUSTICE THEIN MAUNG.-This is an appeal

\'.~ilh
special leave under section 6 of the Union
Judiciary Act, 1948, from a decree on a promissory note
which has been confirmed by the High Court.
i" chn Appeal :t\:o. 6 of 1949.
t Present: U E :"IIAfJ:\G. Chief Justice of the Union oi BUfll1:l, i\JR. JUSTICE
TH.i:.I~ MJ,.ux(, and U THALNG SEIN, J.
 ' ..
152 BURMA LAW REPORTS. [1950
S.C. Receipt of consideration and execution of the
1950
promissory note are admitted and the only question
U MAUKG
MA.UNG which has been canvassed in the High Court and in this
V.
DAW THEIN appeal is that tbe alleged promissory note is not valid
MAT. as it does not contain an undertaking to pay a certain
sum of money as required by section 't of the Negotiable
Instruments Act.
The promissory note is one by which the appellant
promised to pay Rs. 5,000 to the respondent or her
agent on demand. Prim(/. facie the promise is one for
payment of a certain sum as required by the said
section. The contention that it is not for payment of a
certain sum is hased on the fact that the promissory
note was executed on the 22nd December, 1944, i.e.
during the period of Japanese occupation of the country.
The appellant's case is that the sum of Rs. 5,000
was mentioned in the promissory note as the amount
payable by him " ostensibly in Japanese Military
notes;" and his learned Advocate relies .on /1
Ko Haung Tin v. U Gon Man (1), where the late
High Court of Judicature at R;lIlgoon held by a
majority, [Sir Bit U J. no\\' Chief Justice of the
Union (on leave) holding that the point did not
arise] :
,. Th'!t Japanese so-'.:alled cnrrency WilS never !;twIu1 currency
in Burma, and a loan of Japanese notes was not loan of money. A
Vromissory note executed in consideration of such notes pl"omisinl!;
to pay what parties mist<lkenly regarded as money was invalid. "

The promise in the promissory note is to pay

Rs. 5,000 ; the amount is not stated therein to be payable
" ostensibly in Japanese Military Notes; " and, if the
matter were entirely res integra, we could have decided
very briefly that it is a promise to pay Rs. 5,000 in legal
cerrency and therefore a promise to pay a SUIll certain (
(I) 11947) RL.K 149.

'.
 1950J BURMA LAW REPORTS. 153

There IS no reason for reading into the promissory S.c.

1950
note the words "in Japanese currency" or "in
U MAUNG
Japanese Military Notes" since Japanese currency, even l\IAUNG

according to the appellant was neither lawful currency D.H\' ".TlIIm~

nor money. M.-\Y.

Even if consideration for the execution 'of the

promissory note had been received by the appellant in
Japanese currency as alleged by his learned Advocate,
it does not necessarily follow that the promissory note
is to be discharged by payment in the same cnrrency
and not by payment in legal currency. On this
connection it must be remembered that consideration
may take any form other than money, although for the
purpos~ of section 4 of the Act, what is promised to be
p.aid. must be a certain sum of money.
The interpretation that Rs. 5,000 promised to
be,p:lid is Rs. 5,00J in legal currency is in accordance
with the well known principle that a document shall, if
\, possible be interpreted lit res magis v leat qIl11111percal.
,., Besides it cannot cause any hardship to either party
since (a) under the circumstances prevailing during the
period of J ap~nese occupation, the promissory note
could have been discharged by payment in Japanese
currency as well; (b) section 3 (1) of the Japanese
Currency (Evalu ,tion i Act, 1947 provides that any debt
which h:d been incurred during the said period.
and Which couldlnve been discharged by payment in
Japanese currency notes shall be sltisfied or discharged
by payment in legal currency. notes or coins to be
calculated in accordance with the value of the Japanese
currency notes; (e) their value ;n respect of debts
incurred in 19-14 has been fixed thereby at 40 per cent
only of the legal currency; aud (d) the respondent
himself has asked for and obtained a decree for
payment of Rs. 2,000 only, which is the amount
claimable under the said Act.
 -. ;
154 BURMA LAW REPORTS, [1950
S.C.
1950 With reference to J(O Matl11g Tin v.U Gon Man (1 I,
I~obcrts C.J. himself, who \\ToleU e Icading judgment
U MAU!\'G
:L\1.,\UNG therein has stated:
v.
Dt.wTHE1N
" I respectfully agree with my broiLer SLarpe J. t'hat, as"a
MAY.
general proposition, when ~artifs to <l. COlllr et say nothing about
tile nature of lhe currency in which an agreed price is to be p<1id,
the parties Illu<.:.t have intended the price 10 be raid in legal
curreney, "

He addcd:
II The implication necessarily to Qe drawn in non~Bl
cirCllOlslanCC5 need not r]cces~arily be drawn. in abnorm11
Circt1mst~lTIces "

The abnornlal circumstances according to him

wcrc that thc 'occupying power" smpeeted persons
who held or helped to circulate British notes of being
spies and were apt to deal with them accordingly:" ~ ..
However, there was llO evidence whatsoever of the
alleged abnormal cirClllllstances. The Japanesc merely
introduced a parallel s)'~tem of currency without
ousting what was the leg"l currency of the country ~nd
a large alllount thereofrclTI<lined .~outstanding
throughbllt tlie period of occupation.
''',The Fun Bench obviousl)' . experienced great
difficulty in that case (a) as Sharpe J. had held that
debts. incurred during the said period must be
discharged thercaftl-r by payment in full in legal.
Cl11:renc)', althol'gh thcy could hayc been discharged'
then by payment in Japanes\': currency which had:
depreciated considerably and I b) as it would at tiie
same time be absolutely unjl]st to hold that such debts
could be discharged after the said period by payment
in Japanese currency which had t:len becomeabsoluiel)'
worthless. It. had to avoid the two extremes and find
a solution in the interests of justice, since in the words (
{II (1947; R.L.R. 149.
'.
 1'950] BURMA 'LAW REPORTS. 155

of Pratt J. in Mamlg Po LlIl1 alld (i.~ht v. Aia E Moi se,

1950
Iud three (1). ! .( :,,'~ ":It-l:t:,i"i ;."
U ),(AUXG
MAUNG
"It is the duty of the. Courts. to administer justice takiug
a broad view and Hot to allow litigants to take ;Hlvantnge of legal
DAW THEIN
MAY.
tcchnica lites and commit what is practically robbery by pl'ocess
of law.l'
, It had even to recommend legislation fixing the
value of Japanese currency during different periods of
the Japanese occupation j and the said Act is the result
of i til recommendation.
Tll'~ solution found by the Full Bench may have
been in the best interests of justice before the said Act
came into force. But after the enactment of the
said Act, there is no n0cessity to depart, in the interest
of justice, from the general proposition that "when
parties to a contract say nothing abollt the nature
of currency in which the agreed price is to be paid the
-\ p:trties must have intended the price to be paid in le,((al
currency;" and the equities are entirely in fayour
"
of the respondent.
- The appeal is dismissed with costs.

~.~ ~ .---~ _ . , > . , ~. ---~.~. - _ - : - _ - ~ ~ - - , - . _ ~ ' ~ ' - ~ -
---

(I) I [l,L.l. 111 at:p.116,

156 BURMA LAW REPoRTS: [1950

SUPREME COURT.

t s.c. U SEIN LIN (ApPLICANT)

1950.
v.
Mar. 20.
THE CONTlWLLEI< OF HENTS, RANGOON
AND TWO OTHEHS (HESPONDENTS)."

Urban Relll COl/I of Ad. $, 16 AA HI [al as fl1/Zcn,!ed by Act LI1/011948-

Jurisdiction of COIl-/roller oj NClds.
Hdd: The Controlkr oi Uellt~ has jurisdiction to ad under :;, 16 ~\A (41
rill of the Urabn Hent Control ~\ct only \vhe'll rc::idelltial pre1llise~ arc
either vacant or abo'll to be \'<JeanL He call1lott:;Jke adion at a tillle wI,en the
premises had already bC.... ll ncctlpied alld hi:3 aelion therefore was wilhout
jurisdiction.

Jos~Ph for the applicant.

Ba Sein (Government Advocate) for the,

respondents.

The judgment of the Court lVas delivered by the

Chief Justice of the Union.

U E MAUNG.-This application to quash the

proceedings of ihe Controller of Rellts in his Proceed-
ings Xci. I 94AA of 19+8-49 musrbe allowed.
The applicant U Sein Lin came into occupation of
the rooms in qut:stion in December 1949. Apparently
about a fortnight after he came int.o occupation the
Controller of Rents, Rangoon, came to know of it and
on the 17th December 19+9 a notice was issued
addressed to "u Sein Lin and Daw lIlymt or the
occupants of Upper Floor of No. 78, 12+th Street,
Rangoon," to show cause why they should not be
summarily evicted' from the prel1lis~s which, according

-lI Ci<:il Application No. 11 of 1950.

;\fj<:.c.
{
t Present: U E MAUNG, Chief Justice of the Union of Burma, lfR. JUSTICE
THEIN ;\f.J,UK9 and U THAUNG SlIN, ],

'.
 1950J BURMA LAW REPORTS. 157
to the Controller of Rents, they had occupied in s.C.
1950
contravention of section 16AA of the Ubran Rent
Control Act. U SEIS Lrx
v.
Mr. Joseph~' who appears for the applicant, has THE
CON:TROI.LF.l~
drawn our attention to the provisions of section 16AA OF Ih"Z"TS.
HAX{iOON'
(4) (a) of the Urban RentControl Act as amended by ANn TWo
01'HJms.
, Act LIlI of 1948 from which it is clear' that .the
Controller of Rents would have jurisdiction to act only
when residential premises are lither vacant or about
to be vaca,nt. In this case he took action at a time
when the premises had already been occupied. He
has therefore acted without jllrisdiclioL.
The proceedings are accordingly quashed. There
will be no order as to costs.

...
'

158 BURMA~L!AW 'REP<D'RTS. [1950

SUPREME COURT ,
,
U TUN TIN (ApPLICANT)
t S.C~
1950. 'L' .
Mar. 29.
THECOM.IIISSIONER, RANGOON
CORPOHATION, AND TWO. OTHERS (RESPONDENTS)." .
Cit), of Raugoou Municipal Act, s. JR (3 1""Oti willi RtdL' 9, Chl/pitr 9,
Schedule i~MeeU'Jg' liulillillg 'of-AdJ~l1Insme1;t-P.'wt/' 0/ 'b!llyi:/r. .
Where a- mteli~g'Of"COl1nCi1lors or- the Corporaiion of Hangoon' \vas
eonvene(t fodh~ ilh l\hp:h 1950 at 3 n.m. frw clc~lion uf the ::-'Iayor and at
abo.lt I p.m. the Commissioner ()fthe Rangoon C'lrporati,ln rC'Ceived a nute
from the. i\lllYOf instrilclin.!.! "I-Lll to inform the G)llllCillors that the llle~trng
l'OU!i:] not be h~ld and had be!;"n postponed Iill the 13th"- i.lf March J.95Q btl I
ne\,erlhle;g at the lillIe mentioned another Chairman was appointed and ,~
?lhyor is elected.
Hdd: C'nder s. 18 (3) of the Cily of Rangoon MLlnicip;11 Ad read with
Htlle 9, Chapler 9 of $chedlile I the 7\layor C:11l adjourn a meeting when I e :s,
.$
p:escnt, bl~ by keeping away he c;lnno[ cliO so, Every n'eeli Ig has to be
rre~ided over either by the l\Jayor if he is present or by olle of the CO~Jncillo:s
cho:-;en by the meeting to be Chairm.m if the ,\1 l.Jo is absent. H.1I1 e 9 1. .'.

provides that an~' meeting" may be adJollTIlt'd hy the l\la~'or or the Ch;dnr,an.
Though there is alltborit~, [0" Ihe view Illat in certain drcllm~tanees the
"
word 'adj')'ITIlmcnt' need Ilot b~ ~i\'l:n tile lechl1ical me:lnin,~ u:malIy
ass0ci-ated with it, yd ha\'in~~ rdercll ''': 10 tile ":olllexL th.: I s~ of ih~ word
'meeting'in s." 18'UI-':lild~-~t:ieren~';e ill Hile 9 t1 m-:c:!ir!).! already i:l
f{'ssion, the wonl adjollTllment h;ls tn b~ given its technic al meaning.
The meeting held on the 7th :'Il;irch I !SO was :t compete:lt meeting and
the election held therein was legal.

Tlln Azmg for the applicant.

The judgment of the Court was delivered by the
Chief Justice of the Onion.

U E MAUNG.-This application must be dismissed.

A monthly meeting of the Councillors of the
Rangoon Corporation, as required under section 17 of
the City of Rangoon Municipal Act read '"ith Rule 1 G
-Chi! Mi$c Application Nv, 20 of 1950.
j
t PI (sent : U E MAU:-l"G, Chief Jl:stice t)f the Union of Bllrm.. , MR. JUSTICE
THEI:\' iI'fAUNG and U ON" PI', J.

 1950J BURMA LAW REPORTS. 159

of Chapter IX of Schedule I of the Act, was con\"ened s.c.

19:0
for the 7th I\Lrch 1950 at 3 p.m. On that day at
..' aboLlt I p.m. or soon after the Commissioner of the U TU;~ TIN
I~angoon Corporation received a note from the then TH.
COM~IIS-
M,iyor, the applicant before us, instructing .
him to pest 8"'NEI',.
RASGnON
a notice at th~ Council Chambers informing the Co.R~'lII:";;oN
o Councl'11 01'3 'I
L la t tIe
I mtetmg
. j'lxec1 f or th at d a t e cou Id A'" TWO
OTHEII'.

not be held as the Mayor had suddenly taken ill and

had postpon~d the meeting till the 13th March 1950.
The applicant had apparently informed a section of
the Councillors of the action he had taken with the
result that at 3 p.m. on that day the Cou.lciJlors present
belonged mostly to the opposite faction. But there
was U Shwe Pyu, the second respondent, who till that
date Iud been acting with the applicant in the deli-
berations of the Corporation.
The first question that was raised at the gathering
of these Councillors at 3 p.m. on that day was whether
U'e ~Iayor was competent to postpone the meeting
originally fixed for that date to another elate fixed by
himself. The opinion of the legal adviser of the
Corporation was sought "pd he appears to have said
that it was within the competence of the Mayor to
postpone the meeting in circumstance as in this case.
This advice did not prove acceptable to most of the
Councillors and there appears to have been a general
disctlssion for the purpose of holding which U Shwe
.Pyu, the second respondent, was elected Chairman
o~ that meeting. There must have been, as appears
from the Minutes of the proceedings of that day, as
also from the several affidavits filed by the applicant
in support of his appli2ation, a good deal of talk and
..0 confllsion at the meeting: The legal adviser now and
again appears to have' advised the gathering that they
were bound by the Mayor's note postponing the
meeting and that they could not go on discllssing the
 , '

160 BURMA LAW REPORTS. [1950 )

'1,
:;" ',;~
('

S.C. matter that day. One of the. Councillors present,

1950
namely !\if. E. Kwel, then proposed that even if the
U TUN TIN
V.
applicant was not justified or was not .within his powers
THE
CO.\J)lIS~
in postponip:g the meeting, the members present that
sIONtu, day should out of courtesy to him agree to adjourn the
HANGPON
CORI'ORATION meeting. This proposal was seconded by another
A:-in TWO
OTHJms.
member but was opposed by at least one other
Councillor present. '
It appears also from the materials on the record that
most of the Councillors were prepared to concede to
the wishes of Mr. E Kwet and to avoid further mis- "

understanding to postpone the meeting. But they

could not agree on a d.lte to which the meeting \Vas to be
postponed and much till.e appears to have been spent
in, trying to arrive at an agreement on this point.
'While the discussion was going on it appears t1~at
U Thein M:lllng, the third respondent, suggested that a
ten minutes breathing space might enable the members
to come back with an agreed solution and this was ;~'

agreed to by the Chairman.

It is clear therefore that IIp to the moment of the
recess there had beeH no definite 'decision arrived at as
.. to what'wout<l be dOhe in the matter of' postponing or
adjourning the meeting already in session on that day.
After the recess the members came back under the
same Chairman and then it was pointed out to them
that under section 17 of the Act it was incumbent
upon them, as the meeting was the first meeting in the
month of March, to proceed to elect a l\Jayor for the
next tenn. The meeting accordingly proceeded to
elect the third respondent as the Mayor for the new
tenn.
Before us it has been contended on behali of the o-
applicant that the: proceedi ngs of the 7th March 1950 f
were void for one or other of the reasqns placed
before us. Firstly it was said that U Tun Tin as the
'. oil
~}.;,
 ,/' ,~~

V ~,/
1950] BURMA LAW REPORTS. 161

Mayor on the 7th March 1950 having given notice to S.C.

1950
the Commissioner of his decision to postpone the
U TUN'l'IN
me~ting till the 13th March 1950, the meeting held on v,
THE
the 7th, March 1950 was not competent in law. In COMMIS~

support of. this view he has drawn our atiention to SlOl\'EU,

HANGQON
section 18 (3\ of the Act read with Rule 9 in Chapter 9 CC>HI'OHATION
AND TWO
of' Schedule 1. We see nothing in these provisions OTHEHS.

, to support the thesis which he has raised before us.

H is clear from them that the Mayor can adjourn a
meeting when he is present at it. By keeping away
he cannot do so. According to section 18 (3) every"
meeting is io be presided over by the Mayor if he is
presen t or if he is absent by such one of the
Councillors present as may be chosen by the meeting to
be.Chatnuan for tile occasion. Similary also, Rule 9in
question provides that any meeting may be adjourned
by. the Mayer or Chairman of the meeting. The
learned' Counsel for the applicant relies on a definition
which is gi ven in vVharton's Law Lexicon of the word
"adjournment." vVe agree thai there is authority for
the view tbnt in certain circnmstances the word need
not be given the technical meaning whicb ;s usually
associated to it. Nevertheless, the word must be reaQ
. with reference to the context and, reading with
, reference to the context, it appears to us that the word
" n,eeting" in section 18 (3) and Rule 9 refers to the
meeting alrea'iy in session. Tbe first objection there-
fore fails.
The second objection is based on the allegation
that prior to the recess already referred to, the Chair-
man of the meeting, U Sh we Pyu, on the proposal of
Mr. E. Kwet supported by another Councillor, had
already adjourned thl" meeting till the 13th March
III 1950. But it is clear from the materials on record that
this is not so. There seems to have been a lot of
confused talk and cross-talk but there was never at
11
162 BURMA LAW REPORTS. [1950
S.C.
1950 any stage a definite adjournmerit, as claimed, to the
U TUN TIN
13th March 1950. There were suggestions that it
THE
would be advisable to postpone the meeting but these
Cm.lr.ns- were not acted upon by the Chairman or agreed to by.
SIONER,
RANGOON the Councillors. nor in fact wa~ the proposal put to the
CORPORATION
AND TWO
vote. We are of the opinion therefore lIlat the meeting
OTHERS. held on the 7th March 1950 was a competent meeting
and the election of the third respondent by the
Councillors at that meeting must be upheld.
 1950J BURMA LAW REPORTS. 163

SUPREME COURT.
THOMAS DE LA RUE & Co. LTD. (ApPLICANT) tS.C.
1950
v. ApI. 14.
THE COURT OF INDUSTRIAL ARI3ITRATION,
BURMA AND ONE (RESPONDENTS)." .
Diredious j,: nit /Jatllre of prohibition-Trade Disputes Act-Decisiotl by tlte
industrial COllrl Oil a n!ereuct: by tile Presidellt mulcr s. 9 of the Act-
Power 0/ the court to modify or /0 interpret or' to 1'eview tire award-
Demmu:ls by employees-Discharge of certain employees /!Juca!ler--
Whetlter d;sc'ldrgc call be subject to re/crmee.
Held: The Industrial Court acted in excess of its jurisdiction under s. 9
in granting relief to employees in the maintenance sectkn who did not attend
wurk of their own accord.
H~ld .. The Industrial Court is not competent to interpret, modify or review
its own award except in circumstances specified in s. 11 (3) of the Act.
If employees are diRcharged after a trade dispute has arisen between the
eml1loyer and employees, tile Industrial Court has ri~ht to give its decision
on the point of dispute.
During the currency of employment. a demand made by employees would
C,' constitute a trade dispute sufficient to give jurisdiction to the President to
I make a reference under s. 9 of the Act and the Indllstt'ial Court can hold an
enquiry under s. 10. To hold otht:rwise '''auld mean that any employer or
any workman could nullify the whole provhiions of the Act by terminating
the contract of service before a reference was ordered.
Steel Bros. Co. v. The Court 0/ Industrial A rbit rl1liOll aJ/d l-tllO, _Civil Misc.
Application No. ~2 of 1949; Re:~ v. The National ArbitratiolJ Tril1l1lll/,
11948) 1 ICB. 424. followed.
The continuance of a strike after reference under s. 9 of the Act is illegaL
If Some employees voluntarily kept away they could nof be said to have
been locked out by tIle employers and no compens:\tiol1 can be given to them
by the Industrial Court.

G. Horrocks for the applicant.

Chan Htoon (Attorney-General) for the respondent
No. 1.
T. P. Wan for the respondent No. Z.

\
. Civil Misc. Application No.1 of 1950.
t Presmf: U E MAUNG, Chief Justice of the Union of Burma, MR. JUS'f1eE
THEIN MAUNG and U On PE, J.
164 BURMA LAW REPORTS. [1950

S.C. The judgment of the Court was delivered by the

1950
Chief Justice of the Union.
THOMAS
DE LA RUE
&, Co. LTD . U E MAUNG.-This applic,\tion, which was
TH
framed in the first instance as one for directions in the
COlJRT of
INDUSTl<lAL nature of prohibition, only, was cha!lenged at. the
ARBlTHA-
TION,
hearing as incompetent by th~ learned Attorney-
BURMA General on the ground that the Court of Industrial
AND ONF.
Arbitration whose award is being questioned,' in view
of section 12 of. Trade Disputes Act, has no further
jurisdiction in the matter of the trade dispute in
question as soon as its award was published under
section 10 of the Act. This objection, however, need
not be further considered as the applicants have
sought and been granted leave to amend the application
by including a prayer for directions in the nature of
certiorari, both in the alternative and in addition .to
the original prayer for directions in the nature of
prohibition. The leave to amend, application for
which was made at the hearing, was granted by us as
the original application though it purported to seek
directionsmerely in the nature of prohibition, prayed
among other reliefs to have the award of the Industrial
.Court quashed.
The applicants are a company incorporated in
England carrying on business as security printers of
currency notes of various countries and they have
their principal place of business in Burma at Campbell
Road, Rangoon. For some time since July 1949 there
.have been disputes relating to the conditions of employ-
mentbetween the Company and the secund respondents,
the Trade Union of the employees of the Company.
These disputes culminated, so far as are relevant to
the present proceedings, in demands made on behalf
of the trade union on the 24th July 1949 by a document
a copy of which is filed as Exhibit A in the record of
 . i950] i3URMA LAW REPOR1-S. i65
tlie Industrial Court. On the 28th July 1949 the s.C.
1950
applicants, through their Manager, issued a notice of
, immediate discharge of 88 employees. It is not DE THOMAS
'"
,"
LA RUE
necessary for us to consider whether this discharge & Co. LTD.
V.
had any connection with the demanrls made by the THE
COURT OF
trade union. It was claimed on behalf of the applicants INDUSTRIAL
that they were "unavoidably compelled to close this ARmTRA~TIOW!
? factory for lack of business abd there is no prospect of' HU~~MA
AND ONE.
the Company having work which would justify the
retention of its employees' services." Under the
terms of this discharge with immediate effect the
applicants offered to pay to the employees affected one
months' pay in lieu of notice for the month of August,
pay for the whole of July even though the employees
were discharged on the 28th July, and holiday pay due
to the employees.
The disputes and differences which had been in
existence between the Company and its employees
became accentuated following the discharge of the
88 employees on the 28th July 1949 and on the
4th August 1949, when the factory after being clos.ed
for two days on the 2nd and 3rd August, was re-opened
it was discovered that in the interval 36 numbering
boxes had been removed by some person or persons
unknown. On behalf of the Trade Union it was
claimed that the disappearance of these boxes was
stage-managed by the company. On the other hand,
the applicants claimed that certain elements in the
Trade Union had been responsible for this work.
It is not necessary and therefore it is not for llS to-
adjudge between these claims. On the 5th August
1949 the Company issued notices of immediate discharge
of some 244 employee3. By these notices of discharge
the employees were told that the Company was
"
compelled to take action" on security grounds coupled
with the tl.1eft of valuable machinery and materials,"
166 BURMA LAW RE:PoRTs. [1950

S.C. and the employees discharged were offered wages for

1950
August and September, the latter in lieu of notice,
THOMAS
DE LA RUE together with any holiday pay due.
& Co. LTD.
V.
The works of tl)e Company were closed altogether
THE on the 5th August 1949 but it is not disputed before
COUHT OF
INDUSTRIAL us that the maintenance section, comprising some
ARBITRA-
TION, 40 members of the engineering staff and some 40
BURPolA
ANI> O~E.
durwans, was not amongst the employees discharged
on the 5th August 1949. On the 6th August when the
works re-opened, so far as those employe,es who were
not discharged were concerned, the mail1tepance section
refrained from attending. It has been found by the
Industrial COLrt that "there is no evidence to prove
that any worker entitled to enter the factory was
prevented from doing so after the Stir August: no
notice of discharge had been served on the maintenance
staff but they refrained from going to work after the ' ..

date on their own accord." Before uS also it is

conceded on behalf of the Trade Union by its Secretary
U Aung Myint that the maintenance section of the
employees I, refrained from attending work in sympathy
after th" notice of discharge on the 5th August 1949"
(vide paragraph 12 of his affidavit).
On the 24th August 1949 and by Notification
No. 244 of the Government of the Union of Burm? in
the Ministry of Public 'Works and Labour (Labour
Branch) the President, in exercise of the powers under
the provisions of section 9 oHhe TracIE; Disputes Act,
made a reference to the Industrial Court of Arbi tration
certain matters in dispute set out in that Notification.
The Industrial Court in pursuance of this reference
held an enquiry and made an award on the 14th Decem-
ber 1949, which forms the subject of challenge in
these proceedings before us.
H appears from the records of the Industrial Court
that after the award was published an appEcation was
 1950) BURMA LAW REPORTS. 167

made by th,e Company seeking" clarification of certain s.c,

1950
points in the award" (we quote from the diary entries
THOMAS
of the Industrial Court). This application was 'enter- DE LA RUE
& Co. LTD.
tained, the Trade Union was called upon to file its V,

written statement, if considered necessary, and counsel THE

COURT OF
were heard. Later, further orders were passed by the INDUSTRIAl
ARBITRA-
Court on the 31st December 1949. vVe must say that TIt'Nt

~'we cannot see what power the Court had after the
BURMA
AND ONE.-
'award had been published either to modify or to
interpret or to review its award. The Court is no
more comp<;tent than any other person or authority to
interpret an'd has no power to review its own award
except in the circumstances specifi.ed in section 11 (3)
of the Act.
By the award of the 14th December 1949 which,
in view of what we have said just now, is the only
operative decision of the Industrial Court, it was
declared that:
II All the workers of the Company who were in the employ of

the Company On the 28th July 1949 should be paiel their wa~es
till the 31st October 1949. In orclillat,y course they could have
been given notice of discharge on 1st Oelober 1949. The
.workers need not therefore be paid any wages in lien of notice.
Payments already made to workers will be ~cljt1stecl accordingly."

It is clear that this conclusion was arrived by the

Industrial Court as a result of its deliberation on three
of the issues framed, namely,- ,
II 1. \Vas the closure of the factory by the respondents on
5th August 1949 justified?
2. Are .the petitioners entitled to claim the withdrawal of the
notice, dated the 5th August 1949 ?

3. Are the petitioners entitled to a gl'ant of discharge allowance

as claimed by them in paragraph 16 (5) of the Statement of
Claim ?"
i68 BURMA LAw REPoRtS.
s.c. The first two issues arose under point 1 of the reference
1950,
made,by the President, namely,-
THOMAS
DE LARuE
&0: Co. LTD. .. 'Withdrawal of the notice, dated the 5th Angust 1949 for \
THE
V,
immediate closure of the factory on grounds C?~ security ap.'d
COUI{T OF theft of valuable machinery and materials."
l~DusTlnAL
AnlHTRA-
TIaN, and the 8th issue comes within the purview of the
BUR~fA
AND ONE. 5th point of the reference, namely,-
"Grant of Compassionate Allowance equivalent to thre:e
months' wages plus Co~t of Living Allowance to alJ erppll?ye~s
withont distinction in C1se of discharge of employees due to
there being no work or any other reason j or closure of the
factory; or in case of rdrenchment."

At tr.e bearing before us it has been strenuously

contended on behalf of the applicant Company that
the Industrial Court acting under the Trade Dispu~es
Act has no autllOrity to question the decision of any
person engaged in tracle or business to witbdraw from
tbat trade or business. It was said that a person ,-
A

carrying on trade or business is free for any reason or

for no reason at all to say that he will not continue to
be in th'attrade or business alld that under the guise
'oian enquiry bdoreali"Indllstfi'al Court on a reference
under section 9 of the Trade Disputes Act that person
cannot be called upon to justify his decision to
discontinue his trade or business.
It is not necessary in tbis case, however, to examine
this line of attack more closely; for, as we have said
before, on the 24th July 1949 certain demands had
already been put before the Company on behalf of,
the Trade Unioll and the demands would cover
the matter of point 5 of the orGer of reference of the
24th July 1949 and of issue No.8 in the Ind ustrial Court.
It is true that before the reference was made by the
President under secti0n 9 of the Trade D;sputes Act,
 BURMA LAW REPokT!:l.
88 persons had been dicharged on the 28th July; but s.c.
1950
that discharge after a trade dispute had arisen would
THmlAS
..., not deprive the Industrial Court of the authority to DE LA RUE
make an award as between those who were parties to & COv.LTD.
the demand and the refusal out of which the - COURT TaE
OF
dispute arose. In steel Bros. Co. v. The Court oj INDUSTRIAL
Iizdustrial Arbitratiun and fwo (1) we held that A~~~~~A-
o demands made during the currency of employment A~~~~~.
by the employees would constitute a trade dispute
sufficient to give jurisdiction to the, President to make
a reference under section 9 of the Act and to the
Industrial Court to hold an enquiry under section 10,
As Lord Goddard C.J. in Re;r: v. The N,lfiolllli Arbitra-
tion Tribunal (2) pointed out:

H To held otherwise would mean that any employer, or

.. ' indeed, allY workman, could nullify the whole provisions of the
order and the object of the regulation under which it was made,
. '. by terminating the contract of service before a reference ",vas
,. ordered or even after the matter was referred: but before the
tribunal considered it."

We are in full agreement with the learned Chief

Justice that because dismissal is superimposed on a
dispute whicb bas existed up to the moment of
dismissal tbe jurisdiction to have tbe dispute referred
or adjudicated upon is not taken away. That being
so, it would follow that so far as those persons wbose
services were terminated on the 28th July 1949 are
concerned the Industrial Court was acting within its
jurisdiction-a jurisdiction which is bound only by
the terms of the reference under section 9 of the Act.
. As' we have indicated already, in deciding to award to
these two classes of, employees their wages up to the
31st October 1949 tbe Industrial Court took into

II} C.M.A. 72 of 1949. (2) (1948) 1 K.B. 424.

170 BURMA LAW REPORTS.
S.C. consideration circumstances relevant under points
1950
1 and 5 of the order of reference.
THOMAS
DE LA RUE When, however, the Industrial Court proceeded
& CO. LTD. 'I.
V.
to grant to those employees in the maintenance section,
THE
COUnT OF
who on the Court's own finding (which is affirmed
INDUSTRIAL before us by the affidavit of the Secretary of the Trade
ARBITRAM
TloN. Union) refrained from going to work after the
BURMA
A:\D oNE.
5th August of their own accord, we are c1earl of the
opinion that the Industrial Court acted in excess of
the jurisdiction conferred on it by the reference made
under section 9 of the Act. Point 2 of the reference.
reads:
pa;
II Grant of fLlll with Cost of Living Allowance to the
employees who are prevented from attending work Jue the
alleged lock-out. "
I t was the case of the employees of the maintenance
section at an early stage of tbis dispute that tbey did not
voluntarily keep away from the works but were locked
out by the employers. This claim however bas been
negatived. Tbese persons must be deemed therefore
to have remained on strike. In het they themselves
described _their action as "strike in sympathy with
those employees whose services had been terminated."
. Continuance of a strike after a ~~f~rence under
section 9 of the Act has been made is illegal: see
section 14 (a) of the Act. It is true that on the
22nd August 1949 the Company issued to the members
of the maintenance section who remained away from
work a notice which Inter alia reads: "If you do not
intend to return to work please advise on the
29th August 1949 after which date we shall consicer
you as having resigned." Before the date fixed by
this notice, the. reference . to the Industrial Court was
._ made. It may well be that by reason of section 14 (b)
of the Act the operation of this notice is suspended. (
On this point, however, we express no opini"m.
 '1950) BURMA LAW REPORTS. 171
s C.
But, what is beyond dispute is that the case of the 1950
employee3 of the m'lintellance section who kept away THOMAS
frani work on their olVn volition [which absence from DE LA H.UE
& Co. LTD,
work as from the 24th August 1949 amounted to an ".
THE
illegal strike] cannot at all be brought within the ambit COURT OF
INDUSTHL\L
of the six points of reference to the Industrial Court. AUBlTHA
Accordingly, while we uphold the award of the TION,
BUR'If,\
'Industrial Court in respect of the employees who were AND ONY..

discharged on the "28th July and on the 5th August

1949, \V~ quash the award \vhereby the Court grants
relief to tlwse employees who of their own volition kept
away from employment from the 6th August 1949.
Normally, in such circumstances each party should
b~ar its own costs but in view of the fact that the
Company applied for and was granted leave to amend
its application to include a prayer for directions in the
nature of certiorari at a very late stage, the Company
should plY, and we accordingly direct it to pay to the
" , second respondents, ten gold mohurs as costs.
171 BURMA LAW REPORTS. r ..
L1950

SUPREME COURT.
I
ts.C. TAN CHIT LYE (a) TET SHIN (a) MAW PEIN
1950
(ApPELLANT)
ApI. 21
v.
THE UNION OF BURMA (RESPONDENT).*

CriIJdlllll appeal to lite Supreme Coltr/-Principhs to be followed-Qf~e$tiOlls
offac/-Wlzether cml be gaM illfo-Colljes:.ioll-Mealli1Ig of.
Held: That the principles applicable to the ext:rdse by the Supreme
Court of its Appellate Jurisdictioll in Criminal mJtters has bet:n explained in
U Saw and/ oillen. v. The UlIiOIl 0/ Burma, (1948) B.L.n. 249.
Article 157. Limila'ion Act prescribes the period of limitation for an appeal
by the Governme~t against a'., ord~r of acquittal. Nodt:partmcntal instrllc-
tions can ovcrrule the statutory provision.
Held further: That an appeal on facts against an order of acquittal is
allowed. But in exercising such powers the Hi~h Court should and will
alwayd g:ive proper weight and con,;jderation tl)~sllch matters as 0) the vic\ys
.\
of the Trial Judge as to the credibility of the witnesses, Iii} the presumption' of
innocence in favOliT of the accused. a premm)tion certainly not weakened by
the fact that he ha~ been acquitted at his triill, (Iii) the right of the accused to
the benefit of any doubt, and (iv) the slowness or an Appellate Court in
disturbing findings of fact arrived at by a Judge who had the advantage of
seeing !he witnesses, These rules and principles are well k!lOWn <lnd
recognized in th~ admi:listration of justice,
S/tto Su.'artlP v. Kiug-Emperor, 56 All. (')45 at 651, followed,
A Confession ll1U~t. eilher adIl1it ill terms the off~nce, or ~t any rale
facts
subs1aIIU-all);-a-lr tile' whicii co-nstii;lt~ the offen(;c. An admission of a
gravely incriminating fact, c\'en a conclusively incrinlilJating fact is not of
itself a coIlfes3i0n. Thus an admission that the accused is the owner of and
was in recent possession of the kn;fe or revolver which caused a Ijeath with
no explanation of any other llHUl's possession, is not a conCession.
\Vhere there were materials other than the alleged confession on which
the aprellant could be [oowl guilty the Supr-::Ille Court will not interfere wi th .,
the decision of the High Court.

Dr. TheiH for the appellant.

Ea Seill (Government Advocate) for the respondent.

'" Criminal Ap!)eaJ No.3 of 1950.

t Present: U E MAU~G, Chief Justice of the Union of Bnrma, rVIR. JUSTICE
THEIN MAU~G and U THAUNG SEIN', J.
 ,

1950] BURMA LAW REPORTS. 173

~.c:.
The judgment of the Court was delivered by 1950
the Chief Justice of the Union. TAN CHIT
LYE fa} TET
U E MAUKG.-In U Saw and four others v. MAW SHIN la)
PEIN
Union of Burma (1) we have explained the princ:iples v.
THE UNION
applicable to the exercise by ,this Court of appellate OF Hl"lUlu..
jt.irisdietion in criminal matters and it is not, necessary
" to reiterate the same here.
The ::.ppellant in. this case, who had been acquitted
at the trial before the District Magistrate, Rangoon,
was, on appeal by the State under section '417 of the
Criminal Procedure Code, convicted of the offence
for which he stood trial. The order of acquittal by
the trial court was made on the : 4th May 1949 and
the appeal to the High Court was preferred on the
26th Augu~t 1949.
,>
The first point that was taken before us by the
learned counsel for the appellant, placing reliance on
a decision of the High Court of Judicature at Rangoon
in King-Emperor v. U Sail Win (2) is that the appeal
to the High Court being preferred more than three
months after the order of acquittal should never have
been acceptc'd inasmuch as there appears in paragraph
828 of the Burma Courts Manual a caution that no
appeals against acquittal" will ordinarily be sanctioned
after the expiration of three months from the date of
the order of acquittal." But this after all is merely a
departmental instruction and cannot over-ride the
statutory provisions in Article 157 of the First
Schedule to the Limitation Act, which allows an
appeal against an order of acqnittal to be ,preferred
within six months from the date of the order of
acquittal appealed from.
Relying again on the same decision of the High
Court of Jndicature at Rangoon the learned counsel
(II lI94S1 B.L.R.249. (21 10 Ran, 312,
174 BURMA LAW REPORTS. [1950
S.c. for the appellant also contended before us that no
1950
question of law having been involved in tbe appeal to
TA~ CHIT
the High Court-the appeal turning entirely on facts-
LYE (a) TET
SHIN (al
that appeal was not competent. But, as has been
.. ,
:\IAW PE!N
".
THE UNIO)J
rightly pointed out by tbe Privy Council in a later
OF BURMA. case, Shea Swarup' v. King-Emperor (1):
"Sections 417, 41S anel423 of the Code give to the High
Court full po\yer to review at llrge the evidence upon .which the
order of acquittal \~3.S founded,.aud to reach the conclusion t!lat
upo"n that evidence the order of acqu:thl should be revel's'ed.
No limitation should ,be placed upon that power, unless it be
found expressly stated in the Code. But in exelcising the power
confelTed by the Code and before reaching :ts conclusions upon
fact, the .High Court shol'lel anel will always give proper weight
and consideration to such matters as (0 the views of the trial
Judge as to the credibility of the witnesses; (ii) the presumptiqn
of innocence in favour of the accused, a presumption certainly
not weakened by the fact that he has been acquitted at his tria~ ;
(iii) the right ofthe accused to the venefit of any eloubt; anel
(iv) the slowness of an appellate court in disturbing a finding of
fact arrived at by a Judge wh!=>. h1d the advantage of seeing the
witnesses. To state this, however, is only to S;ly that the High
Court in its conduct of the appeal should aod will act in
accordance with rnles and principles well known and recognized
rn the adtnitlistralion of ji.I::>fice-." .

It is further contended before us that the Ieaflled

Judge of the High Court allowed himself to be
influenced by materials not admissible in evidence.
It was said that the learned Judge should not have
taken into consid"ration the statement made by the ,
prosecution witnesses that when tbey first went into
the premises where they made a search later, the
appellant, to the enquiry of the Excise Officer, stated
in reply that he was the occupier of lh~ premises. In
the first place- we cannot accept tbe learned counsel's
contention that such a statement would.be inadmissible
(1) 56 All. 645 aI651 .
 1950] BURMA LAW REPORTS. 175
S,C.
under section 25 of the Evidence Act, as being a 1950
confession. This point has been considered as far TAN CHIT
backas 1939 by the Privy Council in Pakala Narayan LYE (a) TWf
SHIN (al
Swami v. King-Emperor (I \, reproduced in MangUal MAW PEIN
V.
v. The King (2). The relevant passage will be found at THE UNION
OF B~RlIIA.
page 798 and we are in full agreement with the Privy
Council when it said:
. ". . a confession must either admit in terms the offence, or
at any r'lte snbstal1t'ially all the facts w'-iich constitute the offence.
An admission of a gr:wely incriminlting fact, even a conclusively
incdminatin~ fact is not of itself a confession e.g., an admission
that the aC~t1sed is the owner of anel was in recent possession of
the knife or revolver which c3.usecl a death witl} no explanation
of any other man's possession."

Moreover, it cannot be said that apart from the

contested statement in question there was no material
on which the learned Judge of the High Court could
have come to the conclusion that the appellant was
guilty of the offence for which he stood his trial. This
is not a case where the conviction was recorded on no
evidence at all. There are on the record materials
from which the learned Judge could have come to a
conclusion different from that of the trial Magistrate.
It cannot ther"fore be said that this is a case for
interference by us by way of special appeal.
The appeal is therefore dismissed and the appellant,
who is on bail, will be re-committed to prison to serve
the remainder of the term to which he was sentenced
. by the High Court.

(I) 18 Pat. 234. (2) (1941) Ran. 784.

 ,.
-~-

176 BURMA LAW REPORTS. [1950

SUPREME COURT.
t s.c. THE NAMTU WORKERS' UNION (ApPLICAl--iT)
1950 '.'
May 10. v.
THS COURT OF INDUSTRIAL ARBITRATION,
BURMA AND TWO OTHERS (RESPONDENTS)." .
Trade Dispute_Mea1';tlg ol-.Trade pispufes A et, s. 2, Clause (j)-flefe~ln,e by
Preside,,' to Industrial COllr/-whether 'couclusive vI the e:dstwce of
trade dispute.
\Vhen the President of tbe Union made a reference to the Industrial
Court regarding a claim of three months pay as Evacuatio~l Compc'usafory
allowance made by the Members of the Union owing to the evacuation and
the consequent closur~of the Burma Corporation Ltd. in 1942 on account of
the war, and the Industrial SouTt by its Award held that tile claim, m<lde
after the war, could not be regarded as connected with non-employment or as
the subject matter of a trade di~pllte, and the Urlion applied for a writof
mandamus against the decision of the Industrial Court.
Held: That a writ of mandamns can only issue to direct the performance
of a public duty where a public authority ha!> failed in its legal obligati~n
to perform Stich duty. \Vhere the President of the Union in exercise of
his powers under s. 9 of the Trade Dispntes Act makes a referenc.e to
the Industrial Court such reference is not conclusive of the matter being
a trade dispute. "Trade DispQtp;" is defined in the Act elaborately.
Wllere the Industrial Court properly held that tbere was no trade dispute
it had not evaded ailY statutory duty imposed tiJ-.'on it. It is open to' the
Industrial CO,lrl as well as tile Sllpr~me Court to decide whe~her there is
a tr~tde dispute or not.

Bal1erji for t~e applicant.

Ba Seil1 (Government Advocate) for the respon~nts

Nos. 1 and 3. \
C. A. Soorma for the respo'ndent No.2.

The judgment of the Court was delivered by the

Chief Justice of the Union
,. Civil Misc. Application No.9 of 1950.
t Present: U E MAUNG, Chief Jnstice of the Union of Bl'rm3, MR, ]USTJCf.
THEIN MAUNG and U AUNG THA GYAW 1 ],
,.

./
/
 -/
1950] BURMA LAW REPORTS. 177

U E MAUNG.-By a Notification, dated the 15 '2-

18th August 19411 of the Government of the Union of ~
Burma in the Ministry of Public Works and Labour T,~i;,R~::';:u
(Labour Branch) the President of the Union made a UNION
v.
reference to the Industrial Court, inter alia, of "Grant THE CoURT
OF
of three months pay as Evacuation Compensatory INDUSTRIAL
, . . . ARBITIMTION
AII owance' as a matter arIsing out of a trade dIspute BURMA AND'
between _the Burma Corporation Limited and its TWO OTHElls.

employees, being members of the Namtu vVorkers'

Union.
The claim for the grant of three months pay as
Evacuation Compensatory Allowance arose out of the
closing down of the Burma Corporation Mine at
Namtu early in 1942 as a result of the outbreak of the
war with- Japan. The Burma Corporation Limited
ceased working the mine on the Japanese forces
oc.cupying Burma and employees who were not
residents of the locality evacuated from the mine area
to their respective homes in and out of Burma.
Inevitably of course these evacuees could not take
aWjly with them the bulk of their personal belongings
and they also suffered losses on the way of a proportion
of their belongings which they managed to take away
from the area. Some of these employees who had thus
to evacuate the mine area in 19'1-2 came back and
re-joined the services of the Burma Corporation
Limited iIi 1945 and they claim that having had to
leave the bulk of their goods and belongings in the
mining area for no fault of their own they should be
paid evacuation compensatory allowance equivalent
to three months pay.
This claim, however, was made not in 1942 but in
1948 and the employers claimed before the Industrial
Court that such a claim -did not constitute a "trade
dispute" within the meaning of section 2, clause (j)
of the Trad" Disputes Act. The Industrial Court by
12
il/8 BURMA LAW REPORTS. [1950
$,C,
'19~O
jts Supplementary Award of the 2nd September 1949
said ip this connection :
THE: N.-\MTU
. 'v c;Rlmi~s"
U;N,IO,N II Had the claim 1.een made before the evacuation in 1941
v.
.';I,'HE CQURT thaUt s]lOuld be a term of service .; the employees that they
OF shall be paid cerfain arnollnts as evacuation alIo\vance, we have
INDUSTRU:L
A 'R13~Tj~ATION, little doubt that that claim could have been the su!'>jeet matter 6
. BUm,fA A~li a trade dispute. \Ve do not think, however! that it is open to the
. TWO OT~IER.S.
Union to raise a trade dispute on this malter at this stage. \Ve
do Dut th.ink that the matter cal; be regarded ~as comirtg within
the scope of the words' connected with non-employment' used
in the definition of the term' trade dispute.' 'VVe hol~lthe~'~~
fore that' the claim for Evacuation Compensatory .Allowance
'cannot forth the subject, matter of a trade dispute within the
meaning of that-term unr:ler the Trade Disputes Act. JJ

The Namtu Workers.' Union, Tepresenting' the

aggrieved employees, has now applied to this Court
for directions in the nature . ofll1andamus and \ve h:.ve
heard its learned cOllnsel !vIr. Banerji at length. It is
,elementary learning that mandamus' can only issue to
direct the performance of a public duty which the
authority to whom the directions are issued has failed
in' respect of its legal obligation to perform. The
.learned. counsel for the applicant being fully aware of
. this principle has clain1ed that once the President of
the Union in exercise of his powers under section 9 o'f
the Trade Disputes Act has referred "any particular
ma:tter at issue between. employers and employees" the
Industrial Court is not at liberty to consider whether
the matter so referred is within the' ambit of the
definition of" trade dispute" or not. Mr. Banerji
claims that when the Industrial Court said: "We hold
,therefore that the claim for Evacuation, Compensatory
Allowance cannotfornl\ the subject matter of a trade
dispute within, the meaning of that term under tl1>o
Trade Disputes Act" it had exceeded' its jurisdiction
and tha.t by that excess of jurisdiction it failed to
0
 V t{!.
,..-.
1950] BURMA LAW REPORTS. 179.

perform what, according to the learned counsel, was s.c.

1950
incumbent on it, namely, to consider the question of
THE NAMTU
the grant of evacuation' compensatory allowance on WOI'>:ERS'
the merits. . UNION
v.
The proposition' propounded on behalf of the THE ;Fo uRr
applicant Union, namely, that the inclusion of any 'I;musTRI"L
. I b ' ., b . t'l ARBITRATION,
parhcu ar matter as el11g 111 Issue etween le BURMA AND
employers and the emFloyees in the order of reference TWo OTHERS.
by the President under section 9 of the Trade Disputes
Act is conclusive of such matter being a trade dispute,
is one so. revolutionary that without the strongest
authority in support thereof we find it hard to
contemplate. Mr. Banerji has frankly conceded that
he has not been able to find any authority in support
of this proposition. vVhen it was pointed out to him
that his contention that the President's reference is
c{;mclusive . for the Industrial Court as far as the
question whether any matter formed part of a trade
dispute would involve the corollary that it would not
be open to ihis Court also to go behind the President's
decision, Mr. Banerji tried to differentiate between
this Court and the Industrial Court in this respcct.
But we can see no difference in principle. Either the
President's reference is conclusive of the nature of the
dispute or it is not. If it is conclusive in law it is
binding on all Courts in this country. If it is not
conclusive it cannot be binding on one Court and not
on another.
\ Further, if Mr. Banerji's contention is correct there
\
was no necessity for an elaborate definition of the
term " trade dispute" in the Act. It would have
sufficed for the Act to have provided that such matters
as the President may deem to be a trade dispute shall
be inquired into by the Industrial Court.
The result is that in our opinion the Industrial
Court in holding that the claim for evacuation
180 BURMA LAW REPORTS, [1950
s.c compensatory allowance in the circumstances ansmg
1950
in this case cannot form the subject matter of a trade
THE NAMTU
WORKERS' dispute and in consequence in refusing to hold a
UN~~N further enquiry on the merits of the claim, cannot be
THE COURT said to have evaded the statutory duty imposeq on it.
OF
INDUSTRIAL The application for mandamus therefore fails and is
ARBITRATION,
BUR"A AND d'Ismlsse
. d Wit 'h costs. A d ' sees
vocate f len go I (J
TWO OTHERS. mohurs:

,
"

I
 1950] BURMA LAW REPORTS. 181

SUPREME COURT.

EO AYE KO (ApPLICANT) ts.C.

lCJSO
v. May Ifk

THE COMMISSIONER OF POLICE, RANGOON

AND TWO OTHERS (RESPONDENTS)."

Writ of habeas corpus-Public Order (Prescrvaftoll) Act. S, SA (4l-Arrest of

pel'soll outside territorial jurisdiction_Later order itt Sllbstiltt!iou-
Whether jll1'isdictioJl a/Supreme Court affeeled.
The detenue waS arrested at Hmawbi on the 26th of May 1949 and was
detained in the Rangoon Central Jail under the order dated the 30th May 1949
of the Deputy COlUmissioner of Police l Rangoon under section SA(JI Cb) of the
Public Order (Preservation) Ad. On the 20th March 1950 the detenue applied
to the Supreme Court for a writ of habeas corpus and while the proceedings
were in the Supreme Court the Deputy Commissioner of Police, I(angoCtn,
cancelled his order and the Depnty Commissioner, Insein, passed an order
dire~t:ng the detenticJn of the applicant in the Rangoon Central Jail until
further orders and then passed an'.Aher order under sub-section 4 of section SA
of the said Act tran5ferring the applicant to Insein Jail for further detention.
Held: That the present confiuement of the applic,mt at the date of the
hearing: in al~ area under military administration is an attempt to evade the
jnrisdiction of the Supreme Court and such an attempt by the executive
allt.hcrities interfering with the rights assured by tbe Constitution could not be
em,'allraged.
The mere fact t11at the applicant is a \Vhite Pyithn Yebaw Leader would
not bring the ap!:1licant within the purview of section SA (1) ib) of the Public
OrdeF (Preservation) Act.

111ya Thein (Government Advocate) for the respon-

dents.
The judgment of the Court was dtilivered by the
Chief Justice of the Union,

U E MAUNG.-When this application was called

before us for hearing on the 8th May 1950 we were
told by the learned Government Advocate appearing to
*Criminal Misc. Application No. 86 of 1950.
tPresent: U E MAUNG, Chief Justice of the Union of Burma, l\ll~. JUSTICE
THEIN l\IAONG and U AlJNG THA GVA\V, J.
 BURMA LAW REPORTS. [1950

S.C. show cause against the application for direction in the

1950
nature of habeas corpus, that the applicant on that date
Bo AYE l{o was being detained in lnsein Jail Annexe and under '.
v.
TilE COMMIS- the orders of the Deputy Commissioner, 1nsein. The
SIONER Or'
POLleE, learned Government Advocate then claimed that as
RANGOON
ANI> TWO
lusein District is under nlilitary administration this
QTIIEHS. Court could not be competent to proceed further with
the application.. Normally we would have agreed with
him and would have dismissed the applicatioh as one
outside our jurisdiction to entertain.
But a closer examination of the record discloses a
mosf deplorable ~tate of affairs. On the 20th March
1950 the appli.::ant, a detenu then in the Rangoon
Central Jail under section 5A (1) (b) of the Public
Order (Preservation) Act under the orders of the
Deputy Commissioner of Police, Rangoon, dated the
30th May 1949, applied to this Court through ele
authorities of the Rangoon Central Jail for directions in
the nature of habeas corpus. The application was , .
duly transmitted to this Court and on the 29th March
1950 the Judge in Cllambers directed issue of notice
to the Commissioner of Police, Rangoon, and the
Superintelidelit of Centraf Jail, Rangoon, to show cause
by thE'- 21st April 1950. When the case came before
the Judge in Chambers on the 21st April 1950 it was
stated on behalf of the Commissioner of Police that he
had cancelled the order of detention issued by him
and had nothing more to do with the detention of the
applicant whose continued detention was claimed to be
under the orders of the Deputy Commissioner, 1nsein.
The applicant in his petition stated that he was
arrested at Hmawbi on the 26th May 1949 and was
detained in the Rangoon Jail following his arrest.
This averment is not challenged and appears to be
correct. Apparently this was the reason for the
Commissioner of Police withdrawing hi;; order of
 \ f-f~
~

1950] BURMA LAW R:E:PORTS.

detention as he cimleto realize that' he had acted s:c.
1950
without territorial jurisdiction in the case.
Notice was then issued to the Deputy Commissioner, Bo AvY,E Ku'
lnsein, and he subrilitted 'copies 01 his' o[(lers of the THECo"",s-
SJONER OF'
30th March 1950 "nd 29th April 1950. By his order POLICE,
of the 30th March 1950 he directed the detention of ::~~~~~
the applicant in the Rangoon Central Jailnntil further OT!'""S.
orders, obviously in continuation of the detention which
to that d,tte had been under the orders of the Deputy
Commissioner of Police, Rangoon. The other order
is one under sub-section (1) of section SA of the Act
transferring" the applicant from the Rangoon Central
Jail to the Insein Jail Annexe for futher detention.
The bare recital of these facts;s sufficient to show
that the confinement of the applicant at the date of the
hearing in an area under military administration and
by, a Deputy Commissioner exercising authory in such
an area is the result of an aJ:tempt to evade the jurisdic-
tion of this Court in an application already within the
seizin of this Court. To accept the plea of bar to the
jurisdiction of this Court would be to encourage the
invasion by the executive authorities of the rights
which the Constitution of this country has assured to
each one of its citizens. In fact, if what was done in
this case after the filing of the application for directions
in the nature of habeas corpus can be established to be
intentional, we are clearly of the opinion that proceed-
ings for contempt would be appropriate.
Coming now to the facts, it is said by the Deputy
Commissioner, Insein, in his affidavit that the appliCant
is a White Pyithu Yeb'lw leader who was arrested in
tlte Company of Boh Mya Tha Dun (of whose activi-
ties we are not told anything) at Hmawbi on the
26th May 1949 and that they were believed to be then
on their way to Magwe. How these fact~ would bring
the applicant within the purview of seclion SA (1) (b
184 BURMA LAW REPORTS. [1950

S.C. of the Pubilc Order {Preservation} Act we are at a loss

1950.
to see. No other allegation has been made against the
Bo AYE I{o
V.
applicant and on this state of the record we are satisfied
THE COMMIS-
SIO~F.ll OF
that the detention of the applicant is not in accordance
POLICE, with law.
H.ANGOON
AND TWO vVe accordingly direct that the applicant be released
CTIIW:i.
forthwith.

I -
1950] BURMA LAW REPORTS. 185

SUPREME COURT.
S. HAQUE (a) ISLAM (ApPLICANT) t s.c.
1950.
v. MaY 23.
N. AHMED (RESPONDENT).'~

Governmen! oj Burma Act, 1935. SS. 41 alld 42-Govcruar's dec/ara/tOll,

dalcd lOti: December 1942-Collstifulion .4 ct, 55. 23 (4), 222, 226 (11-
E:dslillg Jaws-General Cl,wses Act, s. 4 (1), parUcular dale-Meanilfg
ol-Adaflatio1: Order '226 (21-Urban Reul C01llrol Ad, 1948, 'WIfe/her
ultra vires of tile Cons[ituUolI-VlIlidJfy of agreements gwerally.
Held: The Urban Rent Control.<\ct, 1948, was enacted by the Governor of
Burma 011 tte 2nd January 1948 when the Government 6f Hunna Act, 1935.
\Vas in force. It was made in pursuance of the proclamation of 10th December
1942 by the Governor assuming to himself under s. 139 of the- Government of
Burma Act, all the powers vested by that Act in the Legislature of Burma.
Unlike ordinances under ss. 41 and 42 of the Government of Burma Act. an
aet of the lc.gislatllre did not require any pllblic notification. In this respect
the Ad follO\ved the English Rule that proc1am:ltion or any other form of
[lub)Jcation of an Act of Parliament was never necessary to make 311 Act
complete.
S. 222 of the Constitution defines" existing law" as a law passed before the
commencement of the Cunstitution by any legislature, authority or person,
etc. The Urban Rent Control ..<\ct, 1948. complies with this definition. It
provides in s. 1 {51 that it shall come into force at once except the provisions
oi s. 16..0\ ond 1611. Though the Act was not published in the Gazette till the
17th ]anl1uy 1948 it cannot bi': sail! that the Act could not have come into
force before that date The fact that the Act is not specifically mentioned in
the Adaptation of Laws Order made" by the President of the Union of Burma
under s. 226 (2} (If the Constitution does nol affect its validity because the Act
shall COll1(; into force "at once." These words are sufficiently specific taking
into consideration the fact that the :ll1thcnticaled copy of the Act bore the dale
the 2nd January 1948.
If tid also: That the Act is consistent with s. 23 i41 of Ule Constitution.
Tile right of private property is, with certain reservations, guaranteed by the
Constitution but the right tQ contract is ilot a flllld:.mental right assured
thereby. The central idea vf the't;rban Rent Control Act is the restriction of
rents of premises in mban :trt::as, and the Act extel}ds no further than plaCing
restraint on the untrammelled exercise of consensllalletting of premises in the
urban areas.
An agreement-has 00 inherent vitality. Rights and obligation'> attaching
to one volllntarily made are creatures of the statute. The Contract Act which

oJ! Civil Appeal No. 17 of 1949.

t Present: U E l\'[AUNG, Chief ]ltsticc of the Union of Burma, MR. JUSTICE
THEIN M.tUNG;md U THAUNG SEI1'\,].
186 BURMA LAW REPORTS. [1950
regulates the subject principally postulates equality of status between the
S.C.
19S0 contracting parties. Where the parties do not enjoy equality. recognition is
withheld from agreements. Again certain rights nod liabilitic~ arc attached
s. HAQUE (al by Jaw to cqntracts and they are not allowed -to be varied by :\~reement.
ISLAllI Parliament has a right to take measures to prevent o'.vners of premises in
v.
N. AUM~D.
residential areas from taking advantage of abnormal conditions, to the
detriment of the general public and exacting excessi . . e or unreasonably high
rent and a duty is imposed 'on Parliament under s. 29 of the Constitution to
make law:5 to ~ive effect to the limits permitted for the use of private property
to the detriment of the general public,:

Tun Sein for the applicant.

N. B~se forthe respond~nt.

The judgment of the Court was delivered by the'

Chief Justice of the Union of Burma,

U E MAUNG.-.,--The concise statement facts or

and of the arguments which under the provisions of
Order XIII, H.ule 1 of the Rules of the Suprenle Cotd
the appellant in this case has filed reads: "That the
Urban H.ent Control Acts of 1948 and of 1946 are
ultra vires of section 23 (4) of' the Constitution of the
U"iOll of. Burma." At the hearing, the learned counsel
for the appellant has at length amplified his challenge
of the validity of the Acts of 1946 and 1948.
The suit out of which the appeal arises was
instituted under the provisicllis of the Urban Rent
Control Act of 1948 and the reference in the altel:native
in the concise statement of facts and arguments filed
by the appellant is the result of the learned counsel for
the appellant not being able to make up his mind
whether, apart from the question of constitutionality,
the Act of 1946 Of the Act of 1948 is the enactment
which is in operation. In Civil Appeal NO .. 8 of 1949
where the learned counsel for the appellant 'in this
case appears for several respondents he seeks to
support the decision ,of the learnf.d Chief Judge of the {
City Civil Court who in Civil I~ent Referenc,e No. 50 of
 1950] BURMA LAW REPORTS. 187

1948 took the view that the Act of 1948 does not form s.c.
1950
part of the body of "existing laws" which, within the
s. HAQu&.(a)
meaning of section 226 of the constitution, continues in ISLAM

force in the Union, that the purported repeal by that N. AHMED"P .

Act of the earlier Act of 1946 is ineffective and thai

apart from any constitutional defect, the Act of 1946
is the enactment in force today. The learned counsel
for the appellan t relies in toto on the reasoning
adopted by the learned Chief Judge of the City Civil
Court in the proceedings under appeal in Civil Appeal
No.8 of 1949 and desires us to affirm the view stated
by the learned Judge.
The Urban Rent Control Act of 1\V8 was enacted
by(he Governor of Burma on the 2nd January 1948,
two days before the Constitution of the Union of
Burma came into operation. The Government of
Burma Act, 1935, was then in force and the Urban
Rent Control Act, 1948, was made in pursuance of the
Proclamation of the 10th December 1942 by the
Governor of Burma assuming to himself under
section 139 of the Government of Burma Act all the
powers vested by or under that Act in the Legislature
of Burma. In clause 2 of the Proclamation the
Governor declared that "in exercising legislative
powers under or by virtue of this Proclamation the
Governor, acting in his discretioli, shall prepare such
Bills as he may deem necessary and declare as respects
any Bill so prepared . . . that he assents thereto in
His Majesty's name . . . . ." As such, the Urban
Rent Control Act, 1948, is not a Governor's Act within
the meaning of section: 43 of the Government of
Burma Act.
Unlike Ordinances under sections 41 or 42 of the
. Government of Burma Act, which require promulga-
tion for them to become of tbe body of laws in force,
an Act of the Legislature did not require, except in
188 BURMA LAW REPORTS. [1950

S.C. circumstances defined in section 38 (2) of the Act, any

1950
public Notification thereof to become of the body of
S. HAQUE (a)
ISLAM laws of the land. In this respect the Government of
v. Burma Act followed the English rule that proclamation
N. AHMED,
or any other form of publication of an Act of
Parliament was never necessary to make the Act
complete. Section 222 of the Constitution defining
" existing law" refers to any law <f passed or made
before the commencement of ihis Constitution 'by any
legislature, authority or person, etc." The Urban Rent
Control Act made as it was on the 2nd January 1948
complies with this definition. The Act in section 1 (3)
provided that it " shall come into force at once except
the provisions of sections 16A and 16B which shall
come into force on such date as the Governor may
appoint in this behalf." Accordingly this Act was, as
a legislative enactment, perfected on the 2nd Januarf
1948 and it has in the clearest terms disclosed the
intention that it was' to come into force on the making
thereof, which, on the face of it, was the 2nd January
1948.
In these circumstances it would appe?r as if there
can be no possible room for thinking that this Act of
1948 is not by virtue of section 226 (1) of the
Constitution continued as of the body of the law in
force in the Union of Burma until repealed or varied
in due process. But the learned Chief Judge of the
City Civil Court allowed himself to be misdirected by
two entirely irrelevant factors into thinking that the
Urban Rent Control Act of 1948 did not become part
of the law of the land in the Union of Burma and that
the earlier Act of 1946, which the later Act purported
to repeal, is the operative enactment on the subject in
the .u nion of Burma. These two considerations are
the provisions of section 4 (1) of the General Clauses
Act and the mention of the Urban Rent Co,ntrol Act,
 1950J BURMA LAW REPORTS. 189

1946 in the Adaptation Order of the 4th January 1948 S.C.

1950
made by the President of the Union of Burma
S. HAQUE 10)
under the provisions of section 226 (2) of the ISLAM
Constitution. P.
N. AH:-'fRD.
The Urban Rent Control Act of 1948 though made
on the 2nd January 1948 was not published in the
Bunna Gazette till the 17th January 1948. The
learned Chief Judge of the City Civil Court misapplying,
as it appears to us, section 4 (1) of the General Clauses
Act held that the Act could not have come into force
before the 17th January 1948 and that it does not come
within the ambit of section 226 (1) of the Constitution
which makes existing laws " continue ~o be in force."
Moreover from the fact that the Urban Rent Control
Act 0f 1948 was not specifically mentioned in the
Adaptation of Laws Order of the 4th January 1948
made by the President of the Union of Burma under
section 226 (2) of the Constitution, whereas the earlier
Act of 1946 was the learned Chief Judge deduced that
the Act of 1948 was, not intended to be operative in
the Union.
As we have alr<:ady said, the Urban Rent Control
Act specifically provides that with the exception of
sections 16A and 168 ,e the Act shall come intc> force at
once." That being so it is difficult to understand the
reasoning which would enable one to exclude the
operation of the words "if the Act is not expressed to
come into operatiou on a particular day" governing
section 4 (1) of the General Clauses Act as it stood on
the 2nd of January 1948. The qualifying word
e' particular" requir.es that the dat"l of the Act coming
into force should be made specific in the Act itself if
the rule that the Act will come into force on the first
publication in the Gazette is to be excluded, and we
can think of nothing more specific than the words
ee at once" when it is borne in mind that the date of
 190 BURMA LAW REPORTS. [1950

S.C. making of the Act appears on the authenticated copy

1950
of the Act.
. S. HAQuE en)
ISLAM
At th"e hearing, the learned counsel for the
v. appellant very frankly drew our attention to a
. N. AH:!IrED.
subsequent Notification~No. '250 of the 20th May
1948 of the Ministry of Judicial Affairs-by which tbe
President amended tbe earlier Adaptatio:1 Order and
.' specifically mentioned the Urban Rent Control Act of
1948 as one ofthe Actsin.respect of which adaptations
under section 226 (2) of tbe Constitution. are made.
He suggested tbat this subsequent Notification may
have tbe effect of making tbe Act of 1948 part of tbe
" existing laws" in force" in the Union. But, as we
have already said, tbe specification or the non,
specification in the Adaptation Order of any enactment
. forming part of the "existing laws" within the
meaning of sections 222 and 226 (1) of the Constitution
is entirely irrelevant for our purpose. Section 226 (2)
enables the President to make such amendments to J .-

and variations in existing laws as may be necessary to

meet the new conditions resultant on the change over
from the Government of Burm Act, 1935, to tbe
Constitution. Section 226 (2) does not empower tbe
Pres'ide)lt to make IV bat was' not part of the existing'
laws part of tbe body of the laws in force in the Union.
It is clear to us that tbe contention on behalf of tbe
appellant tbat the Urban Rellt Control Act of 1948, not
being consistent with section 23 (4) of the Constitution
cannot continue to be in force in the Union, arises
from a confusion of tbought between the right of
private property and tbe right to enter into contractual
relations. The right of private property is, subject to
certain reservations, guaranteed by the Constitution
but the right to .contract is not a fundamental right
assured by the Constitution. The central idea of the .,
Urban Rt,nt Control Act is the restrictiop of rents of
'195Q] BURMA LAW REPORTS. 'lSl1

, premises in urban areas. For such purpose provisions s.c.

1950
are made for the fixation of what is known as "the
. sbmdard r,ent," which is intended to represent a fair s. ~s~~~~(")
return to the landlord. But settlement of "standard v
. N. AHMED.
rent" in itself would not achieve the purpose of
restricting rents of premises. Under abnormal
conditions that obtained and still obtain in urban
.areas in Burma residential premises are' veryJew and
..the num ber of tenants in search of resiqential premises
outnumber very greatly available premises. Provision
tl~erefore has to be made for allotment of tenancies to
,be taken out of the hands ofthe owners or, if left in
the hands of the owners, the disposal of such,tenancies
by them are required.to be under the supervision or
; with the approval, of the Controller appointed under
,'the Act. Such provisions are obviously necessary if
tHe intention of the legislature in making provision for
the fixation of " standard ren ts " is I)ot to be defeated.
Then, again. restrictions have to be placed on the
ejectment of tenants' as, if left unrestricted, the
'landlord would be able to defeat thr0ugh the machinery
of such suits the intention of the legislature. A class
of persons known as " statutory tenants" are accorded
rights approximating .to those enjoyed by persons
under a contractual tenancy. All these provisions are
inyidental to the central purpose of preventing owners
of dwelling houses intended for letting from taking
, a,jv;(ntage of the extraordinary conditions that obtairied
and still obtain in urban areas in the Unioh, of Burma
to exact excessive or unreasonably high rents from
tenants.
We are satisfied that the Urban Rent Control Act,
1948, extends no further than placing restraint on the
untrammelled exercise of consensual letting of premises
in urban areas. Such restraints are not obnoxious to
the Constitution. An agreement has no inherent
192 BURMA LAW RhPORTS. [1950

S.C. vitality j rights and obligations attaching to agreements

1950
voluntarily made are creatures of the statute j and the
S. HAQUE la)
ISLAM
Contract Act, the principal enactment on the subject,
v. postulates ,equality between the parties to the agreement.
N. AHMED.
It assumes that in general men are best judges of their
own interests and enforces such arrangements as are'
voluntarily made betwean adults at arm's length. But
where the conditions are such that tbe parties do not
enjoy equality, such as where circumstances' indicate
duress, coercion or'lmdue influence, the presumption
of equity and justice of consensual arrangements fails
and the law withholds recognition from such
agreements. Then again, parties to certain classes of
contract are not aliowed to vary by agreement the
rights and liabilities which the law attaches to them j
see, for instance, sections 133 and 151 of the Contract
Act and a mortgager may not by agreement clog tile
equity of redemption.
Section 23 \2) of tbe Constitution provides that" no
person shall be permitted to use the right of private
property to the detriment of the general public."
Section 29 of the Constitution imposes on the
Parlia'ment the duty to make 'raws to give effect to such
a provision in the Constitution. Parliament therefore
:not only has aright' to take measures to prevent
owners of premises in resideiltial areas from exacting
excessive or unreasonably high rents, taking advantage
of abnormal conditions, to the detriment of the general
public but is under a duty to do so.
For these reasons, the appeal fails and is dismissed
with costs. Advocate's fees ten gold mohurs.
 1950J BURMA LAW REPORTS. 193

SUPREME COURT.

S. THUKARAM (ApPLICANT) t5.C.

lY50
1).
~lay 29.
THE CONTROLLER OF RENTS, RANGOON
AND ONE (RESPONDENTS)."

Ui"btl11 Rent :;<J'Iltrol Act, s5. 1 [ (l) fa), 13 (1) alld 14 (b}-Code of Ctv;l
PJ'ocedure, s. 2 (ii)-Comtit1Jtion Act, s.25 (Z'-Din:clioIlS ill the 1Iaillre oj
malldanl1ls.

K. V. S. ly~r, a tenant of RaD.n No.5 of House )J"). 231-237, :\Iogul Street.

Rangoon. died in November 1949 but the rent continued to be received later
by the l:n "!lords. They however did not a-:cep it from the applicant a son of
the decea;;ed tenant and he SOL1ght to deposit the rent with the Controller of
Reds. The Controller ht:ld that the claimant must first obtain a declaration
of status as a legal rep.esentatiYc from a Cidl CO:lr1.
Held: 0:1 an application fOT -(1. mandamus. th:lt at the stage of deposit of
n:nt with the Controller, it is not necessary that the status of the person who
s(;e~<:; to dep1sit shoald be established. S. 2!iil of the Code of Civil
Pro~dure defines legal representative as bCluding even an intermeddler.
De~it of renl can operate:ls a :>hidd oilly to a person who i$ in occupation
of t'l1e rremises and a tenant':; legal rep,est.:ntative is included in the
r'lff111ition or tenant. The deposit cnmes for the benefit of the legal tenant
" :.d does not ~he tbe deposito: any right adverse eilher to the landlord or to
th~ ten lilt. Therefore 110 enquiry \\"7.S called for as to the status of a person
m,tking dt:p0<;it under s. 14 (hI uf the Act and the Controller is bound te
accept the depo~it.

R. jw;anatlzan for the applicant.

Ba Sein (Government Advocate) for the 1st
respond en t.
A. I. ill ada/! for the 2nd respondent.
The judg:nent of the Court wa3 delivered by
the Chief Justice of the Union.
U E MAUNG.-One K. V. S. Iyer, who admittedly
was the tenant of Room No.5 of the premises known
.. Civil Misc. Application No. 26 of 1950.
tPresent: U E ivIAUNG, Chid Justice of the Union of Burma, MR. JUSTICE
THEIN MAU~G and U THAUI'm SEIN, J.

13
194 BURMA LAW REPORTS. [1950

~9~O as Nos. 231-237, Mogul Street, Rangoon, holding it

- from the landlords who are the 2nd respondents before
s. T H U R A R A " . f N
v. liS, died III the early part 0 ovember 1949. The
CO'~~:LLER rent ff)r the room, however, was received without any
F
R RENTS,
AN&C&lN
oispui" by the landlords till January 1950. It does
AND oNE. not appear from the records who tendered the rents
thus accepted by the landlords. In February 1950
some dispute appears to have arisen as to' the
represent'ltion of the interests of 'K. V. S. lyeI', 'deceased.
In the objections filed before us by the 2nd respon-
dents they claim" that they have been reliably informed
and believe it to be true that there are other heirs and
legal represenlatives of the deceased K. V. S. lyeI'. "
vVhatever the real reason may have been the rent
payable in February 1950 for. the room was not
accepted by the landlords and the applicant, who
cl'lims to be a son and heir of K. V. S. lyeI', sought,to
deposit the rent with the Controller of Rents, Cityi,iof
Rangoon. The Controller in his Proceedings No. 31-D I
of 1949-50 took the view that it was not for him,
when the landlords stated" that they are not aware
that the applicant is a son and 'legal representati\'e of
the late K. V. S. lyeI', " to 'decide On the disputed
question orl'epres,entaticin to the deceased tenant. The
Controller recognises, as is apparent from his order of
the 27th February 1950 in these proceedings, that
under section 2 (g) of the Urban Rent Control Act,
1948, a " legal representative" of a tenant within the
meaning of the Civil Procedure Code is a tenant; but
he expresses the view that a clai mant as a leaal b
representative must first obtain a declaration of his
status as such from a civil Court before making an
application to him to deposit the renl under section
14B of the Act.
In the first place, taking sub-section (1) and
sub-section (2) of section 14E of the Urban Rent
 1950J BURMA LAW REPORTS. 195

Control Act together, it seems rea~pnably clear that S.c.

1950
at the stage of the deposit of the rent with the
Controller it is not necessary that the status of the S. TH UKARA?>I
V.
person wlw seeks to make a deposit shoulel be THE
CONTROLLER
established. A person who intermeddles with the OF RENTS,
I?ANGOON
estate of a dece8.sed may place himself under obliga- AND ONE.
tions to the creditors of the estate and may be liable
to pay on' behalf <;>f the estate the rents which are due
from the estate. Section 2, sub-section (11), of the
Code of Civil Procedure defines a" legal representative"
to include an.intermeddler. It is obvious from clauses
(a) of section 11 (1) and 13 (1) read with section 14n
of the Urban Rent Control Act, 1948, that the deposit
of rent can operate as a shield only to a person who
is in occupation of the premises, and that the tenant,
which term includes the tenant's legal representative
o or "representatives is not liable to be ejected for
non-payment of rent. The deposit thus enmes for
the benefit of the real tenant and does not give to the
depositor if he is not a tenant or a legal representative
of the tenant any right adversely to either the landlord
or to the lenant or his leg,,1 representative.
That being so, we are clearly of the opinion that no
enquiry whatsoever was called for as to the status of
8. person who makes a deposit under section 14B of the
Act. The Controller is bound to accept the deposit
and the consequences which flow from the deposit
as between the landlord and his tena:1t are matters
regulated by the Act itself.
In- these circumstances we direct the Controller
to receive the deposit or deposits of rent made by
the applicant in respect of Room No.5, second floor,
of House No. 231.-237, Mogul Street, Rangoon, under
section 14B of the Urban Rent Control Act. There
will be no order as to costs.
196 BURMA LAW REPORTS. [1950:

SUPREME COURT.
H.c. SAW BENSON (ApPLlClNT)
1950
ltl1lC 5. v.
THE COMMISSIONER OF POLICE, RANGOON
AND FOUR OTHERS (RESPONDENTS).*

APPUcation fOr :~rit of habeas corpus -Pltblic Order (PresO'valiolJ) Act,
s. SA-Direction to deff/in ot,l/sidc the jurisdiction of a dislrid-Juristiic-
tiMJ of Supreme Conrluo/ likiJ tlIat of aJl appellale court.
\Vher~ the a~)p:icant was first ch::ainell by the order of the D<::puty
COlUmis$ioner. Amherst, and the order was withdrawn and tbe Deputy
Commis~;ioncr, Inst>in. made an order under s. SA of the Public Order
(Preservation) Act direetinv applica'lt's detention in tbe Rangoon Central
Jail aocl later the President under $, 5A (4) directed his detention in Insein
Central Jail.
Held: That an order under s. 5A (1! (b) c~n specify the place or places
where the (~etenu is to be confined and a Deputy Commissioner empowered
lmder the Act may dircct confinement at a place o~ltside his district. As' the
detenll had his permanent residence and carried On bllSines$ in Insein
District, the Deputy Commissit)ller, Illsein. had jnrisdiction to order his
detention, though the detenu was :it that time in Hangoon. The fact [hat an
order of de.tention i;:; passed during the pendency of habeas corpus proceedings t
before the Supreme Court does not necessarily make it illegal.
'Vhere the Deputy Commissionp.r cam~ ta c'),lclllSions of fa:::t bOlla fide and
reasonablv the order will not be interfered with. The Supreme Court does
pot exerdse the po\vcrs of an appellate court in habeas ccrpus j1mceedings
and ,,\'ill f10t emb.l.fk on detailed examination of the evidence.

[{yaw Myillt and P. J1f. Beechf7!o for the applicant.

Ba Seill (Government Advocate) for the

respondent.
The judgment of the Court was delivered by the
Chief Justice of the Union.

U E MAUNG.-This application for directions in

the nature of habeas corpus was instituted on the
* Criminal Misc. Applkation X'o. 75 of 1950,
t Present: U E fl;LWNG, Chief Justice of the Union of Burm:J., MR. ]U",TICE J
THEW MAUNG aodD THAUNG SEIN. J.
 '1950J BURMA LAW REPORTS. 197
20th March 1950 when the applicant was under s.c.
1950
detention in the Rangoon Central Jail under the orders
SAW BENSON
of the Deputy Commissioner, Amherst, acting under v.
section 5A of the PubEc Order (PreservatioJol) Act. THE COM?f-IS-
SION"ER OF
.The applicant, prior to the 17th January 1949, h~d his POLICE,
RANGOON
permanent residence at Tlnmaing in the I-nsein AND FOUR
OTHERs.
District, where he carried on business as a haulage
contractor and petrol retailer... On that date he left
with hi, family for Thaton where he resided for little
over a n1<"'>lth. On the 28th February 1949-it is not
necessary for us to consider why and under what
circumstances he did so-he went to Moulmein where
he was arrested and the order of detention passed
against him.
The order of detention made by the Deputy
Commissioner, Amherst, was, however, withdrawn by
thai officer on the 24th March 1950 apparently
because he entertained doubts about his jurisdiction
to act in the matter of a person whose permanent
residence was outside Amherst District and who had
not been long enough in the Amherst District to do
anything there to give the Deputy Commissioner
jurisdiction. But on the 23rd March 1950, the Deputy
Commissioner, Insein, had made an order under
section 5A of the PLlblic Order (Preservation) Act
directing the detention of the applicant in the
Rangoon Central Jail where he had been already
detained under the order of the Deputy Commissioner,
Amherst. On the 7th May 1950 the President, under
section 5A (4) of the Act, directec! the applicant to be
transferred from the Rangoon Central Jail to the
Central Jail . at Insein and he was accordingly
transferred to the latter place on the 11th May
1950. .
The first point taken on behalf of the applicant
.. before us is that the Deputy Commissioner, Amherst,
198 BURMA LAW REPORTS. [1950

S.c. acted without jurisdiction in directing the detention

1950
of the applicant in the Hangoon Central Jail, wh ch is
SAW Bv~NSON outside the Amherst District, or at all. It was urged
THE CO""IS- that the Deputy Commissioner's jurist;iction is defined
SJONER OF ' .
POLICE, by the delegation of powers under section 7 of the Act'
::;~G~~~R and that it is only within his own district that a
OTHERS. Deputy Commissioner may act under the preventive
provisions of the Act. It is said that tbe applicant,
not being a resident of Amherst Distriot and his
activities, if any, being either in Jnsein District or in
Thaton District, there could not have been any
apprehension to public peace or public safety in the
district of Amherst. It may well have been so, but
the detention operz.tive at ihis date is not one under
the order of the Deputy Commissioner, Amherst, who
had cancelled his order on the 24th March 1950. The
operative order of detention at this date is that made
by the Deputy Commissioner, Insein, on the 23rd
March 1950. Tbe possibilities of the Deputy
Commissioner, Amherst, acting in excess of his
jurisdiction would not tberelore be a matter relevant
to tbe proceedings where the applicant seeks release
---from present detention.
The question whether an Officer directing Cleten-
tion can direct the confinement of the detenu in a
place outside tbe district though not, for the reasons
given above, arising in respect of the Deputy
Commissioner, Amberst, must be considered as it has
an important bearing on tbe subsequent detention
order made by tbe Deputy Commissioner, Insein. It
appears to us that this objection overlooks the
provisions of section SA (4) of tbe Public Order
(Preserv2.tion) Act. Section SA (4) of the Act empowers
'the President or his delegate, in respect of a person
directed to be detained under section SA (1) (b), during
,
the .
currency of tbe order for detention, to, specify from
, t ' .
j
 1950J BURMA LAW REPORTS. 199

time to time the place or places where the detenu is to B,C.

be confined. We are clearly of the opinion therefore 1950

that a Deputy Commissioner empowered to act under SAW BENSO~

V.
the Public Ord"r (Preservation) Act may direct the TKR Co~nlIs,
SWNER OF
confinement of a person detained under his orders at POLICE,
l\::~.NGOON
a' place outside his district. AND FOUR
Dealing with the subsisting order of detention of OTHERS.

the 23rd March 1950 it has been claimed that the

Deputy Commissioner, Insein, has no krritorial
jurisdiction to order the detention of the applicant, the
latter being at the time of the order an involuntary
resident of Rangoon. The short answer to that seems
to be that the applicant, apart from his involuntary
exile from Insein, had his permanent residence and
carried on business in Insein District. The activities
which are alleged against him and which the Deputy
Commissioner, Insein, ciaims make him a danger to
the maintenance of public order and public safety
were all within Insein District. If at liberty, it is more
than'likely that the applicant will go to his permanent
home where also he has his business interests. In
these circumstances it is impossible to accept the
contention on' behalf of the applicant that the Deputy
Commissioner, Insein, has no jurisdiction over the
applicant so hr as action under section 5," of the
Public Order (Preservation) Act is concerned.
The present detention of the applicant is challenged
on several grounds, It has been contended that the
applicant having instituted proceeding3 in this Court
for directions in the nature of habeas corpus on the
20th March 1950, the order of detention made on' the
23rd March 1950, during the pendency of the said
proceedings, must be treafed as a nullity. For this
'proposition no authority has been adduced. \Vhilst
we would be prepared to prevent the evasion of
the jurisdiction of this Court by holding that,
 }

200 BURMA LAW REPORTS. L1950

s.c_ .notwithstanding a further order of detention during the
1950
pendency of proceedings in this Court being made by
SAW BENsoN
. a Deputy Commissioner exercising authority in an
T~I~~2RV~~S- area under military administration ,:here ordinarily
POLic". the writ of this Court would not nm, the Court would
RANGOGN
AND FOUR not lose seizin of the proceedings, we cannot accep'
OTHERS. the applicant's contention that such an order of
detention must necessarily be illegal.
On the merits it has been claimed on bel.alf of the
applicant that the incidents relied upon by the
Deputy Commissioner, Insein, for his order are
capable of an innocent explanation and that the
applicant has done nothing to make him a person
proper to be dehined under the Public Order
(Preservation) Act. This mayor may not be so but
this Court is not sitting as an appellate tribunal and it
is not competent to embark into minute examination
of every detail of the activities alleged against the
applicant and of the evidence in support of such
. !
allegations.
It has not even been alleged by the applicant that
the Deputy Commissioner has not come to the
conclusions he did bona fide. It is also not at all
clear from the record that the Deputy Commissioner
did not have before him materials f rom which he could
have honestly come to the conclusion he did. The
Deputy Commissioner has stated that he is satisfied
that the activities of the applicant are such as would
make his being at liberty a danger to the maintenance
of public order and public safety. He has in his
affidavit stated the facts and incidents on which to
base that satisfaction. It cannot ibe said that no
reasonable person can arrive at the conclusion the
Deputy Commissioner does from such facts and
incidents. That seems to US to be the end of the
.matter. I
 V'r$'
1950] BURMA LAW REPORTS. 201

Incidentally it was mentioned at the hearing by the s.c.

1950
learned Advocate for the applicant that though the
original order of detention of the 28th February 1949 SAW ~ENSON
.. made by the D~pl1ty Commissioner of Amherst THECOMW>- S10NER OF
directed the confinement of the applicant in the . POLICE,
Rangoon Central Jail, it was noftill 1st Juae 1949 that A~~N~~~~
he was taken to that jail. The affidavit of the OTHERS.
Snperintendent U Seik of the Rangoon Central Jail
supports (\l'~se allegations. It appears that in the
interval between the order and 1st June 1949, the
applicant was detained in the Town Lock Up, Barr
Street, Rangoon. It is not clear under whose orders
this was done. As far as the materials on the record
go, this detention in the Rangoon Tcwn Lock Up was
unauthorized. It is to be hoped that similar deten-
tions in unauthorized places of confinement do
not I-;appen again.
The application is dismissed.
202 BURMA LAW REPORTS. [1950>

SUPREME COURT.
ts.C. H. J. HEWITT (ApPLICANT)
1950
hwe 19. V.
MRS. H. J. HEWITT (a) MA YAN (RESPONDE"T).*'--

Dit'orcc Acl, 7, 36 ami SS-R,;jllsal of APPlica!iOll for costs for wife's.

55.
tl(jeJ~ce in
em aPPlication for divorce Oft the grolwd of adflllery-Ot'dej
"vhe/her appealable-Ap,Micatioll for alimony pendcgte lite-Wltetlter
llPPcI11licS agaiust such ortla-Gralltillg of alimofJy-Tlte dhcretloll of
coud.
Held: That though s. 55 of the B'\rm:t Divorce Ad provides that all
decrees and o:'ders are appealable, yet the said provis:ollS are subject to the
two p,ovisos limiting the right. The second pro\'iso provides that there
shalJ be no ap~~~al as to costs only. Hen.;e no appeal lay against the order of
the District Judge refushg an appli.:ation of wife f[~r costs for her defence~
But an appeal against th(; refusal of alimony pendellte [tie was competent.
The granting or withholding of alinFJny pr1ulelll~ lite is a matter of
judicial discretion of the court and the appellafe CO:.Irt h=tving exercised its
discretion fairly the decision in respect of that po:'tion ShOLlld not be
intcricred with.
Gl1rlillge v. Gorli1!gc, 44 All 745; Stc. eraj:.; v. Stc. C'"oix, 41 Cal 35;
J/asih v. MdSih. (19~9l All. 802; Dwytr v. Dwscr, 66 I.e. 494; A v. B, 2?' '~J
Born. 612; Savuriammal v. Santiago, 7 L.B.R. 34i; Wilkins::m v. IVilkl1ls011\
30 Cal. 48 ; ]swarayya v. ]swl1rayya, A.I.H. 11930) :'Ifad. 1:i4; Stll,IY! V.
Stuart, 57 All. 884; Sfudman v. W/le.::ler, (1944) 1 Cal 258; W,lliams v.
IVillwmS, (1929) Pat. 315; Russdl v. Russell, (1892) p. 152; Roberf~cll v.
Robert S~Il, (I ~SlJ 6 P.D. J 19 ; TlIO"JpSOn v. Thompson, (1939) p. 1, refe red to ..
Tv" B ami B, 44 p.R. 486; Chamard!e v. Clt'lIIJafdfc, A.i.R. (1947)-
Lillf. '176. disse"nted from. -
The historical back g 'Ounel of th.:: Divorce Act considered

P. K. BaSIl for the applicant.

TUIl I for the respondent
The judgment of tbe Court was delivered by the-
Chief Justice of the Union.
U E lVIAUNG.-It appeared, at the early stages of
the hearing of this appeal that we might have to
*" Civil Appeall\o. 18 of 1949.
t Pr~st'1lf : U E i'r'fAUNG. Chief Justice of the Union of Burma, U OK PR..!
and U TH..\UNG SEW, n.
 1950J BURMA LAW REPORTS. 203

consider the effect of section 7 of the Divorce Act, 1869, s.c.

1950
as also of section 55. of the same Act. There have
H.J. HEWITl
been different views held in India on tn~ true construc- V.
MRS, H, j.
tion of section 7 and there is a dearth of authority in HEWITT (a}
"MAYAN.
the Indian Courts on the true meaning of section 55.
But, as it turns out, it is not necessary fo-r us to
attempt the solution of the interesting and much
dICbated problem relating to the true meaning of
section 7.
The appellant, an Anglo-Indian Christian, married
the respondent, a Burmese Muslim, on the 29th May
1933 under the'Christian Marriages Act. The husband
was away from Burma during the Japanese occupation
while the wife remained at Hangnon. On the re-
occupation of Burma by the forces of the lawful
Government the husband Cal11C back to Burma. The
wife thereafter appeared to have gone away from the
hous'e where the husband left her dt1ring his absence
and where she had been living and the husband
,'obtained a decree for restitution of conjugai rights.
The decree was made on the 27th January 1947 and on
the 19th February 19+7 the husband filed a petition
under the'Divorce Act for dissolution of his marriage
with his wife alleging various acts of adultery with the
co,respondent during his absence from Burma. The
\,-ife entered appearance and made two applications,
one for alimony pwdellte lite under the ;Jrovisions of
section 36 of the Divorce Act and the other for a
deposit in Court of her costs for the oefence against
the petition for dissolution bosed on' her alleged
adullery.
'The District Judge (UTin Toon) before whom
these applications were made rejected them ill limine
he being of the opinion' that a wife against whom a
decree for restitution of conjngal rights is outstanding
',has no right, to ,make an application either for alimony
.204 BURMA LAW REPORTS. [1950
S.C. or for a deposit for costs for defence in a suit for
1950
divorce filed by the husband. An appeal W,lS fikd
.H. J. HEWITT
v. against the refusal of the two reliefs sought and the
:iV1RS, H. J.
HE.\VITT (Ill High Court of Judicature at Rangoon, in Civil First',
MA YAN. Appeal No 38 of 19+7, remitted the two applications to
the District Court to be heard and determined on their
merits. It does not appear that any objection was
taken then to the maintainability of an appeal Olg;air.st
the refusal of both reliefs or either of tbem and the
Appellate Bench of the High Court of Judicature did
not consider this question. The key-note of the
Appellate judgment remitting the applications for
decision on merit is to be found in the words of
Blagden J. where he said:
l( Tbe learned District Judge, mistakenly considering, as
I uncler3tand him, that the present appellant was in contempt and
therefore had no right to move the COlll"t, c1is:nissec1 both her
applications out of hand. In my opi!lion, he \yas clearly
mistaken in this .. ,II
The District Court then held an enquiry into th'l
application on affidavits and the learned Distr;cl Judge 0
(U ivIaung lvIaungl rejected both applications in a very
short judgment. On further appeal against the second
refusal of both reliefs the Appellate Bench of the
Hig1i Court Act set aside the order ofthe District Court
and directed the appellant before us to pay to the
respondent a sum of Rs. 25 per mensem as alimony
pendente lite with effect from the date of her original
application, namely, 22nd May 19+7 and further
directed the appellant to pay into Court a sum of
Rs. soa for use of the respondent in order that she
may be able to defend the petition fOe dissolution of
marriage.
The decisIOns in Garlil1ge v. Garlinge
Sfe. Croix v. Sfe. Croix (2), Masih v. Masih (3)
 1950] BURMA LAW REPORTS. 205

Dwyer v. Dwyer (1) were relied upon by the Appellate s.C.

l~SO
Bench of the High Court as establishing the right of the
wi( e to an order for deposit of her costs for defence where S.]. HEWITT
v.
. she is sued by the husband for dissolution of marriage HEWITT MRS. H.J.
{a}1
with her. No specific reference was made in the judg- MA VAN.
ment to section 7 of the Divorce Act; and no independent
examination of the true meaning of this section appears
to have been undertaken; but the Indian authorities
proceed on the application of section 7. In the matter
of the grant of aluliony pmdellte lile, section 36 of the
Divorce Act having made it a matter at the discretion
of the Court, the Appeliate Bench after an examination
of relevant authorities e:tme to the conclusion that the
discretion should be exercised in favour of the wife
even though the husband's petition for dissolution is
based on acts of alle,ged adultery by the wife.
Far reasons which will become apparent later, it is
not necessary, as we have said at the outset of this
jlJdgment, to determine here finally the true construc-
tron of section 7 of the Divorce Act. It will suffice for
us to note that. the words "principles and rule"
appearing in that section have been differently
interpreted in the Courts in India and Burma. One
view is that these words refer to practice and pro-
cedure ; another view is that they relate to matters of
substantive law; and yet a third view is held that they
relate to quasi-substantive rather than adjective
law. See the cases of A v. B (2), Savuriammal v.
S<II1.'iago (3), Wilkinson v. Wilkinson (4), Ramsay v.
Boyle (5), Iswarayya v. Iswarayya (61, Stuart v.
Stuart (7) and Steedman v. 'Wheeler (8).
Section 7 of the Divorce Act, 1869, appears to have
been based on section 22 of the Matrimonial Causes Act
(11 66I.C. 49+. 151 30 Cal. 48.
(2) 22 Bom.612. (61 A.I.R. 119301 Mad. 154.
(3) 7 L.B.R. 347. 171 57 All. 884.
(4) 47 Born. 843. . 181 119441 1 Cal. 258.
206 11 URMA LAW REPORTS. [1950
S.C.
1950
of 1857; the main divergence being that whereas the
English Court for Divorce and Matrimonial Causes
.H.}.HEWITT
was enjoined to act and give relief on principles and

MRs. H. J.
rules which in the opinion of the said Court shall be as '
.HnWlTT\a)
MA YAN. nearly as may be conformable to the principles and
rules on which the Ecclesiastical Courts have here/o-
before acted and giz'elt reliance; the Divorce Act
enjoined the Courts in similar terms to act on
principles and rules on which the Court for Divorce
and Matrimonial Causes in England (for this Court was
substituted the Supreme Court of Judicature in
England by an amendment of the Divorce Act) for the
time being acts and gives relief. Section 22 of the
Matrimonial Causes Act has since been repealed by
the Supreme Court of Tudicature Consolidation Act,
1925, which has enacted instead sections 32 and 103.
These sections make it incumbent on the High Court
in England to act so far as rpgards procedure am!
practice in the exercise of its juri'diction, when no(t. I
Dtherwise expressly provided by the Act or rules
thereunder, as nearly as may be ill the same /llIlImer as
that in which it might have been exercised bv the
Court to which. it formerly appertained. The interest-
ing though difficult tasks of construing section 7 of the
Divorce Act in the light of these circumstances and of
evaluating t.he effect of the change in the point of view
in England from the earlier cases to the later cases on
the validity or otherwise of the wife's claim for costs of
defence, exemplified for instance in TVilliams v.
TVilliallls (1), are however not necessary in the
present appeal; for we are satisfied that no appeal
lay from the order of the District Court refusing
the wife's application for deposit in Court of costs of
.her defence.
--------------------i
II! 1\929) Pat. 315.
 1950] BURMA LAW REPORTS. 207

Section 55 of the Divorce Act regulates appeals S.c.

1950
from Courts exercising jurisdiction in divorce
proccedings. Leaving out the provisions not relevant v.
'for our purpose, the first paragraph reads; MRS. H. J.
HEWITT {a)
MA YAN.
II AU decrees and orders made by the Court in any suit or
proceec1inj:!s under this Act . . . . . may be appealed from, in the
like manner as the decrees and ordel's of the Court macIe in the
exercise of its original civi.1 jurif':cIietion . . . may be appealed
'from, uncl.::r the laws, rules and orders for the time being in
force. 1I

The m'lnner of the exercise of the appellate jurisdiction

and the extent of such jurisdiction are two different
,things and the meaning of the fir~t paragraph of
section 55 of the Divorce Act, if read, un obsessed by
*X<
preconceived notions of the extent of appellate jurisdic-
tion under the Civil Procedure Code, is clear. All
decrees and orders whatsoever in divorce jurisdiction
are appealable so far as this paragraph is concerned.
H is only when wc come to the provisos that we find
restrictions placed on this ~bsolute right of appeal
from all clecrees and orders in divorce proceedings.
That the legislature intended section 55 of the
Divorce Act in the sense just indicated is clear from
a study of its historical background and of the course
of development of the pr~ctice in the exercise by
Courts having divorce jurisdiction in England.
Section 55 of the Matrimonial Causes Act of 1857
made "any decision by the Court in ?ny matter"
which may be made by the Judge Ordinary alone
appealable to the full Court, the decision of thc Court
being final subject to an appeal in proper cases to the
House of Lords. At the time of the Act of 1857 the
Judge Ordinary could deal with only certain specified
matters but as the result of the amendment by the
Matrimonial Causes Act, 1860, the Judge Ordinary
was clothed with powers to. deal with all original
208
,, BURlMA LAW REPORTS. [1950

s.c. petitions and subsidiary matters. It was on this

1950
system in force in 1860 in England that the Divorce
H.J.~.E\VlTT Act of 1869 was modelled. The Judicature Act of
::~;~(~) 1881 transferred the appellate jurisdiction which'
MA YAN. section 55 of the Matrimonial Causes Act vested in the
Full Court to the Court of Appeal set up undtr the
Supreme Court of Judicature Act, 1873. Dut no
restriction on the right of appeal existed other than
"that where the order is one which under rules of the
Court was to be made at the discretion of the trial
Judge, no appeal lay without the leave of that Judge.
Section 1 o[ the Judic:lture Act of 1894 places further
restriction on the right of appeal and these restrictions,.
have been repeated in section 31 of the Judicature Acf
of 1925. The Act of 1925 repeals also in terms ..
section 55 of the Matrimonial Causes Act of 1857 which
is replaced to a certain extent by section 27 of the Act.
Our conclusions then are that all decisions by a
Court exercising matrimonial or divorce jurisdictioy,. I
except such as are specifically stated in provisos 1 and t3
2 of section 55 of the Divorce Act, are open to appeal,"""
the manner of the exercise of the appellate jurisdiction
only being such as is defined iii that Section. In the
"vie,,, ,\ie"take bisection 55 we dissent from the reasons
stated for the decisions in T v. B (lnd B (1) and
Chamarette v. Chamal elie (2).
The second proviso in section 5S of the Divorce Aet
reads: "provided also there shall be no appeal on tbe
subjeet of costs only". Though for the sake of
convenience the two matters have been considered in
one consolidated appeal, in reality there were two
appeals to the High Court against rejections of two
distinct applications by the trial Court. One relates to
alimony pende!1ie life which clearly is appealable in
view of what we have said above and the other r~latef
III 44 P.R. 486. (21 A.l.R. 1194il,Lah. 1i6.
 1950J BURMA LAW REPORTS. 209

to deposit of the wife's costs for defence by the s,c.

1950
husband petitioning for dissolution of marri~ge.
Section 31 (1 \ (h) of the Judicature Act of 1925 H. J.HEWITT v.
. provides that no ~ppeal shall lie without the leave of HEWITT
MRS. H. J.
(a),
the Coort or Judge making the order from an order of M", YAN.
the High Court as to costs only which by law are left
to the discretion of the Court. This is a substantial
reproduction of section 49 of the Judicature Act of
1873. In Rt,;ssell v, Russell (1) the Court of Appeal
(Lindley and Kay L, JJ.) held th~t where the Divorce
Court had rejected an application by the wife for
security for costs against her husband, no appeal lay.
The restriction on the right of appeal fro'n an order
for costs is in England qu~lified bu: the restriction
under our Divorce Act is absolute. vVe hold therefore
that there can be no appe;:tl where the District Courts
reject~ the wife's application for either security for
costs or for cieposi t of such costs,
We are not unaware of the decisions in Roberloon v.
, Dobertson (2) and ThDmpson v, Thompson (3) which
seem to suggest that in England in certain circum-
stances an appeal m~y be competent from an order
similar to the order in question in this appeal without
the leave of (he trial Judge. But these are extreme
cases and turn on the qualification in the English Act
to the restriction on the right of appeal against costs.
The application for alimony peNdente We was
rejected almost summarily in a very short judgment in
the trial Court whereas the appellate Court discussed
the materials on the record relevant (0 the application.
The grant or withholding of alimony pendmle lile is
under the provision of section 36 of the Divorce Act
a matter of judicial discretion of the Court and the
Appellate Bench having exercised its discretion fairly
(1\ \1892) p, 152, 12\ 11881\ 6 P,!), 119.
(3) L.R. 09391 p. L
14
210 BURMA LAW REPORTS. [1950

S.C. we refuse to interfere with its order in this respect.

1950
But when the Appellate Bench set aside the order of
H. J. HEWjTT the District Court rejecting the application for deposit
v
MRS.~H.J. of the wife's costs it acted without jurisdiction and its\
HEWITT (a)
M.A YAN. order in that behalf must be set aside. \Ve accord-
ingly dismiss the appeal in so far as it relates to the
grant by the High Court to the respondent an order
for alimony pendente lite. We allow the appeal in so
far as the High Court ordered the deposit of Rs. 500
by the appellant in Court for the costs of defence by
the wife and set aside such order. In the circum-
stances each party will bear its costs tl-.roughout.
 1950] BURMA .LAW REPORTS. 211

SUPREME COURT.

G. C. MANGAPATHY (ApPELLANT) t s.c.

1950
v.
JUlle I'!.
THE GOVERNMENT OF THE l.lNION OF
BURMA (RESPONDENT).'"

:Jc!el1cc of Burma Rules-Rilles 89A ami 96-Lorri('$ requisitiontd 1lndcI- by

~. Government-S.lS!, Contract Act -Duty of Governmtml-Condifio1ts for
liability.
Appellant's lo:"ries were requisitioned by the Commissioner of Police,
Rango'll.o::l behalf of the Government (If Burma on the 9th December 1941
at R5. 15 per diem t:nder 9. 89A of Defence of Burma H.uies and the lorries
were left bdlind by the government on evacuation and the owner received,
payment for hire up to the date of aba:1donment, i.e., 20th February 1942 and
now claimed the value of lorries.
Held: Th.1t the provisions of s. 15' of the Contract Act would not in terms
apply to th~ fact" of the case. Tn~ lor -ies having been Iawbl1y requisitioned,
their ta1dnJ;! W.tS not an a':t of trespa:;s and the use by Government was !:twlut.
The duty of Govecllncnt in such circmostances is not hig1ler than that of a
person in lawful possession of another';:: ~opds. The Government was only
bound to bk.~ reasonable care. Except \v..here the negligence or wrongful act
of the \1er,,0<1 in lawful p05Se5Si,)1l of another',:; ~:)ojs had beell a proximate
. cause of the 1o,,5 or destruction thereof, the damage mtlst lie where it falls.
As the government had taken as much care of the appellant's properties as of
~heir own property, there was no que~tion of negligence or wrongful ad on
their part-the government cannot he b.:ld,liable for th~ price of the lorries.
Goft/mall v. Hill, (1919) 1 K.B. 4H ; Broadwater v. HZ:Jl, Holt, X.P., 547 :
Searle v. Lat'erick, (187419 Q.o..o. 653 at 663-64, referred to and applied.

P. B. Sen for the appellant.

Ba Scin (Government Advocate) for the respondent.
The judgment of the Court was delivered by the
Chief Jllstice of the Union.
U E MAUNG.-We are clearly of the opinion that
there are no merits in this appeal.
The appellant's two lorries were on 9th December
1941 requisitioned on behalf of the Government of
* Civil Appeal No. 15 of 1949.
t Prese/lt : U E :\lAu-NG, Chief Jastice of the Union of Burma. MR. JUSTICE
"THEIN )JAUXG and U THAUNG SElN', J
212 II URMA LAW REPORTS. [1950
S.C. Burma by the Commissioner of Police, Rangoon, on
1950
hire basis, the compensation for the use thereof being
G. C. J\(AN-

..
GAPATHY

THE
fixed under Rule 89A of the Defence of Burma Rules
at I~s. 15 per diem. Thereafter the Ic~ries remained in
GOVER~
MENT OF 'THE
the u'e of the Government of Burma in the Rangoon
UNION OF area till 20th February 19-1-2. On that date. the
BURMA.
invading forces of the enemy were at the gates of
Rangoon and the department of the Government of
Burma administering the employment of requisitioned
and other vehicles was forced to evacuate from Rangoon.
The appellant has admitted that he himself left
Burma on the 27th December 1941, leav:ng, in his own
words H all my valuable things behind in Burma as
I could not carry them with me nor sell them to any
one." His explanation for abandoning his valuables
was" I could not have s wed them." \>Vhen he left
for India the appellant did not leave any agent in
Burma to act on his behalf.
In December 1946 the appellant came back from
India after having, whilst in India, received payment'
from the Government of i\urma of a SLim of Rs. 2,220
representing compens<ttion for use of the lorries at the
rate of Rs. 15 per diem from the 9th December 1941
to the 20th February 1942. He then claimed in the
suit out of which this a,:>peal arises, after serving on
the Government of the Union of Burma the necessary
notice under section 80 of the Civil Procedure Code,
a decree for Rs. 6,000 being the estimated value 0: the
two lorries. C'he appellant alleged in his plaint that
the lorries were used by the Government of Burma for
the purpose of evacuation from Rangoon and that his
demand for their return was not complied with. On
these allegations the appellant in paragraph 5 of the
plcint claimed that " the defendants as bailees are
liable to return the said lorries or pay their value to
the plain tiff." There was also a claim for accounts. j
 1950J BURMA LAW REPORTS. 213

for the user of the lorries after the 20th February 1942 s.c.
1950
but that claim has not been pressed either in the High
G.C.MAN-
Court on appeal or before us and we need not say .APATHY
anything more on this aspect of the case. v.
THE
The learned Chief Judge of the City Civil Court GeVp.RN-
ME NT OF THE
granted the appellants a decree for Rs. 3,000 holding UNIOX 01'
BURMA.
that the appellant was entitled to claim by way of
compensation undef Rule 96 (1) of the Defence of
Burma Rules for the loss of the lorries which the
lear~ed Judge valued at Rs. 3,000. Cross appeals were
filed by the .appellant and by the Government of the
Union of Burma before the High Court which dis
missed the appeal of the appellant and allowed the
.appeal of the respondents. The two appeals were
disposed of by one j udgmen t on the 4th February 19+9.
The Appellate Bench of the High Court took the
vie\v that a claim for compensation under Rule 96 of
the Defence of Burma Rules was not maintainable after
the expiry of the Defence of Burma Act and the rules
framed thereunder, which took place on the 31st July
19{7. The Appellate Bench, however, was of the
opinion that the suit was not one under Rule 96 of the
Defence of Burma Rules and proceeded to consider
the appellant's claim on the merits. The learned
Judges, relying on the averments in paragraphs 2 and
5 of the plaint that the lorries were requisitioned on
hire basis and that the defendants as bailees were
liable to return the said lorries or to pay their value to
the plaintiff, applied the provisions of section 151 of
the Contract Act and having, on the evidence on the
record, come to the conclusion that the lorries were
lost in spite of the respondents having taken such care
thereof as is required by section 151 of the Contract
ACI, dismissed the appellant's claim .entirely.
It is from the judgment and decrees in these two
appeals that the appellant has by leave of this Court
214 BURMA LAW REPORTS. [1950
S.C. preferred this appeal under section 6 of the Union
1950
Judiciary Act.

..
G. C.l\IAN-
GAPATHY

THE
Before us the learned counsel for the appellant
based his claim in the alternative on Rule 96 of the
GOVERN- Defence of Burma Rules and on the right of an owner
MENT OF THE
UNION OF of goods who had been deprived thereof to recover
BURlIIA.
either the goods or their value.
The claim based on Rule 96 of the pefe,nce of
Burma Rules can be shortly disposed of. It is not
necessary to consider whether the expiry of the rules
on 31st July 1947 would have affected the right, if any,
that had accrued to the appellant under the rules prior
to their expiry. Suffice it to say that Rule 96 in none
of its three sub-rules gives the person whose property
had been requisitioned the right of suit for compensa-
tion in a Court of Law. Rule 96 (1) merely gives the
owner a right to such compensation" as may be fixed
in accordance with the provisions of the rule"; sub-
rule 2 provides for compensation to be fixed in the,
first instance by agreement between the Government
and the owner and failing such agreement the Governor
(now the President) isreguired to specify the authority
or person by whom the dispute is to, be adjudged and
compensation to be awarded; and sub-rule 3 enables
the Governor (now the President) to prescribe the
conditions which the person making adjudication shall
have regard to when determining the amount of
compensation payable..
The learned counsel for the appellant strenuously
contended before us that the Government having
requisitioned the lorries under Rule 89A of the
Defence of Burma Rules is in law bound to return the
lorries after the purpose of the requisition had been
fulfilled or to pay the value of the lorries. He says
that the relationship was not one of bailment; it was 1
not a transaction voluntarily entered into by the

..
 1950J BURMA LAW REPORTS. 215

appellant j and that it was by a compulsory acquisition S.C.

1950
that the Government obtained possession of the lorries.
G. C.l\fAN-
,So far, we are prepared to agree with him and to GAPATP.Y
v.
accept his contention that the'provisions of section 151 THE
of the Contract Act would not in terms apply to the GOVERN-
MENT oFTHE
solution of the dispute. But it must be remembered UNION OF
BURl,IA.
that when the Government, it ~ay be without the
appellant's consent or against his will, took possession
of the lorries on the 9th December 1941 there was
statutory authority for the action. That laking was
therefore not an, act of tres'pass and the possession and
user by the Government following the taking were
lawful. Accordingly the only basis of the appellant's
claim for damages can be that of an owner against
a person in lawful possession of his goods for an act of
conversion or for an act of negligence, whereby the
o owne!' is totally deprived of his goods.
vVe cannot think that the duty of Government in
respect of the lorries compulsorily acquired can be
higher than that of any other person in lawful
possession of another person's goods. The decision of
the .Court of Appeal in Goldman v. Hill (1) indicates
the circumstances in which the owner of goods may
obtain damages from a person who was in possession
of them and who having been in lawful possession of
them failed to return them to the true owner on
demand.
The dictum of Gibbs, C.]. in Broadwatelv. Blot(2}
quoted with approval by a very strong Bench in
Searle v. Laverick (3) appears to us so appropriate that
we quote it below :

" All the defendant is obliged to observe is reasonable care.

He does not insure i and is not .answerable for the wantonn_css

11) (1919) 1 K.B. 443. 12) Holl. N.P. 547.

(3) (874) 9 Q.B. 122 at p. 130.
216 BURMA .LAW REPORTS. [1950
S.C. or mischief of others. If the horse had been taken from his
1950
premises, or had been lost by accidents which he could not guard
G. C. MAN~ ~igainst, he would not be responsible. I admit that particular
GAPATHY
V. negligence must be proved, by occasion of which the horse was,v
THE lost, or gross general negligence, to which the loss may 'be"
GOVERN'
UENT or THE ascribed, in ignorance of the.. special circumstances which
UNION OF occasioned it. If there were a want of due care and diligence
BURMA.
generally, the defendant will be liable."

The liability of the. person who had .'possession of

another's goods and who had lost them by a wrongful
'act on his part is exemplified in the appeal case,
Bristol mid West of England Bank v. Midland Railway
Company (1\ where Fry, L.J. said:
" I think it is reasonable to suy that the O11n who ought to
have the go::>ds shall Got b~ allo\V~i to set up a \Vron~ful prior
act by which he has made away with the goods. He who ought
to produce the ~oocls of lhe man who has the title to the. goods
and the property in the g001S, cannot discharge himself by o
saying, I I have wrongfully ma(h~ away with them, but that was
before the accruer of your title '."

Except, then, where the negligence or the wrongful

act of the person in lawful po'Session of another's
g()ods I}ad b(leJ} the proximate cause of the loss or
destruction thereof, it is dear that the damage must
lie where it falls. The findings of tbe Appelbt~
Bench, supported by the evidence 'on tbe record, are
that the lorries had to be left in Rangoon in the course
of general evacuation on the 20th February 19'1-2 when
the in ""ding forces of the enemy were at the gates of
Rangoon and that they were lost in spite of the
respondents having taken as much care of them as of
their own property. On these findings no question of
negligence or wrongful act on the part of the respon-
dents, conducing to their inability to return the lorries
II) 11891) 2 Q.B.D. 653 at 663 and 664.
 1950] BURMA LAW REPORTS. 217

which were at one time in their lawful possesslOn, s.C.

1950
arises. G.C. MAN"
The appeal therefore fails and IS dismissed with GAPATHY
V.
costs. THE
GOVERN-
MENT of THE:
UNION' OF
BURMA.

o
.
218 BURMA LAW REPORTS. [1950

SUPREME COURT.
t s.c. ABDUL GAFFAR (ApPLICANT)
1950

June 19. v.
U KYAW NYUN AND ONE (RESPONDF;NTS).*
Sea Customs Act, s. 167 (8)-AP.bellate order oJ Finaucial COt1Jmissiollcr-
S. 191 (l) amended-Rev/sioll by Mitlister of Fi1tallCC dud Rcvemle-
Hearing before SecretarY-Proceedings judicial-Pre.ident acting uuder
s. 11)1 e:t.'crcises judicial !tmdioll-Crillli1lf:rl Procedure Code, ", S (2),
s. 439 (2)-Rules of Natural Justice in judicial procecdillgs-Colls/i/llfiolt
of Burma, s.152-Stlpremc COttrt whether boultd by earlier rulillg.
1. The CaUedor of Customs when he imposes lines and penalties under
the Sea Customs Act, and Appellate <Juthority actin~ under s. 18 of the said
Act exercise judicial fUll.:tions. Similarly the President of the Union,when
e:-:crcising his power of revision nnder s. 191 of the Act exercises under s. 150
of the Constitution limited functions of a judicial nature. They are all,
therefore, bound to ad on judicial principles.
Exercise of a judicial function is mdiddual. Therefore, prior tn the
amendment of the General Clause!; Act which came inb operation on the
"0
1st ,March 1950 the President was bound to exercise his judicial function!;
personally. But after the amendment all the functions of the President
including judicial functions, can be exercised by the i\Hnister in charge of the
Ministry concerned.
Custom Officer exercising power under s. 132, Appellate Authority acting
under s. 188 aild the President actinJ{ under s. 191 of the Sea Customs Act
administer criminal justice.
A Court of criminal jurisdiction has ordinarily no power to review its own
decision. A review of a decision is not provided for by the Criminal
Pror.edure Code bllt if the power of revision is exercised in a criminal case
under a Special Law, s. 439 (2) of the Code of Criminal Prot.::edllre would
become applicable by reason of s. 5 (2) of the Code. Rules of Natural Justice
require that nO man shall be condemned unheard and therefore, before an
order to the prejudice of any person is made he must be {!iven an opportunity
of mal{ing his defence even though there be no provision in the code for such
hearing.
That after the 1st MaTch 1950 the r-.Iinister of Finance and Revenue was
the proper authority to hear and decide the dispute in the revision proceedings.
The officer who heard the Applicant and recommended decision in his
favour had nO jurisdiction to hear the case. Hence the proceedings must
be quashed.

* Civil :\Ilisc. Application No. 27 of 1950.

t Present .. tJ E MAU:-iG, Chief Justice of the Union of Burma. Mn. JUSTICE l.
THEJ:N MAUNG and U 'l'HAUNG SElN, J.
 1950] BURMA LAW REPORTS. 219

Hrlil also: That there i:i no bar either under s. 1::2 of the Constitution or S.C.
elsewhere to the Sup~eme Court reconsidering its earlier ruling of law laid 1950
cown in a pTeviou~ decision by itself. ABDUL
S. 121 of lpe Constih:tion does not apply to judicial proceedings. GAFFAR
V.
l~eference to an inappropriate section in au order due to clerical mistake l} KVAW
when such mistake does nut prejudice anyone may ae ignored. NYUN AND-
The effect of decisions in C;war/ l(ce v. Tile GovCTmJlcd of tIlt Union ONE~
of Burma anti Rll1lc1JlIOddas J e!!':1bhai & Co. v. The Secretary to the Ullion
GOVr1tlIlCllf, lilillisfry oj ]udic/ll! AfftIlYS alia two otllers, explained.

P. M. Be~cheno for the applicant.

Chan Tun Bung (As$istant Attorney-General) for
the respondent~.

The judgment of the Court was delivered by the

Chief Justice of the Union.
U E MAuNG.-The applicant, a dealer in textiles,
obtained a licence to import into Burma cotton printed
longyi cloth. Certain goods which the applicant
claims to conform to the terms of the licence arrived
,in Burma on or about the 21st October 1948 and they
.. ivere examined by the Collector of Customs, Rangoon,
for tbe purpose of seeing that they were regularly
imported. After examination the Collector, acting
under section J 67 (8) of the Sea Customs Act, directed
the said goods to be confiscated subject, however, to
redemption under section 183 of the Act upon payment
of a fine of Rs. 7,372 being twice the value of the
goods together with the duty involved. This order
was appealed against before the Financial Commis-
sioner (Commerce) who held that the goods imported
by tbe applicant were covered by the import licence
granted to him. He therefore set aside the order of
"the Collector and directed the goods to be released on
payment of the ordinary duty involved. This appellate
order was passed on the 24th August 1949. Thereafter,
on tbe 20th January 1950 the 1st respondent, who is an
Additional Secretary to the Government of the Cnion
220 BURMA LAW REPORTS. L1950

s.c in the Ministry of Finance and Revenue, sought the

1950
orders of the Hon'ble Minister if revision proceedings
ABlJUL
'GAFFAR
under section 191 (2) (b I of the Sea Customs Act
v. should be opened to consider the correctness of \
U KYAW
NYUN AND the appellate order of the Financial Commission~r
ONE:.
(Commerce\.
On the 24th January the Hon'ble Minister passed
orders directing the opening of revision proceedings
and instructing..thelst respondent tphearJhe.applic.ant
in objection and to submit the proceedings to him for
final orders. Notice was accordingly issued to the
applicant calling upon him to show cause before the
Additional ~ecretary to the Government of the Union
of Burma, Ministrj of Finance and Revenue, at 10 a.m.
on the 31st January 1950, why proceedings "by way of
revision under section 191 (1) of-the Sea Customs Act
(as amended)" should not be taken in re'spect o~ the
orders of the Financial Commissioner (Commerce).
It may be noted here incidentally that the reference tOt
section 191 (1) is inappropriate but this is merely a
clerical error which has not, in itself, prejudiced the
applicant in any way in the conduct of the proceedings.
and we shall say no more about it.
On the 31st January 1950 the applicant appeared
befo! e the 1st respondent and showed cause against
the order of the E'inancial Commissioner, being set
aside. The proceedings on that date before the 1st
respondent were oral and on the 6th February 1950
the Ist respondent submitted a note to the Hon'ble
Minister for Finance and !<evenue. It may be noted
here that in this note the 1st respondent recamm"nded
that the decision of the Financial Commissioner
be upheld.
On the 8th March 1950 the Hon'ble Minister passed
orders setting aside the appellate order of the Financial
J.
Commissioner and affirming the original order of the
 1':150J BURMA LAW. REPORTS. 221

Collector of Customs. An order in that sense, issued s.c.

1950.
in the name of the President of the Union of Burma
ABDUl;
and under the hand of the 1st respondent, was GAFFAR'
O.
communicated to :he applicant. U KVAw
As the hearing.on the 31st January 1950 wa~ before NYUN ONE.
AND.

the 1st respondent and as the order setting asid e the

appellate order of the Financial Commissioner \\'as
issued in the name of the President under the hand
also of the) st respondent, the applicant, hal'ing had
no access to the files of the Finance and Revenue
Department, assumed that the whole proceedings in
revision were taken before and by the In respondent
on behalf of the President. Accordingly. when the
application in certiorari was made to this Court it
questioned the juriodiction of the 1st respondtnt to act
in revision under section 191 (21 (b) of the Sea Customs
Act in the name of the President of the Union. It
was only when in obedience to a notice of this Court
the Financ'e and Revenue Ministry submitted the
rroceedings in File No. 27lRC49 of 1949 that the facts
set out above were fully elicited. It will be on the
facts as thus chsclosed that this application will be
dealt with.
The principles relevant tCJ the' determination of the
present application have recently heen laid down in
two decisions of this Court, namely, in Gwan Kee v.
The Government of the Ut/ion oJ Burma (1) aild"
Rallchhoddas I ethabhai & Co. v. The Secretary to the
Union Government, Ministry of Iudicial Affairs and'
two others (2). It is unfortunate that to a certain
extent these two decisions are conflicting and it will
be our duty here to solve the conflict. There is no
bar, either under section 152 of the Constitution or
elsewhere, to the .Supreme Court reconsidering a.

12) B.L.R. 11950) s.C. 6S.

222 BURMA LAW REPORTS. [1950

S.C. ruling of law laid down in a previous decision

1950
by itself.
AnnUL In Gwal1 Kee v. The Government of the Union of
GAFFAR
v. Bunna (1) this Court by implication accepted that.
U l{yAW
NYUN ..\ND jurisdiction in revision under the Sea Customs Act is
ONE.
judicial. The application there was for directions in
the nature of certiorari. The learned Attorney-General
who appeared on 'behalf of the respondents in tl,"t
case dId not claim that the application for;directions in
the nature of certiorari was not competent and the
Court dismissed the application on other grounds. In
doing so it held that section 121 of the Constitution
applied to the exercise of the jurisdiction. This, in
view of the gene~al acceptance, both by the Court and
at the Bar, of the judicial nature of the proceedings in
revision before the President under section 191 of the
Sea Customs Act, arose clearly from inadvertence,-
the attention of the Court not having been directed to
the fact that section 121 of the Constitution deals with
"executive action of the Union Government." ,.
In the later case, Ranchhoddas ]athabhai & Co. v.
The Seo'e!ary to the Union Government, Ministry of
]udi1Zal Affairs (2) this Court had explicitly held that
in exercising the powers under section 191 of the Sea
Customs Act the President is acting as a judicial
functionary. We reproduce as apposite the follow-
ing passages from the judgment in the case:
II Another fallacy which \\-e. trace funning throllgh the
contentions of the applicants has been to identify the Colledor of
Customs with the President of the Union or with the Government
of the Union. It has been said on behalf of the apphcants that
the Collector of Customs in makin~ his application to this COlirt
must hp deemed to have been acting on behalf of the Government
of the Union anel that the Government of the Union must be
regarded as bound, to the extent that the Collector of Customs is,
by what h1.s 11.lppellecl in these pmceec1illg.s. The principle
II) B.L.R.11949J s.c. 151. t2) B.L.R. 119501 S.c. 68. l
 1950J BURMA LAW REPORTS. 223

respo1ltkat SlIp,,;or cannot be applicable here and it is difficult to s.c.

1950
see on what principle the chim can be justified. It has also to

.
be borne in mind that the Collector of Customs when he imposes ABDUL
GAFFAR
fines and penalties under the relevant provisions of the Sea
Cu~toms Act is exercising a judicial function and the exercise of U KYAW
NYUN AND
a judicial" function is individual. In"that"capacity the CoIlector ONE.
of Customs is not a representative of either the President of the
Union or the Government of the Union of Burma. He is for
the time being a judge bound to act in his individual judgment,
snbjec:, oL course. to control by other authorities e}{ercising
juc1il'ial functions to whom he may be suborc1inc;,te.
The second line of attack on the competence of the revision
proceedings is due, in our opinion, to the not unnatural confmion
between the Pre-:ident as the executive head of tbe Union and
the President who, when exercising his powers u'1der section 191
of the Sea Customs Act, functions as an 1uthority vested under
section 150 of the Constitution to exercise limited fUIlCtiOPS and
powers of a judichl nature and is bound therefore to act on
judicial principles. That the Customs officer exercising the
powers vested in him by section 182 of the Sea Customs Act, the
o appellate authority acting under section 188 of the Act and the
President e~ercising powers under section 191 are all judici3.1
functionaries cle3.rly emerge from the fact that they are adminjs~
tering criminal justice. Section 167 refers 10 the acts falling
within the First Schedule as ( offences I for which, in the words
of the same ~ection, the person responsible (is punishable' with
the penalties' set out in the third column of the Schedule.
The learned Assistant Attorney-General has frankly conceded
that this is a proposition which he is not prepared to controvert."

The learned Assistant Attorney-General who appears

for the respondents in the present application before
us has not found it possible to revie',v his admission
made in the earlier case. Giving anxious consideration
to the matter, we are satisfied that the jurisdiction
exercised under section 191 of the Sea Customs Act
is a judicial one. That being so, it follows that
section 121 of the Constitution does not apply to the
exercise of such powers and that there can be no
delegation of these powers by the President in whom
224 BURMA LAW REPORTS. [1950
S.C. the legislature has vested the exercise thereof.' At the
1950
time the revision proceedings were opened and prior
ABDUL
GAFFAR to 1st March 1950, when the General Clauses (Amend-
V.
U KYAW ment) Act of 1950 came into operation, such proceed-
!\YUN AND
ONE.
ings, for the reasons which we have already set out,
could be only by and before the President. It was not
competent then for the Additional Secretary to the
Government of the Union or for the Hon'ble Mir,ister
of Finance and Revenue to initiate or pI~(jceed with
them in the name and on behalf of the President.
With the General Clauses (Amendment) Act coming
into operation whatever powers which tIll then could
be exercised by the President personally becomes
capable of being ex-,rcised on his behalf by the Govern-
ment, that is to say, by the Minister in charge of the
Ministry concerned.
It is not necessary here to solve the questi.on
whether the proceedings which till the 1st March 1950
were without jurisdiction, and therefore a nullity,
can, from the stilgC when they had arrived at on that
date, be continued by reason of the amending Act by the

e
Hon'ble ~Jinister ; for, even assuming that they could
be, the further proceedings .of the Hon'ble Minister
cannot be supported as conforming to the rules of
natural justice. In Gwan Kee's case (1) it is true this
Court held that in a proceeding in revision the person
to whose prejudice an order was to be or has been
made was not entitled to be heard in his defence
before such orders were passed. This is wnat the
Court said:
U The next and the last point urged is that the President

exceeded his jurisdiction in passing the order which ,he did

without issuing notice to the applicant and giving him an
opportunity to offer an explamltion in his defence. If the
amending Act is referred to, it will be seen that only in the matter
11) B.L.R. :1949) s.c. 151.
 : '!b
,~,
-~

J9S0] BURMA 'LAW' REPORTS. 225

,Of review should notiGe be ,ssued to the plrty.likely to be affected s.C.
,19,50
by the' result but in tht; m l~t~r of. r.evision under section 2 {b) it is
not necessary to issue ,noti~e."
. ' ,.,,-, .AnDuL
GAlfIt.\R
v.
vVith great respect,it seems to us that nothing hlrns q:. KYAW..
on.a: specific .provision being made for hearing 'of the NVUN AND
O~E.
party.likely to:be -affected ,by the result in review
ptoceedings, A' Court c,f criminal juri~diction has
,Ordinarily no power: to re.vie\v its' ow'n decisions; and
section '191- (1)of the Sea Customs Act was intended to
gr"nt to, what was-for reasons which havealrea'dy
been stated by this Court. in' 'Ranchhoddas' case (1)
in the passage reprod.uced above~a: judicial tribun<il
administering cr-imihal justice. pO\vers'to review its' own
decisions. A review of a decision in ;:uch a sense
is not provided for by the Criminal Procedure Code
and in the absence of a provision of the nature of
proviso Ie) to section 191 (1) of the Sea Customs Act
tl;ere is no shtl1tory obligation for a notice before
reviewing a previous decision to the prejudice of a
party thereto. In the case of a revision, however,
once it is accepted thai it is in exercise of criminal
jurisdiction under a special law, section 439 (2) of
- the Criminal' Procedure Code would, by reason of
section 5 (2) of the Code, become applicable. ~lore
over, if, as is clear, the proceedings in revigion is
judicial in nature, rul",s of natural justic:e require that
before an order to the prejudice of any person is to be
made he must be given an opportunity of making his
defence. That no man shall be condemned unheard
is an elementary principle of judicial administration.
In the present case, the applicant had a hearing
, it is true; but that was before a person who had no
jurisdicUon whatsoever to act. Nothing turns on the
fact that this officer who heard the objections of the
applicant was so far convinced of the correctness of
III B,L.R. Ii 950) s,c. '8.
15
 "

226 BURMA LAW REPORTS. [1950

S.C. the Financial Commissioner's order that he recom-

1950
mended that no action be taken in revision, and we
ABDUL
GA.FPAR shall say no more about this matter. The Hon'ble
V.
U Ky.A.W
Minister for Finance and Revenue who was the proper \
NYUN AND authority to hear and decide the dispute in revision
ONE.
proceedings, had before him only a note of the hearing
before the 1st respondent who, for the purposes of a
judicial proceeding, must be treated as a total stranger.
For these reasons the proceedings' in File
No. 271RC4CJ of 1949 of the Government of the Union
of Burma, Finance and Revenue Ministry, Customs
Branch, are,quashed with costs.
Advocate'li fees-fifteen gold mohurs.

o
 1950] BURMA LAW REVORTS.
.
v
,.;-',,,
~~;,

227

SUPREME COURT.

_iRIFF MOOSAJEE DOOPLY AND ONE (ApPELLANTS) ts.c.

1950
v. JUne 29.
DR. T. CHAN TAlK (RESPONDENT).*

Suit for Redtmplion of lJorfgage-~Form of decree-Code 01 Civil Procedure,

Order 34, i~"Ie 4 (21, (3)-DtPosit of lawful crzrrency-Jnpanese Milililry
notes if such deposit _ U MOlley" i1l Order Zl. Rule tIl (a), Civil Procedure
Code meanirlg pf-Acceptance-S. 63. COlltrael Act atlll $. 4, Japallese
Currellcy Eva~l!afion Act.
\Vhere, In satisfaction of a mort~age by deposit of tiUe deeds, created
before the Wart the mortgagee deposited H:s. 35,250 into Court and a final
decree (or redemption was passed by the City CiviJ Court on 23rd Apri11918 ,
and the decree was set aside on appeal 1 after reoecupation by the High
Court.
8e14 : That if procedure fixed by the Code of Civil Procedure bad been
stri.::tly followed. a preliminary decree under Order 34, Hule,4 (3) should h~ve
beet1'pas~ed and it could be only in terms of th~ la\vful C'.lrrellcy of the land.
"'flie onJy question then would be whether such a decree could have been
U <lischa;ged by pa'yment into Court -of Japanese Military Nutes. The trial
. ,Judge did not examine this question. J2p::mese Military Notes were .not lawful
> money and were no better than tokens with no exchange value.

o Ko Maultf1 Tin. v. U GOI' Mall, (1947) Ran. 149 (F.B), referred to and
2.pplied.
Such deposit cannot discharge the decree under Order 21, Rule I, Code of
Ch;il Proced urc. _-.
H c~d ,1Iso: That if the deposit had been accepted by the defendant, both
under s. 63, Contract and s. 4 of the Japanese Curr~ncy (Evaluation)
ACt:, sllch acceptance might release the mortg:lgees. TIle rule, howenr cannot
-ordinarily be extended to cover a deposit into Court. Payment into Court
under Order 21, Rule 1 0) (a), Code of Civil procedure can only be by payment
into Couri of money payable under ~he decree.

P. K. Basu for the appellants.

E. C. V. Foucar for the respondent.

* Civil Appeal No.9 of 1949 arising Qut of Special Civil 1st Appeal
No. 18 of. 1947 of the High Court of Judicature at Rangoon.
t Pres'nt : U E lIJAUNG, Chief Justice of the Union of Burma, U ON PE
:;).nd,(; THAUNG B[~I IJ.
228 .B URM.ALAW. REPORT;>. . [1950
-
s.c. The judgment of the Court was delivered by tbe
1950
Chief Justice of the :Union..
ARIFF
MoOSAJE" U E MAuNG.-The appellants who are the sons
l)OOPLY
At;"O ONE and. executors of the\\'ilh:l .one M.E ..Dbopl}' who .\
DR:;'CHAN died on the 16th June 1944, instituted a suit for
TAlK. redcmp,tion of oil equitable mortgage.. created by
Iv!. E. Dooply on the 10th April 19H in favour of the
defendant to secure.a loan of Rs. 39,000. At. the .tim~
of the iilstitution of the suit the Japanese Army wasi~
.occupation of Burma and the Court before which the
suit was instituted was the City Court O'f Rangoon.
In the plaint it was claimed that on 2dth September
194+ full payment in dischaIge of the debt had been
madeby the plaintiffs and it was on this basis that a
deci:ee for "redemption was sought. TI1edefenclant
by his written statement disputed the plaintiff's claim
that they had before the institution of the suit paid off
all dues under the ~ortgage. The other allegations;
in the pl~int were admitted. Accordingly, at the stage
-up to the making of the preliminar.y mortgage "dec,ree .,
as required by Order 3+, Rule.4 o the Ci'lil. Procedure
Ccde the only point at issue was whether, prior to the
institution of the suit, the mortgage had been ully
discharged or not. If, as claimed by the appellants,
the debt hadbeen fully discharged, it would have been
the duty of the Court' to direct a final decree for
redemption to isslJe undtr Order 34, Rule 4 (2) of the
Civil Procedure Code; whereas if the defendant's
contention waS established the preliminary decree:
would have had to be under Order 34, Rule 4 (3).
On the 8th March 1945, before witnesses :wen~ exami-
ned, the plaintiffs applied Eor leove to deposit in Court
a.sum of Rs. ..35,250 in. Japanese Military notes. The
plea in the plaint that the- debt had been discharged
prior to the institution of the suit was not formally-
withdrawn but it is'clear from the terms of thc;p~tiiion, t
 191>0] BURMA tAW REPORTS.

of the 8th March 1945 that the plaintiffs did not s.C.
1950-
intend to press that plea. -=-
. Witnesses were examined on the 11th arid 19th April ARlFF
MOOSAJEE
19+5 and the 2nd plaintiff then admitted that .all that DOOPLT
AND ONE
happened on the 28th September 1944 was that a letter . v.
DR. T. CHA~
and a cheque for Rs. 35,25~ drawn on the then Burma TAlK.
State Bank were left \vith a person unknown, said to'
be' the.defendimt's assistant, and .that the person signed
in the despatch book in acknowledgment of the receipt
of the letter and the cheque. He further admitted that
when later he interviewed the defendant, on being
informed that the cheque' h.ld hot been presented at
the: B~nk, " the defendant stated that as wilen the loan
was given on the mortgage the loa.n was given in
English money it may be repaid- in English money
when it was repaid". It is clear then that the defen-
dant never accepted -he offer of repayment in Japanese
Military notes in discharge of his claims under the
. mortgage.
On these materials it was clearly the duty of the
trial Court to have made a preliminary redemption
decree in accordance witt Order 34, Rule 4 (3) of the
Civil Procedure Code ; but a.s before the making of
the preliminary decree a deposit in Court of Rs. 35,250
in' Japanese Military notes had been made the learned
Judge considered that strict adherence to the practice
of making a preliminary decree to be Jollqwed by an
investigation into the question whether the deposit was
such as would in law amount to a discharge of the
liability declared under a preliminary mortgage decree,
would be unnecessary. He therefore passed a final
decree on the 23rd April 1945 without first making a
preliminary decree. In doing sothe learned Judge.said :
.. As the plaintiffs have already deposited in Court the amount
.of principal alld interest due on the mortgage and as the defen-
dant has not disputed. the correctness of the sajehlmount due, n,o
'.
230 BUR,MA LAW REPORTS. [1950

- S.C.
1950
A RIFF
A,1:00SAJEE
D:OOPLY
At'DONE
preliminary decree is passed, but it is hereby ordered that there
shall be a final decree for redemption against the defendant."
An appeal was preferred against this final decree
to the High Court of Judicature at Rangoon, Rangoon '.
v. having been reoccupieq by the forces of the lawful.
P~.T. CHAN
TA.IK, Government on the 5th May 1945 and the learned
. Judges of the High Court sitting in appeal allowed the
appeal of the defendant by two separate judgments of
great erudition and of some length. Against the
decision of the Appellate Bench of the High Court
the present appeal has been preferred to this Court
under section 6 of the Union Judiciary Act.
It Cannot be said, and in fact it has not been said;'
on behalf of theappellarits before us that their obliga-
tion under the mortgage of 1941 was not in terms of
the lawful m'oney of the country. It also cannot be
disputed that the amount of principal and interest'dlle,
as should have been declared by. the City Comt of
Rangoon if it had followed the strict procedure for
.
making a preliminary decree for redemption under
Order 34, Rule 4 (3) of the Civil Procedure Code,
should have been in terms of the lawful currenr.y.
The only question then outstanding would be whether
this' indebtedness in terms of . the lawful currency of
.

the land could have been discharged by a deposit in

Court of Japanese Military notes of the nominal value
of Rs. 35,250 on the 8thlYIarch 1945. As is cLear from
the extract from the judgment of the trial Court
reproduced above, the learned trial Judge did not
examine this question. He merely assumed that these
Japanese Military notes deposited into Court would
amount to a discharge of the obligation.
Mr. Basu who appears for the appellants, with his
usual ingenuity, claims that the enemy in occupation
of Burmabetween the years 1942 and 1945 could have
imposed on the inhabitants of the country, so long as
 1950J BURMA LAW REPORTS. 231

the occupation lasted, the obligation to recognise the s.c.

\.950
Japanese Military notes at their face value for use as
ARJFF
media of exchange and that the appellants, so long as MOOSAJEE
DOOPLY
the occupation lasted, could have claimed as against AND O~E
the defendant that these notes which they were V.
DR. T. CHAN
depositing in Court were worth their face value. 'T AIIC

This ingenious contention, however, does ,not,help the

appellants to surmount the difficulty inherent in such
Japanese lvIilitary notes not being lawful money. They
were no better than tokens which were given and had
value as media of exchange so long as the occupation
lasted. A Full Bench of the High Court of Judicature
in Ko Maung Tin v. U Gon Man (I) helc,that Japanese
Military notes were documents witil a value in exchange
for goods, and had thus a purcha.ing value. FOlir of
the five Judges held that Japanese Military notes never
, formed part of the currency system in Burma and was
. not" money". Ba D, J., as he then was reserved
decision on this point but it is clear from his judgment
that he refused to put Japanese Military notes "n an
equality with the lawful currency of Burma, NothiI'lg
has been said before us on ,behalf of the appellants to
justify our dissenting from the view helel by the Full
Bench of the High Court of Judicature. With the
reoccupation of Burma by the lawful government
Japanese Milibry notes became worthless and were not
recognised by the lawful government as having any
value after the re-occupation. If, then, Japanese
Military notes were not" money" the deposit into the
City Court of Rangoon of these notes on I'he 8th March
1945 cannot, in itself, have the effect of discharging
the obligation under the mortgage.
True it is that if following the deposit into Court
!luch deposit hac! been acq,epted by th e defendant, such
acceptance may by reason of section 63 of the Contract
(1) (1947) Ran. 149.
 BURMA LAW 'REPORTS. [1950
s.c. Act,<\s.~lso by reason of setlion4 of fhe Japanese
1950
~urrency (Evaluation) Act, 1947, have the efft:ct of
AR1FF
MOOSAJBE releasing the plaintiffs from their liability. 1\'1 r. Basu
DOOPLY
AND ONE seek s to extend the principle toan acceptance by the
DR /'CHAH Court 'which he claims must be deemed to have acted
TAlK. on behalf of the defendant in receiving the deposit.
But Wt: see no justification for extending the rule to
cover a deposit into Court. A creditor can discharge
his debtor if he so chooses by accepting payment of a
sum much smaller than that owing to him or for any
other ..consideration, ,or even without consideration.
(\djustment in whole or in part of the decree out of
Court in any Danner to the satJ~faction of the decree-
holder w:ill be effective in law and may be recorded
under the provisions of Order 21, Rule 2 of the Civil
Procedure Code. But where a decree for money is
sought, through the machinery of the Court, to he'
discharged. whether in full or pro lalllo, it can only be
by payment into Court of money payable under the
decree; this follows from Order 21, Rule 1 (1) (a) of
the Civil Procedure Code.
It is not relevant to the enquiry that so long as
military occupation lasted, the military commander
could have by exercise of irresistible force compelled
acceptance of military notes' at their face value. To
contend, as Mr. Basu did, that the City Court of
Rangoon on the 8th March 1945 could not have, without
laying itself open to such pains and penalties as were
held oilt by the military ordnance relating t6 military
notes, refused the deposit of such notes in Court is to
beg the qu~stion. Inherent in the contention is the
proposition, which we have rejected, namely, that the
military c:ommander could have validly imposed a
parallel currenc:y system and,equated such currency to
the lawful currency of Burma.
. In these circumstances, the' appeal fails and is
dismissed with costs.
 1950] BURMA LAW REPORTS. ~3.3

SUPREME COURT.
K. K ':HAKI~ABORTY \ApPEi:.LANT) tsc.
195.0
v. ltme 30.
R. B. RAKSHIT (RESPONDENT).*.
Deftlh"e 'oj Burma Rules-Ut/Ies 90 (2) ial, 90 (2) (hl-O"bite! o/-Occupatio" of
Burma by encmy:'-l/ rules stlspended-Exchange of J apatusc. Currmcy 'U'i!/J
Burmese-Contract lor-If l~glll-Ple;f(li1tgs ill fUr): Court sflOuld be
precfse.
When~ appellant alleged that respondent offered to act for him and obtain
Rs. 35,000 in Bri~isll R:rma notes in eXl;hange for Japanese military papers at"
the nominal v.alue . of Rs. 35,000 ,mel., the ]apai1ese notes were ;l,ccordingly
deli",,:red (IUU appellant claimed payment of the amount:11 British currency.
Hcltllll~d : Viewed as :l'conlract of agency, 'he object of th/: ~oItlraet was
~he a..:ceptance of R:5. 35,000 in British R'.1Tl1la notes in paymtnt r0r the
true and not the nalional yalne of Japanese milita.ry note~ of the JlOminal value
of Rs. 3:',000. Viewed as a contract betwcen p:-incip?-Is, the appdlant agreed
to accept Us. 35,000 in British Bunna notes in payment of a like sum in

. ]<tpaneee Currency and in cithtr case,lhe object orconsid(;ratHm of the cnntr<l.ct

would fall within Rule 90 (2, tb), Defcnce of Burma Rulc':!: and be ilIe~a1.
Viewed as an exchange of goods {Japau..::sc currency} for cash, it may not fall
within R,Jle 90 (2) la) hut it offends Rule 90 (2) (b). The' contrad is illegal
and void.
The object of Relle 90 is to pre\!'cnt depreciation of lawful currency and
loss of confidence in it, which would mean loss of confidenJ;t: in the
Government to pJ'ost:cute the war successfully. On Burma being occupied by
the enemY,the necessity to prexent 3uch mischief, would be mor(" pressing.
it is de:jirabl~ that in the High CO:lrt, orig'nal side, plcading~ should be
precise.

Thein M oung, TUII Sein and D. N. Dult for the

appellant.
Kiaw Myinf and P. K. Basu for the respondent.
The judgment of the Court was delivered by the
Chief Justice of the Union.
U E MAUNG.-.The appellant's case as disclosed
111 paragrapbs 1 and 2 of his plaint, whi<;h has not been
* Civil Appeal No. 13 of 194M.
t
Plesl,,1 : U E MAUXG, Chief Ja:.tke of the Union of Burma, U Om: PE
~nd: U THAUN~ SEIN, JJ.
234 BURMA LAW REPORTS. [1950

s.c. drawn up with the degree of precision that is desirable

1950
and should have been insisted upon in pleadings
C~~K~"- before the Original Side of the High Court, appeared
EO;:' to have been that the .respondent in February 19+3
R. B. _ offered to act on behalf of the appellant and obtain
RAKSHIT Rs. 35,000 in British Burma notes in exchan"e for
Japanese Military paper of the nominal value of .
Rs. 35,000. Respondent was to take away the Japanese
paper to the Shan States and ~ake the exchange there.
The British Burma notes to be obtained in exchange
were, according to the appellant, to be kept in the safe
custody of the respondent till the warthen going on
with the JapaiJese wa" over when the respondent was
to deliver them to the appellant. This offer of the
respondent was accepted by the appellant who
delivered to him Japanese Military paper of the
nominal value of Rs. 35,000.
Thus put, the appellant's case appeared to have
been on a contract of agency which would require the
..
appellant to establish, if he is to succeed on the facts, that
the respondent did exchange the Japanese paper of the
nominal value of Rs. 35,000 for British Burma notes of
Rs. 35,000. Befote us, however, the appellant sought
to put his case, nolah agency but oil a contract under
which in consideration of the appellant having
delivered to th~ respondent Japanese paper of the
nominal value of Rs. 35,000 the respondent undertook
to deliver to the appellant Rs. 35,000 in British Burma
notes. Apart from the objection on a point of law,
which the respondent took to the legality of the
transaction whether as appeared to have been presented
in the plaint or else presented before us on appeal, tbe
latter presentation of the appellant's case would have
the advantage that, if he could establish the. contract
in that forlll, there is no necessity for him to go
further and prove that the respondent did in fact
1950] BURMA LAW REPORTS. 235

succeed in obtaining British Burma notes in the Shan s;c.

1950
States.
K. K.
The suit went to trial before Thein MilUng J., then CHAKRA~
BORTY
sitting on the Original Side of the High Court of V.
Judicature. Evidence was taken, both on commission R. B.
RAKSHJT.
and before Court, the Jearned Judge having rejected
the plea tabn by the respondent in defence that the
agreement '1IJeged by the appellant and forming
the basis of his claim for a decree for Rs. 23,000 is
illegal and void in law. The learned Judge in a
lengthy jUdgment discussed the evidence adduced by
both .sides and came to the conclusion that there was
an agreement as alleged by the appellant in paragraphs
1 and 2 of the plaint and that the respondent 'did
succeed shortly thereafter in obtaining in the Shan
States British Burma notes in exchange for the
Japanese paper which the appellant delivered to the
respondent in pursuance of the agreement.
The Appellate Bench of Tun Byu and Aung Tha
Gyaw JJ., of the High Court held on the evidence that
the respondent did receive delivery of the Japanese
paper of the. nominal value of Rs. 35,000 from the
,appellant for the purpose of having them changed into
. British Burma notes on behalf of the appellant but
that it was not proved that the respondent did succeed
. in effecting the change. The Bench again rejected the
plea taken by the respondent that the original trans-
action relied upon by the appellant is illegal and
therefore void in law.
With great respect to the three learned Judges of
the High Court, it is clear to us that the view taken by
them that the original transacticn,' whether treated as
one creating agency in the respondent or as a contract
under which the respondent bound himself to deliver
to the appeI1ant Rs. 35,000 in lawful currency,. does
not offend Rule 90 of the Defence of Burma Rules
 BURMA LAW REPORTS. , , [1950

s.c; cannot possibly be upheld. Viewed as a contract of

1950
agency the object of the contract was the acceptance
K. K.
CIIAKB:l- by the, respondent "on behalf of the appellant of
BORT,\,,"
v.'
Hs. 35,000 in Britisfl Burma notes in pOlyment for the
R. B,. true, and not the notional,vahieof Japanese Military
RAKSHIT~
notes of the nominal value of Hs.' 35,000. Viewed as
a, tran,action 'between two principals the contract is
one by which the appellant agreed to accept ~s, 35,000
British Burma notes in p.lyment for Japanese Military
notes of the nominal value of Rs. 35,000. In
elther case the object or the consideration of, the
contract would appear to fall within Rllle 90 (2) (b) of
th.<; Defence of Burma Rules and be illegal.
The learned counse1 for the appellant supports the
reasoning of the learned trial Judge that the transaction
"must be reg'lfcled, not as exchangc of one currency
or legal tender for another but as sale of goods for
cash in Britdl currency and the agreement for such
exchange must be rcgarded as an ordinary agreement . [

for sale of goods." This reasoning rhight have been

cogent if it is sought to apply to Rule 90 (2) tal of the
Defence of Burma Rules which prohibited the buying
'or selling of lawful, currency for an amount other (han
its face value. The transa~tion ofbuying or selling no
doubt involves the price in money of the article bought
or sold and Japanese Military notes having be~n held
not to be money Rule 90 (2) (a) may not be applicable
to a transaction as in the present case, The learned
trial Judge, howevcr, did not consider the implications
of Rule 90 (2) (b).
Reliance also was placed on a decision of a Bench
of the High Court of Judicature at Rangoon in Ahuja
v. Sen Gupta (1 j and the learned counsel for the
appellant seeks to deduce from the judgment the
proposition that 'during the occupation of Burma b):' l
(If Special Civi11st Appeal No.2 of 1946.
-1950] BURMA LA~ REPORTS. -237

the military forces of the enemy the Defence-of Burma s.c.

1950
Act remained suspended. The pass<lge relied -upon
K. 'C
reads as follows: ~~-J.AKRA
H~HTY
h The obje<...,t ~nd intention.of the. Legishture In 'passing the v-
p~fence oJ .Buqna Act w:}s the Defe.nce of .BijI"m:!-:; ~vhe'n boce R B_
H"KS.U1T.
:J3Ui"m3 WflS. occupieq. by the Japanese forces-tuo.... fllrp~~r: Defence
'of Burma was possible; from the point of v.iew pf His lvhjes.ty
and his. loyal subjects' Except- for thos'~ very smaII.p;rts of
Btirma" ,,;hich never passed ~ir'J.to the hands of the Japanese
'authoritbs t the Act could hilve n~ practical application u~ti1 the
l.iberation of B1.1]"111a oy the British forces ag'al~ rehdered- it
_po~sible to defend _Burma on behalf of His Majesty. YOll
caollot defep.d what ,is hel.d by. somebody else.'~

This quotation does not support the a~pellant's theory

of suspended animation of the Defence of Burma Act.
Besides, the mischief which Rule 90 of the Defence of
Burma Rules intended to pre rent was the depreciation
of lawful currency owing to the loss of confidence
'(herein by those in Burma. Loss of confidence in the
lawful currency would mean loss of confidence in the
strength and might of the lawful Government to
successfully combat the war then in progress. The
necce3sity to prevent thi, mischief would not be
removed on Burma being occupied by the enemy; in
fact the necessity would become more pressing than
ever. - It is therefore impossible to accept that on
Burma being occupied by the enemy tb~ object and
intention behind Rule 90 of the Defence of Burma
Rules had passed away. Moreover, we are not
prepared to accept the proposition that an Act of
Legislature can become obsolete on the reason for its
enactment ceasing to operate.
It follows from all this that the' transaction relied
upon by the appellant as supporting a cause of action
for the payment to him by the respondeDt of a sum of
Rs. 35,000 in lawful currency, less the amount which
he admitted he received from the respondent, is
238 BURMA LAW REPORTS. [1950

S.C. illegal and therefore void. It may be noted here that

1950 the respondent did not admit that he had paid to the
K. K.
CHAERA~
appellant the sums which the appellant claims to have
BORTY received; but we need not go further into this aspect
v.
R. B of the case. The admission of the appellant against
RAKSHIT. his own interests is binding on him even though it may
not be binding on the respondent. .
The result is that the appeal, which has as its root
the claim that the transaction of February 194.3 either
as exemplified in paragraphs 1 and 2 of the plaint or as
stated before us at the hearing is one of binding force
in law, must be and is hereby dismissed wit;1 costs.

.
 1950J BURMA LAW REPORTS. 2$9

SUPREME COURT.

EU HFE YAR AND ONE (ApPELLANTS) t s.c.

1950
v. lilly 5.

TEH LV PE (RESPONDENT).*

promissory llote-SuU ou_Suil Jar mOJZlY Itlll-Ntassary lI'Vumcnls iu each

co.lsc-NtJ.~otiable ;IlSlnlnJCnt cOtl-siderat,o/J jor 10d1t or loan joilowert by
uegoUnblc imtrmnent-Loatl by Buddhist wup[c-Colltracl with 0'1t:
akme -St4;{ by such PllYfy-Non-joimfu of others, OTd~r 1. Rule 13, Code
0/ Civil Procedure.
Appellants bl.rrowcd t\Vo sums and in consideration thereof executed
two proUlisaory notes in favour of ont: only of a Chinese Buddhi.st couple, and
lthe claim was deneed in two courts.
Hdt.l-: That the suit iii the case was not so!el', on the promi~sory nl)tes but
-on the original considec",,1.tion ~lso. A suit on a promj~sory note need not aver
tho loan which formed the consideration. All th'at i$ necessary' is to plead
-execution of the instrument and prove it. while the defendant could prove
:absence of consideration.

. It is aile rhing fo- a negotiable instrument 10 be ~iven and accepted as

-consideration for the loan and an entirely different thing for a loan to be made
.and in consideration thereof, the borrower makinl.{ a negotiable instrnment
.In the first case, the loan is mer~ed in the instrument and in the latter .case
iit is only a collateral security.
Mallng Chit v. l(arecm 0011lU, 12 Han. 153, referred to.
The re~polld(;:nl alone was the par~y with wholl1 the contract was made
.as he wa~ not acting: as agent or trustee of his wife, he" could sue for enforcing
the COil tract. even though the money belon~cd to the Buddhist couple. The
jplea was oat taken ill the first instance and would not be available in appeal.

K. R. Venkatram for the appellants.

T: Wan Heck for the respondent.
The judgment of the Court was de1i\'ered by the
,Chief Justice of the Union.
V E MAUNG.-This appeal arises out of a suit by
the respondent claiming a decree for Rs. 15,300 against
* Civil Appeal 1\'"0. 10 of 1949.
t Presetll: U E MAlnm. Chief Justice of the Union. of Burma, U ON PE
:and U THAU~G SEIN, JJ.
 BURMA LAW REPORTS. [1950
S.C. the appellants. The first paragraph of the plaint reads
1950
as follows:
Eu HPE YAR
A}:lP..p~E "That, at Tavoy, in the month of. December, 1941 the
v.
TF.H.j",V PE.
defendants above named jointly borrowed on the same day a 10tal
sum of Rs. 10,000 in two sums of Rs. 5,000 each from the plaintiff
and, in consideration thereof, they jointly exec,utecl two On-
Demand not~s of Rs. 5,000 each, with illterest payable on each of
them at the rate. ~f. Re. ~ pel" ~e.nt per ,meIl~em in favour of the
plaintiff" .

The',plaintiff-respondent claims that the .promissory

notes were lost in the bombing just at the beginning of
the last war and he sought to prove the promissory
notes byseconrlary evidence. The defendant-<lppelIa.nt~
do not dispute tbat t'ley had borrowed. Rs. 10,0011.-on
the same day as tbat alleged by theplaintiff in the case.
Their <;;tse, however, is that the promissory notes \vere
executed by tbem in favour not only of the plaintiff
but of his wife as \vell :uid tbat they had repaid the
loans. which they had taken. on the promissory noks
executed by them. In support of their case they "
produced two documents which tbey allege to be the
two promissory 'notes executed by them ';md reti.mled
to them on repayment.
The defence story of the return of the' promissory
notes on repayment has been rejected by tbe two C6urt~
below and that concurrent finding has not. been
challenged before us by the appellant's counsel.
The principal' question of law which engaged the
,two lower Courts has b,een whether the .documents
which were relied upon by the plaintiff and which the
plaintiff claims to bave been lost were admissible in.
evidence and whethcr secondary cvidence hadbeen
properly adduced of these documents at the trial.
Many' rulings were cited before the Appellate Bench, of
the High Court which discussed all the decisions' in
detail. Before us also tbe learned counsel for the
 \,,-
1959]. BURMA LAW REPORTS. 241
:appellant desires to agitate the question whether the s_c.
On-Demand promissory notes relied upon by the 1950

plaintiff could have been admitted in evidence if still EuHpEYAR

AND ONE
in existence anci whether secondary evidence of these V.
TEH Lu PE.
-documents, assuming the-:n to have been lost had been
:properly tendered. No doubt these are questions of
the greatest importance and may have to be considered
-by this Court sooner oc later; but they do not arise in
-the preser.t case. As the Appellate Bench of the High
'Court at pages 14 and 15 of the judgment held, the-
:suit was not one solely on the promissory notes but
\,raS one on ihe original consideration as well. The
-original loan was alleged in the first se'1tence of the
:plaint which we have reprodused earlier in our
judgment. Evidence has been led and on that
-evidence the two lower Courts have held that the
plflintiff did lend to the defendants Rs. 10,000 and that
-this sum has not been repaid yet.
A suit on a promissory note, pure and simpler need
-not aver in the plaint the loan which formed the
-consideration. It is not for the plaintiff in 'L suit on a
-promissory note or any other negotiable instrument to
:allege or to prove the consideration which supports the
negotiable instrument. All that is necessary in a_
:plaint of that nature is for the plaintiff to aver the
-making of the document and once he has proved the
makin~the burden that lies on him is diSCharged. It
is for the defendant, if he can, to aver and establish
the absence of consideration.
The learned counsel for the appellants relies on the
decision of a Full Bench of the High Court in
-co Maung Chit v. Kareem Oomer (l) and in particular on
":a passage in the judgment of Page C.J. that if a
negotiable instrument is given by the borrower to the
lender and the negotiable instrument is itself the
(1) 12 Ran. 153.
16
242 BURMA LAW REPORTS. {lYS()

s.c. ' consideration for the loan, the lender is restricted to his.
1950
rights under the negotiable instrument, in support of
E';.::~J:R his case that the present plaint must be treated as one
v, in a suit based on the promissory notes. But it is one ",
TEHLu PE.
thing for the negotiable instrument to have been give_n
and accepted as the consideration for the loan ; it is.
entirely a different thing for a loan to have been granted
:md in consideration of the loan for the borrower to
have made a negotiable instrument. In the 'onc case,.
'the loan is merged in the negotiable instrument, and in
the othcr the negotiable instrument merely forms it '
collateral security for the repayment of the loan.
Another cuntention pressed before us on behalf of
the appellant is that the suit, in the absence of the
respondent's wife as a party thereto, is incompetent.
The respondent and his wife are Chinese Buddhists.
and under the personal Jaw applicable to them, namAly
the Buddhist L<\w, the money lent to the appellants.
forms part of their joint estate. From this
'Mr. Venkatram seeks to deduce that the suit by the
respondent alone t; recover the money Jent is not ,
competent. In the first place, this plea was not taken,
earlier and Order 1, Rule 13 of the CivIl Procedure'
Codewould-appear to bar thc appellants from taking
this plea in appc'al beforc us. Further, the respon-
dent's case which had been accepted by the Courts.
below is that, whatever the source or the funds, it was,
he and he alone with whom the appellants contracted
in the matter of the loan. In that transaction it is not
suggested that the respondent was acting in any sense
as agent or trustee of his wife qnd the exceptions of
doubtful validity which judicial pronouncements have.
engrafted on the rule that a persun not a party to the'
contract cannot Sue on the contract cannot be sought
in aid by the appellants. That the wife may have a
right to call her husband to account for the sum
 ,1
\&~ },:;;':.,-.'
1950J BURMA LAW REPOR1~. 24-3-

realised on the decree has no relevancy in this s.c.

l?Sn
connection.
Eu HPEYAR
The appeal hils and is dismissed with costs. AND ONE.
".
TEH LV PE.
244 BURMA LAW REPORTS. [1950

SUPREME COURT.
ts.c. HAJEE SAHIB HAJEE MOHAMED BROS. .'
1950
(ApPELLANT)
July 7.
v.
PUDUVEETTU ABDUL MOHAMED SHERIFF
AND ONE (RESPONDENTS)."
Tort-Goods t4ke1~ 1l}ler door broketJ_WlJelher taker, fillder of goods-Joint
torf-jeasors-Rclcasc cf fme-Findrng by courls bclo1v (/s only a cOvetlaut
not to sue-Mf.'Ccd question of law and/act.
Held: That persons, who take possession of goods, after breaking doors of
the rooms where such goods are kept (the rooms being lensed by the owner
of goods from the landlords) and who knew hllly th2t they were the property
of others, arenot innocent finders of goods.
Tau Soo,. Li v. The Burma Oil Co., Ltd., (1941) Ran. 153.
The question whether a release deed whereby one of the several tort-
[easors is released from liability rC:iurving the right of action against ot1lers
amounts to release of all or only a covenant not to sue the part)' released, is a
mixed question 0f law and fact. Concurrent findings of both the Courts
cannot therefore be chalIenged.

P. K. Basu for the appellant.

H. Subra111anYC'/n for the respondents.
The judgment of the Court was delivered by the
Chief Justice of the Union.
U E MAUNG-The appellant sued the respon-
dents for recovery of a sum of Rs. 1,12,510 being
compensation for various acts of conversion of his
goods committed by the respondents and two other
persons in 1942. These goods were left beh.ind in
various pJace.s in Bur~1a w~en in Februa~1942, on
the approach of the invadlI1g Japanese irmy, the
appellant went away to India. The appellant's case is
'* Civil Appeal No. 13 of 1949.
t Present: U E MAUNG} Chief Justice of the Union of Burma, U ON PE
,md U THAUNG SEIN, 11.
 v 4,
1950J BURMA LAW REFORTS. 245

that these goods were taken possession of by the s.C.

1950
respondents and two others who disposed of them as
their own pn:perty. The suit was instituted against HA~~]~~HJB
the two respom;ents as the appellant had come to a M~HAMED .uROS.
settlement with the two co-tort-feasors of the respon- v.
_ PTJDUVEETTU
dents. The tnal Court granted a decree to the ABDuL

appellant for Rs. 37,720.. The 1st respondent appealed ~~,;;~~;r::

and the appellant filed a cross-objection with the AND o'E.
result that the Appellate Bench varied the decree in
favour of the appellant to a sum of Rs. 21,713 only.
The appellant in his appeal before us claims that
he is entitl6d to a decree in all for Rs. B,192-2-0,
whereas the respondents by their cross-objections
before us claim that the appell?nt's suit should be
dismissed in 1010.
It will be more convenient in the disposal of this
apyeal to consider first the respondents' objections to
the decree of the Appellate .Bench. The respondents'
case is that they were innocent finders of goods and
that by what they did with the goods of the appellant
they had not committed any wrong. This plea, it
must be noted, was not pressed very seriously either in
the Courts below or before us. The respondents and
the two others who acted with them knew full well
that the appellant was the owner of the goods and to
take possession of these goods they had to break open
the door of the rooms which to their knowledge were
leased by the appellant from the landlords. In these
circumstances, even if section 3 of the Custodian of
Property Act had not been enacted the respondents
could not have brought their case within the ruling of
TallfjoonLi v. The Burma Oil Co., Ltd. (1).
Mr. Subramanyam, who app:oars for the respondents,
frankly conceded after some slight argument that the

(lJ (1941) Ran. 153.

 246 BURMA LAW REPORTS. [1950
S.C. respondents and their co-tort-feasors are liable to pay
1950
to the appellant compensation for the value of the
HAlER SAHIB
HAIEE goods taken possession of by them.
MOHAMED
BROS. Another ground taken by the respondents is that \
V.
PUDUVEETTU
because the appellant had by docum'ent Exhibit R
ABDUL renounced all claim, against two joint tort-feasors the
I'IIOHA~lED
SHERIFF appellant had no right of suit against the respondents
AND ONE.
for the acts of conversion committed by all four joint
tort-feasors. The Courts below, however, have come
0
to concurrent findings that Exhibit R evidences merely
an agreement not to sue the other tort,feasors and that
it was not a deed of release of the joint turt-feasors of
the respon dents from liability in respect of the
conversion. The document. expressly reserves the
appellant's right to take action against the respondents.
This concurrent finding on a question of mixed faet
and iaw is binding on the' respondents and
Ivlr. Subramanyam has . not seriously attempted
to challenge it. We must therefore hold that this
objection also fails.
The appeal rehtes to the "alue of the appellant's
goods in Edward Street, Rangoon, taken possession of
by the respondents. The appellant claims that these
goods were of the value of Rs. 31,000. This claim
was accepted by the trial Court. The Appellate
Bench of the High Court held that the goods in these
premises were of the value of Rs. 9,520-14-0 only as
alleged by the respondents and it is the difference
between these two amounts that forms the subject of
the present appeal. That the goods were of the value
Rs. 31,000 when the appellant left RaDgoon in
February 1942 after having kept the premises belted
from inside at the back and iron-barred and locked
from outside at the front, is not seriously disputed.
Tbe' appellant has given evidence on the point
supported by his books and he has not been seriously
 d' ,.c',,-
k" ,I';;;
t,,,....i
'w:.
.o/.::'F
1950] BURMA LAW REPORTS. 247

-cross-examined on th'is aspect of the case. vVhat the s.c..

1950
respondents were mainly concerned in seeking to
HAJEESAHIB
establish was that when in the beginning of April 1942 HAlE-I:;.
MOHAMED
they took over the premises and the contents thereof BROS
. there was a hole in the frent door through which the v.
PUDUVEETTU
goods inside would have been carried out by looters and ABDUL
MOHAMED
that when' in June' 1942 they took account of the goods SHERIFF
AND ONE.
they found them worth not more than Rs. 9,520-14-0.
It has been contended on behalf of the respondents that
o between the 8th March 1942 and the beginning of
April 1942 when the respondents first took possession
of the premises, the bulk of the goods in the
premises must have been looted follO\"ing the state
of lawlessness in the City a' Rangoon at that
timt.
P. M. Abdul Rahman, 1st witness for respondent
}{o. 1, who obviously is very much interested in the
respondents, has told the' Court, that when on tLe
21st or 22nd March 1942 he passed by the premises in
questIOn he found in one of the front doors a hole
about one foot broad and 5 feet high. He also said
that when he peeped through the opening he saw
about 50 or 60 bags in the room and some other goods
lying loose on the floor. The 2nd respondent, who
was the first among the respondents and their joint
..
tort-feasors to take charge of the goods, required a
leading question from his counsel to say that when he
took the goods the shop had been looted. K. M.
Hassan Aliar, 2nd witncss for 2nd respondent,
admitted that the lock over the iron bars in the front
of the premises was intact when he and others took
over the premises. This witness was one of the joint
tort-feasors ,vith whom the appellant had made a
settlemcnt. It has been suggested that the witness is
partial in favour of the appellant; but it is clear from
his evidence that he harbours a feeling that by the
 248 BURMA LAW REPORTS. [l95()

s.c. settlement which hi; agent, in his absence from

1950
Burma, had made with the appellant he did not get a.
HA;';'~J~~'IIB fair deal from the appellant.
MOHAMED The testimony of Vahid Ullah, 4th witness for the \
.B~~S. appellant, who the respondents admit had been kept
PU~';,:~E:TU by them as the durwan in ch:lrge of the premises
MOHAMED since 1st April 1942, is fa the effect that the premises in
SHERIFF
AND ONE. qllestion showed no signs of having been looted before
. they were taken over by the respondents in ApriI1942.
This is su'pported to a large extent by the testimony of
the witnesses called by the defence as to the state of
the doors in front and at the back of the premises. At
the back the premises were bolted from inside. At
the. front the iron ba;'s across the door and the lode on.
them were intact. There was said to be an opening in
one door leaf which, according to this witness, was.
about one foot in breadth. That this was not a very
large hole is clear from the statellJent of K M. Hassan
Aliar (2nd witness for 2nd respondent) that the repairs
.1
cost only about Rs. 30 or r~s. 40. A man .might be
able to slip through that opening but it would not be
possible fer him to have got out carrying any article of
any appreciable size. The looting, if any, through the
... opelling in the front door must have been on the very
smallest scale. If goods in any- appreciable quantity
had been taken away, as they must have been, through
the back doors of the premises the looters would not
have been so considerate as to re-boIt the doors from
inside after doing so It n:ust also be remembered
that the goods stored in thf~se premises were drug1>
and herbs which, in the interval between the
20th February and the first week of April' 19-+2, could
.
not have found a ready sale and were therefore not
such as would have attracled the looters who had at
that time goods' of greater immediate value to choose
from in their activities.
 1950J 249'

In this state of testimony the respondents claim S.C.

1950
lhat they are not liable to pay compensation in excess
h I HAJEE S.\HIB'
o f the admitted amount of Rs. 9, 520-14-0 WhlC hey HAlEE
say represente<.i the result of their taking inventory of M~HR~~ED
the books in the premises in the presence of two l' v.,

.
UDUVEE1'TU
witnesses. in June 1942. We have examined the ABDUL

eVI'd ence of t Ilese two WItnesses

. an d we are no t very MOHAMED
SHERIFF

much impressed by it. Moreover, the said inventory ANr ONE;

and the books of the business jointly carried on by the

o respondents and their joint tort-feasors are not forth-
coming. It is suggested that they have been withheld
by K. M. - Hassan Aliar (2nd witness for 2nd
respondent) ",;ho had settled his liabilities with the
appellant. But we have already given our reasons for
thinking that this witne3s is not at all favouring the
appellant's cause. The accounts given by the res-
pondents and this witness of how the account pooks
and other documents evidencing the taking of the
inventory came to be unavailable to the Court are
conAicting. Hassan Aliar claims that lhe account
books were destroyed when late in 1944 the premises
at 286, Edward Street, where they were kept, was
bombed. But it is clear from the evidence on record
that 286, Edward Street, was never bombed j and one
'of the account books, Exhibit Y, was produced before
the Court. The 1st respondent told the Court that
when in August 1947, after the suit was instituted,
he asked Hassan Aliar about the account books
he was told they were then with him. vVhen
this respondent was asked if he made any attempt
to get the account books from Hassan Aliar then
only he said that Hassan Aliar said he was not
sure whether the books were in existence or not.
.It is significant that this witness fells the Court
that after this inquiry' from Hassan Aliar he din
not make any subsequent attempts to get the books
250 BURMA LAW REPORTS. [1950
S.C. from Hass?n Aliar. Hassan Aliar also though cited
1950
as a witness was not summoned to produce the account
HAJEE SAHIB
HAJEE buoks.
MOHAMED
Blws. In these circumstances we find it impossible to
V.
PUDUVJ::ETTU
hold with the Appellate Bench of the High Court that
ABDUL the bulk of the goods in the premises 194-19Q, Edward
MOHAMED
SHERIFF Street, Rangoon, must have been carried away by
AND mm.
looters before the respondents took possession of the
premises throllgh their durwanin early Al;lril 1942.
vVe are also unable to accept. as did the Appellate o
Bench, the contention on behalf of the respondeds
that the goods which they took )Jossess;on of were
not worth more than Rs. 9,520-14'0. It follows
therefore that as far as the value of the goods in
No. 194-196, Edward Street, is concerne.d the
appellant is entitled to have the trial Judge's decision
affi rmed. As we have said earlier the dispute before
us is' only over the value of the goods in these
premises.
We therefore allow the appeal of the appellant with
costs. This means that the appellant will get a decree
for Rs. 43,192-2-0 against the respondents with costs in
proportion at tile trial, with full costs in the appeal
before. the Appellate Bench. of the High Court and
with full costs before us.
 1950J BURMA LAW REPORTS. 251

SUPREME COURT.

HASHIM AZAlvI BHAKHRA (ApPELLANT) t s.c.

19:;0
v. July. 7.
.. EBRAH'IM ARIFF ASHRAFF AND THR":E OTHERS
. (RESPONDENTS).*
Trllsh Acf_ l s.l ,44.76-Rl/lts of Mv!lamcdilll Law-Siiwt-Effecl-Pr(}rJislort
ill tlt:e.tlf.lr five Irllst<:cs-W,lelfuy [oltr alone call file suit.
Where a deed of waqf crea-t~d by a \Iohamedan provided that there should
;tlw;l.ys be five tTlLstces and in case of vacancy. the survivors could appoint
to the vacancy, but a V:lcan;:y was not nlled lip and the remainin~ fOUf trustees
alone filed a snit for recovery 0f I!lonics,on behalf of the Trust.
Held: That s.l of the Tr'.:-ib; Act, provid~s that nothing contained
in the Act affects the rules of Mohamedan Law as to waqf, but there was
Jlothing ttl the Tll]C:S of. i\fohamcclan Law which conflict \vitll ~S. 44
and 70 of the Trusts Act. 'I'll\: provision in the dOC,iment of Trust that tllr:re
should always he five trustees does not exclude the operation of S5. 44
a~d 76 expressly or by implication and on the death of one of several
co-trustees, the trust survives and tbe.trnst property pas~es to the others.
RnjC11,lroll,dlt OliN ". Sltnik Mohall/ul [.al, 8 LA. 135, distinguished.
Heclzu Lal v. Qlilll/all, 40 Cal. :H8; Kr...s llna Bhatta \'. UdaYI1:;aI'Srhi~'{lStl
Shambagll. AJ.R. (lQl7) Mad. 7::'0, referred to.
By c'~lIltinuilig to act, the surviving trustees may have committed a
breach oi trust; ~ut a stranger to the 'trusl can nut 1;ay that ill spite of the
trust surviving and the survh'in~ trustees having the same rig~lts, a~ the
, original tr~lstees, tile survivors cannot sue.

K. R Venkatram for the appellant.

E C. V. Foumr for the respondents.

The Judgment of the Court was delivered by the

Chiet Justice of the Union.

U E MAUNG.-The short point for decIsIOn 111 this

appeal is 'Nhether four trustees out of five appointed by
the tro. st deed, the fifth having died and no appoint men t
~ Civil Al'peal No. 14 of 1949.
t Preselll: U E )!AUNU, Chief Justice of the Union of Burma, U ON PE
.and U THAUNG SEIN, 11.
252 BURMA LAW REPORTS. [1950

1950
S.C. for ainew trustee having been made in the meanwhile
in terms of the trust deed, can sue to recover against a
HASHlM
AZAW stranger of the trust for tortious acts committed by
BHAKHRA
that stranger in respect of the trust property. By a
".
EBRAHIM
ARIFF
document of 17th April i9-17 executed by Hajee Ariff
ASHRAFF -Ebrahim Ashraff creating a trust to be known as Hajee
AND THREE
OTHERS. Ariff Ebrahim Wagf it was provided that after his death
there shall always be five trustees of the said wag.
The document proceeds to nanfe the first five' trustees,
being tbe four respondents and Ebrabim Ajall1 Ashraff.
It was also provided in the document that in tbe event
of any vacancy occurring in tbe office of the trustees
the remaining trustees are to appoint a new trustee
from among certain c:asses of persons specified in the
document.
Ebrahim Ajam A.shraff, it appears, died in cr about
19H ; and it is the case of the surviving trustees that.
during their absence in India when Burma was
oceu pied by the enemy the appellant took possession
of the building ~nd acting as the landlord thereof had
collected rents amounting to Rs. 1,152. On this
allegation tbe surviving trustees sued for recovery of
this sum from tbeaFpeliant
As stated at the outset of this judgment tbe
appellant objected to the filing of the suit on the
ground that four trustees only are not competent to
sue for the recovery of the sums due to the trust.
This plea was accepted by the learned 3rd Judge of the
City Civil Court cf Rangoon but on appeal to the High
Court it was rejected by the Appellate Bench of that
Court. On appeal before us by special leave against
the judgment of the Appellate Bench of the High
Court My. Venkatram for the appellant claimed on the
authority of Rajendronath Dull v. Shaik Mohamed Lal
(1) and Bl'chu Lal v. Oliullah (2) that the suif by the
II) 8 I.A. at p. 135. (2) 40 Cal. 338.

1950J BURMA LAW REPORTS. 253

four surviving trustees must be incompetent. The s.C.

1950
CalCutta case applied the decision of the Privy Council
without any discussion. The Privy Council's decision HASHIM AZAM
'proceeded on the special facts of the case; there was BHAKHRA
".
in that case a sale in his personal capacity by one of the EHRAHIM
ARIFF

. trustees of the [nist property i and the defendant who ASHRAFF

purchased the property from this trustee claimed, and AND
J
THREE
OTIIERS.
rightly in ou~ opinion, that in a suit by the other
trustees dgainst him to set aside the sale, the trustee-
vendor should be made a co-defendant in the suit.
It is true that the trust here is a Mohamedan
Trust and section 1 of the Trusts Act begins with the
following:- "But nothing herein cuntained affects
the rules of Mohamedan law as to waqf "; that is to
:say, any provision in the Trusts Act conflicting with
the rules of Mohamedan law as to waqf must give
,way to these rules, but where MOhamedan law is
'silent the Act applies. Mr. Venkatram has not been
able to draw our attention to any rule of Mohamec1an
law that would conflict with the provisions of sections
44 and 76 of the Trusts Act. We also know of no
such rule.
It was also contended by Mr. Venkatram that the
pro\ision in the document appointing the first five
trustees should be treated as having made an express
'provision to the contrary such as would exclude the
operation of either section 44 or section 76 of the
'Trusts Act. We cannot agree with him that the
fI'quirements in the document" that there shall be five
trustees always" negative expressly or by implication
the rule enunciated in section 76 of the Act that on
.,
the death of one of several co-trustees the trust
:survives and the trust property passes to the others.
It may well be, though the. point does not arise for
determination in this case and we refrain from deciding
it that the four surviving trustees by their continued
254 BURMA LAW REPORTS. [1950

S.C. inaction to have the board of trustees brought to its ful!

1950
strength may have committed a breach of trust for which
HASHIM
in proper proceedings a beneficiary may hold them to
..
AZAM
BHAKHRA account; but it is a different thing altQgether for a
EBHAHI~( stranger to the trust, to say that in spite .of the trust
ARIFF
ASHRAFF surviving and the trust property orsuel, right therein as
AND THREE
OTHERS.
the five original trustees had, passing to the four
sl\rvivors, these four survivors cannot sue to recover
from him the rents which he had improperly toilected
on the trllst property.
The decision of the Madras High Court in Krishna
BhaUa v. UdaYa?'ar Srinivasa Shalllbagu (1) relied
upon l'vIr. FOllcar for the respondents has, in our
opinion, correctly sta(ed the rule on this point.
Under these circumstances the appeal fails and is
dismissed with costs.
Advocate's fees ten gold mohurs.

- - - - - - - - - - - - - - -_.-_ ..
ill A.I.R (19171 lVIad. 730
 1950J BURMA LAW REPORTS. 255

SUPREME COURT.
MALJt~G THA SHvVE (ApPLICANT) t s.c.
IlJSO
v. July 10.
THE DEPUTY COMMISSIONER, AMHERST
AND ONE (RESPONDENTS)."

Public Order (PrcscyvCltrou) Act-SIISPicioll that ddcllllC COllcerlzed in dacoity,

1l/1Jrder. robbery-Proper YCII/cdy.
\Vhere tbe applicant was detained under the Public Order (Presen<lti0111
Ad, as h~ was sllspected in series of robbery, dacoities and murders.
Held: That the Public Order (Preservationl Ad cannot be applied to such
cases. The proper action to taJl:C was ~lllder the rreventive sections of the
Criminal Procedure Code.

Ba Sein (Government Advocate) for the

respondents.

The judgment of the Court was delivered by

the Chief Justice of the Union.
U E lvIAuNG.-The Public Order (Preservation)
Act cannot apply to the applicant in this case. Thc
repon on which the detention order was made by the
Deputy Commissioner, Amherst, reads:
I( Nga Tha Shwe, son of U Sein 01 Muc10n was arrested by
l\'Iudon police as he was suspected in series of cIacoity, robbery
and murder in Mudon Police Shtion Jurisdiction and connived
with criminals from other vil1;J.ges."

If these allegations are true, action should have been

taken under the preventive sections of the Criminal
Procedure Code.
We, therefore, direct that the applicant be released
Jorthwith.
o * Criminal Misc. Application No. 131 of 1950.
t Present: U E MAUNG. Chief Justice of the Union of Burma! MR. JUSTICE
THEIN MAUNG';\nd U THAUl\'G SEll", T.
256 BURMA LAW REPORTS. [1950

SUPREME COURT.

ts.C. EPHRAIM SOLOMON (ApPLICANT)

1950
July 24. v.
THE'COLLECTOR OF RANGOON (RESPONDENT)."

Directions jar mQudamlls-Rcfj1tisition by Collutvr-No dufy of Collector [0

o
de-requisitio1l-if appUcutio1llies.

Where the Collector of Rangoon requisilioned certain premises under the

Requisitioning (Elllrrgency Provisions) Ad, 1947 and directed it to be~made
;lvailable to a Chinese School.
H tId: That there is no duty cast on the Collector to de-requisition under
the Act and as there was no duty, there could be no application for directions
in the nature of a mandamus. By allotting the premises to the school, the
Collector may have committed a wrong but there Olay be remedy elsewhere
but not by a writ to the Supreme Court.
Facts on wkich the decision was mad'C' were as follows : -
The Applicant Ephraim Solomon is the owner of the house known as
No. 297, Godwin Road. Rangoon. Some people trespassed on this honse
during: the Japanese occupati()fi and ran a schooi there known-as the Hwa Sha
Chinese School. These trespassers never paid any rent to the Ap!lliCant.
The Applicant then filed a suit being Civil Regular Suit No. 302 of 1947 for
recovery of possession of the premises alld obtained a decree. He applied
ior-eXeC\ltion of the decree in Civil Execution No. 19 of 1950. The judgmcnt-
debtors took time on several occasions for vacating, and it appears tha.t they
then approached the Government for the requ:sition of the said building and
2.11ot it to them for running the s;lid school. The Collector then requisitioned
the building in question and allotted to them for running the Hwa Sha Chinese
School. The Applicant then applied under s. 2S of tile Constitution of Burma
for a direction in the nature of mandamus.

Kyaw Myint for the applicant.

Ba Stin (Government Advocate) for the

respondent.

.. Civil Misc. Application 1'0. 36 of 1<j50.

t Prestnt : G E MAUNG, Chief Justice of the Union of B.lrml, iM"R. JUSTICE
"THEIN MAUXG and U THAUlfG SEIN, J.
 ~,}',. ....
~-...;.;.~,.

1950J BURMA LAW REP,ORTS. 257
The judgment of the Court was delivered by s.c.
1950
the Chief Justice of tlie Union.
EPHRAIM
SOLOMON
U E l'vIAUNG.-The order requisitioning ihe V.
THF.
premjses in question reads: COLT.ECTOR
OF I~A:"\GO{JS
.. I do hereby under the provisions of section 2 of the
Hequisitioning (Emergency Provisions) .Act, 1947, req:J.isition the
premises known as No. 297, Godwin Road, now occupied by the
, Hw::\ Sha I Chinese School.
I do further direct that the whole of the said premises shall
be made aVaIlable for the nse of Civil Government forthwith

/ This order was made on the 19th April 1950. It

cannot be said that the order contravenes any of
the provisions of the Requisitioning (Emen;ency
?rovisions \ Act. The learned coullsel appearing for
the applicant very frankly concedes that if the Court is
to gr<wt a mandamus directed to the Collector of
H:lIlgoon it cannot be one directing the Collec!or to
de-requisition the premises but not to allot them to the
Hwa Sha Chinese School. But, as the learnedcounsel
also conceded, it cannot be said that there is anything
in t!,e Act under which the Collector is bound to act
in that sense. It may well be that by allotting the
premi.es to the school the Collector has cQmmitted a
wrong for which the applicant may have his remedy
elsewhere; but the application to this Court is clearly
misconceived.
In these circumstances the application must be
dismissed. We make no order as to costs.

17

258 BU~MA LAW REPORTS. [1950

SUPREME COURT.

ts.C. ABDUL RAZAK (ApPELLANT)

1950
v.
July 5.
U PAW TUN AUNG & Co. (RESPONDENTS).*
Pledge of jewcls-DOCU11Itnf Vt'Sti1tg property Oil 1lOtt-redemption by date
fi:red-Vlllidity-Sale without notice_Coli tract Acl, s. 19fJ-Clai11l fOT
redemptIon in 1944-CollvtrS;oll Or wrollgf1/1 delm!iofl.:-Specijic Relief
Ad, 55. 10 aud lI-Crmtracf Act, ss.39 amI 73.
Held: A clause in a document evidencing a contract of pledge, purporting
to vest the pledged articles absolutely in the pledgee on failure to redeem by
end of April 1942 curtails the statutory right of redemption andis invalid.
The pledgor, coming to know of the sale held without noUce to him could
1Iot sue for return of the speci:J.c articles against the pledgee alone.
There is a distinction between the cause of action for conversiuo and the
cause of action in wrongful detention. The former is based on an unequivocal
act of ownership by the defendant over plaintiff's goods without any right or
authority while the latter is based on a wrongful withholding of the plaintiff's
goods by defendant, being in possession of the same.
Beamatl v. A. R. T. S. Lid., 64 Times L.R. 285 at 287, refe.-red to.
l?oswthal v. Alderloll, (1946) 1 K.B. 374, distinguished.
A bailee cannot be h~ard to plead his own wrong in discharge of his duty
under the contrad of bailment.
Reeve v. Palmer. 5 C,RN.S. 84; Wilkl/tsoft v. Verity, L.R. (I87J1 6 C P
206; Donald v. Suckli1lg, L.R. \1866) 1 Q.B.D., 585; Col.lmml v. H~lI, L,R:
(l919)TK:B. 443 at 449, referred to.
The- Courts can:lOt be invited to a mere brutum tlLlmell and no decree can
be pas~ed for return of moveables not in defendant's possession. 55. 10 and
11 of the Spednc Relief Act apply only 10 cases when defendant is in
possession of specific moveables and Order 20, Houle lOaf the Cede of Civil
Froc!Tdure applies only where a decree for possession can properly bemade."
Any excess by the possessor of rights under a contrad will be a breach of
contract and it may also be a wrong. A mere irre,gular exercise of power, by
way of sub-pledge or .t premature sale, is not a conversion, It is at most
a wrong done to the reversionary interest of an owner out of possession and
the owner must show he is really damnified,
flallidayv. Holgate, (1868) 3 Ex. 299; Mullincr v. Florence, L.R. (1878)
3 Q,E.D. 484; Bristol and West oj Englalld Btwk v. Midland Railway Co.,
L.R. (1891) '2 Q.B.D. 653; Blllton v. Haviside, L.R. (1907) 2 K.B. 180 at 188 ;
Solloway v. Mr.LaugltHJl, L.R. (1938) A.C. 247; Johnson v. Stear, (1863)
15 C.B. (N.S.) 329, referred to.
.. Civil Appeal No.3 of 1949.
t Presel1t: U E l\lAUNG, Chief Justice of the Union of Burma, U TUN Byu
Chief Justice ofthe Hi~h Court, and U eN PE', J.
 1950J BURMA LAW REPORTS. 259
.-J./IzanGC Bank of Simla v. G. Lal and QIlC, LL.l? 8 Lah. 373, not followed. SA
Moli/al v. Lakltmidlalld, A.I.R. (1943) Nag. 167. distinguisbec1
1950

A co.nparison of Article 48w.\ ami 48 of the Limitation Act. hit Schedule, ABDUL
indicates that the Legislatnre does not contemplate a sale of the pkJged R\ZAIC
V.
article by _the pledgee otherwise tJ:an in accordance with s. 176, Contract
U PAW Tu!\;
Act. AUNG & Co.
If a party undertakes to do an ad on a future date and earlier disables
himself from performing the act, it is open to the injured party to treat that
conduct as a violation or wait till the day fixed. The option is that of tbe-
aggrieved party not that of the party committing the wrong. The wrong in
this ca:;e is failure to return the goods as contracted upon tcnder of money due
and s. 73, COntract Act would regulate the rights of the parties and the
damages.

Tun Seill for the appellant.

P. [{. BaSH for the respondents.

The judgment of the Court was delivered by the

Ghief Justice of the Union.

U E MAuNG.-The facts of this case are very

simple and not in dispute. The appellant pledged
certain gold articles with the respondents on the 17th
January 1941 to secure a loan of Rs. 950. A document
was executed evidencing the tran:,aetiol1 and in that
,document was inserted' a cIailse which purported to
vest the pledged articles in the respondents absolutely
if the appellant failed to redeem them by the end of
April 1942. This clause has been held, in our opinion
rightly, by all the Courts below to be inoperative to
. curtail the right of the appellant to redeem the pledged
.articles any time before a sale complying with the
requirements of section 176 of tbe Contract Act. In
September 1942 the respondents, without giving the
appellant such notice as is required by section 176 of
the Contract Act, sold the pledged articles. At the
time of the sale, because of the conditions resulting
from war-like operations in Burma by and against the
'" enemy then in occupation, the appellant had evacuated
260 BURMA LAW REPORTS. [1950

.'s:G. from his usual residence and was therefore not aware'
1950
of the sale. In April 1944 the appellant for the first.
AnnUL
l~AZAK
time came to learn of the sale of the pledged articles.
v. in September 1942. He came to know of this sale
U PAW TUN
AUNG& Co. when he sought to redeem the pledged articles and'
was informed by the respondents that they could not
accept redemption as they had previously sold the
pledgedarticles. But it was not till 31st March 1947
that the appellant sought to vindicate his rights by
instituting Civil Suit No. 19 of 1947 in the Court or
the Second Assistant .Judge, Akyab. claiming th",
redemption of the pledged articles or their value as at.
date of suit less tl'e amount due in respect of the
loan secured on the pledge of these articles. The:
respondents claimed then as also ip the Courts belo\v
that after Aprii 1942 they became "bsoluie owners of.
the pledged articles in terms ofthe agreement referred ..
to above.
The Courts below agreed in rejecting the respon-
dents' claim that after April 1942 they had become the:
owners of the pledged articles. The respondents did
not claim that the sale in September 1942 complied
with the requirements of section 176 of the Contract
Act. Accordingly, the Courts below agreed in holding
that the appellant \vas entitled to relief against the
respondents; but on the nature of the relief and the'
cause of action to support tLat relief there has been a.
differ,ence of opinion. The trial Court and the District.'
Court of Akyab considered that the appellant was
entitled to a decree in the alternative for the return of
the gold articles pledgeJ on repayment of the loan or
their value assessed on the prevailing price of gold at
the date of the suit in 1947 less the amount due on the
loan. Mr. Justice Thaung Sein in second appeal and.
the Appellate Ben.ch of the High Court composed
of U Thein Maung C.J. "nd U San Maung J., OllJ
 1950J BURMA LAW REPORTS. 261
:appeal under section 20 of the Union Judiciary Act s.C.
1950
,Mr. Justice Thaung Sein having granted a certificate
that the case was a fit one for further appea!), took the ABnUL
RAZAK
view that the appellant was entitled to nothing more V.
U PAW TUN
than compensation on the basis of a conversion of the AUNG & Co.
gold articles by the respondents on or _about the
14th September 1942 when t hey were sold by the
respondents to a third party. The trial Court and the
District Court assessed the damages in lieu of the
Teturn of the pledged articles at Rs. 2,794-14-0. The
High Court granted the appellant a decree for
'Rs. 308-14-0 only.
The appellant claims before us, as he did in the
C~JUrts below, that the remedy which hE. is entitled to
seek and which he has sought in ~he suit under appeal
1S one based on the unlawful detention by the
respondents of the gold articles' pledged with them in
o spite of his offer to 'redeem the same in April 1944.
The respondents on the other hand cla,1m that the
proper and only remedy open to the appellant was for
o -damages for the wrong of conversion involved in the
unauthorized sale of the pledged articles by the
. respondent in September 1942. vVith respect to the
learned Judges below and in spite of the very learned.
:arguments before us by coqnselon'both sides, we are
satisfied that neither the appellant nor the respondents
have offered the right solution of the problem and ,the
Courts below have erred in their decisions on the
. controversy.
, The appellant has known since Septerrber 1944
that the respondents bad parted, with the possession of
the pledged articles by a sale to a third party in
September 1942. Accordingly when in 1947 he
instituted the suit under appeal it is cl"ar to us that he
could not sue for the return of the specific articles
including only the respondents as defendants.
262 BURMA LAW REPORTS. [1950

S.C. In Beaman v. A. R. T. S. Ltd. (1), Denning J. has,

1950
in our opinion, correctly drawn the distinction between
ABDUL
RAZAK the cause of action in conversion and the cause of
".
U PAW TUN
action in wrongful detention. He says:
AUNG& Co.
H I attempt nO precise definition, but, broadiy speaking, the

cause of action in conversion is based on an nnequivocal act of

ownership by the defendant over the goods of the plaintiff
without any authority or right in that behalf. The act must be
an unequivocal act of ownership, th:1.t is, an act such as acquidng,
dealing with or disposing of the goods, which is consiMent only
with the rights of an owner as distinct from the equivocal acts of
one who is entrusted with the cnstody of handling or carriage of
goods. A demand and refusal is not, therefor~. itself a
conversion, but it may be evidence of a prior conversion. The
cause of ;'lction in \vrongful detention is based on a wfongful
withholding of the plaintiff's goods. It depends on the
defendant's being in possession of the plaintiffs goods"

Rostllthal v. Alder/on (2), strongly relied upon by

the learned counsel for the appellant, does not
militate against this view. Evershed J. (as he then
was) did not go beyond concedIng to a plaintiff,
unaware of an earlier sale by the bailee, the right to sue
for possession of the specific moveable bailed; butthe
relief that followed was not in detinue but for
conversion. This is in . consonanc~ with the rule in
Reeve~. Palmer (3), and f;Vilkillson v. Verity (4) that a
baile.e may not be heard to plead his own wron~ in
discharge of his duty under the contract to deliver the
article bailed on the bailment being terminated. As
Pollock in his treatise on Law of Torts (5) IHS stated:
If He (bailee) may be, liable fOf conversion by refusal to
deliver} when he has had possession and has wrongfullj~ delivered
the goods to a pC'rson havirlg no title. He cannot deliver to the
person entitled when the demand is made, but, having disabled
fl) 64 Times L.R. 285 at p.287. (3) 5 C.R.N.S. 84.
(2) (1946) 1 ICB.374. (4) L.R. (1871) 6 C.P. 206.
(;1 14th Edn., p 293.
 1950] BURMA LAW REPORTS. Vft. 263

himself by his own wrong, he is In the same position as if he' still s.C.
1950
had the goods and refused to deliver:"
ABOUL
RAZAK
Donald v. Suckling (1) concedes an action in v.
U PAW TUN
detinue to a pkdgor who has made a tender of the sum AU~G & Co.

due; but the claim in that case was against the

purchaser from th~ pledgee.
In Coldman v. Hill (2), Bankes L.J. quoted with
approval from Stephen's Commentaries:

({ Where upon a contract of bailment the bailor complains of

a failure to re-deliver the article, the reme,cly is (according to the
cirCllmstances)-byaction of detinue, trover, On promises, or on
the case for' negligence. ,.

The claim in detinue, the bailee having lost possession

of the article bailed by theft, was dismissed; but the
bailee was held liable for negligence.
o The Courts cannot be invited to a mere brutum
fulmen. A decree for delivery of specific moveables
where it is clear that the defendant is not in possession
is meaningless. Sections 10 and 11 of the Specific
~elid Act regulate suits for possession of specific
moveables; and it is clear that such suits are
permissible onl)' where the defendant is jnpos~ession
of the articks whose delivery is sought. Order 20,
Rule 10 of the Civil I?rocedure Code applies only
where a decree for posseSSlOn can be properly
made.
Amplifying the respondent's case that the only
remedy that is open to the appellant III the
circumstances here is by way of damages for the
unauthorized sale of :he pledged articles in September
1942, the learned counsel for the respondent puts the

0) L.R. (1866) 1 Q.ll.D. 585. (2) (1919) I.K.B. 443 at p. 440.

264 BURMA LAW REPORTS. [1950

S.C. action in conversion. Bullen and Leake's Precedents

1950
of Pleadings (I) bas the following:
ABDUL
RAZAK II In the case of a bailment which gives the bailee only ',1. lien

U
".
PAW TUN without power of sale, an unauthorized' s:l.1e or pledging of the
AU~G & Co. property bailed terminates the hailment, anel is a conver~icn i
whilst in the case C'f a pledge, a sale Or" sub-pledge is not so
inconsistent with the original centrad as to teiminale it and
therefore does not amonnt to a cOI1\ersion."

Tbe rule has been similarly summarised by Pollock

in his Law on Torts at page 291 ;
H \Vherp. a b~ile'e has an interest of his Own in the ~(Jods
(as in the cemmon cases of hiring and pledge) and under crlour
of that interest deals with the goods in excess of his right,
questions of another Itind arise. Any excess whatever by the
possessor of his rights tlild::-r his contract wilh the owner will of
course be a breach of contrad, and it may be a wrcng. But it
will not be the wrong of conversion unless the possessor's
dealing is wholly inconsislent with the (;r-ntract unner which he
had the limited inlerest, as if the hirer for example destroys or
seils the goods. That is a conversion, for it is deemed to be a
.
repudiation d the contract, so that the owner wl.o has p;;rted
with possession for a limited purpose is by the wrongiul acts
itself restored to the immediate right of !,ossessioll, and becomes
the effectual true owner capable of SUil g for the goe-cIs or their
value. Bllt a merely irregular exercise (f power, ~IS a sub-pledge
or a premature sale) is not a con"ersion ; it is at most ::1 \\Tong
dqne .~~ th_e rt:y_er~i9na!"y interest, Qf an, C\\~n.er. out of pos$ession,
and that owner must sho\\' that he is really c1a.mniJ1ecI."

DOl1nld v. Suckling (2) denied the pledgor an

action in conversion against the purchaser from the
pledgee, who had irregularly exercised ihe power of
sale, on the grou~d that at tbe date of sale the pledgor
did not have an immediate right to possession uf the
article pledged.
Halliday v. Holgate (3) affirmed the principle where
a pawnee of moveables had sold the articles pledged
11 19th Edn. p. 349 121 L.R (18661 1 Q.B.D. 585.
(31 (1868) 3 Ex. 229.
 1950J BURMA LAW REPORTS. 265

'wi lh him that, even assuming the sale to be wrongful, s.C.

1950
tile immediate right to the possession of the articles
ABDUL
pledged was not by the sale revested in the pledgor RAZAK
V.
and that he could not therefore maintain an action for U PAW 'TUN
conversion. The same rnle was enunciated in Mulliner t\UNG & Co.

v. Florence (1) where a distinction was drawn between

a holder of a lien and a pledgee. The Court of Appeal
in Bristol alld West of Et1glat1d Ballil v. ilJidland
Railway Co. (2) is, in our opinion, authority for
nothing n:ore than the principle which Fry L.J. has
enunciated at page 663 of the report;
II I think it is reasohahle to say that the m,m who Dug,hl to
have the goods shall not be allowed to set up a \V1"OIHtfui prior
<let uy which he has made away wilh the goods. He who ought
to prodnce the goocls of the man who h;:::; the title to the goods
.and the property in the gc-oc1s, canna t dischtlrge hixr.:;elf by
saying. ( I have wrongfully made away with them) but that \vas
b.::fore the aCcruer of your title '."

In Bullon v. Haviside (31 Vaughan \Villiams L.J.

.c
puts the claim of a pledgor, in circumstances similar
.. to the present, as ansing on the contract of bailment
and the breach of the contractual duty to re-deiiver
the goods on repayment of the sum secured on the
pledge.
It is significant, also, that Lord Atkin, in Solloway
v. M(Laughlin (41 said:
tl But on the actual facts of a mandate accepted for the
express purpose of being fraudulently misused by the agent, the
.a~ent never had the right to claim or to hold security, still less to
(lispose. Their dispm-ial of the deposited shares amounted to
:lothing short of conversion."

Relian ce has been placed on b~haIf of the

respondents on Johnson v. Stear (5). Erie C.]. in
(lll.R. 118781 3 Q.ll.D. 484. (3) L.R .1907) 2 K.B.180 at 188.
(2) L.R. 11841) 2 Q.B.D.653. (4) L.R. 11938) A.C. 247.
(Sf (1863) 15 C.B. {NoS . 319.
266 BURMA LAW REPORTS. [1950
S.C. delivering the judgment of the majority of the Court,
1950
said:
ABDUL
RAZAK U In trover uy the assignee under the bankruptcy of one
".
U PAW TUN Cumming, the facts were that Cumming Iud rlepositecl brandy
Au!',," & Co. lying in a dock with one Stear, by delivering to him the dock- I,

warnnt, and had agreed that Stear might sell, if the loan was not
replicl on the 29lh of January; that, on lhe ?Stb of January, Ste"r
sold the brandy, and on the 29th handed over the dock-warrant
to the vendef;>s, who on the 30th teok actual possession.
Upon these facts tile questions are,-first, was there a
con'version? and, if .res,-~ecolidIYtwhat is the ~11easure of
damages?
To the first question our answer is in the affirmative. The
wrongful sale on tbe 28th, followed on the 29tb by the clelivery
of the clock-warrant in pursuanc.e thereof, was, we think, a
conver$ion. The df'fendant wrongfully assumed to be owner in
selling; and, although the s:l1e alone might not be a conversion,
yet, by delivering over the cIock-warrant to the vendees in
pursuance of soch saie, he interfered with the right which
Cumming had of taking posses!'ion on the 2tJth if he repaid thp.
loan; for which purpose therrlock-warr<lnt would have been an
.
important instrl1ment. \Ve decide for the plaintiff on this
ground: and it j:, not necessa..-y to consider the other grounds on
which he relied to prove a conversion:'

The learned Chief Justice, later in the judgment,

conceded that though the plaintiff's action was in
name for' the wrongful conversion, it was in substance'
for breach of contract in not keeping the pledge till
the given day. The substantial ground on which the
majority of the Court proceeded being that the" act
of the pawnee did not annihilate the contract nor the
interest of the p;;wnee in the goods," the doubt which
Mellor J. expressed in the later case of Donald v.
Stli Tiling (1) if the plaintiff's only remedy for damages
was I'ot by action on the contract is, in onr opinion,
well justified. Blackburn C.J. in the later case
interpreted the decision of the majority of the Court
(I) L,R (I 866) 1 Q.e.D. 585.
 1950J BURMA LAW REPORTS. 267
s.c.
in Johnson v. Stear (I) as being that "although the 1950
owner was entitled to maintain an action against the ABDUL
pawnee for a breach of contract in parting \vith the RAZAK
v.
goods, yet that the contract itself \\'as not put to an U PAW TUN
AU?\G & Co.
end by the tortious dealing with the goods by the
pawnee, so as to entitle the owner to bring an action
to recover the goods as if the contract never had
existed."
A decision of the Lahore High Court in AlliaJ1cc
Bank of Simla v. G. Lal and one (2) has been cited
before us as an authority for the proposition that a
pledgee makiilg a sale of pledged articles other than in
compliance with the requirements of section 176 of the
Contract Act commits the wrong of conversion. At
page 382 of the report Tek CJ->and J. said:

I( The case is clearly one of wrongful ccnverSlon and it is well

_ . sdtlec1 that. in cases of this kind, the meilsure of damages is
ordinarily the value of the goods on the date of such
conversion. "

No authority is cited and no disCt:osion of tbe

principles was made to justify this st'.lement that
the case was clearly one of wrongfnl conversion.
The learned Judge merely assumed it to be self-
evident.
Moli/al v. Lakhlllicltmul (3) has been cited as
surporting the respondents in their contention but the
point did not arise in that case as the learned Judge
held that the sale complied with the requirements of
section 176 of the Contract Act and the learned Judge
refused to discuss the plea that the sale might have
amounted to an act of wrongful conversion under
different conditions.
(1) (18631 15 C.H. (N.S.! 3h (2) l.L.H. 8 Lall. 373.
131 A.l.H. 119131 Nag. 162.

268 GURlVIA LAW REPORTS. [1950

S.C. A comparison of Article 48 with Article 48-A, both

1950
of the First Schedule to the Limitation Act, provides
ABDUL
RAZAK a clear- indication that the Legislature does not
V.
U PAW TUN
contemplate a sale of the pledged article by the
AU'NG & Co. pledgee other. than in accordance with section 176 of
the Contract Act as amounting to the wrong of
conversion.
E\'en assuming with Sir FrcdtOrick Pollock in the
passage earlier quoted from his treatise on the Law of
a
Torts, thac prematt;re sale 1)y a pledgee may possibly
be treated as an innominate wrong clone to the
reversionary interest of an owner out of possession
the eVen t in this case will not be affected. For, as
was said at page 209 of the report in Wilkinson v.
Verify (1), "in case where a man undertakes to do an
act upon a future day, and 'before the day arrives
disables himself from performing the act, or positively
and absolutely refuses to be bound by or perform h:3
contract, and, so to speak, dedares off the bargain
himself, and absolves the other party, it is i.n the option "
uf such uther party at his election to treat that conduct'
as of itself a violation and breach of the contract, or to
insist upon holding the repudiating party liable, and to
sue him for non-performance when the clay arrives."
Later in the same judgment, \Villes J. affirmed the
rigl)t of the bailor to elect "to wait until there is a
breach of the bailee's duty in the ordinary course by
ref usal to deliver up on request." .
These principles are embodied in section 39 of the
Contract Act. The option to act on an anticipatory
breach of contract, namely, the premature sale by the
pledgee disabling himself from performing his obliga-
tion to return the goods pledged when later redemp-
tion is sought of him 011 payment of money le'nt on
their security, is entirely with the pledgor. The
{li L.R (1871) 6 C.P. 206 .

 "~

1950) BURMA LAW REPORTS. 269

defendant. cannot be allowed to set up his prior act of s.C.

1950
anticipatory breach as an answer to the cause of action
ABI)Ul.
in breach of cor,traet arising on tender of money lent RAZAI{
t'.
by the pledgor. D PAW Tuw
It is clear therefore to us that if the appellant was AUt"l; & Co"
\Hong in putting his claim for delivery of specific
articles pledged and for damages only in the alternative,
it is equally incorrect of the respondents to contend
that the appellant's true and only remedy is by way of
damages for conversion as on the sale of the pledged
articles in September 1li42. The rights of the parties
in this case under the transaction of tbe pledge are
regulat@d by the provisions of the C::ontract Act. It is
a contract of bailment and it is in the contractual duty
to return the articles pledged on repayment of the
loan or tender thereof that the re~pondent has failed .
o . 'The wrong is the breach of contract committed in
April 1944 when on a tender being made of the sum
lent the creditor rejected the tender and refused to
perform the contractual obligation to re-deliver the
articles pledged with him. Section 73 of the CC>11traet
Act would regulate the rights of the parties and
damages would have to be assessed as on the date of
breach of contract.
The result therefore is that, regrett<tble though the
course may be, we are forced to direct that the decrees.
of a11 the Courts below be set aside and the proceedings-
remanded to the trial Court to determine the average
price of gold prevailing in April 1944 and to assess
damages as for a breach then committp.d of a contract
to re-deliver the articles pledged on payment of sum
due on the' loan. In the circumstances it is only
equitable that the costs of the parties to this stage
should lie where they fell. We accordingly make no,
order as to costs.
270 BURMA LAW REPORTS. [1950

SUPREME COURT.
..
to.c. EBRAHIM DAWJEE JEEWA ~ApPELLANT)
1950
July 25. v.
AJAM MOHAMED LOOVAWALLA (RESPONDENT)."
Goods lef~ aftu lootitlg-Rcspolldcnt loc/ling premises flhd ob/aifzi1lg ptTmi!
from Commissjoll-COllVC1-SlVlJ or Ircspass-Jc::;I-Collfrol-Powc!-S of
Appellate COllrt-Order 41, Rille 33. Code of Cl'l}il P'oCtdttrc-lllter_
ference where perl11tssible-Damages-Prcsllmptioll agaimt spectator-
Burdell 1n aPi'cal.
Goods in appellant's shop were looted in part after Bri'.ish evacuatioil and
a portion was still in the premises.
The Respondent locked the premises and banded the keys te, one
1. G. Mohaolcd \'1iith instrndions to hand over the keys to anyone he liked or
to a pe.rson who had obtained a permit from the Hiraoka Commission.
The 3rd defendant obtained such permit ancEthe keys were hantled over to
him by I. G. Mohamed and the 3rd defendant sold the goods. A decree was
passed against all defendants by the trial Court as joint tortfeasors.
l?espondcnt alone appealed without making other two joint tort-feasors ...,; o
parties and the trial Court's jlldgment was s{,i aside. On further appeallo the'
Supreme COllrt :
Held: There waS effective exclusion of others when the premises were -\
locked and lcspondent had full conlrol and exclushe occupation.
Kir.!; v. Gre!lory, 11876) L.R. 1 Ex. 55, distinguished.
A finder of gouds is bOilnd to an:,nver to the true owner and .:annot deliver
them to any eXl.::ept the true- owner.
-------lssack-v. Clark,-86K:R. 1143 at 1148 (K.B.), followed.
The delivery of keys gives the transferee power over goods which he had
n0t before and amounts to a symbolic decl~ration that the transferor no longer
intends to meddle with the good:;.
Wrif!/ltson v. .M cArflwT ({1ld Htltchttlsolls Ltd., (1921) 2 KH. .807\
referred to.
The H.espondent w<ts guilty of conversion when he transferred po~session
of the ~oods to I. G. ~Johamed by handing- him the keys with instructions to
transfer possession to anyone who brought a permit [rom the Japanese
Hiraoka Commission.
Hiort v. Bott, (1874) I.L.H.9 Ex. 86, followed.
StfP/ttIlSV. Elwall, (1815) 4 M. & S. 257 ; Fowler v. Hollins, (I872) 7 Q.13.
616; Hollills v. Fowler, (1874) 7 H.L. 757; Barker v. Furlong, {l891} Z Cll.

* Civil Appeal No. 11 of 1949.

t Present: U E MAUNG, Chief Justice of the Union of Burma, U THAU~G
SEIN and U ON PE, n.
 1950J BURMA LAW REPORTS. 271
172; Clayton v. Le Roy. (1911) 2 K.B. 1031: (;a,\'lon Pllblis"iug Co. v. S.C.
SlItherland Publishillg (.'0., (1939) A.C. li8 at 201-202; Lallcrls!tirc aud 1950.
yo/ ks1;Jre R"U11Iay Co. v. MacNicoIl, 88 L.]. (ICB.) 501 ; Towne v. LewIS, 137
E.R. 241: Etlglalld v. Courley, (1873) L.E. 8 Ex. 126; Cousolidated Co. v. EBRA.HIU
DA\VJEE
-Curtis and SOil, ),1892) 1 Q.B. 493 at 497, disclissed. JEEWA
A person is liable in respect of a wrongful act for all consequences which V.
he ought reasonably to have foreseen. AJ.oUf
MOHAMED
Muhammad lss{/ EI Sheikh Ahmed v. Ali, (19471 A.C. 414; M01larch LOQVA-
.Steamship Co. Ltd. v. AlB Knrlsltamlls Oljc Fabriker. (1949) 1 A.E.h~ . 1, WALLA.
referred to.
The questien whether a decree agaimt joint tort-feasors will be res judicata
.against a co-defendant, reserved.
The right of appellate court to intf:rfere with the decree of the trial court
where some of t1~e parties have not appealed against decrees .lg:<l.inst them
:arises under Order 21, Rule 33, Code of Civil Procedure.
There is a fair consensus of authority in the courts in India in faVOl1T of
\\'ide power if as a result of the appell<lle court's interference with the decree,
-it is necessary in the ends of jl;stice to adjust the ri~h[s of the partiee.
Babllji Dltondsltcl v. The ColltcfoT of Snit Neve/we, (18871 11 Born. 596;
_SubrallJll1/Jon C!le~tidr v. SitW1l11l111111, (193U) 53 1\f:trl. 8tH: Somar Singh v.
Mussamll1al Pre,nedi, 3 Pat. 327 at 334; Bll1ltlla/h Deb v. StlsllimukklJi A.I.R.
(i926) Cal. 1042 at 1043.44; /?tl/;ia v. ,i\le'Wa Lal, 51 All. 63; Mada11 Lat \p.
o Gajeltdrapal, 51 All. 575 at SiS; Kamalllkfl1/fll DebUt/tit v. 1'amijadditt,
61 Cal. 919. referred to.
As in this case, the extent of appellant's liabilily, is co-extensive with
other defendants, and arh:es in the same suit on the same evidence, if the
-appellate Court comes [0 the conclusion that the award is excessive, the ends
of justice require variation in fa\'our of the llon-<:.ppealing parties also.
A rigbi: of appeal, under s. 20, Union Judiciary Act or s. 96, of the Code of
-CiVil Procedure is a substantive right,
National Trt4s/ce..~ Co. of AusfJalta v. Gcneral Finance Co. of Australia,
'(1905) A.C. 373; Delhi Clvtlt nttd General M;lls Co. v. Income-Tax COnl11lis-
sio1/~r, Ddh::, 5-1- LA. 421; Sadar /lli v. Dalimuddin, 56 Cal. 5r2,
referred 10.
Th.:: right of (ll'peal is a right to have the decision of an inferior court put
to jurlicial examination by a higher court and to have it rectified, if wrong.
The remedy may not be available to SOme by lapse of time and it remains
untouched but the appellate ,=ourt can exercise the power, unless it is
.otherwise curtailed. The decisions in 2 Ran. 541 and 6 Rm. 29 only decide
.that section 3, Limitation Act should not be circumvented by adding- a
respondent against whom the appeal is barred.
V.P.R.V. Clzokalillgam Chelty v. Seelhai Aclza, 2 Han. 511 and 6 Ran. 29,
referred tCi.
Badri Narayan v. East Indian Railu:ay Co., 5 Pat. 755, distinguished,
The burden is on the party challenging the de_cision of the trial JUdge lo
.establish that it is incorrect. Unless the appellate court is of the opinion that
no other conclusion is po~sible and that the decision of the trial Judge is
,wrong, the finditl( on damages should Inot be JIIterftrred with. The largest
..t mount of injury which can be sustaineu would probably be considered to be
272 BURMA LAW REPORTS. [1 Y5()
S.C. the amollut to be aW:lrcted by the Tribunal which has to aw,," d compensation
1950 if the party guilty 01 a wran ~ did ne,l produce I.he bc!'>t evidence available of
the Irlll:.: value of go)()ds converted.
"EBRAHIM
Anl/ory v. De/amide. 93 E.lt 664; Rammcrsmith Railway Co. v. Bralld~

.
DAWJEE
JEEW,\ (UI6l)) L.E. 4 H.L 171 at 224; W</rdOllf v. Bcrisfor'l, 23 E.R. 5i9; Watt v.
" Tlt(!1II<l~, (;947) A.C. 484 at 4-n, referred to.
AJAM
MOHAMED
Loov-\- P. JI. Beechel10 for the appellant.
WALLA.

E. C. V. FOllcar for the, respondent.

The judgment of the Comt was delivered by the

Chief Justice of the Union.

U E l\IAUKG.-In the suit of which this appeal is

Ihe outcome the appellant claimed damages in the sum
of Rs. 1,35,000 for conversion of his goods and in the
alternajvc for an account agalnst the re',pondent and
two other persons.
The appellant, prior 10 1942, had been carrying on
business in hardware and mill stores in 28th Street" . '.
I<angoon. On the 21st December 1941, following the'
outbreak of the war with Japan, the appellant left for
India leaving the keys of the shop with one G. H. Jeewa,
who had been in his employment in the shop and who
appears to be related to him: He lefi also some cash
and a few blank cheques signed by him with this
Jeewa to enable him to carryon business on his
behalf during his absence from Burma. However,
G. H. Jeewa himself left Rangoon. on or about the
22nd February 1942 on the inva.ding forces of the
enemy coming close to the Ci~y of Rangoon. It is in
evidence that Jeewa locked the premises before he left
Rangoon and made over the keys of the shop and of
the safe therein, together with such papers relating
to the business as he managed to carry with him on
his evacuation from Rangoon, to the appellant-when I
tl-je 'two met in India. Employed along with
G. H. Jeewa in the shop was Lay Maung a witness for
 1950] BURMA LAW REPORTS. 273

the appellant at the trial and Ismail Fakir Mohamed, s.C.

1950
who was the 3rd defendant in the suit out of which
EBHAHIM
this appeal arises. The 3rd defendant was a clerk on iJAW.1EE
a salary of Rs. 40 per mensem and it is not disputed TEl~'\ A
v.
that both the 3rd defendant and Lay i'vIaung, whose A:A~r
:illOHAMED
salary was also about the same as that of the 3rd LOOVA-
defendant, 'evacnated from Rangoon about the same WALLA

Lime that G. H. Jeewa did. Lay .Ma'.mg and the 3rd

defendant, however, did not go away from Burma
altogether and came back to Rangoon after the
Japanese forcc.s had occupied the city.
Following the state of lawlessness on the evacuation
of the lawful guvernment from Rangoon many shops
and premises in I~angoon were looted and it is common
ground that the appellant's shop did not escape
looting. The plaintiff's case was that whatever escaped
looting in his shop by persons unknown was taken
possession of by the three defendants who disposed of
)he goods as if these had been their own property and
., thereby wrongfully converted the plaintiff's goods to
their own use and bellefit. In paragraph 4 of the
plaint the plaintiff made this allegation:

'I In or about the month of :March 1942 the 1st defendant

took possession of the plaintiff's said business and ali of [he
plaintiff's said stocks therein and secnred thp said premises
with Jock and key."

The 1st defendant referred to is the respondent before

us In paragraph 5 of the plaint we find this
allegation:

(\ Thereafter, upon a date of which the plaintiff is ull1ble to

give better particulars than in the month of lVlarch 1942, or early
April 1942, the 1st defendant opened the s::lid business and
together with the 2nd and 3rd defendants sold the plaintiff's said
. stocks. The defendants and each of them thereby wrongfully
. converted the phintiff's said stocks to their own use anet' benefit. It
18
274 BURMA LAW REPORTS. [1050
S.C. Two separate written statements were filed, one by
1950
the respondent and the other jointly by the 2nd and
EBRAHIM
DAWJEE 3rd defendants. The respondent in paragraphs 6 ,md
JEEWA
V.
7 of his written statement "speCIally' denies the !
AJA:!I{
MOHAMED
allegations in " paragraphs 4 and 5 of the plaint. The
LOOVA~ 2nd and 3rd defendants state in paragraph 4 of their
WALLA.
written statement that the" allegations in paragraph 4
are not admitted." They proceed in the next paragrapt
to "deny the allegations in paragraph. 5 of the
plaint."
The suit went to trial before Thein Maung J. on
the Original Side of the High Court of Judicaiure
at Rangoon. The learned Judge having found that
the 1st and 3rd defendants are liable to the plaintiff in
the sum of Rs. 33,786 and the 2nd defendant in lhe
sum of I~s. 33,486 and all the three defendants are
joint tort-feasors and their liabilities in the said amounts
are joint and several, gran ted the appellant a decree
"for recovery Df the said amounts not exceeding
Rs. 33,786 in all jointly and severally from the thretl
defendants with costs ad valorem."
The 2nd and 3rd defendants were content to accept
this decree and did not appeal but the respondent
preferred on appeal against the judgment impleading
the appellant only in that appeal. No objection,
however, was taken before the Appellate Bench of the
High Court to the competency of the appeal in the
absence from the record of the 2nd and 3rd defendants
and the AppeJl.ate Bench composed of Tun Byu and
Aung Tha (;yaw JJ. allowed the respondent's appeal
and dismissed the respondent from the suit It is
against this appellate judgment that the appeal to this
Court under section 5 of the Union Judiciary Act
was preferred.
The trial on the Original Side of the High Court
was a very protracted one. Several witnesses were)
 1SiSO] BURMA LAW REPORTS. 275

called on both side5 and the parties were subjected to s.c.

1930
very close and lengthy cross-examination, with the
EBRAHIM
result that the trial occupied over 20 working days. DA\VJEE
If we may be allowed to say so, the learned trial Judge ]EEWA
'1.<
has examined the evidence on the record with that AJA~I
MOHAMED
degree of thoroughr.ess that is characteristic of him. LOOVA-
WALLA.
'With equal care has the Appellate Bench scrutinised
the materials on the record j and has on the facts come
to a conclusion directly opposite to that arrived at
by the learned trial Judge. Difficult (hough the task
may be (0 choose between these two opposite
cunclusions on the facts it would normally have been
our duty to attempt it. But certain fadors to which
the attention of the learned Judgp,s below had not been
directed would, in our opinion, conclude this appeal
and we refrain from making for ourselves a close
scrutiny of the evidence on the record.
o Earlier in our judgment we ha\'e set out certain
extracts from the pleadings. At the trial, 110wever, the
respondent departed frondhe total denial made by him
in his written statements and we are of the opinion
that on the admissions made by the respondent a case
of conversion has been clearly established against him.
The respondent when examined at the trial claimed
that about the second week of April 1942 one Arab Ali,
who was theE living next door to the appellant's shop,
came to him and told him that the appellant's shop
was being looted by the Japanese and he went with
Arab Ali to the appellant's shop. There they saw the
Japanese taking out goods from the shop and loading
the trucks which they had brought with them with
such goods j and as it would have been dangerous
to interfere with the Japanese in what they were doing
he claimed that he and Arab Ali went away for a while.
Later, they came again to the shop and the two of
them closed the premises with padlocks provided by
276 BURMA LAW REPORTS. [1950>

S.C. the respondent. He and Arab Ali then went to one

1950
Ismail Gniam Mohamed, a leader of their community
EBRAHIM
DAWJEE
and to this Ismail Gulam Mohamed he claims that he'
JI{EW.~ delivered the keys of the padlocks over the premises
V.
AJA~t of tbe appellant. vVhen he \'.'as asked if, as the result "
MOHAMED
LOOVA- of this delivery of the keys to Ismail Gulam Mohamed,.
WALLA.
it was contemplated that Ismail Gulam Mohamed should
make over the keys to anybody with or without his.
knowledge and consent the answer \\''l.s:'' My
permission was not necessary; if anybody wanted to
open the shop with the keys he could go to Ismail
Gulam Mohamed ". To the question: "Did you 'tell
Ismail Gulam Mohamed that he could make over
the keys to anyone hf liked?" the answer was: 'Yes,.
I told him to hand over the keys to such persoll
who got a permit to open the shop."
The respondent has also admitted that prior to
locking up the appellant's premises with the goods
therein, there had been discussion between the 3rd'
defendant and himself for some days. The 3rd
defendant wao then li\'ing in the same garden with him
dnd he told the 3rd defendant immediately after he
had delivered the keys to Ismail Gulam Mohamed!
of what he had done. In his examination-in-chief the-
respondent claimed that the 3rd defendant sought his.
advice in connection with the shop and he told the'
3rd defendant that ,. if he made an application to
Hiraoka Commission it would be possible for him 10'
get the shop." An application was in fact made as.
suggested by the respondent Enquiries were made of.
the respondent by one Ebrahim representing that.
Commission and the 3rd defendant obtained a permit.
on the strength of which the keys left by the respondent.
with Ismail Gulam Mohamed were received by him..
With these keys the 3rd defendant opened the shop.
and disposed of the goods therein.
 1950J BURMA LAW REPORTS. 277
VVe have invited the learned counsel for the s,c.
1950
Tesp()ndent to say ,,,hether, in view of these statements,
EBRAHIM
ihe respondent has not convicted himself out of his DA\\'JEE
,own mouth for conversi 111 of the plaintiff's goods. ]EEWA
V.
VVe have heard the learned counsel at length and we AJAM
MOHA?!lEJ>
<lre satisfied that on the respondent's own showing LOQVA-
WALLA.
he is liable for damages in conversion of such of the
:appellant's goods as \vere locked up by him in the
-circumsiances he has alleged.
It has been strenuously contended by the learned
-counsel that in locking the premises the respondent
ca'nnot be deemed to have taken possession either of
the premises or of the goods therein. He says that it
would be at the most an act of trespass. The decision
in [{i1~k v. Gregory (1) is relied on for this proposition;
but the facts there are radically different from the facts
o here. There the owner of certain jewellery and
diamond rings died suddenly. His attendants and
others in the house, unaware of the death, were
feasting and drinking. His sister-in-law who \\'a5 in
the house took out of an unlocked drawer in the room
where the deceased lay some diamond rings and
jewellery belonging to the deceased and placed them
with a watch belonging to the deceased in a box
ane! put the box into a cupboard in another room
for safety. It was from that cupboard that the rings
a'nd jewellery were found missing later. To the count
of the declaration alleging that the defendant had
converted to her own use the jewellery and diamond
rings missing, the Judge at the trial ruled that there
was no evidence of con','ersion, In that case there
was no effective occupation or control in the sense
-of an unqualified power to exclude others in the
defendant. She had moved thte valuables from where
they were but she had thereafter no dominion over
(I) (18161 L,R 1 Ex. 55.
278 BURMA LAW REPORTS. [1950

S.C. the jewellery and no physical control over them. In

1950
the present case there was effective. exclusion of others
EnRAHn.r
DAWJEE from the premis.es once the premises wei e barred and
JEEWA
v. locked, with the keys in the respondent's possession.
AJ.ur 'Whatever the motive of the respondent might have
MOHAMED
LOOVA- been, once he had lo-:ked the premises with the keys
WALLA.
in his possession he came to have Illll control Ot
the place to which admission was to be gained by
means of the keys to exclusion of others. We ha\'e no
doubt whatsoever that the respondent had taken such
possession as the nature of the property ad:nit1ed of.
The learned counsel for the respondent claims that
the extraordinary conditions obtaining in March/April
19+2 in the City of Rangoon were such that the
locking up of the premises would not be effective to
give full control of the place locked up to the exclusion
of others. He says that in those days there was no ()

law and order, as we normally understand it, there was

no regul".r administration and looters and other evil
o
characters could break open locked premises with
impunity. The answer to that suggestion has been
given in Pollocl:'s Possession in the Common Law at
pages 12 and 13 where the learned author said:

II Now itisevident that exclu.sive occupatirn o~ control in

the sense of a real unqualified powel" to fxclude othel's, is
nowhere to be found. All physical security is finile and qualified.
A strong man is worse to meddle 'with than a weak man Oi~
a child, but the strong man 'lIsa may be overpo\Yerec1~ It is
harder to bre:1k into a safe than a cupbo3.rd, a house than a field)
a prison or a fortress than a house ~ but locks may be pjc1~ed,
bolts forced, walls broken.'!

At page 15 the learned author has quoted fwm

Mr. Justice Holmes' Lectures on Common Law:
,( A powerful ruffian may be within equal reach and sight,
when a child pL::ks up a pocket-bJok j but if he does nothing
 1950J BURMA LAW REPORTS. 279
the child has manifested the needful pO\yel' as well as if it had S.c.
1950
been backed by a hundred policemen."
EBRAHIM
Precarious as the physical conlro! over the premises DA\\'JEE
JEEWA
and the goods therein may have been, we are satisfied r-',
AJAM
that the respondent by locking up the premises. had j"IOIJA:-'IED
LOOYA~
taken effective physical possession of the premises and WALLA.
the goods.
In taking possession of the ,goods in tbe circum-
stances obtaining at the time, we do no! consider it
conclusive that t e respondent had committed a wrong.
As Coke C.l. more than 300 years ago in Issack
v. Cl({r~ (1) said:
'I When a man doth finde goods, it hath been said, and so

commonly helel, that if he doth dispossess himself of them, by

t,his he shall be discharged, but this is not so, as appears by
12 E. IV. fo1. 13, for he which findes goods is bOl1nd to answer
him for them who hath the property i and if he deliver them
over to any one, unleR~ it be unto the right owner} he shall
be charged for them, for at the first it is in his electioll, whether
. he will take them or not into his custody, but when he bath them,
one only hath then right unto them, and therefore he ought to
keep them safely ; if a man therefore which findes goods, if
he be wise , he will ~earch out the right owner of them, and
so deJiver- them unto him; if the owner comes unto him, and
demands them, and he answers him, that it is not known unto
him whether he be the true owner of the goods, or not, and
for this cause he refuseth to deliver them, this refusal is no
conversiun, jf he do keep them for him, 2 R. III. fo1. J5, a good
case to this purpose. There may be a Trnver and no Conversion ,
ii he keep and lay up the goo~s, by him founel, for the owner.
It i~ the Law of Charit\, to lay up the goods which do thus come
to his hands by trover, and no trespass sballlie for ihis. ll
However, the respondent after having taken the goods
into his custody did not stop there. He delivered the
keys of tbe premises to 1. G. Mohamed instructing
him to hand them over to anyone with a permit from
the Hiraoka Commission. The effect of the delivery
Il~ so E.R 1143 at 1148 IKB.)
280 BURMA LAW REPORTS. [1950
,
S.C. of the keys to 1. G. Mohamed would amount in law to
'1950
a transfer of the possession of the goods to I. G.
EBRAHIM
DA\VJEE Mohamed. Judicial decisions in England to the year
JEEW,,\
V.
1083 on the effect of the deliverv. of the keys . elf
AJA:lI premises where boods were stored h"ve been collected
MOHAMED
LOOYA- and considered at pages 60 to 68 of Pollock's
WALLA,
Possession in the Common Law and it is unnecessary
to repeat them here. We are in full agreement with
the conclusion arrived at by the learned author as the
result of his examination of the authorities that" the
delivery of the keys gives the transferee a power over
the goods which he had not before, and at the same
time is an emphatic declaration (which being by
manual act instead of word, may be called symbolic)
that the transferor intends no longer to ineddle with
the goods." Wrif!.htson v. M(Arthur and Hldchinsons
Ltd. (1) supports that conclusion. .
o.
The result in Jaw is therefore that on the respon-
dent's own showing he had taken possession 01 the
goods of the appellant and had transferred possession . <I.
over them to I. G. Mohamed with instructions for
1. G. Mohamed in turn to transfer them to anyone who
brought a permit from Hir<.oka.Commission. On the
authority of Issack v. Clad (2) the 'respondent by
transierring possession of the goods to I. G. Mohamed
'-'"auld be liable in conversion. Later authorities in no
way mIlitate against this view.
In Stephens v. Elwall (3) V)rcl Ellenborough C.J.
said:
" For a person is guilly of conversion who intermeddles with
Jny property and disposes of it l and it is 110 answer that he acted
under authority from another who hld himself no authority to
dispose of it. And the Coud is gfwerne.1 by the principle
of Jaw) anel not hy the hardship of any particular case."
(I) (1921) 2 KH. 807. (2) 80 E.R.1143 at 1148 :Kll.)
(3) (18J51 4 11.&8. 257.
 1950J BURMA LAW REPORTS. 281

Fowler v. Hollins (1) and Holltm v. Fowler (2) are s.o.

1950
very strong autho~ities for the view which we have
EBR:\HIM
taken. In the Exchequer Chamber Brett ]., as he DA\VJEE
JEEWA
t]len W'lS, said at pag" 630 : v.
AJA~!.
l\10HA~fED
II Th~ lrue proposition as to ,possession and detention and
LoO\'A
asportation seems to me to bel that a p05se::;.::;ion or detention. WALLo\.,
wbich js a mere custody or mere aSl10rtation made without
reference to the questicn of the propel"ly in goods or chattels, is
110t a conv.:rsion."

\Ve do not see how it can possibly be sllggested in the

present cas~ that in deli I'ering possession of the .keys
to 1. G. Mohamed with instructions to deliver them
again to anyone with a permit from the Hiraoka
Commission there was no more than ~ mere custody
or mere asportation made without reference to the
qnestion of the property in the goods. At page 632 of
.-: .. the report Martin, B. said:
" . the assumption and exercise of domini: n-ancl
asportation is an exel'ci"e of dominion-over a duttel inconsistent
\vith the title and general c10minicn which the true owner has in
and over it is a conversion, and that it is iml1l.tterial whether the
act done be lor the use of the defendant himself or of a thu'd
perSall, "

On appeal before the Honse of Lords Blackbl1f1l ].

said at page 766 of the report:
II From the nature of the action, as explained by Lord
1\'f ansfield, it follows that i \. lll11st be an interference with the
property \vhich would not, as against the trut owner, be jflstinec1,
Cl" at least excused, in one who came lawfully into the possession
of the goods."

At page 795 of the report Lord Chelmsford said:

q any person who, h,)wever innocently, obtains posses-
sion of the goods of a person who has been fraudlllently deprived

(1) (l,li2) i Q.B. 616. (2) (ISi4) i H.L. 75i.

282 BURMA LAW REPORTS, [1950
S.C. of them, and disposes of them, wbethel" for his own benefit or
1950
tha[ of another person, is guilty of cOllversion. 11
EBl\AHIM
DAWJEE The proposition would lose none of its cogency if
}EEWA
'il. for the qualification" fraudulently" we substitute, " in
AJA'I
MOHA:'JEO circumstances not affecting his title."
LOOVA-
WALLA
The Lord Chancellor at page 797 of the report
said,
II In my 0P1l1101I they did act) in relation to the reHel'S, in a
character beyond that of mere agents; they exercised a volition
in favour of iVlichoHs & Co., the result of' which w?os thJt they
transferred the dominion over and property in the goods to
Micholls, in order that J\-1kholls might dispose of lllem as their
own; and this, as I think} \\'ithin all the authorities, amounted to
a conversion."

Hiort v. Boll (1) is again another strong case against

the respondent. Here as in that case there was no
occasion for the respondent to have taken custody of
the appellant's goods i he had no duty to perform in '
relation to the goads but he had chosen to take y ..,
custody thereof. Having assumed a control over the
disposition of these goods he had had C1'.1sed them to
bedelivered to a person wh() had no right '0 them. It
musl be remembered that the respondent had for
many years been associated with the appellant as a
partner ill similar business as that which later bot b of ~
them carried on separately. The respondent knew
full well that Ismail Fakir Mohamed, the 3rd defendant
was only a clerk under tbe appellant on a salary of
Rs. 40 per mensem. He abo knew full \\'ell that
in March/April 1942 there was no one in Burma who
had <l right to represent the appellant.
Darker v. Fllrlong (2) does not carry tbe matter
very far except that Romer J., bases his decision on the
dictum of Lord Chelmsford in Hollins v. Fowter \3),
11) (1';4)1.L.R. 9 Ex. 86. (2) (lOY1I2 Oh. 172.
(3) (1874) 7 H,L. 757.
 1950J BURMA LAW REPORTS. 283

Clayloll v. Le Ro)' (1) is a majority decision hut the s.c.

1950
Court was divided not on the law but on the facls.
At page 1055 cf the report Vaughan Williams L.J. EBR\I-iBl
DAWlEE
said: JEE\\"A
t.
Al.Uf
II In order to amount to an asserHon of dominion, it is not MOHAMED
necessary to .say either { It is mine t or' It is not yours I, but it is Loov.\-
\V,\J,L,'..
necessary to assert by word or act such a right as is inconsistent
with the dominion of the plaintiff. A man may not assert any
other person's title, but he may nevertheless do an act which is
inconsistent with the dominion of the trne owner."

It would be' impossible to conceive of an act more

inconsistent with the dominion of the true owner than
for the respondent in possession of the keys to deliver
them to 1. G. Mohamed with instructions in turn to
deliver them to any person who produced a permit
from Hiraoka Commission, when it is remembered
that the respondent knew that there was no one ill
Burma at that time who Gould lawfully represent the
true owner.
II
In Caxtoll Publisldug Cpo v. Sutherla11d Publishing
Co. (2) Lord Portilr accepted the definition of cnnvef-
sion given by Atkin J. as he tben was, in Lancashire
and Yorkslzire Nailway Co. v. MacNicoll (3 >. Tbe
definition was reproduced in the judgment and Lord
Porter proceeded to say:
" Atkins J. goes C'Il to point out that, where the aet done i~
necessarily a denial of the Ciwner's right or an assertion of a right
inconsistent therewith, intention does not matter. Another way
of re:lching the same conclusion would be to say that conversion
C)l1sists in an act intention:J.lly done inconsistent with the owner1s
right) though the deer may not know of or intenJ to clllllenge
the property or possession of the true owner. Tl

As we have said before there was no necessity for the

respondent to have acted as he did. He was under no
(11 (1911) 2 K.B. 1031. 121 119391 A.C. 178 at 201 and 202.
(3, 88 L.J. (K.B.) 501.
284 BURMA LAW REPORTS. [1950

S.C. obligation to take the appellant's goods into his

1950
cllstody. It cannot be said that he had not inten~
EnnAHm
D..nVJEE tionally t"ken ctdody of the goods or th"t he had not

'.
]EEWA
intentionally delivered possession of these goods to
AJA:\[ 1. G. Mohameo. This act of transfer of possession
}\10HAMED
LOOVA- coupled with instructions given to 1. G. Mohamed
WALLA
would clearly be an act intentionally done inconsistent
.with the appellant's right as owner. That being so,
we agree with Lord Porter that it would nof matter in
the le3st whether in acting as the respondent did he
intended or did not intend to challenge the property
of the appellant in the said goods.
The learned counsel for the respondent has placed
befO! e us certain decisions he considers \\"ould be
helpful to him. Towne v. Lewis (II is not relevant
to the facts of the case before u". As CoHman J.
said:
"Here, there was a full and complete admission of the
plaintiffs. title to the bill, amI a promise to clelivel' it to him.f .,'"
There was nothing more than evidence from which the jury II
mi,trht, if they pleased, have found;l conversicI1 , if they l1:lcl been
satisfied that there Inc! been wilful and ulll'easonable delay on the
-cl:efendant's- part-in complying wi.th the plaintiff's demand."

.. E/Igland v. Cowley (2nlas this ratio decidendi: "A

limited interference with the plaintiff's property, where
all along the plaintiff is himself in possession. does not
constitute conversion ". Kelly. C. B. incidentally said
of a person in possession of moveable properly that any
dealing "'ith it, inconsistent with the true owner's
right \\"ould be conversion.
Collil.s J., as he then was, in Caltsalida/ed Co. v.
Cur/is & SOil (3) has said:
<' No doubt t.here is cOl1si\~erable difficulty in framing an exact
anel exh lllstive ddinitioll of a conversion, and it is not easy to
(II 137 E.R 241. (2) {18731 L.E. SEx. 126.
131 (1892) 1 n.B .. -195 at j1-}7.
1950J BURMA LAW REPORTS. 285-

draw the line at the precise point where a dealing wi tl: goods by ail s.c.
1950
intermediary becomes a conversion. The ditlicuIty is diminished
by remembering that in trover the original possession Wfl..::. hy :1 EnRAHm
DA\VJEE
fiction deemed to l"e lawful and selle aet had therefore to be JEEWA
shown constituting a'conversion hy the defendant of the" c!l;lttel V.
AJA~I
to his o\-.:n use, ~ome act incompatilJle with a recognition on hi~ !\JOH \MED
part of the cominuolls right of the true owner to the cl minion Lo VA_
WAI.LA.
over it. All ;"lcts, th~refore, as suggested by Blackburn J" in bis
opinion given to the House of Lords in HoJli11S v. Fowler (1),
\\"hh:;h are consistent with the duty of a mere finder such as the
safe guarding: by warehousing or ;lspol-tation for lhe like purpose,
may wcJl be looked llpon as entirely compatibIe with the rigll t of
the true owner, a..nd, therefore, as not constituting a conversion
by the clefellclailt."

Can it be said in this case that the acts of the respon-

dent are consistent with the duty of a mere finder who
had taken the goods into his custody without being
under any obligation to do so?
On wlut principles, then, should the extent cl the
respondents liability lor the wrong of conversion by
\)clivery of possession 01 the appellant's goods to
I. G. ~lolumed be determined? The respondent not
only clearly foresaw that the goods would eome to be
at the disposal of whoever should obtain a permit Irom
the Hiraoka Commission but also intended that result.
A person is liable in respect of a wrongful act lor all"
consequences which he ought reasonably to have
foreseen: Muhammad Issa El Sheikh Ahmed v. Ali (2}
and Monarch Steamship Co. Lid. v. d/B [{arlsha11111s Olje
Fabriker (3). Again, it is elementary learning that
intended consequences are never too remote. vVe
hold therelore that the liability of the respondent is
co-extensive with that of the 3rd defendant.
In the view we take of the nature and extent of the'
respondent's liability, it is unnecessary to decide
whether, in the absence from the record of the 2nd and
(1) (1874) 7 H.L. 757.
286 BURMA LAW REPORTS. [1950
S.C. 3rd defendants, it is open to the respondent to claim
195u
either before the Appellate Bench of the High Court or
EBRA!i:M
D .... wJEI:: before us that he is not at all liable in damages. The
JEE\\'A
'1/.
antecedent qucstions, if the rule in Merryweather v.
AJA:.t Nixan '(1) or that in Palmer v. Wiell S:eamslzip
MOHA:\IED
Laov,\.- Co. (2) is the law in this country and if the decree
WALLA.
made by, the trial Judge as in this case 'operates as
res judicata between co-defendants, "re of some nicet;'
and difficulty. 'v\le reserve consideratiC\n of these
questions till they do arise directly.
The decree of the Appellate Bench of the High
Court must in the circumstances be set aside. The
Appellate Bench allowed the respondent's appeal on
the preliminary ground that he was not at all liable in
damages. Now that we have held that his liability is
co-extensive with that of the 3rd defendant, he is
entitled, if he can, to convince the Appellate Bench
that the 3rd defendant's true liability (and therefore
his own) is in a sum 5maller than that assessed by the
trial Judge. VV-hether he can be allowed to do soT
without the other defendants being brought on the
appellate record of the High Court and, if their
presence on the record is nece~5ary, whether and how
they are to be brought on it, are matters primarily faT
the Appellate Bench of the High Court and we see no
useful purpose in anticipating that Court.
We allow the appeal and set aside the decree of thc
Appellate Bench of tbe High Court. 'vVe remit the
case to the Appellate Side of the High Cou'rt to
determine such matters as may be outstanding in the
appeal before it as a result of our judgment and in the
light of the observations made therein. The findings
of the High Court in appeal will in due course be
reported to this Court and after hearing counsel further
final orders on the questions'still outstanding between
11) (179918 T.R.186. (2) (1894) A.C. 318. I
 1950J
, BURMA LAW REPORTS. 287
the parties, including costs of this appeal, will be made' S.C.
1950
by this Court.
EBRAHIM"
D~\VJEE
This judgment was delivered by the same learned ]EEWA
V.
Judge on the 16th August 1950. AJA,\{
1\10HAMED
After judgment was delive;-ed on the 25th July LOOVA~
\\'ALLA.
1950 learned counsel for the parties J;equested us
before remitting the appeal, if at all, to the High Court
- as contemplated in that judgment, to record am decision
on certain questions of law. As it appears to us that
this request was calculated to save duplication of labour
both at the-Bench and the Bar and to expedite the
disposal of the longstanding dispute between the
parties we agreed to hear learned counsel on certain
questions of law which we shaH later amplify. In
taking this comse we aI e not unmindful that what, at
the request of the learned counsel, we agree to do is,
., to a certain extent, inconsistent with the course which
we had indicated in our earlier judgment. But, by
!. tbat judgment we had not divested ourselves of the
_seizin of the case and we had also at the request of the
learned counsel granted them liberty irom time lo lime
to-apply for such directions as may be necessary. vVe
are satisfied; therefore, that we are competent to adju-
dicate on the points taken before us at the subsequent
hearing.
In our earlier judgment we said:
U The Appellate Bench allowed the respondent's appeal 0n
the preliminary ground that he was not at all liable in damages.
Now that we have helel that his liability is co~extensive with that
of the 3rd defendant, he is enUtled) if he can, to convince the
Appellate Bench that the 3rd defend1nt's true liability (and
therefore his o\\,n) is ill a sum smaller than that assessed by the
trial Judge. Whether he can be allowed to do so without the
other defendants being brought on' the appellate record of the
High Court and, if their pl'esence on the record is necessary,
whether and how they are to be brought on it, are matters
288 BURMA LAW REPORTS. [1950
-S.C. primarily for the AppeJlnte Bench of the High CCllrl and we
1950
see no llseful purpose in anticirating that Court. "
EBRAHnr
DA\\"JEI~
JJ~I~W..\
At the subsequent hearing we were invited by the
v. learned counsel to decide finallv tbc two questions
AJ.\M . - .
MOflA>IED - WhICh we propounded for detcrmInatJC.n by the
;~~~~~~ Appellate B~nch of the Hi'gb Court in the first instance.
The learned counst! have pointed out, ami rightly,
that tbe views of the Appellate Bench of the High
Court on these two questions cannot be fil13] and that
it is tbis Court which will ultimately have to give the
final decision.
Mr. Foucar for the respondent claims that it is
competent for his client to question the correctness of
the sum awarded by way of damages against his client
by the trial Judge in the absence of the 2nd and 3rd
defendants before the High Court in appeal and before
ns. H is contention is that while it may not be
permissible for the respondent in an appe"l, here these .'
defendants arp. not made parties, to seek a variation of (
the trial judgtnent to their disadvantage, what be is now a
seeking is a variation to their advantage and that Order
41, Rule 33 of the Civil Procedure Code permits tbe
Appellate Court to vary the~judgment of tbe trial
Court in their absence from tEe appellate record so
long as such variation is to their advantage. The
problem then is an entirely different one from that
which we left open in our earlier judgment: vVhether
the respondent could h,we obtained in appeal complete
absolution for hImself from liability under the trial
decree without the other two defendants being made
parties?
Babaji Dhondslzet v. The Colleclor of Salt Revenue
(1) and Subramanian Chetliar v. Simnmmal (2) repre-
seut the high water mark of the [Jower of an Appellate
(I) (1887) 11 Born. 596. (2) (1930) 53 Mad. 881.
 1950] BU~MA LAW REPORTS. 289

Court under Order 41, Rule 33 of theCivi! Procedure s.C.

1950
Code as judicially inter[:>reted in India. In Eab.lji
EBRAHIM
Dhondshef v. T:/e Collector of Salt Revwl,e (1) the DAWJEE'
JEEWA
facts were that two plainti.ffs, father and SOll, sued the v.
defendant for recovery of po~session of two salt pans AJAiif
MOHAl\iED
and for mesne profits. The trial CQurt granted a LOOVA~
WALLA.
decree in respeGt of one salt pan only. Against this
decree one ohhe plaintiffs appealed and the defendant
filed cross-objection against the decree in the appeal
filed by that plaintiff. The Appellate Court dismissed
the plaintiff's appeal and allowed the defendant's
cross-objection. It was held that in t':rese circum-
stances the other plaintiff, who wa~ not a party either
to the appeal or to the cross-objection, was bound by
the decision of the AppeHate Court. "Ve confes that
we fail to appreciate the reasoning of the Bombay
High Court which Ject it to hold in effect that a decree
passed jointly in favour of two persons can be
. questioned in a cross-objectioq against anyone of
them. Across-objeG:tion is hl reality a cross-appeal and
an appeal against only one of the joint holders of the
decree is clearly incompetent.
In Subralllalz 'an Chettiar v. Si1tllGlIlmal (2) the
plaintiff who sought redemption of certain immoveable
property was granted a decree for redemption by the
trial Court. Against this decre'1 no appeal was prefer-
red by the defendant but the plaintiff, who considered
that the amount fixed for redemption was' in excess of
what was legitimately due in redemption, appealed
questioning only the correctness of the sum fixed hy
the trial Court. The Full Bench of the Madras High
Court took the view that in such circumstances the
Appellate Court can not only dismiss the plaintiff's
appeal but also, in thah appeal. set aside the entire
decree of the trial Court and" dismiss the plaintiff's
111 'ISBn 11 Bom. 596. 121 11930) 53 Mad. 881.

19
290 BURMA LAW REPORTS. [1950
S.C. suit. Here again it is diffi,cult to appreciate th.e reasons
1950
addl1ced by the 'Full
\ . :
Bench in support'of. the vie,v.
it ,
EBRAHIM
DAw'JEE took. " ..
JEEWA
V.
We quote these two cases only to illustrate to \\'hat
AJA~ extenl Order41, Rule 33 of the CiviiProcedure Code
MOHAMED
LaQVA.. had been invoked to support the 'exercise of pl~nary
WALLA.
powers by the Appellate Court.
In So mar Singh v. Mussa1J11J1at Prim/edi' (1) Jwala
Prasad J. said:
.. Apart from this, the High Court had full seizin of the
appeal, and under Order 41. Rule 33, of the Civil Procedure
CoJe, it had full power to pass ~uch 'deere'e, in fave l1r of all or
any of the respondents or ~arties whether they were actllally
bef9re the Court or not, as the justice of the case required._ This
provision in the Code is new , but it 'has' given effect to :he prin-
ciples from time to time enunciated by learned Judges in dealing
with cases that C:1me before them where they found that it was
their incumbent duty as a Court of Appeal to do fUll justice to
the case and to the parties involved in the case-whether all of
the;n were before the Court or not. l '

In Bhutnath Deb v. Sashi1llullkhi (2) Subrawardy J.

.
considered the effect of Order 41, Rule 33. He
expressed his views as follows:
I- By the use of the -expr~~sj~~- t ~-~~p~n~l.enl- oz:. parties I in
the section I understand th1t the aprellate Court may pass an
'Order in fav( ur of the respondents \\"ho have not appealed, and it
may similady decide any question in fa\'our of a party, by which
I understand a party to the suit and who ~s not a respondent in
the appeal. Otherwise, there was no sense in u~h g the words
.( respondents or parties.' The learned Judges in lhe cases
above refen'ed to may h;Ive been inrluced to form ;he opinion
theY did in view of the illustration attacht-ci to the set..tiOl1, cut it
i: hardly necessary to say that the illustration does not limit the
section and is not intended to illustrate its full scope. The view
that. appeals to 'me is sllpported by the decision in the case or'
Ambika Charn" C/(akravart.v. Sasitara Debt, (1915) 22 C, ,L.]. 61.
(II J PaL 327 at:334.' (2) 'A~J;R. 119261 Cal. 1042 at 1043.1044 i '
 BURMA LAW REPORTS.
p ; " ' , ' . - ,
291

The section should be given a broad and generous interpret'ttion s.c.

in vi~\V of the fact that, it is intended to secure con~istency in the
1950

administration of justice and. avoid anomalies which m:w result EBRAHIM

DAWJEE
if the Court is hdd to be helpless in giving effect to its own ]EEWA
decision to the full extellt. Where the rights of parties depend V.
AJAM
<on the same obligatiqIl 1 e.g., contract, and where the Court finds l\fOHA?>iED
th3.t the contract is genuine or nofgenuine, it "may give effect to LOOVA-
WALLA.
ns finding by holding all the p,rties lilble under the contract or
b\" .exoneratinR all the parties who are sough t to be made liable,
"vilhollt consideration :-IS to whether such parties are before it or
not. But the pow~r which the Court is vested with uncleI' this
section must be exercised in the iI~terest of and fm' the furtherance
of justice as h"5 been ohserved in the case of Gatlgadlzar Aluradi
"v. Bat.abash. Pad(hari, (1915) 22 C.L.]. 39;). 'As th.e result of
the appellate Com'l's interference in favour uf the appellants
further interference is reql1ired in onler to adjust the rights of the
parties in accordance with justice, equity and good conscience, ' "

The Allahabad High Court in Rukia v. Mewa Lal

o (1) struck a discordant note and said the word" parties"
in Order 41, Rule 33 was not intended to connote
persons 0ther than those who had been arrayed as
appellants or respondents in the appeal. It defined
the powers of the Appellate Court under Order 41,
Rule 33 as follows:

"O,der 41, Hule 33, of the Code of Civil' Procedure

empowers the court of aj:.peal to interfere with ;"l portion of the
decree passed by the primary court against which no appeal or
-cross-objeclion has been prefen'ed. and is restricted to cases
,where, without disturbing the grounds upon which the judgment
of the trial court proceeds. the appellate court considers that the
decree should be modified in orde-r to do justice to all the parties
-concerned"ineluding such a::; have:not set the law in 'motion. If
the aDPdlant bas failed to appealfroma portion of the decree
which wa.s against him l or the. resp Jlldent has not availed himself
01 his right t6 prefer a cross-objection; the appeliate court is
it
lemp.owered . to readjust the rights' of the parties betore \\'here
the ends' of justice call for such an J.djustmeni.. The powers

(t) 51 All: 63..

 BURMA LAW REPORTS. [1950
conferred unclel' this rule are very wide. but they are to be-
resorted to with great care and circumspecti~nJ and not as a
E&~A~n.1 matter of course but only where strong grouflds exist for the
DAWJEE
]EEWA exercise of such powers. t1
v.
AJAM
MOHAMED In Madan Lal v. Gajefldrapal (1) ofthe Same High
LooVA
WALU,
Court the correctness of the decision in this case waso
questioned. The I~ter Bench expressed the view that.
Order 41, Hule 33 "ckarly allows a decree in favour
of a plaintiff who has not appealed ". The Bench,
proceeded to state :
I( Otherwise we shou"ld have fou'nd in the rule in the place-
of the words' ;:tIl or any of the respondents or parties I the words.
'all or any of the appellants or respondents. "

In Kal/lalakanta Debnath v. 7'a1Jlijaddin (2) Nasim

Ali J. held that Order 41, Hule33 oftheCiiiil Procedure.

Code empowers the Appellate Court to pass a decree.
in favour of a party to the suit who has not been join-
ed in the appeal but that it does not authorise the' o
Appellate Court to pass a decree to the prejudice of a.
person who was not made a party to the appeal.
It thus appe~rs that there is a fair consensus of
. authority in support of the contention on behalf of the'
respondent that the Appellate Bench of the High Court.
and consequently this Comt, W( uld be competent at.
the instance of the respondent to vary to the advantage:
of the 2nd and 3rd delendanls the decree of the trial
COurt if the end,' of justice so require, even though.
the 2nd and 3rd defendants were not made parties.
either before the High Court in appeal or bef.ore us.
We have held that the respondent's liability is co-
extensive with that of the 3rd defendant. It is on the
same set of testimony and in the same ,;uit that the-
trial Judge has arrived at the amount of damages ilL
fit 51 All. 575. at 578. (ZJ 61 Cal. 911).
 1950j BY~MA ,LftW J{EPO~rS.

which the def.endants are IjabJ,e, Ii on the evidence s.c.

1950
we come to the conclusion that the extent of the
EBRAHIM
respondent's liability in damag.es has been over-assessed DAWJEE
by the trial Judge it cannot be disputed that the ends ]EEWA
v.
-of ju,tice would require the decree of the trial JUdg.e AlAU
l\~OH~MED
<lgainst 2nd and 3rd defendants
, . also to be varied to LoovA-
WALLA.
thei,r advantage and avoid an ineongruity, .'
ANrtaW)g~fher lr6mauthority, it is clear to us
,that Ord,er 41, Rule 33 of the Civil Pr9q:dure Code
must be interpreted in {he sense sought to be put on
it 'by the learne,d counoel for the respol),dent Th,e
:app,eal {rorr. the trial Judge in this case was under
section 20 of the Union Judiciary Act which re;,ds'
"An appeal shall lie to Ine High Court from the judg-
l):Ient of a single Judge of the High Court sitting in the
exercise of its origip:).l jurisdiction. '. . " For ,our
'purpose, however, it would not have made a difference
if the appeal had been one under section 96 of the
Civil Procedure Code which reads:
Q (196 (1). Save where otherwise expressly provided iu the
body of this ~ode or by any othel" law for the time being in
force, an appeal shall lie frem e\"ery dfCret passed by ;lny Court
-exercising original jl1risdiction to the Court auth{':rized to l:ear
.a,ppeals from the c1tCisions of suth Court. "

The right of appeal thus given, either by the Union

Judiciary Act or by the Civil Procedure Code, is a
substantive right: see National Trustees Co. 0/
Australia v. General FinGlICe Co. of Australia (1),
Delhi Cloth and General Mills Co. v. Income Tax
Commissioner, Delhi (2) and Sa'dar Ali v. Dalimuddin
0). Now, what is that substantive right which is
given by either of these enactments 1 ,J t is a right to
hav" the decision of an inferior Court put to judicial
III (1905) A.C, 373 12) 54 I.A. '421.
13) 56 Cal. 512
294 BURMA LAw impoRts. [1950

S.C. examination by a higher Court to tes((he correctness

1950
or legality of that decision and to have that decision, if
EBRAHIM
found incorrect or not in accordance with law, recti-
.
DAWJEE
]EEWA fied by the bigber Court. Though the remedy- in
AJAM respect of tbat right may be taken away from the 2nd
MOHAMED
LOOVA- and 3rd defendants on the expiry of tIie period pro-
WALLA.
\'ided by the Limitation Act, the substantive right other-
wise remains untouched; and with this right the
power of the Appellate Court in an appea.! properly
before it to 'vindicate that right, unless that power has
been otherwise curtailed. Can it then be said in a case
like the pre~ent that there is any provision in the Civil
Procedure Cc,de or elsewhere or any principle of law
which would' opera:e to curtail such power of the
Appellate Court? Reference has been made to V.P.RY.
Cizokalingal/l Chetty v. Seet/wi Acha (1) and the same
case on :lppeal before the Privy Council (2) by the
learned counsel for the appel!ant in support of his
contention that with the barring of the remedy to the
2nd. and 3rd defendants by way of an appeal the l. o
appellant is entitled to hold the decree against tLem
and, with that, the decree against the respondent
which the trial Court had granted him. But a careful
study of the deci,ion of the Rangoon High Court and
of the Privy Council 'does nut lend support to the
learned counsel's claim. In our opinion the true
basis of these decisions is that the prohibition uncler
seCtion 3 of the Limitation Act against appeals .being
accepted beyonr] the lime set by the Limitation Act
shoulcl' not be. allowed to be circumvented by the
indirect method of adding 11 respondent against whom
the appeal is baiTed. The substantive right of a very
valuable kind which by operation of res judicata a party
has obtained against a non-vigilant aprellant should
normally .be indefeasible.
(l) 2 R~n. j41. 12) b Han. .?9.
 1950J BURMA LAW REPORTS. 295

Where' the appeal as originaily instituted was not s,c.

1950
competent because of the absence of necessary p'arties, EBRAHIM
there is in lawno appeal before the Court; and in such DAW}EE
JEEWA
a case, as the Patna High Court has in Badri Narayan ".
!HAl!
v, East Indian Railway" Co. (1 ) held it would 'not be MOHAMED
open to the Appellate Court to acid thc omitted respon- LOOVA-
WALLA.
dent and cure the initial incompetency of the appe.a l.
In the present case, in so far as the resjJondeht
challenges the quantum of damages awarded to the
appellant by the trial Judge, the 2nd arid 3rd defendants
may be pers<;ms interested in the result of the appeal;
but they are' not necessary parties in the sense that
they may possibly be, if the respondent seeks to
establish that the 2nd ~nd 3rd defendants only are
liable in damages 'in the sum awarded by the trial
Judge.
The rule of natural justice that no one shall be
damnified unheard cannot apply here. The decree
passed against the 2nd and 3rd defendants can at the
I) worst remain affirmed as a result of the appeal by the
re>ponc1ent. That decree cannot be varied except to
their advantage in the further hearing before the
Appellate Bench of the High Court to which we may
remit the appeal. V\'hile therefore, we are satisfied that
the Appellate Bench would have power to direct the
addition of the 2nd and 3rd defendants as respondents,
we cannot see the necessity or the expediency of apply-
ing the provisions of Order 41, Rule 20 of the Civil
Procedure Code. If brough t on the record these
defen'dants may enjoy the privilege of being heard in
support of the respondent's challenge oUhe quantu11;l
of damages awarded by the,trial Judge to the appellants;
but they are not entitled to the privilege of a hearing
ex debito justitiae; and no special reason exists for a
discretion being exercised in their favour. '
(1) 5 Pat. 755,
296 BU~MA LAW REPORTS. ! 1950
S.C.
1950 The only outstanding question in this appeal. then,
EBJMHIM
is the amount of damages to. be awarded to the
DAwJE appellant. The amount assessed by the trial Judge

AMY
.
]EWA
is being questioned in appeal and we had by our
earlier judgment contemplated the hearing of this di,-
MOH;3.MED
LOOVA.- puted matter to be in the first instance by'the Appellate -
WALLA.
Bench of the High Court, whose finding is to be
examined by us on a report thereof by that Bench.
Thisas submitt.ed. by the learned cou:o.scI will involve
a cfupli~~tion of arguments in the two CourtS; and we
agree with them that the principles of section 103 cf
the Civil Procedure Code may with profit be adopted.
After hearing learned counsel on the question of
theamountof damages to be awarded to the appellant.
we shall pass final orders in the a~)peal.

This final judgment was passed by the sallie

learned Judge on 21st August 1950.
We have now heard learned counsel on the true
measure of damages to be awarded to the plaintiff-
appellant and we have no hesitation in coming to the o
conclusion that nothing that has been said before
US on behalf of the respondent-and Mr. Foucar has
'said all that can possibly besaid~would justify cur
interference with the damages asses~ed by the learned
trial Judge. It is true, as the learned counsel for the
respondent has contended, that the evidence addl1ced
by the appellant was of a comparatively sketchy nature
and also that the witnesses called by him to estimate
the value of his F;oods converted by the 3rd defendant
differ in their valuation; but for reasons which we
shall now proceed to state we are satisfied that the
respondent cannot legitimately complain against the
sum awanjed by the learned trial Judge
The appellant's shop, with its stock of hardware
and mill stor.es \ViiS left locked with.oJJ( anyone in
 1951)] BURMA
~ '."
LAW
.', ~EPORTS.
'
~97

charge on the general evacuatiQn of Rangoop in 1942. s.c.

1950
FoHowing tha,t evaclJation the shop suffered the fate,
EBRAHn.I
common to other premises in Rangoon, of being looted DAWJEE

by lawless characters. It \\as then that between the JEEWO\

v.
AIi'M
rtspondent and the 3rd defendant, in the words of the MOHAMED
respondent "talk was going on ahot!t the pbintiff's LOQVA-
WAltA.
shop for some days" and following the talk the
respondent locked up. the.. premises ,.with, his, own
p,ldi()":k; . Having done thi~ the respondent handed
over the keys to 1. G. Mohamed with instructions to
transfer them to anyone who obtained a permit from
the Hiraoka Commission. The respondent then told
the 3rd defendant of what he had done and suggested
(in his own words) that" if the 3rd defendant made an
app/i,cation to the Hiraoka Commissi~n it would be
possible for him to get the shop." When the 3rd
defendant on this applied to the Hiraoka Commission
and at]' enquiry consequent on that application was
made from the respondent by. an officer of that
Con.mission, the respondent, to quote him, "told him
about those whom I know including the 3rd
defendant" with the result that the 3rd defendant
obtain.ydthep~rmit,the keys and the shop with the
. goods therein.
When questioned in cross-examination: "Being
prepared to assist the 3rd defendant to obtain
possession of the plaintiff's shop, did you think it
proper to ensure the 3rd defendant to keep proper
accounts?" The reply of the respondent was: "Yes,
I think it proper ". Having made this admission the
respondent goes on to claim that he did not ask the
3rc defendant to. keep proper accOlmts of the gO'Jds
taken over and sold, that pe did not attempt to find
Qut if the 3rd defendant kept any aC,cpunts and that he
did n.ot k,now if the 3rd defendant did keep accounts 'it
all. He merely assumed tpilt!' silil,ce he (3rd defend'i,nt)
 .. !. - ,';. - ..
298 BURMA LAW REPORTS. [1950
S.C. had 'opened the shop he must keep regular
1950
accounts". It is clear that the learned trial Judge did
EBRAHIM
DAW]EE not accept the respondent's claim that he had no
JEEWA
v.
knowledge whatsoever in regard to the accounts, if any, ,i
J\]AM kept by the 3rddefendant. \Ve also lake the same
MOHAMED
LOQVA- view. The conduct of the trial shows clearly that the
WALLA.
, respondent and the 3rd defendant'could not have been
acting independently, "as the respondent desires the
Courts to accept. The 3rd defendant. in cross-
examination admitted that he had been instructin g not
only his advocate but also the respondent's advocate
and that the respondent had' been giving instructions
not only to h;s own adYocate but to "the advocate of
the 3rd defendant,<ls well.
Th!( 3rd defendant admits that he kept accounts of
the various sale transactions he carried on during the
Japanese occupation out of the appellant's goods but
claims that the account books were burnt during an air
raid in January-February 1944. That the" 3rd
defendant drd keep accounts of the sales is spoken to j
by the 2nd defendant also who claimed t() be a mere
assistant in the shop. The 2nd defendant also vaguely
"supported the 3rd defendant's story that the account
books were destroyed by fire. But there are
circumstances on the record from which we feel
entitled to conclude that these account books were
never destroyed as claimed by the 3rd defendant and
that, if the respondent and the 3rd defendant who had
been acting tog~ther in the conduct ()f their respective
defences had so cared, the' books would have been
available to the Court.
The 3rd defendant claims that d1e accolint books
were destroyed in January-February 194~ while he was
living in " hut onProme ROad opposite the" University
site. The 2nd defendant "who admittedly parted
compimy'frcim the 3rd" defendant by ttle end of March
1950] BURMA LAW' REPORTS.

19H was definite that he last saw these account books S.C.
1950
on 15th of March 1944 wh~n the . books and, the permit EBRAHTM
from the Hiraoka CommissiOn were taken to the DAWJEI<

Income-tax Adviser U Ba: Sein for the purpose of the JE~~VA

income-taic ;p'roceedings in respect of this shop and _ 'I ArA'l
n OHAMED
business. Exhibit 24, which is a receipt granted to LOOVA-
the 3rd defendant by the Incometax Adviser, is dated WALLA.

11 th November 1944 ; and on the i'ncome-tax demands,

Exhib:its ~1 and 27, in respect of which obviously
advice had been sc,ught from U Ba Sein appear
respectively the dates 28th October and 31st October
1944. U Ba Sein, though admittedly in' Rangoon at
the date of the trial and his exact acldre&s was known
to the .31d defendant, was not called as a witness.
The letter written on 19th July 1945 by the 3rd
defendant to the appellant (Exhibit C\ states definitely
that the account books we,e then in existence and in
the possession of the 3rd defendant. At the trial the
3rd defendant produced from his custody a stock-book
which has been numbered Exhibit' 1. This stock
book bears the date 31st March 1940 and relates to
goods then in the shop 01 the appellant. Why this
stock book was not destroyed and only the account
books came to be burnt during the Japanese occupa-
tion, is not satisfactorily explained. -
The account books, which we consider the respon-
dent and the 3rd defendant could have produced but
did not, would no doubt have been the best possible
evidence in the establisi-ment of the true measure of
damages to be awarded to the appellant. Failing the
production of these account books the respondent
cannot have a legitimate grievance if the learned trial
Judge had to do the best he could on such materials as
\vere on the record to arrive at the value of the goods
converted. Madha, \vhom the learned triar' Judge _has
accepted af a witness of truth, has estimated the goods
300 BURMA LAW REPORTS. [1950

S.C. taken over by the 3rd defendant to be of the value

1950
between Rs. 50,000 and Rs. 60,000 as at the date of
EBR"'HJ;M
DAWJY.E such taking over. That Madha was present at the
jEEWA
v.
shop when it was opened and taken over by the 3rd "
A]AM defendant is admitted by the 3rd defendant himself.
MOHAMED
LOOVA- lIiadha is obviously not ~ partisan witness prepared to
WALLA..
perjure himself in the interests of the appellant. If he
had.'been',wpartisan 'witn'ess' It'would have been the
easiest thing for him to have said that he made a more

leisurely inspection of the goods in the shop before he
arrived at his estimak of their value. His valuation
therefore cannot be totally rejected though we agree
that it has' to be counter-checked with the other
available materials on the record. Lyall (P.W. 1)
valued these' goods at between Rs. 20,000 and
Rs.40,000. He explains that he valued them so low
because similar goodS, looted from various places in
.1>
the City of Rangoon about the time, were thrown on
the market. He said of those days that" the kind
of article that cost ,.bout Rs. 500 would fetch abou t 1
Rs. 5 only". If the premise on which Lyall based his
valuation can be ~ccepted Josillig v. Irvine (1) relied
on by Mr. Foucar may be appJ;ite. But whatever
the position might have . been aboul the end of
February 1942 when there was absolute lawlessness in
the city, the evidence on the record is conflicting as to
the relevant prices of hardware and mill stores before
evacuation and about the time the 3rd defendant
obtained a permit from the Hiraoka Commission and'
opened the shop. Madha claimed that such goods
had appreciated in value and Seed at, exaggerated
though his estimate may have been, supports M,.dkl.
M. S. Kaka, another witness for the appellant. statecl in
respect of the mill stores ancj han~ware that "lhe
selling price of such goods in May-Jlme19-12 was
. . , .. , '-~--~

IJ) 11861) 158 E.R. 2JO.

1~50] BURMA LAW REPORTS.

doubie the pre-\\'ar rates on the general average." s.c.

r950
His estimate Iyas tested by reference to vouchers and
EBRAHIM
other documents evidencing the market rates of such DA1.VJEE
goods at the relevant periods and the witness stood the IEEWA
V.
test we\!. . AJAM
MOHAMED
Mr. fquc.arfor the fe.spondent, relying on lasting LPOVA-
WALLA.
v. Irvine (1) ~ont.ended t.hat the sale proceeds in the
years 1942 to 19.J4 wOlild not provide a true measure
of the damages for the act of conyersion in May 1942.
He may be right; hut the learned trio I Judge has not
based his find~ng in respect of the measure of damages
on such sale proceeds. He merely employed the
figures of Rs. 2,40,000 in Japanese currency admitted
to have been collected in the course of these three
years by the Jrd defendant from the sale of the
appellant's goods, in making a counter-check of the
evirlence adduced on behalf of the appellant.
In these circumstances we feel that the appellant
car. properly invoke the principles laid down in
ArJ/:or)' v. Delamirie (2). Mr. Foucar has suggested in
the present case ihat his client's duty would be
merely to rebut the testim ony add\J.ced by the
appellant in proof of the \alue of the goods converted
alld that in the absence of more cogent evidence than
that which the appellant has been able to adduce at
the trial there was no duty cast on him to assist the
Court in any way. In Armory's case (2) the Chief
Justice directed the jury that unless the jeweller who
took out the stones from the jewel found by the
plaintiff and produced to the jeweller for examination
"did produce the jewel, and sh;;w it not to be of
the finest water, they should presume the strongest
against him and make the value of the best jewels.
the Ineasure Qf the damage ". Lord Cairns in

Il) (lJ6J) 158 E.R. 210. (21 93 E.R. 664.

.302 BURMA LAW REPORTS. [1950
S.C. Rammcrsmith Railway Co. v. Brand (1) said in
1950
application of the rule in Armory'!; case :.
EBRAHU,{
"There is a \yell-known principle wh;ch applies to such
.
DAWn:E
}EEWA
cmes, which is, that if the persons against .whom the claim is
AJA.~[ made are not willing to binel themselves as to the maxim,um
.MOHAMED
LOQVA- number of trains, or the wej~ht, or tl:e spred, then the sum must
WALLA. be taken' most strongly :lg~~inst their company': upon the principles
emmci<::.ted in the well kllown old case of Armor.y v. De/audrie.
w

And the JarRest amount 0f injury \yhich can be sustained would

probably be considered to be the amount to be awhded by Ihe
tribunal which has to award compensation."
We do not go so far in pressing the :naxim odium
spoliatoris in this case as h3s been in Wardour v.
Bcrisjord (2) where even. though the wrong-doer, who
had opened a bundle of papers relating to an account
which had been scaled up and left in his hands,
satisfied the Lord Chancellor that all the papers
entrusted to him had been produced, yet his claim for
a debt based on the entries in the same accounts was
rejected.
This case is, in our opinion. pre-eminently one
where the rule which the House of Lords has laid
<Iown in Watt v. Thomas (3) should find applicaticn.
As Lord Thankerton said:
H The aPPellate court, either because the reasons gi'C'en hy
'the trial judge are not satJsfactory, 01' because it tmmis:akahly so
:appears from the evidence, may be satisfied that I-e has not
taken proper advantage of his having: seen and beanl the
"witnesses. ~l.l~d the matter will tl~ tIl tecome at larg< for the
appeliate court.'
Or again, as Lord Macmillan said:
U If the case OIl the printed evidence "leaves the facts in
balance, as it may be fairly said t.o dOl then the rule enUl~ciated
tin this Rrmse applies and b~ngs the balance down on the: side of
-.the trial),udge.',1
11) (1869) L.E . 4 H.L. 111 al 224. .J2i .23 E.R. 519.
t3) 11947/ A.C. 484 at 493.
1950J BURMA LAW REPORTS. 303

It may be possible in this .case to think that the S.c.

1950
figure arrived by the learned trial Judge in assessing
EBRAHIM
damages to be awarded to the appellant is not DAWJEE
JEEWA
absolutely correct. But can any other tigute based On V.
the materials before us be more exact? After all, an AlAM
I'IIOHAMED
appeal is a judicial examination of the decision of a LOQVk
\VALLA
lower Court for the purpose of finding if that decision
is incorrect and, if so, to rectify it. The burden is on
the party challenging that decision to establish that
the decision is incorrect. Can we say of the trial
Judge in this caSE that "after reading the printed
record, and after making allowance for possible
exaggeration and giving full weight tv the judge's
estimate of the witnesses, no cor.clusion is possible
except that his decision was wrong?" (1). We can
come to no such conclusion in the present case.
It follows therefore that the appeal must be
allowed. The judgment and decree of the Appellate
Bench of the High Court is set aside and the decree
of the leaned trial Judge confirmed. The appellant is
entitled to his costs in this Court and hefore the
Appellate Bench of the High Call rt.

(1) Per Lord Du Parcq in 1947 A.C. at 493.

-';;

..
')

~BURMA LAW REPORTS

HIGH COURT

1950

-Containing cases determined by the High Court

at Rangoon

Rai Bahadllr P. K. BASU (ddvocale), EDITOR.

U BA SRIN (Advocate), REPORTER.

Published under the authority 01 the President 01 the Union of

Burma by t~e Superintendent; Government Printing and
Stationery, Burma, Rangoon.

[Alll'ights 1'ese1't'ed]
 o

:.' . "

J
'.

CORRIGENDUM (1948 AND 1949 BURMA LAW

REPORTS)
ORDER OF ,P.RECEDENCE
I
. Han'bie U AUNG THA GYAW, B.A.,I3.L.
Han'ble U THAUNG SEIN, B.A., I.e.s. (Reld.;.
 NAMES OF THE JUDGES AND LAW
OFFICERS OF THE UNION

,
THE HIGH COURT
Hon'ble Thada Thiri Thtldhamma U THEIN MAUNG,
M.A., LL.B. (Cantab.), Bar.rister-at-LmjJ, C},ief
Justice from 1st January to 17th February 1950~
Hon'ble U TUN Bvu, M.A. (Cantab.), Barrister-aILaw,
Chief Justice from 18th February 1950.

PUI:::;NE JUDGES
Hon'ble U TUN Bvu, M.A., B antster-at-Law, from
1st January to 17th February 1950.
Hon'ble U ON PE, B.A., Barrister-at-Law.
Hon'ble U SAN MAUNG, B.A., I.C.S. (Retd.).
Hon'ble U AUNG THA GYAw,B.A., B.L. f
Hon'ble U THAUNG SElN, B.A., I.C.S. (Retd.).
Hon'ble Thada Thudhamma U Bo GVI, B.A., B.L.
Hon'ble U AUNG KHINE, Barrister-at-Law (Acting
from 1st January 1950 to 22 nd January 1950 and
from 8th September 1950 to 31st December 1950).

LAW OFFICERS

ATTORNEY-GENERAL
Thada Maha Thray Sithu U CHAN HTOON, LL.B.
(Land.), Barrister-ai-Law.

ASSISTANT ATTORNEY-GENERAL
Thray Sithu U CHAN TUN AUNG, B.A., B.L., Barrister- .-
at-Law. J
I

(
 MEMBERS OF THE LAW REPORTING
COUNCIL.
o
PRESIDENT
G Hon'ble the Chief Justice of the High Court (Chair-
mal'.).

MEMBERS
Hon'ble Justice U TUN Byu.
Hon'ble Justice U ON PE.
Hon'ble Justice U SAN MAUNG.
The Assistant Attorney-General, Burma.
Rai Bahadul' P. K. BASU.
U BA SEIN.
Mr. G. P. KIRKHAM, Secretary.

4
 . *

.0

)
 11

GOVERNMENT ADVOCATES
.
U CHOON FOUNG, B.A., B.L.
U TIN MAUNG, B.A., B.L.
U MYA THEIN, B.A., Barris~er-at-Law .
.0 U BA SEIN, B.Sc., B.L.
U KYAW (1), B.A., B.L.

ASSISTANT GOVERNMENT ADVOCATE

U KHIN MAUNG, B.A., B.L.

,
 . I

. ; ;':\ ,

o
 -TABLE OF CASES REPORTED

-HIGH COURT
APPELLATE CIVIL
PAGE

Abdul Barj v. S. M. Abowath 0<. 401

Ahmed Sooleman Dadabhoy v. Messrs. P. M. Mohamed
HamiG Sons ' 313
C.- Ah Foung (a) Chow Fung Me.e (a) Chaw Foung Mee.
v. K. Mohamat Kaka and two others ... 34~
Chow Yee (a) Ah Foon v. Kan Ah Rang and one 304
Daw Yin v. U Sein Kyu and three others 119
D,. Miss A. G. D'Netto v. Ma Ain Yu and others 93
Esoo! Golam Moh~med Piperdi v. Adf! Mohamed
Bham and One 163
Gurbachan Singh v. Jos. E. Fernando 1
Hajee L. A. M. NagaoI' Meera & SOilS v. Beharilal
Chotmal 61
Ko Han Tun and one v. U Ba Hla 2S0
~ Manng Gyi v. Maung Nyi Nge and One ... IS6
-'U Mar and one v. Nla Saw Myaing 80
M. M. Sherazee v. Daw I(hin San 124
Ma Kin Kyi v. Ma Than Tin SS
- Shu Hway and two others v. Daw Kyay Hmyin 11.1
l\:Iaung Maw and One v. U Ea Thwe and one 71
Mrs. Constance M. Writer v, A. M. Khau ... 6S
S. I. Abowath and five others v. T. B. Khan 308
S. j:.. Barua v. S. M. Abowath ... 40f
Sin' Yon Htaul1g v. UBa Nyun and one' 392
Tan Gwan Lye v. Nia Than Yinaad si'x othe;'s 2lf
The Official Receiver v. Manikram Balabllx Bajaj 234
v:
----, Rangoon M. M. J\Iil11a 320
 TABLE OF CASES REPORTED

PAGE

The Tajmahal Stationery Marti v. K. E. Mohamed

Ebrahim V.:S.,Aliar'& Co. 41
- Government of Bnrma v. Quah Chnn Bee 14
U Aung Kha and another v. Da\v'lI;H 89
-Ba Tha v. Basanta Knmar'Das 295
-Maung Gale v. V.V.K.R.V.S. Ve'layuthan Chettiar 220
-Tun Myaing and one v. Ko Aye M'lung ... 226

CIVIL REVISION

Ah Yar ". 'U iK<\la ...

' 285
Babu Bindraj v. Raj BahadrrPathak and one 412
Ching Hong Sein v. Khoo Hein Khoon Society 17
E. S. Cohen'v. V. E. RM. AR. Chettyar Firm '100
Habilmr Rahman v. Ma Ah Ma 331
Ma Tin Nynnt v. Ma Kyi Kyi and three others 33
~allng Thein Ngwe v. U Maung 1-.-fanng 115
- - Tun Yin v. Ma Sein Lay 246
R. C. S. Ai(arwal (a) MllOishi v. 'Dihy,Jjhai (a) D. Z.
Dabuwalla and two OthCl' ,
30
'R.-K. Dass v, K.l\.RM.N.R Nagappa Chettyar 19
S. S. Mbhanied Hanif"-v. leo. lif6hamed1<asim 26
Sultan Ahmed v. Nas'ara Jaman .. , 369,372
Torab Ally v. Mohame:! AYllb and 'One . 361

ORIGINAL ClVIL
A~am Khan v. Daw Khin and others 189
C. M. Br~thers v. A. Kunjalan and two .qt.bel1S 262
Ko, Aye and One v. Rasnl Bibi and ithree others 2~8
Messrs. Seng Hwat& Co. v. The United .Chemkal
Wol'les 417

,
 TABLE OF CASES
REPO~TED Xl

PAGE

APPELLATE CRIMINAL
Ba Maung v. The Union of Burma 131
, - Pe and one v. The Union of Burma 178
Gyo Kar . The Union of Burma 300
Htein Win (a) Tin Saing v. The Union of Burma 38
Mogyo (a) Ba Thaw (a) Maung Thaw v. The Union of
Burma 399
Sa Pont (a) Paw Lu v. The Union of Burma 352

CRIMINAL REVISION
Arokiyam v. Savari Mnthu 144
Ba The! 00 and one v. The Union of Burma 341
Ebrahim A. Aziz v. The Union of Burma ... 338
Ma Sha Bi and two others v. The Union of Burma 374
Maung Mya Maung and one v. The Union of Burma 68
- - Tun Yin v. The Union of Burma 334
The Union of Bu,ma v. Kyaw Hla Aung and others 106
- - - . - - - - tJ. U Chit Swe 278
v. U Khin Maung Lat and one 376
U Nyo v. U KoKo Gyi 147


~ .

 ,.

TABLE OF' CASES CITED

- pAGB

A. M. Malumiar & Co. v. Finlay Fleming & Co., 7 Ran.

169. . 50
Abas Ali v. Kodhusao, A.LR. (1929) Nag. 30 ..... 258
:0 Abdul Ganiv. Abdul Kader, 1 Ran. 756 281
._ - Qlc1ir v. Nare'ndra 1Ylohan' Ghose Chowdhury and
another, A.I.R. (I93l) AIl. 210 2B
Abinashchandra Ghos', v. Narahari Methal', (I930)
57 C~I. 289 214
Adamjee Hajee Dawood & Co. Ltd. v. The Swedish.
Match Co., (I928) LL.R. 6 Ran. 221 at 234 ...
Alexander Knox Mc Entire and Johy. Arthu'r Maconchy v.
Crossley Brothers, Ltd., (1895) A.C. 457 at pp.
462-463 . 252
Andrew Macfarlane and another v. Francoise Leclaire
and Jean Leclaire, (1862) 15 P.C.C. 181 232
Anglo-American Dmj.( & Chemical Co. v. Swastik Oil Mi!!
Co. Ltd., 59 Bam. 3i3 275
Amlavi and others v. Rakkl'/{lldllmban, A.LR (1938)
Mad. 501 ... 160. 16t
Arya Pradishak Pratinidhe Sabha v. Chaudhri Ram
Chand and others, A.I.R. (1924) Lah. 713 at i16 ... 259
Ashutosh Sikdar v. Behari La! Kirtanis, I.L.R. 35
Cal. 61 ... 208
Aung Hla and others t'. Ki';g-Emperor, 9 Ran. 404 134
Aziz, I-l. A. v. Kilvoboy, 4 Ran. 305 286
Badische Anilin Dnd Soda Fabrik v. Hickson, (1906)
. A.C. 419, referred to 423
Balwan1. Rao and others v. Baji Raa :lnd others, 47 LA.
213 2,0
Batchaji Rowther, A. 7J. P. A. Ramaswami Pillai and
another, A.I.R. (1936) Mad. 8 4&
o Bhagwan Baksh Singh v. Drigbijai Singh and others,
6 Luck. 487 290
Bhagwativ. Banw'fi Lal, (1909) 31 All. 82=1 I.e. 416=
6 A.L.J. 71 (F.B.)
Bhimji N. Dalal v. The Bombay Trust Corporation Ltd.,
(1930) 54 Bam. 381 at 396 255
xiv TABLE OF CASES CITED

PAGE

BijIlath and another v. Sri Bhagwan and others, A.I.R.

(1926) AIL 691... 201
Boord & Son v. Bagots, Hutton.& Co. Ltd. (1916) :'.R.
2 A.C. 382 52 1-....
Brij Lal v. Durga, (,1920) A.I.R. Lah. 159=56 I.C.254=
I Lah. f3~=13'21'.L:R. (1920). 23 G
:Byathamma v. Ayulla,J.L.R. J5 Mad. 19.at23 242
Byramjee Cowasjee v. Vera Somabhai lvlotibhai and ~.,
another, (InS-16l8 L.B.R. 561 50
,
Cairncross v. Lorimer, (1860) 3 'Macq. 82'7 at 829 175 .-
Calliailji Sarjivan v. Narsi Tricum, '19 Bom. 761 259
Caspersz, A. v. Kishori Lal Lioy and other~, 23 Cal. 922
at 929 ... 215
Charandas and others v. Amir Khan and others, 47 I.A.
252 at '255 36'7
Charles Robert Lead.er and Henrietta Ada Leader 'V.
George F. Duffey and.Amyatt Edmond Ray, (1888)
13 A.C. 294 at 301 '150
Chedambaram -Chettyar" C.V.N.C.T. v. Ma Nyein lvIe
and 6thers, 6 Ran. '243 ... no, 289
Chedi Lal v. Bhagwan Das, (l888l I! .AII. 234 326
Chettyar Firm, A.R.M.N.A. v. R.M.V.S. Chettyar ;and
Jour others, (.1938) RL.R. 256 17.1
.E:K:S.v. MaunE Min Maun~ and others,
A.I,R. (1933) Ran. 247 .. , 366
- L.P.R. v. R K. Banerji, 9 R;in. 71 104
Chinnasami !.ludaliar and .nather v. A.Mudal;'", 29
Mad. 48 . . . 209
Chokalingam Chetty, V.P.R.V. v. SeethaiAchi,
6 Ran..29'and 2Ran. 541 ... J57.,1l58,
161
Collector of Gorakpur v. ,Ram. .sunder Maland others,
A.I.E. (1934) (P.C.) 157 at 165 243
Connectiout Fire Insurance Co. v. 'Kavanagh, (01892)
A.C.473 171
Cpo Dhanm Mal .and others "fl. 'Rai Sahib .L'la lvloti
Sagar, 75 I.C. 654 67 ~.
Cropper v. Smith, iL oR. (U884) 26'Ch.D. 700 at no .... 367

D1ttatraya Goyindraov. Em.pemr, AJ.l<. (J938) N'Ig. 76 200 ~

D:Hv Pon v. lvIa Hnlu .May, A.I.R. (il9.f1),) Ran. !ZIZO 206
!'
 I!:i'V

pAGE

De Silva v. De Silva, (1904) 6 L.B.~. 403 at 406 228

Devendra kumar Roy v. Sayed Yar Bakht Chaudhury
and other", A. .r.R. (939) Cal. 220 ,at 224 ... 2113
Dhommal1lals-Digest I, 17 ... 58
Dr. A. Karim anp another v. Pandit Laic Ram and
other5,(1939) R.L.R. 163 .,. . .., 247
Dunhill v. Ehrtlett and Bickety, 39,RR;,C.. 426. 48
Dwarka .Nath Pai Mohan Chaudhuri v. Rivers Steam
Navigation Co. Ltd., A.I. R. (1917) (P.C'> 173 62

Eastern 'Morlgage and Agency Co. Ltd. and T. C.

Tweedle v. Muhamm3d Fazln! Karim and anothCIit
52 Car. 914 at 931 325
Edge & Sons Ltd. v. 1'liccoHslt SOils Ltd., 28 H.P ;C.
~2 48
Edmund Bow,es v. Chades Shand. (187.{i77), 2 A.C. 455 420
Emperor v. Hemandas Devansingh and others, A.I.R.
,(1936) Sind 4 0 . . . ... ... H 5
---v. MilanmaJ Hardasmal and anolher, A.I.R.
(1943) Sind 161 281
---,:v. Rishen Das, (1910) S I.C. 116 at 164.165... 379

Fibrosa Spolka Alreyjn, t'. Fairbairn LawsDn Combo

Bargour Ltd., (1943) A.C. 32 425
Frank Warr & ,C0. :LtB. v. 'Loudon County Council,
(1904).K.B.713 a.t 720 10

:Galliara, N. C. v. ,\.M.M. Murngappa CheU)'; 12 Ran.

355 at 363 and 364 '" 66,228,
229
Gaya Baksh'Singh v. Hajendra B-lhadurSjng\l,. 1S';U.R.
(1928) Onc!h 199=1]0 I.e. 83=3 Luc/>. 182=5
O.W.N. 108 (F;B.) . 23
Gayaprasad v. EInpero~, A.l.R. (,1932},Nag..11,1 343
Ghungha Mal Ghania Lal v. Empe,or. A.I.R. (1939)
Lah. '355 360
Glenwood Snmber Co. Ltd. v. Phillips, (1904) A.C. 405 11
.0, GnanamaniKkam Ammal:v. S. :R. Samson, :9 :Ran. '52 ... 67
Gobind Dayal", "nna)<atuHa.h, 7 At!. :7'l5 (F.IB.) ,291
Gobinc!raprasad Shah" v. Charusheela Dasee, 60 'Oil.
4~11
1042. ref.en""l'to ,..
Gopal Pandey v. 'Parsotam Das, 5 1111. 123 '85,86
 xvi TABLE 01" CASES eITiD

PAGli:

Gopeswar Banerjee- v. Brojo Sund1ri De~i; 49 C~l. 470' .

at 47:3 .'. " . 325
Govindaraja lvIudaliii-; C. S. v.Alag~ppa Thainbiram and.
others, A.I.R. (1926) lIbd. 91l . 415
v.
_ Gowardhandhas Kapilr' Abbas: Ali, A.J.-.R. (1930) Lah .
168 at 169 ..' ... 108
Gujji Lall ,v. Fatteh tau, 6 Cal. 171 ' 242
GuUi Bhrrgat v. Nal'aln Singh, 11 Pat. 708: .. ' , ... 280

Haji Dada v. Pannalal, 169 i.e. 99 . 24

Hardi Naraln Sahu v. Ruder PerJiash Missel'; 10 Cal.
626 at 634 .... , . 36
Hargoviu'd Fulchanil' v. Bhuda,' Raoji, A.i.R. (1924)
Bam. 429=83 i.C.' 932'';''48 Bam. 550=26 Born.
L,R.601 (F. B.) 23
Harlhar Banerji 'v.' Ramshas'hi' Roy, '46 Cal. 458 (P.C.),
followed 407
- - - - Mukerji v. Harendra Nath MUk~rji, 37 C~l. 754,
refeni~:d to .1. . '- 329
Heinigerv, Drog and anolher, 26 Bam; 433 47
Hita LaVMohari :Lal v.::Ramachandra, A.i.R. (l930)
Bam. 375=125 I.C. 703=54 Bam. 479=32 Bam.
L.R. 619 . ...' .... t 23
In Chinn~saITli Mudalier gnq. another. v. A- M.udaliar, 29 .
Mad.. ;18 209
I" Re. K. V. Venkata Ramilier' and others, A.I.R. (l938)
Macl' 815 ... . ." ' ' '.;" 375
, ~;Sadayan, (1908) 5 Mad. L.T. 216 ... '. 280
-'-"-- Indar Sen and another" v. Naubat Singh and
,oihei's, 7 AlL '553, .;,' . . . ' '" .... 86
J!) the Matter of CoUision between' "AVA" ; and'
" H BRENHILDA ", (188OJ 5 Cal. 568 ' ..: 201
- ' - Parchim, (1918) A;C; 157 at 161 ' 252
Ishwari Pras::ic1 Singh and others" V~ Sir Kameshwar
Singh"Bahadur
..
and
.
others, A.I.R. (1941) 'Pal. 288 :... 230
, ..'
~

~ L.

J. Aron &.Co..-v. Comptoir Wegimont, (1921) 3 K.B;'435 42! o

Jagat Chandra Roy 'If. Kalimuddi Sarda", (J 92-21, 26
C.W,N.880 . , 28\
James Finlay & Co.. Ltd. v. 1'1" V. Kwik Hoo T.-vng
Hendel lvIattschappij, (1929j 1 K.B. 40, .referred to
. and (ciUowed . .. .. .' .,,' 421
 TABLE OF, CASES' CITED' xvii
PAGE
I :.'

John Jihan Chandra Datta v. Abinash Chandra Sen .

(1939)2 Cal."12. . .. . .. ..: . 294
Johnston &,Co. v. Orr.Ewing & Co., 7 A.C. 219. . .. 43,51
v:
JiJpiter General Insurance Compan y Ltd. Abdul Azi~,
1 Ran. 231, referred to .and followed ..... ... 414 -

KJilash Chandra Tarapdar v. GopaI Cbandra Poddar

A.I.R.. (l926) Cal. 798=95 I.C. 494=53 Cal. 78=30
.C.W.N. 649=43 C.L.}. 345 (F.B.) 72,24
Kalandan'i K. O. 11. ,V. P. KunhllnniKid.lVU and Qtll,ers,
: 6 Mad. 80 ... . .... . .,. . ... 201
Kalipada De'ahd othel's v. Devijapada D"s .ud others
J1930JLA.57... ... :.: 205
-'-~-- Mtlkherji v. Basantalmmar Dut!a, t..I.R. (1932)
Oal.126=;,13.8).C. 177=59 Cal. !l7=35 C.W.N.
. 877 22
Ka1lian Dass v. Tuls; Dass, 23 Bam. 786 259
Kamta and 'oth<'rs v. Parbhu Dayal' and auother, 39 All..
165 .. 245
Kapa Kasi Viswanadham v. J?,ondiIi 1rhldim Singh r 'l~d
others; A).R. (1948)" Mad. 422. \... ... 280
v:
Karton Bibi V.M;.R.\:. Cheltyar,(1941) R. L.k 767 '" 24
j{,(sh;~,tha Ay.yar v. Uthumansa nqwthan, (902) 25
. Mad. 529= 12 I'I'I.L.J. 1 22
Kasiviswanat.han Ch\,ltyar, P.L.M.C.::r.N: v. P.L.M.C.
T.R. l{rishn'appa Chettyar, Civil Misc. Appeal
. No. 10 of 1949, High ~Ollft, Rangoon . 67
Kaftayat P~thumay v. Jhman Menon. 26' Mad ..740=
In''I.L.J.237 22
Kedar Nat!, v. Arun Chandra Sin~Ja, A.LR. (1937) AIJ
.' 742=1701.0. 57='19.m A.L.J. 889=I.L.R. (1937)
All. 921 (F.B;) ... 23
Kha\\~ Taw and one 'if.' Union of Burma, (1948) B.L.H.
. , 310 182
Khoo Haing'Sein' rind three others v. Rhaa Peing f10~
.- and tb.ree otllels, B.L.J., Yol. I, p. 56 .." 294
o Kh\vaja Ahmed Khari v. Ut, 'Harmuz; .Khanam. and
others,A.I.R. (192]) Oudh 131 ... : 198
Kilmer v.British Co.lumbia Orchard Lands. Ltd., .
. . ~(l913) A.C. 3J9 .. ... . . ..i .259
King Empe,or v, U Dh"mmapala, 14 Ran. 666 (F.B.). at
, 68 J, {"Hawed' '" ... . . ... 186
:x,viii
PAGlr

Krishnasami, AYy''lng~r v, Rajagopala Ayyang'T and

others, 18 Mad. 73 .. .... 242;243
Kuppuswami Goundan %1, Chinaswamil @ounc1an and
others, A.l.R. (In8) Mad. 546 at,548 ." " , ..
121'

L. Sri Ram'and'others v. Muhamcd Abdul Rahim Khan

and another, A.l.R. (1938)Oudh 69 '... 201
Lakhajee and another; ".. S.il1 DilssLanci another, A:.l.R;
(1940) Ran. 97... ... ... ..:. 160
Lakshmi Narain Vermaand"alJ.other u. Mohamed.'Hanif, '
A.I.R. (1932) Lah. 368... . ... 280
Lala Atma Ram v. Lala Beni Prasad and others, 62.l.A.
257= 57 All. 678, referreel to .. ... 414
- - Ojl)a v. Queen.Empress, 26 Cal. 863 ... 141
Leather Cloth Co. Ltd. v. Amerie<rn Leather Cloth Co.
Ltd., 11 H.C.C. 538 4:3,52

Xi'; C. Patail and another, v. H. G, Ariff and others, 14

Han.7't4 62
M'. E. MOO'lIa & Sons, Ltd. v. Leon Shain Sway, (I926)
4 Ran. 92 .., 67
v. Leon Shain Sway, (1926)
4 Ran. 92 a\'94 . 227
v. Buriorjee, 10 Ran. 241 . 174
li1\1 Huya " . Ma On Bwin, 9 L.B.R. 1 . 58
- Joo Tean and an~iher v. The Collector of Rangoon,
12 Ran. 437 at 440 329
-'-' Kli~v. S. 1. Ispahany, (1946) Ran. 192' 333
- Kyi v. Ma Thon, 13 Ran. 274 82, 83,
87
_ On Tliin v' Ma Ngwe Yin-and another, 7 Ran. 398 160
_.- Sein Hla v. Maung.Sein Hnan, (190304) 11 LB.R.
54 .. , 57, 5B.;
60
- Shwe Mya v. Maung Mo Hnaung, 48-LA. 214,217 .... 366
~ Than Nyun v. Daw Shwe 11hit; 14 Ran. 557! 59
Mlhbub Sh,h P. King~Ernperor,.(1944'.45) nLA. 148... 139J o
M\lHaraia Kesho Pras,d Singh v. Shiv S"ran Lal, 3 Pat.
L.J. 317'at 321 67/
M'-alimud Sh,h v. Pir Shah, A.I.R.. (1936) Llh. 858 .,.206
Mahamed Yacoob v. P.L.R.1f."'irm and others, 9 Ran. i
608 117
 11ABLlt OF.' CA:SF.S. CIrRO, xillt
PAGE

Malayath 'ieetiU Raman Nay.ar and others. v. Krishnan

Nambndripad, 45. Mad. 9UO 245
Maqbul Ahmed' v' Pral"!" Narain Sin~, 57. All. 24-2
at 248. .._ 91
0- Mani Ram v. The Crown\ (.1927.) 8 Lah, U4 3590
Maroti L~H{t)1an K0~lHi and others. Zl Jag~nnathon
Lachmandas Garlewal ancl another, A.I.R (1"939)
Nag."72, .,... 203
Martin, J. A .. v, S. M.. H:>sllim.and others,.8 Ran. 161 ... 2.1
!\fata Din and others v. Jmnna Das and ano.lher, 27 All.
691 245.
Mathura Y..llrmi v. Jagcleo Singh ;lnd others, 50. Alh 208 62
Maung Aung Thein v. Maung Ba Maung,.(l94Q) Ran..54 206,
- - - BooSaw v..MaungrThwei.kLR. (iJ927), Ran, 159- 28
- - Gyi.and'one.v.. Manng: Aung' Pya" 11 Ran,.6aII'.. ., 59
- - Gyi'v, King'Emperori.7' LoB,R. 13 360;
- - Ohn Tin v. P.RM.P,S.RoM. Chettyar Firm and'
olhers, TRan. +25 at 426. 328
___ 11yint v. The Union of Bbrma, (1948l:B.L.R 379 139',141
_ _ Shwe: Tha and: others. v, Ma U I?ra Zan, W. Ran.
415 249
_ _ YeGyan v.Ma Hmi and three' others, (190()-02)
1 L.B.R 155 at 157 218
___ Mya' Maung v, Ma Mya Sein, A.I.R. ().936) mmo
518 58
- - - - - VL Ma. Rhine and; others, A.kR.
(.)936) Ran. 497 121
!v.f:eghan Dube and another v. Pran Singh and others, 30
All. 63 '" 245.
Messrs. Barnett v. Mrs. E. Fowk and one,'(1925) 3 Ran.
46 at 47, refurred- to. 305
Midnapur Zamindari Company Ltd. v. N,resh Chandra
Roy, 48 Cal. 460 (-P. C.) ....... 214
Milar Sen Singh v. Maqbul Hasan Khan-and others,
57 I.A. 313 290
Mohamed Esnfv. Rajaratnan Pillai, 33 Mad. 402 46',272
----.Noordin 1J. Abdul Kareem &: Co;, (l93IU, 48
RP!.491 47
----Yacoob v. P.L.RoM. Firm and others, 9 Ran.
608 1L7
 xx TABLE OF CASES CITflD

PAGE

:Mohanla! Maganlal v. ]ivanlal Amratlal, 5! Bam, 814 at

. 816 29
Mohsin Raza Khan v. Haidar Baksh, A.LR. (J 928) All: '.
368= 115 I.C. 869="50 All. 670=26 A.L.J. 498 22,23
Moolji Sicca & Co. v. R'lmjan AIi,A.LR. (1930) Cal. 678 ~69
:Mrs. Constance M. Writer v. A: M. Khan, (1950)
B.L.R. 65 229 I .
Mt. Nasiban v. Mohamed Sayed, A.I.R. (1936) Nag. 174 74 .~..
Ml1hamdi Begum v. Durga Prasad and another, 40
452 .
I.e.
199
Muhammad Ew \z and others v. Birj L3.1 and another,
. LL.R. 1 All. 465 332
Mulla-'-Civil Procednre Code, 11th Edn. 592 365
Mtlnni Bibi v. Tirloki Nath and others, 58 LA. 158 160
. Muppanar and othe..s ~. 'Vijayathammal, 6 Mad. 43 210
'11usammat Umras Bibi and others v. Ram Kishen and
others, l3Lah. 251 62
Muthukarappan S:1mban and others v. Muthu Samban 1
38 Mad. 1158 ... - 121

Nadir Husain and others v. Municipal B01rd, Agra,

(1937) All. 405 at 410... ... ... 229
Nafar Chandra Pal~. Shukur and others, 45 LA. 183 at
187 95
Nannier v. Desolier, 55 Mad. 795 at 799 ... 145
Narain Das v. Het Singh and others, 40 All. 637 368
--.-- Singh, C: P. v, Be P. Narain Singh,S Pat. 777 ... 201
Natesa Ayyar v. Mangalathammal, A.I.R. (1933)
Mad. 503 217
Nathuram Shivn;;trayan v. Dl1ularam Hariram, 45 Born.
292 29
Nga Po Tha v. Queen.Empress, (1893-1900) P.J.L.B.
249 359
- Sein Gale v. KingEmperor, 12 Ran. 445 360
- U Khine v. KingEmperor, 13 Ran. 1 375.

Ohn ilIaung v. The Union of Burma, (1949) B.L.R. 139 1,42

Parish Council of the City of Parish of Edinburgh v.
Local Government Board for Scothnd, (1915) A.C.
717 at 7 2 2 ' 17
Parbutty Dassi v. Puma Chnnder Singh, 9 Cal. 586 243
 TABLE OF CASES CITED xxi
PAGE

Payton & Co. Ltd. v. Snelling Lampard & Co. Ltd.,

(1901) A.C. 308 at 311 50,274
. Peelda'Venkatapathi v. Glnagunta Balappa and others,
A.I.R (1931) All. 35 (F.B.) 171
Pia.i Lal anel others v. Mina Mal Balkishan Das, 50 All.
52, referreel to 425
Po Han anel Tun Ei v. The King. (1947) RL.R. 319 185
- Shan v. Maung Gyi, 5 L.B.R. 213 at 215 327
Powell v. Birminghlm Vinegar Brewery Co., L.R. (1896)
2 eh.D. 54 at 79 45
Prosunno Kumlr Slnyal v. Kali Das Sanyal, 19 Cal. 683 23
Punjabhai.v. Bhagwandas, 53 Bom. 309 at 313-314 326
Purans and others v. T. Aml11al anel others, A.I.R. (1937)
Rao. 427 at 428 216

Queen-Empress v. Kader Nasyer Shlh, 23 Cal. 604 358

R. v. Gordon, (1871) 21 Slate Trills 486 at 644-645 133,302

- v. Hardie, (1820) I State Trials IN.S.) 765 134,303
R. Johnston & Co. v. Archibald Orr Ewing & Co., 7 A.C.
(1881-82) 219 276
Raelha Mohan Dult v. Abbas Ali Biswas and olhers, 53
All. 612 at 617-618 103
Ragllllnath Pra:iad Singh and another v. Deputy Com-
missioner of Partabgwh and olhers, 54 1..'1..126 ... 62
Raja Bailmnto Dey Bahadur v. Uday Chand Maiti,
(1905) 2 C.L.). 311 325
- - Ratnam Pillai v. Emperor, A.I.R. (1936) Mael. 341. .. 375
Rajani Kanta Shaha v. Idris Thakur, 48 Cal. 1105 281
Ramachandra Joishi v. Hazi Kassim, 16 Mad. 207 245
Ram Chandra Sakha'ram v. Keshav Durga'ji, 6 Born.
100 at 101 .. , 17
- - Gopal and another v. Shamskhaton and others, 17
LA. 228 at 232-233 96
- - Gopal v. Tnlshi Ram and another, 51 All. 79 (F.B.) 114
- - Kinker Ihi and another v. Tufani Ahir and others.
A.I.R. (1931) All. 35 (F.B.) . 171
--Tuhul Singh v. Biseswar Lall Sahoo, (1875) 2 LA.
131 at 143, followed 325
Hamgopal Ghose v. Dhiredra Nath Sen and otbers, 54
Cal. 380 at 387-388, referred to 318
5
~XI1 TA~LE OF CASES CITED

PAGE.

Rltan~ha Kavasji Medhora v. Keki BehraClasha Pardi

)va). and others, I.L.R. (1945) Bam. 141 280
Reuter p. Sala, L.R (1878.79) 4 C.P.::>. 239 421
Roy, H. N. v. R. C. Barua Sarma, 48 Cal. 138 208
Rupa anel others v. Sarder Mirza and others.,J A.I.R. 0
(I920) Lah. 276 .... 210
S. Barlow and others v. Gobindram and another. 2{ Cal.
364 ....... 46,47,
"
52
Sadasuk Jamlti Das v. Sir Kislnn Pershad, 44 Cal. 663
at 668669, follO\ved . ... ' ... 317
Sandhu Taraganar and another v. Hussain Sahib, 28
Mad. 87 = 14 fi1.L.J. 47{ ... . 24
Sardar Pal'.1m Pal '3ingh v. Surder Budh Singh, A.l.R.
(1938) Lah. 62 ... 258
Savari Amma1 v. A. Jaganathan Servai, (1947) R.L.R.
387 370
Secretary of State ior Indian i Council v. . Bhupa]
chandra Ray Chaudhuri. 57 Cal. 655 ... 11
Seixo v. Provezende, l.L.R. (1940) All. 446 51
3emabi v. Galllpatrao Yadorao Pan de, A.l.R. (1933) Nag.
212 n "I
Sera)ul Huq Khan v. Abdul Rahman, 29 Cal. 257 159
Sher Singh v. jitendranath Sen, A.l.R. (1931) Cal. 607 ... 281
Singer Manufacturing Co. v. Loog, L.R (1896) 2 Ch. D.
394 at 412-414 44
Sirumal v. Emperor, A,l.R. (1932) Sind 94 267
Siva Dass Dey v. Ashabi and one, 3 Ran. 471 at 473 2i,370
Skinner, K. H. v Rose Skinner and others, A.l.R. (I935)
Lah. 132 260
Sm. Sati BaJa Dasi v. Chota Nagpur Banking Association
Ltd. and another, A.I.R. (1949) Pat. 448 231
Sohan Lal and other" v. Mohan Lal and others, 50 All.
986 at 990 In
Sri Ram and others v. Mnhamed Abdul Rahim Khan and
others, 172 l.C. 882 201
Srimati Anilabala Chaudhurani v. Dhirenclra Nath Saha
0
and another, A.l.R. (1921) Cal. 309 at 313 17
Steedman v. Drink!e and others, A.l.R. (1915) (P.C.) 94
at 95 259
Subramani. Ayyar, A. V. v. Sellammal, 39 Macl. 841 67 J
 TABLE OF CASES CITED

P,\GE

Suchan Ghosa! v. B.t1aram Mardana, 38 .cal. I . 324,325

Sufar Golai v. EmperOl', A.LR. (1938) Cal. 205, referred to 344
Sugnomal Tahilram v. Phapandas Relumal, A.I.R.. (1936)
Sind 237 at 240 108
Sukh Lal Sheik v. Tara Chand Ta, 33 Cal. 68 207
Snnc1ara Ramanuj~m Naic1u v, Sivalingam Pillai and
another, '-17 Mad. 150 . 158
Surayanarayan1murti and ~nother v. Tammanna and
another, 25 Mad. 504 at 506 . 216
Syed Ashgar Reza Khan v. Syed Mohamed Meheli
Hossein Khan and others, 30 LA. 71 .,. 209

T. Barlow and others v. GObindram and another, 24

Cal. 364 ".' 46
Tan Mn Shwe Zin and others v. Khoo Sao Chong and
othel's, (1939) R.L,R. 548 ... 112
TaLlsukh Rai v. Gopa! Mahton, 8 Pat. 617 .. , 214
Thama v. Kondan, 15 Mad. 378 234
The Acting Secrebry to the Board of Revenue v. Agent,
South Indian Railway Co. Ltd., 48 Mad. 368 9
- Auto Supply Co. Ltd. v. Reghunatha Chetty, 52
Mad. 829 at 835 and 836 257
- - King v. Bi Khin and others, A.I.R. (1940) Ran. 189 281
- lvlunicipal Corporation of Rangoon v. M. A. Shakur,
3 RaIl. 560 at 57~ 286
- National' Bank of India Ltc]. v. G. V. Kothandarama
Chetti and one, (1913) 14 Cr. L.J. 529 at 535,
referred tJ and applied ,.. 380
National Sewing Thread Co. "Ltd. v. Messrs. James
Chadwick & Bros. Ltd., A.I.R. (j 948) Mad. 481 at
487 47,50,
51
- Rivers Steam Navigation Co. v. Choutmllll Daogar
and another, 26 Cal. 3<;8 63
- River "Veal' Commissioners v. William Adamson
o and others, (187677) 11 A.C. 743 at 763 150
- Swadeshi Mills Co. Ltd. v. Juggo La! Kamplapat
Cotton Spinning and \Veaving Mills Co. Ltd., 49
All. 92 at 97 and 111 50
Thomas Bear & SOilS (India) Ltd. v. Prayag Narain and
another, I.L,R. (1940) All. 446 '19,51
xxiv TABLE OF CASES CITED

PAGE

Thoans Bear & Sons (India) Ltd. v. Prayag Na"ain and

another, A.I.R(I943) IP.C.) 86 at 87 271
Thomas Somerville v. Paolo Schembri and Giovanni
B1ttista Cammilleri, (I8d7) L.R. 12 A.C. 453 at
456457 43,49. O'
Tribeni Prasad Singh v. Ramastay Prasad Chaudhuri,
A.I.R. (1931) Pat. 241=133 I.C. 337=10 Pat. 670=
12 P.L.T. 423 (F.B.) 23
Tribhovan Hargovan v. Shanker Desai, (1943) Bam. 653 123
Tun Baw v. KingEmperor, 6 L.B.R. 100. (F. B.) 360

U B:l U v. U Ywet, (1948) B.L.R 172 104

- Hmat and one v. Daw Shwe Lok and two others. Civil
1st Appeal Nc>. 31 of 1946 of the High Court of
Judicature at Rangoou 87
-Naing and othersv. Ko Sein, A.I.R. (1938) Ran. 125 ... 366
- Saw and nine others v. Union of Burma, (1948) B.L.R.
217 185
-Tha Nyo v. Maung Kyaw Tha, 3 Ran. 379 a1380 73
Umed Mal v. Chand Mal, 53 LA. 271 414
Umesh Chunder Roy v. Satish Chundra Roy and
others, 22 C. W.N. 69 281

V. E. R Sllba.-aya Chettiar and others v. Sellamuthu

Asarti, A.I.R (I933) Mad. 184 243
VaktubJ, B. S. v. T. A. Raisinghji and others, 34 Bom. 676 209
.Valab Das_ and one 'i' . ~L-1ung Ba Than and -Jivanc1as
Savchand v. Maung Ba Than, 1 Ran. 372 373
Vedan:lyaga Mudaliar v. Vedammal, 27 Mad. 591 218
Vellu Thevar and another v. The King-Emperor, 10
Ran. 180 109
Vevindramuthll Pillai v. Maya Nadan, A.I.R (1920) Mad.
324=54 I.C, 209=48 ilLL.). 32 (F. B.) ... 22

William Di';"ech v. Goffredo Allessandro Chretien and

another, A.l.R. (1931) (P.C.) 15 279
----\Votherspoon and another Y. john Currie, 5
L.R. (Eng. and Irish Appeal Case) 508 272
Wotherspoon v. Currie, L.R. 5 H.L. 508 ... 43,48

Yorkshire Relish case, Edge & Sons Ltd. v. Nicolls &

Sons Ltd., 28 RP.C. 582 ... 48 f
 GENERAL INDEX
PAGE
ACTs:
ARBITRATION ACT.
ARMS (TEMPORARY A~{ENDMENT) ACT.
--(EMJ!RGE~CYPUNISIUIENT) (TEMPORARY) ACT.
BURMA CounTs ACT.
- - - EXCISE ACT.

- - - LAWS ACT.

CASTE DISABILITIES REMOVAL ACT.

C\)DE OF CIVIL PROCEDURE.

- - - CRIll-fiNAL PROCE'DURE,

CONTRACT ACT.
COURTS (EMERGENCY PROVISIONS) ACT.

ESSENTIAL SUPPLIES AND SERVICES ACT.

E\'JDENCE ACT.

FOUEIGN EXCHANGE REGUL.-\TJOl\' ACT, 1947.

HIGH TREASON ACT.

LIABlLITIES (WAR-TDIE ADJUSTMENT) ACT.

LIMITAtION ACT.

NEGOTIABLE INSTRUMEN'IS AI,;1'.

PENAL CODE.

RANGOON CI!Y CIVIL COURTS ACT.

REGISTRATION ACT.

SALE OF GOODS ACT.

SPECIAL CRIMES (TRIBU~ALl ACT.

SPECIFIC RELIEF ACT.

TR.ADE DISPUTES (AMENDME~T) ACT.

THANSFER OF PROPERTY ACT.

UNION CITIZENSHIP (ELECTION) f.CT,

- - - JUDICIARY ACT.

o UPPER BU1~MA LAND AND REVENUE REGULATION.

URBAN RENT CONTROL ACT.

YOUN'G OFFENDERS' ACT.

,1 ACCOlWlNG TO LAW "-MEAXIXG OF 26
ACCllSED SUBJECT 1"0 FITS 352

XXVI GENERAl. INDEX

PAGE

ACCUSED AGED lS-S.1~-A (I) (a), Arms (TempJrary Amemimell /) Act,

1949-Youug Ofjetlders' Act, s.15-Proptt selltence. There was a
skirmish between a police party and White PVOs. Tl),ree of
the skirmishers were left in a paddy field after the gkirmish.
Appellant one of the three was found holding 3. J,lpanese rifle \
loaded with two live c~lrlridges. He was convicted and sentenced
for traosportatio I for life by the trial CO"lft. It was found that
he was aged only about 15. Held': Tl~at under the YOUI).g
(Ufenrlcl:s' Act, $. 15 no person under 16 shall be sen~enced for
death Or transportation. Ho\vever the accused was found fighting
against the police with firearms and the offence was a serious
one and he must be deemed to be a depraved or unruly character
nnd a sentence of imprisonment ':>uflkiently adequate to prove ;I.,;
deterrent should be passed. Appellant sentenced for two years
rigorous imprisonment.
HTE1N \VIN (a) Tl~ SAING 'V. THE UNION OF BURMA 38
Am.llSSlBILlTY-ADMISSION CONTAINED IN A JUDmlENT 234

ADVANCE. REFUND OF 417

AGREEMENT AFTER EXECUTION-WHETHER AljJUS:rMENT 19
A~IENDMI!:NT OF PLAINT-Suit. slated (v be tluder 5. 9, Sp.:eifiG Relief
Acf-Ame11dmc1Jf applicatioll ajfel" c'vidence closed-ChI/1Ig.:
omitting referCllce fo s. 9-Wltethcr difJ~Tellt causes oj aetiOll'"-
Order 6, Rult 17-Civil Procedure Cod~-FriJtciples governing
amClldmelit. Held: The principles f~uverning applications for
amendment of r'ainl are seWed. Leave to amend should be
refused if (1) it is not necessary, (2) the plaintiff's suit will be
wholly displaced by the proposed amendment, 131 tilt: effect is to
take away from defendant a legal right which has accrlled to him
by lapse of time, (4) the amendment w0uld introduce a new rfnd
inconsistent case, ~t ;l late stage, or (5) the application is not
bO"li fide. a Nail/{!. (Iud others \'. Ko Sdl1, A.I.R. (193;';) i{an. 125 ;
E.K.S. Clultyar Firm \.. Ma1t1lg Milt. IliatlltJ! a"d otl/Irs, A.I R.
(l933j Ran 247, distjn~lIishe. Ma SlI",e Mya v. MauI/g, Mo
Hutllwg, 41) LA. 2J4 at 217. followed. The averments in the
present' case amounted -lo-]l() nI0're' fhan-a- repetition 6f the
original allegations and did not prejudice the defendant's ddence
or result ill any injll~tice to him. To de::=Gribe the allegations in
the 0, iginal plaint as llnder s. 9 of the Specific Re~ief Act,
with.Jut an allt>gation of dispossession by defendant otherwise
than in due ('ourse of law, is a mistake in pleadings dne to lack
of skill. It i.e; the duty of courts to decide the rights of parties
and not to punish them for their mistakes in the conduct of c.,ses.
Cropper v. Smith, 26 eh. D. (1884) 700 at 710. followed. The
plaintiff's object was to recover possession but only a!;serted in a
form which the Statl1te did not rermit. Charan Das ol/d
others v. Amir Khan ami olhers, 47 LA. 255 at 262, followe(~.
Naratn Vas v. Hef Singh aud others, 40 All. 637, referred to and
approved.
o
TORAS ALLY V. l\IOHAMED AYUB AND ONE 361
ApPEAL-Non-joil1der of 1/ecessary party-Effect of-Where the
plaintiff filed a suit for the recovery of possession of a piece of land
from the 1st defendant and added his own \'endor as a party
to the suit and the Court held that the vendor W,IS the owner of
the hnd and cO:lyeyeq good title to the Plaintiff and decreed the

,
 GENERAL INDEX XxvW
PAGE

.suit; the defendant preferred an appeal but did not make the
vendor a party to the appeal. The District CO:lrt dismissed the
.appeal on the ground that the appeal was incompetent far the
failure of the defendantappellant to add the vendor as a party.
Held .. That as the vendQr w\s a llccessary party to thesuH audit
having been found that the vendor was the owner and the decision
.as to the ownership has become final, the principle bid down in -
V.P.R.V. CilOkalil1gam Chetly and 1'1Je v. SretlJm Achi alld oille/s.
I.L.H.. 6 Ran. 29 (P.e.), applied and the appeal was rightly
dismissed as incm.npetent. The finding that the vendor was the
owner has become reS judicat'l between the vendor and the
-ddend,~/lt. V.P.F:V. Chok:I{I1!glllJl ClJe!!>' alUl 9:/e.,!: Scdhn; Ach i
dl/d other::>, 2 Rail. p. 541 ; SUI/darn RaJllaUlIJiHtJ Na;dlJ v.
Sivlllillgam PilldJ~ aud allother, 47 Mad. p. 150; Serlij/ll Huq
Khan v. A b:lul R"hman. 2) Cal. p. 257 ; Multu; TUbi v. TirTvki
N./tlt and oThers, 58 LA. p. 158, followed. Ma On Thill v.
Ma Ngwe Yilt aud auoihu, 7 Ran. 398; Lakltl1Jee a1~d anotherv.
Sdn Dass and alJof/ter, A.I.R. (19--10), Ran. 97; Arulayf lIud
otherS v. Rakka KUtluJllball, A.I.R. (1938) 1hd, SOl, diStinguished.

Ko MAUNG GVI 'V. MAUZ\G ::-.1VI NGE A::\'D O~E 156

ApPEAL-Points of Iaw--When can be raised for tlte first fime-

Es!oPPeI-lYhat constitutes estoppel-SlIle by olle of the r.t'eclt/ors.
\Vhen a question of law is raised fa:" the first tim~ in an appeal
lIpan the construction of a document or upon facts admitted or
proved beyond contro\'ersy, in the interest of justice, the plea
should be enterlained. Hnt the course ought not in <lny case to
be followed, pnles$" the CGurt is satisfied, that the evidence 0PO:1-
which the conrt isa~ked to decide, establishes beyond doubt that
the facts, if investigated would have supported the new ptl'a,
'The evidence given on one point qnnot be interpreted or trca'cd
as evidence of an "'lther poi~t not raised by the parties in the trial
.court, where evidence is neceSiiary. or is not cnmplek. permis-
sion to raise a new point will not be granted. COli1Z~[tiCtlt Fire
llJS!lJ'al1c~ Go. v.. Kat'al!aglI, (18921 A.C. 473; Ram Ki1lkllr kai
(Iud alit v. Tufam jf.1dr fll1d olhC)'!), A.Ll~. (1931) All. 3'5 (F. B.) :
-A.R.M .N.A. Clu.tlyar Firm v. R.M.V.s. CJ/ctlyar and (ltllers, (1938)
R.T;.R. 256; M. E. MaDIll SOilS Ltd. v.' Bllrjorjee, (1932) T,L.R. 10
Han. 242, followed. If a perSall by word or conduct has intimated
that he consents to an act which' had been delle or that he will
not offer opp )sition. he canlio! then que,:;tion the le6alit" of the
act aflerwards. Ca;mcToss v. Lorimer, (lB60J 3 M<l.Cq.827 at 829,
followed. \Vhere there are several executors, and one of them
Qnly prove~ the Will and. is granted Probate theu he i:i the only
person who can de:l.1 with the estate, where the power of
m:l.nagement was given to executors jointly and severally, one of
the exeC'.ltors who proved the \ViII can sell the properties of
deceased.
ESOOF Go LAM MuHAm~D PIPE/WI v. ARH'F MOHAMED BllAM
AND O~E .... 163
o
ApPLICATION To SET ASIOE AWARD 30
ApPROVF.R, TESTH!ONY OF 178
ARBITRATION ACT 30
ARMS fTEilfPORARY A:'tfENOMENT) ACT, S. 19-A (I) 38
XXVlll GENERAL INDEX

PAGE

ARMS (EMERGENCY PUNISHMENT) lTEMPORARY) ACT, 1949. S. 2 (1) tdl,

Held: That Arms (Emergency Punishment) lTemporary) Act.
1949 has been enacted for certain special plITpost:s. Where it is
in conflict with the Arms Act it must be held to supel.;ede the
more general provisions of tae Arms Act. . ,
MAUNG MYA MAUNa AND ONE 'V. THE UNION of BURMA, 61>
AWARD OF DAMAGES 250 <0

BALANCE PRI~E NOT rAID 25(}

B01UI fide OR OF
REQUJRHfENT
BUH.DING
FOR ERECTION REERECTION
24f> 0
BUDDHIST LAW N' '"
.,. 111
BUDDIl15T MOTHER-Marrying Mohomet/an aud changing religioll-
Succ.cssion to cstate-Ullco}werf~d Buddhist dallp,hter-Rights
of-Burma. Laws Act (XIII 0/1898) 5.13-" Parties "_1JfCC"fll1lg
oj-ll1ferpulaliott oj Statufes-/nferpl'efafion conflicting with
accepted pritzciprcs to be ovoidal. "Where a Buddhist mother
ma1'ried a MolJamec;an, after conversion to th~ latter faith. and
dilld and her unconverted Buddhist daughter claims a share in
her estate. Held: That the chl.im is gcverned by Mohamedan
Law under which a non-Muslim cannot be an heir and her suit
must fail. The personall:w of the deceasep governs succes5ion
to the estate. C.V.N.C.T. Chedambamm Clutfyal' v. Ma Nyein
Me nud others, 6 Ran.243; Balwallt Rao a1ld others v. Bllji Rao
alJdothers. 47 I.A. 213: MIlar SCIt Sing!: v. Maqbul Hasan Khan
ami others, 57 LA. 313, referrt:d to. and applied. The law
applicable to such a c;lse is to be found in s. 13 (1) of the Bllrma
Laws A~t. 3. 13 (3) of the same Act is not applicable. The
word I- parties ., in s. 13 lal, (bl and (c) does not mean parties to
the ,suit but has reference to the inception of the right involved in
the action. Bhng1(Jan Baksh Si11gh v. Drigbijai Siugh and
others, 6 Luck. 487; Gobilld Dayal v. 11layalllilah. 7 All. 775
(F.B) ; Klloo Baing Sein and three others ',;. ](/too Pcing Hot atld
three others, Bur. L.J, Vol. I, 56: John Jibcl1l Chandra Datta v.
Abiuash Chandra Sen, {19391 2 Cal. 12. approved. __ \Vherc two
interpretations are possible, the one most in accord with jlls~ice,
convenience,. reason ancLlegal.principles, should-be applied, as it
is mosl improbable that the legislature \vould overthrow funda-
mental principles. Maxwell 0" 1l1terpretutiolJ, referred to.
Ka AYE AND C'NE 11. RASUL BIBI AND THREE oTHERS 28~

BURMA CoURTS ACT, 1945-5. 5-Sllit jilcdbejoreSllbordblate Jlldgc-

Decided by Assistant Jlldl!c-Jllri.-dtcflOlI_Code of Civil
Procedure, ss. 21 and 99. Hcld: That under s. 5 of the Courts
Ad. 1945 there are three I!racles of civil Courts, the District
Court, the Court of ele Assistant Judge and the Subordinate
Judl!e. The jurisdiction conferred nn the Judge,s i~ personal.
There is a departure from the old system \....hen an Assistant
Judge or Subordinate ludge could exercise territorial juri~diction
and preside over m re than one COurt and the jurisdiction was
in the courts. The decision by an Assistant Judge .< sitting as o
Fir~t Subordinate Judge" in a suit instituted before the latter
Judge is without jurisdiction and not merely an irre~ularity
which can be ctlreri under s. 99 of the Code of Civil Prc'cedure,
nor is it an objection to the place of suing under s. 21 of the
Code of Civil Procedure.
U BA TrIA v. BASANTA KUMAR DAS 295
 ~llMBRAIl INDEX xxix
PAGE:

BURMA EXCJSE ACT-5S'. 30 (a) alld 4o_Ellltatlcrd PU~ljslmlellt for

offender ul,th Previous cOllvietiou-S1I11/tJlOnS case or 11'arrallt
cau- Case tried as SlIml1lMJS case ami jilles of Rs. 100 (lf1d Rs. to
itnposcd-Tri..l_lI/egal or iTregllJar. Where app1ic<lnt~, llllS
band and wile, \\ ere conv:cted I Odl r s. 30 (al of the Burma
Excise Act for being in possession jointly of excisable articles
with<..ut a permit, and were senten:ed to pay fines of Rs. IllO and
1<$. 60, as being previous offcn~eTs nnder s. 46 of the Act on a
trial a~ a summons case. Held tllat : As nOLe maximum sentence
liable to be imposed in the case, is imprisonment for one year or
a fine of Rs. 2.000, for a subsequcut conviction for the same
offence, the magistrate could not try the case as a sumn:ons case
under the Criminal Procedure Code. GayapnJsad v. ElIperor,
A.I.R.11932) Nag.!ll ; Stifar Golaiv. Emperor. A.I.R. (1938j Cal.
205, referred to. StIch a trial i~ not a mere irregnlarity cIJ'rable
under s. 537, Criminal Procedure Code.
BA T~ET 00 AND ONE V. THE UNION OF BURMA 341

BURMA LAWS ACT 1 S. 13 28&

BURM~SE BUDDHIST LAw-&lale of deccusr:d slep grandPlJrntf-

Rival claims Of daughler of Kilitha caughter nmi Apatittha
daugltter_ Justice, equity MId good eonsciel1u-Kilitha, if
illeRitit11{/le. Held: That ill a contest to the estate oJ adcteased
stepgrandparenf governed byH'lrmese Buddhist Law , as between
the child oJ a Killtl!a c1allghte:r and lhe daughter of an ApalUtfw
Son, both are cnlitkd 10 inherit. A Kil/tha. child is not an
iIJegitimate child hut ani\' inferior to children born of p:uents who
live opelll,\' togethe". U E Maung's Bt'ddl1i",t Law, p. 194-195,
referred 10 Ma Seitz Hill v. MlJ1l11/1. Scin HI/an. 1190304) 11
L.B.R. 54. dislinguit'hed. Digest, I, 17, referred lo. The status
of an Apatitllta son cnl1not be higher than that of a KiWlla SOIl.
Mnllllkye. VoJ. X, s. 51, referred to. KiuwltJl Millg)','s Dige:"t,
Vol. 1. s. 301, reft-rrfd to. A ]Mitlla child will, unlike
an Atalittha child, exclnde othf"r relations from inheritilore"
U E Mau1Jp's Budtlhist Law, p. 225, referred to. The peculiar
circulllstances in the c:tse did not fitin with the contingj;;ncies in
the case law nor p~odc'ed for in the Dhnmmathats and in
accordance willI the principles of justice, equity and good
conscience, each claimant was held entitled to half.
l\1A KIN [('YI 'l}. 1h. THAN TIN 55

..CASTE DISAnILlTIES RR~IOVAL AC1\ 18$0 189

r.AUSE OF ACTIo:-J NOT DISCLOSED IN FIRST ApPLICATIO~ 246

CHA};:GE OF CAUSE of ACTION 361

'"
- - - - - RELIGION .,. .189
CIVIL PRoCEDURE CODE, s. 110. PARAGHAPH 2-S. 5
(c), ['1ioll
Judiciary Ad, 1948-Va11le of sl'bjccl'1J1utlt'r Of the aPt~'II
Morip.agc dce"rt:e- Vallie oJ debt or of prop'rty gh'cIJ as scwnty.
For the purposes of grantill,g" a cerlific'lte under s. 5 c) of the
Union ]L:dicia"rv Act, as 1 nder s. 110 (21 of the Code of Chi!
Procedure. the"judgment musl iuvolve directly or indirectly sonle
qnestion respecting (he property. the value of which is not less
than R:; lOIOOO. In a suit on n mortgage, the mortgagee cannot
obtain more th<ln tht: amount claimed under the decree which, in
this COise was less than Rs. 10,000. It is not the value of the
:xxx

PAGE
property lhat is the test. M. E. MooIla & SOI/.S, Ltll. \'. Leon
Shaffl 5wo)'. (926) 4 Ran. 92 at p. 94; Dc Silva v. De Silva
(1904) 6 B.L.I~. 403 at p. 406; N. C. GaWara v. A.M.M. Murll-
gatpa ClIetty, (1934) 12 Ran. 355 at p. 363 ana 364;
Mrs. C01lSlallce M. Writer-v. A.!Ii. gllat'. 1950 B.L.R. 65, referred
to and followed. Nadir Httsstlill aud others v .Mu11ICiplil Board,
A gra, (1937) All. 405 at p.410 ; [sMilari Prasad Si1tgh and of hers
v. Sir' Ka11lesll'umr Smglt Bahat/uY.and olhers, (1941) A.J.R.
Pat, 288. dislillguishect .
U IUN MYiNE AND ONE V. Ko AYE MAUNG' 226
CIVJL PROCEDURE CODE, ORDER. 33, RULES 3 (J) (b) 4 AND 5 -
Leave to sue in forma pauperis-No cattse of ae/ion disclosed
and first apPlication dismissed-Jifaintai1wbility of su!lsequt1lt"
apPl,cation. 'Vhere an application to sue w forma pauperis was
dismissed on the ground that it dd not disclose any cause of
action and a second application is competent. Hdd: Th7t a
rejection ~f any of the grounds menticned in Rule 3 will be a
rejecti6h under that rule, and not under Rule 4. The rejection
Ulyjer Rule 4 refers ttl rejecticm for the reasons set out therein
and is not meant to cover a rejection under Rule 3. The mere
fad that a notice is is~uerl befo,'e ~n application is rejected under
Rule 3 does .. not make the rejection one under Rule 4.
Dr. A. Karim and 01~e v. Pawfit Laic Ram and othelS, (1939)
R.L.R. 263, distinguished. lIfalmg Shwe Tha alld others v.
ilia U Kra Zan, (1932) J.L.R. 13 Han. 475, referred to.
MAUl'G TUN YIN v. 1\-1A SEJl\ LAY 246
'CO-ACCUSED. EVIOENC' OF 178
.cODE OF CIVIL PROCEDU RE, S. '2 304 l
53,21 AND 99 295
.--"- - s. lIS, ORDER. 9, RULE 13 ,nn
-::. s. 99 3'
- - - . - - - - 5.144 ,\1'<D 151 372
:--"'-"-- ...:.:.::._.:_.:....~d"nDER 41, -Run: 23 234
CODE 01' CIVIL PrWCEDURE, s. 3i 1 Order' 21, Rule 95_Decret:_ltolder
(lHcliV1z purc!lastJr-Deliveryof possession to-JVhclIJer "e/tlles to
t.1:cr:u/ion, discll<l rRe or salls/deliou vI decree- Rewcdj'-Agree-
menl aflcr execuliou-Whether adjll:tl1lclll -Whelher rev/siott
lies. The Respondent having purchased a house at a l"ourt auction
in execution of his own decree applied for delivery of po~sessjon
under Order 21, Rule 95 of the Code of Civil Procedure. Later
p~rties filed a joint petHi:m that applicant was to deliver vacant
possession after remm'aJ of buildings before loth J<tnuary 1943
and upon failure Ihe court should act in accordance with the
original appliqtioiL" lJPO!l a further :tpplication by the J.,:CSPOll-
dent the cOllrt,orcier~d execution as first prayed for. On appeal
the District Court held that no appeal bl.Y. It was contended lor o
1}lc appellant" that the Respondent is a party to the suit~ that the
'C]uestion of delivery of possession relates to execution, dis-
-charge or satisfaction of the decree within s. 47 of the Code of
Civii" Procedure. !! cld: The que.;;tion whether apt,licant han or
had not failea to give vacant possession after remo~'illg the
buildings before the. 10th of January 194tl arose Ol~t of the
:ngreement and the ~~reement itself was not an adjustment of the
 GENERAL' INDEX X;xxi

PAGE

decree. Held further: That the atlC~iOl;i pl!tt-hiser's' r~gilt to

possession agamst the judgment".deblor is. not a: ,questioIi relatilig
to execution, discharge or sati51~ction of the' dec~ee. H,cl,d,:
That the question whether there has been a breach of a C"ondltiqn
in any agreement is a pure question of fact which the tri<l.1 Court
had jurisdiction to decide and tht:re is no gr0und ror revj~i~.)Jl of
the order of the trial Court. J. A. Martin v. S. lIf. Hashim ami
<JllltrS, (1930) I.L.R 8 I~an. 162, followed. SeJiwbi v. Gallapatrao
Yadar/lo Pande. A.LR. (1938) Nag. 212; Kashinatlta A)'yar v.
U:/wmaJlSlI Rowthatl, (1902) 25 Mad. 529 ..-12 M.L.]. 1;
KallQIJhll PatTummy v. RamQu Menoll. 11903) 26 Mad., 740 - 13
M.L.]. 237; Saud/Ill Taragallar v Bussa;ii Sahib, (1905) 28
l\Jad. 87 .. 14 1LL.}. 474; .Vevindran,ulhtt Ptllai v. aya
Nadan, (920) 7 A.I.H. Mad; 324"" 54- I.e. 209 - 48 M.L.}. ;\2
(F.B) ; KdiIash Chandra Tarapd.'1 v. Gopal ChandaT Por/dar,
11926) 13 .A.I.F. Cal. 798 - 95 I.C. 494 - 53 Cal. 7'1- 30 C,W.N.
<)49-43 C..L .]. 345 (F.B.\; Kalipada Mukherji v. Ba~antakutJlar
D,dla.llY32) A.I.R. Cal. 126-138 I.C. 177=59 C.1.I17'-35
C.W.N.877; Bltagwati v. Bdtlwari Lal, (1909) 31 All. 82 "" 1 I.C;
410 = 6 A.L.}. 71 W.B.} ; Mohs;" Raza Kllan .v. Hojdar BaldlMI,
(19281 15 A.I.l< All. 36g- 115 lot;. 869-50 All. 670-26 A.L;J.
498 ; Kenar Natlt ". Arml Cllinidra Sinh'l, (937) 24 A.I.R. A~1.
742-172 I.e. 57-119371 A.L.J. 889-I.L.R. (l9mAII. 92['
('{<'.E.); rribwi Prasad Singh v. Rilmasray Prasad Choudlturi,
119311 18 AI.Il. Pal. 241-133 I.e. 337-10 Pat. .670-12
P .L.T. 42.\ ("F.B.) : Hargo"it'd Flflc1~a"dv. Blwdar Raoji, ! 1924)
11 A.J.R. Eom.429 ... 831.C.932 .. 48 Born. 550-26'l?om. L.l~.
601 W.B.); Bira I.al -Molliln Lal v. Ramachimdrll, (1930)
17A.1.R. Bom. 375 .-125 I.e. 703 "'54 Bam. 479 .. 32 Bam. L.R.
619; Hnj Lal v. Dllrga, (19201 A.J.R. Lah. 159 -'56 I.e. 254= J.
Lah. 13-1 = 132 P.L.H. 1t920) ; Gayl1 Sakllsh St.zgh \'. Rajetllra
Ba/uzdllr Sillgh, (1928) A,t.R. Oudh, 199 .... 110 I.e. 83 - 3 Luck,
182 = 5 O.W.N. 108 (F.B.). : ProS:mmo Kumar Sml)'al v. Kalt D,'js
Sauyal. 19 Cal. 6HS; Karloll Bibi v V.M .R:?; -Chetf1'ar, (941)
. RL.H. 767; Hajj Dad" v. PdllllaJ'II, 169 I.C. 99, consirlered.
K K. DASS v. K.N.R.M.N.R. UAGAPPA CHET1:YAR 19
CODE OF CIVIL P I{(\CEDL" In:. s, 115-111terjcrCtll'C wzth il1lerIocu!I'Ty
or(/cls in tevlsjoll. lJeld: The High Comt will interfere in
re\i~ion with interlocutory orders from which no arpeal res if
irreparable damage would be caused by ,refusal to interfere.
Jupiter General I,1SUya'ZCe COmpllly, Limited v. Ablllli A;;z,
1 l~an. 231, referred to and followed. It is'a materi~l i regularity
to dt:cide a case in the absence of a necessary party. Umcd
Mal v. ClldJ/d Mal, 531..<\.271; Laia Alma Ram \'. Lala Beni
Pr.'1sad au:f others, 62 LA. 257 or 57 All. 678, referred to. Jr the
order of the L')wer Court amounts tl) a <\ecision dismissinl! a
necessary party from the suit and drivin~ him to a separate
liligation such order can be revised under s. I:i5 of the eod~ of
Civil Procedure. It is desirable that where there are.common
questions of law or fact to decide the same court in orde!" tl1
avoid Jlossible conflict of decisions in separate suits should
decide those questions in one suit. C S. Govflldarajtl Mtu(aliar v.
rllaRappa ThMllbiram and others A.J.R. (1926) Mai. 911,
referred to and appli~d. -
BABY BINORA] V. RAJ BAHA:DUR PATHAK AND ONE:: .1,' 412
CODI!.- OF CIVILPItOcttnuRB, ORDER 4-1, Rule27-Rccording of e'llidmct
of 'WiItJCsses-Waive.1 til the Trial COllrt-Second APPeal"':-
Erromolls fiuding of {aet-JV/H!11 catl be qllcstiotled-Legal
ef!ccls-Queslio1t oj law. H(/d: That when a witne:ss had been'
xxxii GENERAL INDEX

PAGE
w;lived deliberately by the party no opportunity should be given
unller Order 41, R"le 27, Code of Civil Procedure in appeal. The
proper legal effect of a proved fact is essentially a question of law.
Najar Cltll11dr6 Pal v. Slwk1lT mId others, 45 LA. 183 at 182 i
Ram Gotal and Qtlolf,u v. SIJamskhalO1l al1d otllers, 14 I.A.
22S r,t 232-33, referred to and applied. \Vhere the Lower Courts
had not attempted to consider what was the legal effect of certain
facts proved in the case and gave undue con~ideration to the
absence of a witness there is sufficient ground for interfere:1ce
under s. 100, Code of Civii Procedure.

Dn. MISS A. G. D'NETTO 'lJ. MA AIN Yu AND OTHERs 93

CODE OF CIUMINAL PROCEDURE, s. 3S0-EvidCtJet ptlrlly heard by
one Judge amt C()lltitmed byano/lIlr-Whelher valid-WQivtr Jy
accused-Effect. Where one M<lgistrate heard a case under
summary procedure and his SUCcessor continued the hearing from
the point left off and convicted the accused. H&1d: Under~. 263
of the Code a Magistrate need not record evidence ir. a summary
trial. But if he does record the evidence, that evidence does n(,t
form part of the lecord for according to s. 263 the judgment
recording the substance of the evidence" shall be the only
record". Therefore in a su,nffi;try trial, one Magistrate cannot
use the evidence re..:orded by his predecessor under s. 350 of the
Code. Conviction based on such eddence is illegal for the error
committed by the Magistrate ;affects his jurisdiction. EmpenJr v.
llemandas Devansingh and olhns, (936) A.I.R. Sind 40 ;
Na7mier v. Dtsalitr, 55 Mad. 795 at 799, referred to.
AHoKIYA~f V. SAVARI MUTHU 144

CODE OF CRn.IINAL Pl-/OCEDURE. s. 439 376

\.
- - - - - - - - - - - - s. 34211) (21 178

----5.494 278
_ - . - - .- ~ ~ _ ._ _ ss. 517 AND 520 334

CODE OF-CR~;iiNAL -tiii'JCEDURE-='S. Sis- {4} alld {51~Tra1fsfC1 oj cases

frolll olle C:JlIrt to amtlur-RfQSons J07- to be rcccl'ded-
FUI/ctions judicial-Persoual ktlOwled(,( Of judge. Held:
S. 52~ (5) of the Code of Criminal Procedur~ pro\'icc$ that a
I1Iagi:;trate making;tn order shall recant in writing hi:s reasons
forso doing. A transfer of a case at the whim or caprice of
the l\'Iagistrate st:riously interferes with the working of Courts
and shake:;; the confidence of the public. Transfer of a case is a
jndicial function and must be exercised with due ub:;;ervance
of the procedure ar-o formalities which have to be followed.
Sugltonal Talti/ram v. PlIapalldns Re11l1nal, A.I.R.1l9361 Sind
237 at 240 ; Gcn.I'ardlw1Ulas Kapur v Abbas Alr, A.I.R. (1930)
Lflh. 168 at 169, applied. It is a fundamental of the due
administration of justice that Judges and Magistrates ShOllld not
only be fair and impartial but should also 3ppe:ar to reasonable
persons to be fair and ~mpartial. Vellu Thcvar and auother v.
KiugE.wperor, 10 Ran. 180 follo.ved.
j

THE U~ION of BURMA. V. KYA~V HLA AUNG AND OTHERS 106

COLOUIUBL~ IMITATIO~ BY DEFeNDANT 262

}
 GENERAL INDEX xxxiii
PAGE

COMPROhUSE ORDER-AppUcatrOtJ to sd aside Arbltrafio1l Act,1944,

33-Wlu:lher application under lies. A compromise between
.l..
the parties ?fodded for challell~ing or contesting all matters
under s. 33 of the Arbitration Act,19H. The applicant made an
independent applic,ltion under the said section. Upon objection
that no independent application lay. Held: That the compro'uisc
contained no provision precluding an'independt::nt application or
restricting the remedy and the intention of the parties is not
relennt. The duty of the Court is only to COliS! 'ue the te rms
of the compromise and so constrLled that an independent
application lay.
R. C. S. AGARWAL (a) MUNSHI v. DAHYABII.\I (aJ D. Z.
DABUwALIA AND TWO OTHERS 30

CO:-::DITIO~S OF LIABILITY 320

CO:\'FESSfO'l OF CO\.CCU$~D .-\NO TESTIMO~Y OF '-\'PPROVER 178

CONSOLIDA1'E NOTICE 40t

CO~STJ{UCTIO:ol' OF DOCU\fE~TS, PRINCIPL ~S OF Z50
COXTRACT VOlD BECAUSE CF LIKELIHOOD OF BEI~O VSI!;D FOn
ADULTERATION 417
CONTRACT ACT I S. 70-COllditiollS of Liabrlily-" Lawfully "-
Mea11i1lg of-" Persoll enjoys tlte bt1Jefit" OOIcial Receiver-If
SUC1j persoll-Position of. Held; S. 70 of the Contract Act
requires three conditions viz., that a thing must be done lawfully,
that it mest not be done gratuitously and the person sought to be
ch~rged must have enjoyed the benefit. To support a suit under
this section, there mll::;t b~ an obligation, express 0:" implied, 10
repay. Ram Tu/wi SitJgh v. Bh,eswaT LaU SallOo, (1!:l75) 2 l.A.
131 at 143, followed. The temiS of the section arc witle but ml st
be appli~d wllh discretion to do substantial justice ill caseii where
a contractual relationship cannot be imputed. Suc!ul1ld Gltosal
v.Balar,l1n Mardalla. 11911) 33 Cal. 1 at 7, referred to. The
\v0rd "lawfully" in the section is not a surplusage. Tbequestion
in each case would be whether the persrm paying had a lawful
interest in making it. .. Ltlwflll" has a wider meaning than
legal. GOpCI>1t'aT Ba1lerjee v. Brojo Sundari Devi, (1922) 49 Cal.
470 at 473; Raja Baikllufo iJey BaharfllT v. UdllY CIlalld M'lifi,
(l90~, 2 C.L.].311 ; Punjab/wi v. Bhagwalldns, (1929) 53 Bom.
309 <It 313~314 ; Chedi Lal v. BltagwQIJ Das, (18881 11 All. 234;
cUed with approval. A receiver is merely an officer of court l
sometimes r~ferred to as the hand of the court. He acquires no
proprietary interest in the property. He is not the agent or
representath"e of any party to the suit and ilOlds the property for
the benefit of the party ultimately successful in the suit. He
cannot therefore be said to be a person who had benefited by the
rerairs to the property, belon~ing to another person, Po Sluln v.
Mll1tng Gyi,5 I. ower Burma Ridings, 213 at 215; Mautlg Oll11 Titl
v. P.R.M.P.S.Jl.M. Clutlyar Firm a1ld others. (l929) 7 Ran. 425
at 426; Eastcm Mortgage ami Agency Co. Ltd. and T. C. Tweedle
v. Muhammad Fazlill ](arim and another l (1925) 52 Cal. 914 at
.931 ; Ma Joo Tean altd Qllother v. The Collator a! Ral1l!.ooll. (l934)
12 Ran. 437 at440; HariltliT MflJct:rji v. Harcndra Nath MllkerJi,
(1910) 37 Cal. 75-1-, referred to and follO\'oed.
THE OFFICIAL RECEIVER I RA:-WOON v. M. J\I. MULLA 320
 x ipti v
PAG);.

COSTUACT ACT, S. 231-Righf50j til/disclosed Principal-S.l1 (1) (fl,

r rba!l . Owl Control Acl-"'ReasollaUy al1n bOl1..i fide " -
Meaning c/. Where. the appeJlants had taken a lease of .,ne floor
of a house" from the ownel"s son and subs'('qnenll) the owner
filed ,it ~uit for, ejectment" clai"n'ling thnt the house was wanted
bon<1.fide and reason~'blr Jor ~er occnralion., Held: That the
house having been leaSl d on behalf: of his illiterate mother by
Inc son he mmt have done it on behalf of his mother. Under
5.231 of the ContT:;;! Act a principal can cl:"tiJl1 the benefit of :l
cuntract entered into by the gent in his own name and a suit
for the ejectment by the principal \Vas competent. That the
owner had resided in the hOll~e prior to waT; and the desire
of the owner to occupy the same hOtl$e is bow! fide, as he
desired to live together with her son and family"":'the Son hay,ing
retired from service, such desire cannot be said to be unreason~
able beea'lse the o~vner had Jived in another hOll"e prt'vious\y.
The requirements of s. 11 (1) (f) 'of the Urban Rent Control Act
have therefore been du~y complied with.
SIN YoN HTAUNG 'V. t" B.-\ NYUN A~D ONE 39Z
CONTRACTS FOI~ TRANSFER OF hDIOVFABLE PROPERTY 80
COpy OF DEPOSITIO~ NoT BEARIXG SEAL IE!}
COURl's"/EMERCENCY P~OVISIONS} ACT, 1947 !}

CRIMINAL PROCEDURE-Trinl of cau as S1H1JI1IOtJS case-Proceeded as

Warrant case trial laler-Irrcgularif" or illtgalil)'--Failllre oJ
justice. Held: When a criminal case was tried as a summons
case at the start and then proceeded as a warrant case, the
conviction is not illegal. The M ag,:istrate is bonnd to apply the
pr~1cerll1re laid down for :1 warrant case, when he finds that an
offence triable as a warrant case has been committed. III He.
K. V. Velllwla Ramaicr and o/hers. A.I.R. (1938) Mad. 815,
followed. Raja Ratllam PilL;i v.Emperor, A,!.R. 36 I\'Iad. 341.
not approved. If a mandatory provision of the Code of Criminal
PrGcedure is infrin.f;!ed it does not follow therefrom that there
has been it miscarriage of justice. Ng'l [, Khille (J1Jd others v.
King. Emperor, 13 R~lll. 1, referred to.
MA SHA BI AND TWO OTHERS V. THZ U~ION OF BUR:'IA ... 37~

CRIMINAL CASES 399

CF:OSS~OBJECTIONS 211

DAMAGES. AWARD OF 250

DECLARATION-BARE 211
- - - - - - - NEGATIVE. 189
DECREE-HoLDER AUCTIO~-PURCH,\SEI{ 1
DHIVERY OF CAR 250
POSSESSJO~ 19
DIFFERENCE BETWEEN LEASE AND LICENSE 1
DISTINCTIoN BETWEEN CCNFESSION OF CO~ACCUSED AND
TESTIMONY OF Apl'ROVER 178
DISTRICT COURT. WHETHER LEGALLY COMPETENT TO ISSUE
NEGATIVE DECLARATION 189 ).
 xxxv
PAGE:

DIVJSIBILI'ljY. OF CON'TRACT 417

DocuJ'>fE~r.NONCOPYJNG OF, IN Boo"( I OF REGISTRATION OFFICI'..
IF InRFGUL"RITy AND CURABLE- 331

EFFECT OF INSTRU~JENT 1

EJECTUEN'rVNDER-Ex pa.rte deerte for cjatment-Set ai>lde laleT-

Afiklic/llioll for rdlJstlltcm~ld )IJ defend/wi-So 144 or S. 151 Of
Cod~ of Civil PIOCCdIlYc-Order Illlder s. 144 of !h.c Code-if
appeal pes-Revisioll-lllier!aellct. \Vhere the lower' court gave
a de...:ree for ejedment ex pIrie and put plaintiff in possession in
execution ;md the decree was later set a~ide upon defendant's
aF~lica'ion .and the CO'.lft pllrpotted to put the ddcndant back in
posE"'s:,ioJl under s. 14-1, Code:: of Civil Procedure. Held: fhat
s. 144 of th~ Code of Ch iJ Proced.1rc applies only when the
dcc;:rec had been varied or re\'ersed b): an)' appellate or revisif)nal
authority; anrl the order for restoration was in Ihis case one
under ble inherent power of court unders. 151", Code of Civil
Procedure and not under s. 144. \\There subslantial justice has
been done. the High CJart will not interfere in revision. Th'e
error in quoting s. 144, Code of Civil Procedme is only a technical
ereor. Valn.b Das all/I. Olle v. Malllt'! Ba. Than ll.JLd Jival1dlfS
SIIVchalld v. J!;;wug Ea Th'HI, I Ran. 372, toJlowed,
SULTAN AHMED v. :NASARA JAMAN 37Z
E~HANCED PUNfSmrENT FOR OFFE~DERS WITH PREVIOUS
CONVICTION 3n
ERRONEOUS 1:'~J:'l:)lNGS OF FACT 93

ESSIENTIAI. SUPPLIES AND SERVICES ACT {XLVII OF ] 9471-S. 8 (11 aud

(2) to be read 'with s. 517. Criminal P,pcedll."c CoJdc-" Shall be
liable toJ co/Lfisc"fiv11 "-Merwilll!--Ordcr 01 acql1ltlal under .~. 8
(lJ-If ca'l be 'varied or i.';lIoyul by Distrirf Magistra!t~ 1IItder
s.250, Criminal Procedure Code. Held: The words" shall be
liable to confiscation" in', s. 8 (2) of the Essential S"pplies and
Services Act. 1047 does_ not rnean the same thing as" shall be
confiscated." The discretion I)f the Court with refe,ence to
disposal of propert)'conferred by s. 517 of the Criminal Procedure
Code, is not in any way fettered by s. 8 (2). What is envisaged
by s. 1:1 (21 is that the Court shollld bear in mind the desirability
of confisc,lting the property mentioned in that sllbsectioll. As
the accused has been acquiUed by the tria! Court on a charge
under this subsedion, it is not open to the District Magistrate
p.trporting to 'let under s. 520, Crim;nal Procedure Code to COrne
to a contrary finding; as there was no appeal against the
acquittal <lnd such an appeal did not lie to that Court.
MAUNG TUN YIN v. THE UN:ON OF BUR~IA 334
E:HATE OF DECEASED STEP-GRA.}!DPARE~T 55
ESTQPpgL. \VHA"r CONSTITUTES 163-
EVIDENCE ACT. 5S. 30, 1 01 A~D J 33-Coll!cssioll of a co-accused and
testimony ofaIL approvCY-Dislillctioll-Crimillal ProcedlllC Codt:.
s. 342 (11. (21-StntcllIellt aud t:'/.idwce of <1 "a-accused /low far cau
be used (l~ahtst another.. Held: That the confession of a
co~accllsed is nut on the same foofinR as testimony of all approver
which is substantive ev;dence in the serise that convidion C:l.n be
based on it alone under s. 133 of Evidenc.e Act. If there be no
prllna facie evidence <l.gaitnt an accused person, confessiorl of a
xxxvi GENeRAL INDEX

PAGE
co-accused should be excluded. It ClnnJt be t1s=.1 tf) fi'l up the
{!ap in the evidence of the prosecution. Klza,v T4'tV an.l olle v.
The Umoll of Bllnn,', 119Hl H.L.R 3lO, folloNd. SimilJ.rlv
evidence given by a co-accused under s. 342 (I) as amcnded, of
the Co;le of Criminal Procedure m.IY be used as a~ain:it a
'Co-accllst:d when the co-~ccllsed had opportunity to cro.sse:tamine
and of-calling evidence in rebuttal. U Sa.v aud "i'le tJ:hersv.
The lluiJn of BUY1lh, (19481 H.~.R. 217, followed. Po Hafl
n/ld TIm Ei v. TI,e Kil1f!, (l947) R.L.R 319, distinguished. But
it is a f ltndamental principle that in a criminal trial the b~lrd~n of
proof lies on the pro!lecuti)o to establish the charge b~yor.d
reasonahk doubt and this principle 1135 been recognized in s. 101
and illustrati(JU (Il) to that section together with ~:efinition of
proved' in s. 3 of Evidence Act. Where an accused pe~oll
should have been dischar~ed for want of prima fa;;e evidence
ag"iL15t him, the court should not use the evidence of a coacctlsed
l!iven under s. 3U {U of the C)de of Criminal Procedurp, to fill
up the gaps in the pro;ect'tion. The word used in s. 342 (1) is
llIav and not < shall.' K;"gEmperor 'I. U Damapald. 14 LL.R.
Ran. 666 (I<" B.) 68:, follo,ved.
BA PE AND OSE V. UN1 , N OI<" BURMA ... ,,,
~
178
EVIDENCE Act-55. 32, 43, b5 and 76-PreviotJ.!> dcpositi(lIJ. i1l Criminal
caSt whether ad11liss;b1e-Judgwwt 01 Cri1Jl1llal COut t if relevllut
2'n Cil';1 case-Copy of depoSItion 1IOt beariug seal--SecJlldary
evidence admissibility of-res judicata-Judgmcut by District
COI~rt :mder s. 42, Spec-ilic Relief Act-Whe/lter Ihe Dis/riel
COllrt legally competent /0 issue negati1'e declaratioll-Nature
of such jttrJsdicliolt-Cltallge of religion right to i11herilallce
if affected-Caste Disabilities Remowt Act, 1850. Plaintiff who
W:l:; 62 years old brought a suit for administration and p:lTtilion
claiming that he was the eldest survhing son of the deceased by
his first wife. The suit was reshited b: the widow and others
illfcr dillon the ground that th~ Plaintiff was not a SO.l of the
deceased but was the son of his first wife by her previoas
marriage, and that issue was- res judicata by reason of a prier
decision on admizsion in a suit brou~ht by the decr:ased as
__Pl?-~ntiff . ~I"! the Districl Court of Myaungmya <:!gainst the pres~nt
Plaintiff as Defendant for a declaration that' the pre;:;ent Plaintiff
\Vas not his Ion but was his step-son. The_ Plaintiff by way of
repiy conknded that the District Court had no jurisdiction to
gr:mt a negative dec1araliJn under s. 4:1 of the Specific Relief Act
and that therefore the previous proceedings cOlid not be
res judicata in a sub;equenl snit. Defendants al~o relied on
evidence given by the deceased in a Criminal case between the
deceased and the present Plaintiff in which the deceased stated
that the present Plaintiff was his step-son, and also r~lied on the
judgment in the Criminal ca.se. Held: That the Plaintiff was
admittedly at a disadvantage when he has to prove incident
which took place 63 or 64 years 2.go, but it is Plaintiff's duty to
give convincing evidence regarding his claim of paternity.
Khwaja Almud KI/an v. 11ft. IIarntuZi KJlanam alld others, (1921)
A.I.R. Oudh. p. 81, referred to. The statcmeilt by the deceased
relating to the relationship b~' marriage between the present
Plaintiff and the deceased in a Criminal case is admissible umier
s. 32 (5) of the Evidence Act. A copy of the judgment in the
Criminal case, however,is irrelevant under s. 43 of the Evidence
Act as the existence of such a i'ldgment was not relevant for any
purpose. MuluHlldi Be~/ll1I v. DlJrga Prasad and another. 40 I.C.
452; Pedda Venkatapalld Y. GatJagunta Balappa and others, J
 GENERAL INDEX x:I...{vii
PAGE
..\.1 .R. {l9331 Mad. 429; L. Sri R4m m,d others v.Mohamed
Abdul Rahim Khall and one, A.I.R. {19381 Ol1dh, 69, referred to.
As the proceec:.:ngs in the Criminal case had been lost or
destroyed, the ddendant was entitled to give secondary evidence
of the contents of the relevant document filed in the criminal
case. The objection that the copies did not be:.\. the Seal of the
Court and therefor~, CQuid not be considered as certified copies of
public docl'ments is untenable. Sri Ram and others v.
MJlhammsd Abdul Rahim Khan IltJd others, 172 I.e. 832;
K. O. Kalol1dan v. If. P. KU1l11111lni Kid,:vtl and ot1zers, 6 Mad. 80 :
It: the Matter of ColUsion betwem U Ava" aud II Brt1lhilda ",
(1SS0) 5 Cal. 568; C. P. iVdrai" Singh v. B. P. Naraill Singh,
5 Pat. 777, referred to, Copyists who prepared the copies
having sworn ,to the genuineness of the copies and the
signaluresappt:aring thereon there is a presumption that the
acts of the_Court have been regul~rly carried out. Baijnatlt
fwd .:mothe. v. Srtbltagtcan aud others., A.l.R. (1926) All. 691,
followed. Copy of the judgment in the Civil Suit in the District
Court of Myallngmyn. between the decea:.ed and the plaintiff is
admissible as the issue now raised had been conCluded by the
decision of a competent Court in' a previous suit. MaroN
Laxman ]{osltti ana others v. J al!QlI1tl1tltOtl L4cltmandas Gadewal
aud another, A.I.R. (1939) Nag. 72, referred to. The question
whether the plaintiff was son or step-son bad bren finally raised
and determined in the previous suit and was therefore,
res Judicata. The application of the principles of res judicatlt
dealt with by s. 11, C.P.C. should not be inf\llenced by techllical
consideration but by matter of substance within the limits
allowed by law. Kalipada De and otherS v. Devijapada Das
and ollltrs, (1950) LA. 57, followed and applied. The Di~trict
Court of Myaungmya had jurisdiction to entertain the previous
Dispute. Jurisdiction mOly t-e divided into three heads with
reference to fa) the Subject-matter, (b) the parties or (c) the
particular question which calls fa: deci~ion: where the Con:-t
possesses inherent jurtsdiction and merely assumes or exercises
it in an irregular or illegal manner the judgment is flat a nullity.
Su'kh Lal Sheik v. Tara Cha/ld Ta, 33 Cal. 68; Asll1llosh Sikdar
v. Bellari Lol Kirt,mis, I.L.R. 35 Cal. 61; fl. N. Roy v.
R. C. Bartln Salma, (921) I.L.R. 48 Cal. 138, referred to. In
entertaining the previous suit brought by the deceased for a
de..:laration that the present Plaintiff was a stepson, the District
Court was acting within .:ts competence. B. S. Vaktuba v.
T. A. Raisil1ghji and others, (1910) 34 Born. 676; Chimwsomi
Mudaliar and alloITter v. A. J,111/daliar,29 Mad. 48, referred
to. Dmu POll v. Ma Hni1t May, A.I.H.. (1941) Ran. 220; Malmwd
SlIah v. Pir Shah, A.I.R. (19361 Lah. 858 ; Maultg Attng Tltei,~ v.
I _
Maullg . Ea Maul/g, (1940) Ran. 54, distinguished. Piaintiff's
contention that all the parliesclaimt:d through ~hc deceased and
therefor~ the plea of res judicata was not available is not
legally sustainable because plaintiff is not claiming under the
deceased. Syed AsltRar R~'i:a Khllll v. Syccl Mohamed AJduii
Hussein Khan dna olhers, 30 l.A. 71; Mllppal1ar and others v.
Vija}'athanzmal. (i i'tlad. 43, distinguished. Under fue C<lste
Disabilities Removal Act, 1850, th~ rule of Mohanledan Law by
which a n')n-Muslim is excluded from succession to a Muslim
!1as ~een Olbrogated and Plaintiff had not lost his right of
mhenlance by apostacy. Rttpa and others v. Sayder Mirza ami
others, A.I.R. (1920) Lah. 2~6; C.V.N.T. ClJidmnbaram
eltel/yar V."Ala Nyein Me aud others, 6.Ran. 243, fullowed.
AzIY: l{HAN 'V. DA\V KlfJN AND OTHERS 1&9
6
xxxviii GENERAL INDEX

PAGE. .

EVIDE:NCEACT, S. 35-AdmiSSiollscontained in a jl/dgmeJlt-Admi$si~

b:lity-Ortler 41, Rule 23j'Code oj civil ProCedure-Prelimmary
1oint. Held: A previous judgmt'nt containing an admissit)n
m:a.de bya party against whom the judgment \vas sought to be (
used is relevan"t under s. 35 of the Evidence Act. Where a COurt
acted upon an oral admi;;sion an_d recorded it in its "judgment it
constitutes the only official recprd ar.d is aJmissible as Sll~h
ajmis$jon. KrislmasfJllii AYYaTlger v.Rajag ,pala Ayyangar MId
oillcrs, 18 Mad. 73 i GlIjju Lall v. Faflth Lall, I.L.R 6 Cal. 171 ;
BY;7thamma v. Ayulla, I.L.R. 15 Mad.19 at 23. ~ Pa.rbulty Das:);
v. FUTIlO Chunder Singh. I.L.R 9 Cal. 586; TltamQ v. KOlldau,
I.L.R. 15 Mad. 378 ; V. E. R. S1zMarajla CltelHar and others v.
SCl1<l1nJl/ Jill A.sarti, A.I.R (1933) Mad; 184, referred to. Col/(.~etor
oj Gorakpllr v. Ram Stwder Mal aud ethers, A.I.R. (19341 W.C.)
157 at 165.' (oll.owcd. The expression'" preliminOlry poin!"
occurring in Order 41. I~ule 23 of the Code of CivH Proe~dure is
not confined to sneh a legal point only a$ niay be 'pleaded in bar
of a suit but comprehends the necessity for determjnin~ other
points or issues. Ramachalldra 10i5h; v. Hazi Kassim, 16 Mad.
207; Mala.Yath Veetil Raman Nayar and o/hul v. Krishnan
Namblldripad, 45 i'tfad. 9(11): Main Din fiml a/hers v. Jamna Das
alld 'a1wther, 27 ,\11. 691 i Megan V"be aitd allotlter v. Pran
Singh and others, 30 All. 63; . Kamla amt others v. ParMa
Dayal and a,io/her. 39 All. 165, referred to.
TIn.. OFFICIAL RECEIVER v. MA:::'lIKRAM BALABUX BAJA] 234-
EVJJ)E~CE OF Co-ACCUSED 178
-------. PARTLY HEARD BY ONE JUDGE !44
E...: palte DECREr:. SETTING ASIDE 372: '.
EXECUTORS. SALE BY ONE OF TIlE 163
EXECUTION. MEA~ING OF 220

FAILURE OF ]USTICR. TEST 374

FA:-.nLY AGREF.l.ENT RRD,UCED TO WRITING 111
FOrma Pauperis LEAVE TO SUE A$ 246
FoRElGN EXCHA:\'GE CO~TIWL REGULATION ACT, 1947-S.9 (2) and
s. 24 (lJ-Jewels rcmo:..ed from baggage before customs
examil1a!iOIt-Wlttther any offe"ce cOl1luutted-Or attempted
ll11dtr s. 511, Penal Code. Held: No offence is committed und er
s. 24 (IJ read with s. 9 (2) of the Foreign Exchange Control
Regulation, 1947, where jewels contained in a tin are removed
from the baggage b-::fore customs exa'mination , as no jewellery
has been taken out of Burma, without written permission of
the Controller of Exc!lange. Nor can there be a conviction for
atte'mpt under 3. 511. Penal Code as an attempt cannot be said to
have been committed, unless the full offence would ha\'e
been completed if not interrupted. S. 51t, Penal Code is only
applicable to attempts to commit an offence punishable under the
Penal Coda and not one punishable Hnder a Special enactment.
EBRAHIM A. AZlZ 'V. THE UinON OF BURMA 338

HIGH TREASON ACT. S. 3 (I)-Offence under High Treason Act-

Whell committed. Held: Under s. 3 of the. High Treasnn Act in
order to constitute an offence under the High Treason Ad the
 GENERAL INDEX xxxix
PAGE

purpose and intention must be of a general public nature as"

contradistinct from a private one such as theft or robbery.
R. v. Gordo1l, (1781)11 State TTL,.}s. 4863t 644, 645; R. v. Hardie,
(820) 1 state Trials (KS.) at 765, followed. In a crimin-l case
it is 110/ incumbent for an accused to show what was the objecl
and the meaning of the acts d(\ne, but for the prosecution to make
out these against the accued. The onus is upon the prosecution
to 5ho\'" that the object of' Ih" nll.ltitude" which rise :.md asserr.ble
to attain the same by force and violence is of a general public
nature as dislingLJ~~l1Cd from a merely prtvate one.
BA MAUNG 11. THE UNION OF l:H1RMA 131
HIGH TREASON ACT-S.3 (lJ....:..Olllls.j proof_Purpose ami intenl of
, '.. accused-Public tint tire as agamst private-Firing Ou Police
Party"'o escape. Held: It is the duty of the prosecution to make
out the case charged against. the 3l.::cused. .. Waging "Var " is
defined in s. 2 of the High Treason Act and the decision in
AUIl.R. Hia and others v. KiugwEmpcror, (:) Ran. 404) dealing with
an offence unders.121, Penal Code la)s down the principles to
be followed in such a case. The intention of the accused must
be to attain an object of a general or public 'n'ature by Jorce or
violence. R. v. GordOTt, (1781) 21 State Trials, 486 at 644, 645 ;
R. v. Haraie, flH20) 1 State Trials (N.S.) at 765, referred to
\\Then the accused fired on a Police Party \\ ith intent to escape,
it cannot be said they were achieving any object of a general or
public natur~ and a conviction for High Treason is notsustainacle
but only one under s. 333, Penal Code reae! wi~h $. 511.
GyO KAI~ v. THE UNIO~ OF BUHMA 300
II,LEGALITY IN TRIAL" 374
I~J.RIl\"GEMENT OF RIGHT 262
TRADE-MARK 41
INNEREN'T POWER or' COURT 37Z
I~TENTION OF PARTIES 250'
INTEREST IN SPECIFIC hn.roVEABLE PROPERTY 80
INTERFERENCE WITH INfERLOCUTORY ORDERS IN REVISION 412
l:-<TERLOCUTORY ORDERS 412
INTERL.oCUTORS QIWERS WHEN REVISABLE 100
INTERPRETATION 370
OF STATUTES 2SS
lNVENTED NAME" OR \VORD 262
IRREGULARITY IN TRIAL 374
JEWELS REMOVED FROM BAGGAGE llEFoREE CUSTOMS EX ....MINATION 33S
JUDGMENT OF A CRIMINAL COURT IF RELEVANT IN CIVIL CASES 189
JUDICIAL FUNCTIONS HOW TO HE EXERCISED 106
]UHISDICTION 295
- - - - - - - OF DISTRICT COURT 189
JUSTICE, EQUITY AND GOOD COX')CIENCE 55
-'
xl GENERAL INDEX

lliW/la GRAND-DApGHTER ss
K~OWLEDGE OF NATURE OF CRIMINAL ACT 352
.(
LAW. POINTS OF 163
LAWFULLY, MEANING OF 320
LEASE AND L1CENCE-DijferctJCe belweetJ-:--Etfu,t of instrument 10 be
considered-S.IO; of the TYIlJlsferof Property Act. A doc.:umenl
between the parties contained clauses that' F ' allotted in his
business premises a portion mentioned and for allotment of such
space the appellant was to pay a sum of Rs.100 as II gu.,7anlee
com mission" on the business and radio sales, etc., and tbat the
parties were to observe strictly business hours on week days
Snndays and holidays. Held.. That the document was on~
evidencing the liceming of a ponion of the suit premises for
selling radios. etc. Heltl further .. The test for determining
whether a traodact.ion is a lease or a licence is to see whether the
sole and exclusive occupation is given to the grantee. The Acting
Secretary It,) tile Boa ..d of RtveJllle v. Agent, South Indian
R"i11vay Co. Ltd., 11925) 48 Mad. 368 ; Frtwk Wary & Co. Ltd. v.
l..olldon County CounCil, (1904-) K.B. 713 at 720, referred to.
Secrdaryof Slate/or Indta in COlwc.il v. Blmpalcllandra Ray
Cllatld/luri,57 Cal. 655; Glcllwood Sltmber Co. Ltd. V. PhillIps,
(l90<l! A.C. 405 1 distinguished.
GURi3ACHAN SINGH v. Jos E. FER!'IA:'IDO 1
LEAVE To SUE ill forma pallperis 246
LEGAL EFFECT FRm,r PROVED FACTS IS LA W 93 l
_ _ _ RIGHT TO EXCLUSIV USE OF TRADE-1IARK. 'VH'EN'
ACQUI~ED 262
LEGITDIAC'l:9F Kilitha CHILDREN SS
LIABILITIES (WARMTIME ADJUSTMENT) ACT, 1945. ssl 3 A:-;D 5-L;lIIi.
tillion Act; Schedule 1, Article lSI-ExecutiolL-Mea1ling .:1[.
Where a decree-holder obtained a decree for money on 12th July
194b and applied {or execution on the 11th Jlliy 1949 \vithout
-obt;lining leave to execute, but on 5th Augu~t 19-19 he applied for
leave under s.3 of the Liabilities ('Nar-Time Adjustment! Act,
1947, and the application was granted by the High Court.
Held: That Article 181, First Schedule Limitation Act, does not
appl y to an application for leave under s. 3 of the Liabilities (War-
Time Adjustment! Act. There is nothing in the said section to
indic:lte when tr.e period of limitation {Or ;tn application is to
commence, an(i nowhere else in the Act hOts any such period been
fixed. S. 3 must be read strictly as it encroaches on the ordinary
right of a person to execute a decree or or~ier. Execution means
carrying out the judgment or order of a court into efft:d and must
be so read in s. 3. The decree cannot be said to have been made
effective unless something h;ts been done to make it so. Order 21,
..
Houle 17, subrules (J :1.. {2) <lnd 14), also indicate the meaning in the
same sense. It is therefore sufficient if the leave of the court under
s. 3 is filed in the Execution proceedings before the executing
Court passes an order allowing execution. An application for
leave to execute and an application to execute :are different
applications and question to be decided in these applicatio.s a.re
different. An application for )xecution might be reJected for
-formal 01 t~-:.hnical difficulties. In an applic:a.tion for leave to
 PEliERAL INDEX xli
PAGE

execute. s, 5 of the Liabilities (War-Time Adjustment) Act, 1945

describes the matters to be considered. It is nol necessary to
consider in such application whether the execution application is
barred hy limitation. This mu~t be considered in the execution
proceedings itself.
U MAUNG GALE v. V.V.K.R.V.S. VELAYUTUAN CHET:rIAR 220
LIMITATIOS ACT, 55.4 AND 14-Cotlrls Emergency Provisions Act,
1947. An application for execution was filed in 11)44 but closed
on 2nd February 1945 and thp. decree-holder made a fresh
applic:l.tion for execution within the meaning of s. 4 of Limitation
~ct-on ZOtll.May 1948 claiming that as the Court was closed up
to the 31st March 1947 under the provisions of Court Emergency
Provisions Act, the period during which the Court was closed ~
should he elcluded. Held: That the application was barred by
limit<,~ion. s. 4 of the Limitation Act does not extend the period
of limitation and time during which the COlir~ was closed could
not be excluded in computing the period of;limitation: S.4 is
distinct from s. 14 of the Limitation Act and the lan~uage
employed in s. 4. has nothing to do with computing the prescribed
pe;od or altering it. MaqbuL Ahmad v. PralafJ Nami1J Singh,
I.L.R. (1935) 57 An. 2.:J2 at 248, referred to and fcllowed.
U AUNGKHA A~D A='IOTHRR 'V. DAw to.-JI 89
LIMITATION ACT, SCHEDULE I, AUTICLE 181 ... 220
LIVING IN NEW HOUSE BY OWNER IF ESSENTIAL FOR PERMIT 346

MAINTAINABILITY OF BARE DECLARATION 211

SUBSEQUENT ApPLICATIONS 246
1fAlmYIKG MOHAMEDAN ANi> CHAKGIKG RELIGION 288
MIl\'OR PLAINTIFF-WHO CAN REPRESENT 33
MORTGAGE DECREE 226

1IUIUJER COMMITTED BY PERSON UNDERGOIN'G SENTE='ICE OF

TRANSPORTATION 352

NATURE OF TRrAL BEFORE SPECIAL TRIBUNAL 376

NEG,WIVE DECLARATION 186

NEGOTIABLE INSTRUMENTS ACT. 55.26,27.28 313

NOTICE UNDE'R s. 106. TRANSFER OF PROPERTY ACT AND S. 11 {ll (aI,

URBAN RENT CONTR0L ACT, 1948-Stut by J"egi~terld post-
Wrong address_No prmllllttioll oj service,' Held: The despatch
of a notic(' under s.106, Transfer o[ Property Act and s. 11 (1) (al,
Urban Rent Control.-\ct, 194::1 by registered post to a person at a
wrong address will not raise any presumptio:l of sernce. The
burden of ?roof is on the party asserting to show that inspite of a
wrong address being given on the notice, it was in [act delivered
to the defendant. The ser.. . ice of notices under the abo'l'." sections
is a condition prec~dent to the filing of an ejectment suit.
ABDUL BARI 'V S. M. ABOWATH 401

OFFENCE UNDER HIGH TREASON ACT WHEN COMMITTED 131



.xlii GENERAL JNDE~

PAGll:

~OFFICJAL RECEIVER 320

OPINION OF WiTNESSES -j\S TO Sn.nLARITY OF TRADE-MARKS 41
ORDER 21, RULE 89 (1) (bj. CODE OF CIVIL PROCEDURE-PerS()u
handing such plopcrly or holdillg i1Jtcrest acquired before salc-
ReviSion. Where a d::cree-holder purchased profJcrty in public
:auction and deposited 25 per cent on the date of the sale but'prior (
:to confirmation applied, under Order 21, Rule 89 of the Code of
Civil Procedure to set aside the sale stating that the jll~g01ent
debtor had sold the house to him long .before the court $nle ex-
'Plained the circumstances under which he had to bid, and asked
.1hat the sum deposited by 11im be taken to be the 5 per cent for
payment to the Purchaser. H~trl: ~J'hat his failure to deposit in
Court the amount specified in the sale proclamation as that for the
recovery of which the sale was ordered was a mere technical
error. The executing Court was wrong in holding that the. ~
;applicant was not competent to present an application under
'Order 21, Rule 89 of the code of Civil Procedure. This error on
"the part of the COllrt res'llted in its failure to' exercise a jurisdic-
'tion vested in it by law. The execution sale is complete after hie
:bid has been accepted and the deposit paid under Rule 84.
:ltlohamed Yacoob v. P,L.R.M. Firm and aUu:rs, (1931) 9 R,m.
608, followed.
MAUNG THEW NGW~ 'lJ. U MAUXG MAU~G 115
ORDER 41, RULE 22, CODE OF CIVIL PROCEDtiRE-Dedsi\l1l til favour
of a party-WI/elller crossobjecfiotls 1~':ceSStlry-Specific ReU,f
Acl, s. 42-Bare declaratiOtl_ When tarty etltu/ed to partrllOtl-
Manltrillability. Where a suit had been dismissed by the tria~
Court on merits, but the.: tr::ll Court at the same time held
that the suit for bare declarath:m that r Jaintiff was an Or,lsa son,
without asking for p;uWioa. was susbinable ag:lin:;t the
defendants. Held: That notwithstal\ding: the fact ,that on cross
objections had heen filed undcr Order 41, Rille 2:. Cod':: of Civil I
"-
Procedure the re,:;pondellts CQI1\d support the jt1dgn~t"nt in their
iavOllr upon an issue decided aJ,!a.instthem. It wa:;; n"t ilecessary
to file cJ'ossobj~CtiOllS in the circum~tal1ces of the t','st". as the
ddendanl~ had no rig;ht oi appeal against a judgmt:"llt in their
favour. AbiuilShduwdnf Gho$/l v. NaYf/hf1ri Melllllr, (1930)
J.L.R, 5i Cal. 289: TI/tlsukh R,d v. Gopal ftfahtQIl,1l929) I.L.R. 8
_ Pat. 617;. MidnajJuY_ZamilUfaJi .Comp,wy, Limited v. Naresft
C!l,mdra Roy, (1921) J.L.R 4-< Cal. 460 (P.e.!. referred to,
A. t aspersz v. J(i,;!lori L,11 R"y awl others, P8Wl} I.L.R. 23
Cal. 922 at 929, distinguh>hed. Hdd also: Tlu.t the Iiroviso to
s. 42. Specific Relief Act, prohibits the comt from granting a
decree for bare declaratiO:l, whe.:re th~ pl,lintiff. qein~ able to ask
furiher relief, omits to do so. In the prC5ent case, the plaintiff
<could and should have asked for parlition ; as he had persisted
even in ,\ppeal that the suit was properly.filed he could not be
allowl"d lo amend the plaint at that stage of appeal. SlIray(wa-
rtlya,~amllrti (mil ONe v. Tamll/aml'l aud another, 11902j I,L.R.
25 :\[ad. 50~ at 506 ; Pl/ranS nnd otherS v T. Ammal alld ot1lers,
A.1.R. (1937) H.an. 427 at 428, rderred to nnd follo\led. Natesa
Ayyar v. Mangalathammal, A.I.R. {19~3J l\Iad. 503; Vedanayaga
J.1Judnlil1r v. Vedawlllal, (19041 I.L.R. 2i r...l ad. 591, distinguished.
Purpose fQr which letters are issued and the object for which ;m
AdminhtraHon suit i~ filed cannot be said to Le the same.
Muuug Ye Gyall v.Na Hmi ami t!tree Qtlter-~, (1900-02\ J L.B,H.
155 at 157, referted to,
TA~ GWAN LYE 11. MA THAN YiN A'l'D SlX OTHERS 21t
i
 GENERAL INDEX xliii
PAGE

.onDER OF M.-\GISTRATE WHETHER JUDICIAL 278

'OWNERSHIP of TRADE.\:!ARK-TO BE DETERMINED-PASSING OF 41

PARTIES. MEA:-1ING:>F .... 288

PARTl'flO~ 211
PENAL CODE, 55. 84 AND 302 (I) (b)-Murder COln1/lilfed. by person
undergoing settlence oj transportat~c:l-Accust:d subject to fils-
Test-Knowledge ofnatuTt of acl_UusOUtldlltSS of mind- When
a defence. A person, undergoing a sentence .of transportation
for life, stabbed a convict warder to death on the chest \\;ith a
pointed weapon alld claimed that he came under the provision of
s. 84 '(if the Penal Code as he was subject to epileptic fits of giddi-
ness anL that he was not liable to conviction and cannol be
,senlenced tQ death under s. 302 (1) (bl, Penal Code. Held: On
appeal, that under s. 84, Penal Cede, which i:s in substance the
same as the 'aw laid down in the Jllswers of the Judges to the
House of Lord, in Mcnaghttn's cas.;:, it is only unsoundness of
mind which materiaUy impairs the cognitive faculties of the mind
.so that the offender is incapitble of knowing thenatur..: of the act or
that he is doing wron~, that exempts from criminal liability.
Queen-En/press v. Kader Nasye," Shalt, (t8CO) I.L.R. 23 Cal. 604;
Nga Po Tha v. Quun-Empre$s, (1893-1900) Printed judgments,
Lowet Burma 249; Mani Ram v. Tile CrtY.JJn, (1927) I.L.R.
8 Lah. 114; Glmngar'Mal GIJan;a L.Il v. Emperor, A.I.R. (193~)
Lab. 355; Mnung Gyiv. King-Emperor, 7 L.B.R. 13; Tult Baw v.
King-EmperGr,6 L.B R. 100 (F.B.); Nga Stiu Gale v. Kiml,-
EmPerDr, (1934)12 Ran. 445, referred to. There w~:s no evidence
"that the cO.l!nithre facultip.s were so impared in this case and the
conduct of the accused subsequent to the Occurrence showed that
he stabbed human beings in vital parts for -reasons, real or
i"
imaginary, the conviction for murder ;,vas correct.
SA PONT (a) PAW Lu V. THE UNION OF BumJA 352
PENAL CODE, s. 511 ... 338
PER1U!>SIVP; o'CCUPATIOl\ 369
Persona Dcsig1JI~ta 285
PERSON ENJOYS THE BEN.EFIT 320

POINTS OF LA\\'. \VUEN" CAN BE RAISED FoR TH"E FIRS~ TmE 163
.f'RELn.UNARY POINT 234
PRESUMPTION' OF SERVICE .. ; 401
PRl\VICUS DEPOSITION IN CRIl{lNAL CA'"iE WHETHER ADMISSIBLE 189

PRINCIPLES GOVERNIN'G AMENDMENT OF PLEADIKGS 361

2ROCEDURE--CHAXGE OF 374

PROMISSORY 80TE-Sigllatllre as age1tt nut itt docu.ment-Negotiable

. nstrtt/1l~lIts
Act. 1881.55. 26, 271 28-Whether e.xecution Uti
behalf of undisclosed 'pr;/Icipal cottld be proved. Where two
promis!ory notes in favour of a'ppellant were aigned by
p; P. Thevar and there was nothing on th... instrument to suggest
xliv GENERAL INDEX

PAGE

that P. P. Thevar acted as agent for anybody. Held: That the

name of the person to be charged up m a negotiable instrument
should be clearly stated in the instrument 50 that the
responsibility is made plain and can be instantly rcognized.
Sadasuk Janki Das v. Sir Kjsllan Pe.rsTtatl, (1919) ! ,L.R. 44 Cal.
663 at 668-669, followed. Ramgola1 Ghose v. Dhirendra Nath
Sm atHt others, (llJ271 I.L.R. 54 Cal. ,\80 at 387-388, referred to.

AHMED SOOLElofAN DADABHOY V. MESSRS. P. M. MOHAlrlED

HAldJD SONS .. J 31'>
PROOF. ONUS OF' 300

PROPERTY PASSES. 'WHEN 25(}

PUBLIC NATURE AS AGAINST PRIVATE 30t}

---POLICY HOW FAR A SAFE GUIDE 27S \

PUI<CHASE OF CAR BY AGREEMENT AND RECEIPT OF PART CONSIIlERA-
TI0N-Whw property passcs-lntelltion of parties-Pritlcif>les of
COJls/ruetion of documents-Delivery of em-Balance price not
paid-Award of damages. By an agreement dated the 9th
April1'-J49 the AppeUnnt.. and Hespondent entered into a contract
for"the purchilse of a car for a sum of Rs. 14,500 and an advance
of R~. 10.0JO was paid. The agreement provided that un failure
to P1.Y the balance sum of Rs. 4.500 by the 30th April1Y49. the
sum advanced. i.e., Rs. 10.000 was to be forfeited and the car
must be rdumed. The appeHant5 failed to pay the balance s..tm
of 1<s. 4,500 by the due date. The owner s\led for recovery of the
car and the daim was decreed in lile trial Court. Held: That
the question whether the property in the car passed depends on
the intention of the parties which has to be gathered from the
terms of the contract, the conduct of the parties: and the cirCum- ,>
stances of the case. The Sale of Goods Act q'lalifies the rules by
which such intention is to be =tscertained. It is the duty of the
Court to look at Uie whok agreement and tind out what its
substanUal effect is. In-fhe Parchim, (19181 A.C. 157 at p.l61 ;
Alr./tander Knox Me Entire and Joh:J Arthur MacJllchy v.
Crossley Brothers Limited, (1895) A.C. 457 at 'pp. 462-463.;
referred to-and followed.- .It is nowhere stated in the agreement
or the receipt'for Rs. 10,000 that the property in the car was not
to pass until the bala:lce price was p:aid. On the contrary' the
wording of the a~reement that" tlte Purchasers have this day
bOllgllt" implies that a sale bas been effected and propert~.. has
passed. Reading the agreement as a whole it is clear that there
was a complete sale by which the property in the car had passed
to the :appellants, and as there is no provision in the agreement to
terminate the contract ann/or to cancel the sale on the failure of
the :olppellants to nay the balance price, the respondent is not
entitll d to get possession of the car. BMmjt N. Dalal v. Tht:'
Bomba}' Trusf Corporatiolt, Ltd. (1930) 54 Born. Series, p. 381 at
p. 396; The Aulo SUPPLy Co. Ltd. v. V. Ranghullatha Cherty,.
(1929) 52 Mad Series, p. 829 at pp. 835 and 836; Sarttar Paiam
Pal St1lJ~h v. Sarrier Budh Sillgh ... .A.I.R. (1'J38) Lah. 62; Abas
Ali v. Kodlmsao. (1929) A.I.R. Nag. p. 30: considered. Held
also: That it is a proper case for awarding damage!; instead of
ordering the case to be returned. Sleedman v. Drillklcal1dofhers,.
(I9151 A.I.R. (P.C.) 94 at 95; Kilmer v. Brifish Columbia Orchard
Land$ Ltd.. U913) A.C. 319; A,y", Pradi!)hak PrQtinidlte SaMa
v. Cltaudhri Ram Ch,md and olhers, (1924) A.1.R. Lab. 713 at 716; "
 GENERAL INDEX xlv
PAGE

CalJianji HarJ;vau v. Narsi Triwt1I, (1895) 19 Born, 761 ; Kallian

Doss v. Tulsi Doss, (1899) 23 Born. 7M6; K.'H. Skimler v. Rose
Skuim~r and others, \1925) Lab. 132. ft:ferred to.

Ka BA'" TUN A:'lD ONE ,. U BA HLA 230

PURPOSE A~D INTENT OF ACCUSED 30t}

QUESTION OF LAw

RANGOON CITY CIVIL COURTS ACT, 55. 17 AND 25-Suit under-

Permissive occupatloll must be prot'cd_Revision agoinsl- Whtll
jituliug of fact Can be considered. Held: In order that an
applicant may succeed in a proce .. ding under s. 17, Rangoon City
Civil Courts Acts, it is necessary for him to prove that defendant
is a tenant or in permissive occupation. Sav.lri Ammal v.
A. Jaga'uothan Servat, (1947) R.L.R. 387, referred to. S. 25 of
the City~Civil Courts Act is almost identical with s. 25, Burma
Smal1 CdUS('S Courts Act. It is only in exceptional cases that the
Hight CO~lrt will interfere WiUl findings of fact in such cases, viz.,
when the finding is perverse or UI1\varranted by the evidence.
Siva Dass Day v. A{habi and one, 3 Ran. 471, referred to.
SULTAN AHMED 11. NASARA JAMAN 369-
RANGOON CITY CIVIL CJURTS ACT, s. 23-" Aeeordwg i,l law "-lnier-
jerenee in revifion on question oj jllct-lVllclI permissible.-The
phrase ,I according: to law .f canuot be held to exclude ca~es in
which tbere has been a grossly errOi,eous decision on facts. A
Judge is not bound 10 refer in his judgment to each and every item
of evidcnce relied on hy the partie!'l. Thp. High Court doe!; not
ordinarily interfere on a qucstion of fact but it will interfere on~y
when the decision is penene or SO obviously incorrect in its
nature as to amount 10 an error of law. Siva Dass Dey Y. Ashabi
(:tld one, 1192513 Ran. 471 at 473: Abdul Qadir v. NartJtldra
MoltalZ Ghost': CIlowdlwr)' mui Otic. (1931) A.I.R. All. 210 ; Mall1Jg
Bo Saw v. Mmlllg Thwe, 0927f A.I.R. Ran. 159, Mohanlal
Maganlalv:Jivatlltli A11Iyatlal.(1927) 51 Porn. Series, 814 al816;
Nafhu;am ShrvnaraYiJn v. Dlwlaram Hariram. (1920) 45
Bom. 292. rderred to.
S. S. MOHAMED HANIFA V. K. O. MolI.HIED KASIM

REAS01';S FOR TRA~SFER OF CRIM!~AL CASES 106

REASONABLY AND bOllll firie. MEA1';11'OO OF 392
REFU1'OD OF ADVANCE 417
REGISTRATION IF COMPULSORY OF F.HfILY ARRANGEMENT 111
WHEN COMPLETE 331
REGISTRATION 11F DOCUMF.NT-Formlllilies-Regisfratio11 whm
comtlde-Regislratioll Act, SJ. 52 {]) (c) a1J d 61 (21 alld S7-
Non-eopyill!, oj docl/metlt i11 BO(lk 1 if au irregularity alld
cUYdble. \Vhete deed of sale was 1,resented for registration and
a receipt was obtained from the Registration office on 24th April
1945 but the document was nevei" returned to the party and the
deed was not copied into Book No.1 under s. 52 (1) Ie) of the
Hegistration Act. Held: That the clocument was not duly
registered, as the registration was not complete. The certificate
 \
xlvi GllNERAL INDEX

PAGE

is that which give:> the document the character of a registered

instrument-as the Act expressly says that the certificate shall be
sufficient to allow its admissibility in evidence. In its absence,
the object of the Registration Act will have been defeated.
Mu.hammed Ewaz ami others v. Birj Lal and allot her, I.L.l<'. -AU.
vol. It p. 465, referred to. The fact th;lt applicant was not
responsible" and could not be- penalized fOT others' defaults is
irrelevant-as the point for decision was whether there was a
valid registered document. This does not amount to a defect in
procedure curable under s. 87, Registration Act. Ma Kha v. S. I.
l~pahany, (1946) Ran. 192. distinguished.

HABIBUR RAHMAN 'IJ. MA AH ]\fA

RE-JNSTATEMENT OF Dt:.:FE:-:IDANT ElECTRD UNDER Ex parte DECREE ...

I~!ME.DY OP PARTY IN MATTERS RBL,\TIN'G TO DELIVERY OF POSSRSSIOlj

- - - - FOR INFRI:-IGEMENT OF RIGHT

RENT LAWFULLY DUE

RESIDENCE. MEANI~G or -LIMITATION

Res Judicata
RESTITUTION OF PROPERTY ...
REVISION UNDEr. RANGOON CITY CIVIL COURTS ACT

- - - AGAINST ORDER UNDER RANGOON CI1"Y CIVIL COURTS ACT

- - - - WHEN LIES U~DJm CODE OF CIVIL PROCEDUI-IE '"

- - - - OF ORDER OF DISCHARGE WHETHER LIES TO HIGH COURT

- - - - AGAINST OlmER U:'HlER ORDER 21, RULE 89

REvISION OP 'ORDER GRANTII'G' It.PPLlCATION UNDER ORDER 9,

RULE 13, CODE OF CIVIL PROCFO'tlRE-I11t erlocutorj.' Order. Hdd :
That where an :l.pplication under Order 9, Hule 13 of the Code of
Civil Procedure for settil1 aside .an e.>: p,arle decree \V'OlS granted
by the trial Court a revision lies to the A:i~h Court. rhe High
Court will not interfere in revision against an Interlocnto':y Or:dcr
unless some grave injustice or hardship would result on failure to
do so', RadJia Mohatt Daft v. Abbas Ali Biswas lind olhers,
(1931) 53 All. 612 at 6J7~618 ; U Ba (T v. U Y1G1cl, (1948)B.L.R.172
L,P.R. Cllettyar Firm v R. K. Banerji, W.R.), (193]) 9 Ran. 71,
appHed, It is difficlllt to see how grave inju5tice ,)r real hardship
could be said to be sustained by the plaintiff if an e.t: Imrte decree
in his favour is set aside and he is compensated i.n costs therefor,
E. 3. COHEN v, \,E,Ri\l.AI~. CHETTYAR FIRM 10il
RIGHT To INHERITANCE IF AFFECTED BY CHAS'GIt of RELJGWN 189
H.iGHTS OF UNDISCLOSED PRINCIPAL 392
RULES OF TNTERPimT:o\-TIOi-l OF DOCUMENTS 147

SALE OF' GOons-Contract for" May" Shipment of 400 drunl~-60

offered-DivisibilUy of C01/tract-Whte oil-Contraet fJoid
- beCtl1ISe of li [telillood of bei"g 1lUd for aduIt.eration-Approjwia-
lion out of larger quantity-Refund 0/ ad, aua. Held: ""here
 GllNERAL iNDEX-

PAGE

goods are sold by descriptioni the description amounted to a

warranty or a condition that the goods are of the kind described.
Before a buyer can be compelled to take any thing in fulfilment,
it must be shown that the goods are 'those bargained (or;
otherwise the bu/er is not bound to take it. . The time of shipment
"Of goods is vital and of the essence of the contract. Edmund
Bowes v. Charles Shand, (1876-77) 2 A.C. 455; J. ArOt: & Co. v.
Comptoir'WeFf,:mont, (1921) 3 K.B. 435; James Finlay & Co. Ltd.
v, N. V. Kw:k Ho'o Tong Handel Mc,ttscltappji J (1929) 1 K.B. 40,
referred to and foHowed. \Vhere a contract provided for suplJly
for 400 drums of white oil, of May shipment, the buyer is not
bound to ~ccept any lesser quantity, unJeM the contract .provides
for the same. Renter v. SlIla, L.R. 0878-79) IV C.P.D. 239,
followed. In the absence of material from which it could be
inferred that the oil was wanted for adulteration purpo!>es the
COntract 1:; not void on this ground. A cOntract for sale cf
unascertaim d goods is not complete, until the goo4s are
appropriateq with the assent express or implied of the purchaser.
Badis,lte Aldin Und Soria Fabrik v. Hic~son, (1906) A.C. 419,
referred to. Subject to special provisions of the contr2ct,
payments on ;lccount of purchase price are recoverable if the
consider<ttion for which that price is being paid wholly fails.
Fibrosa Spolkn Akey;,w v. Fairbairu Lawson Comb, Bargonr,
Lid., (1943\ A.C. 32; Piari LaJ and othersv. Mina Mal
Balkishatl Vas, (1926) l.L.R. 50 All. 52, referred to.
MESSHS. SENG HWAT & Co. v. THE U~lTD CHEMICA;.
'''ORKS 417
'SALES FOU ARRE,J,RS OF I,A "I) REV::lNUE ]24

---OF IMMQV.EABLE PRoPEHTY LESS THAN Rs. 100 BY

UNREG1STERF.D DEED 119

- - - B Y O~f.; of niE EXECUTORS 163

S1':CONDAl~Y EVIDF.:\,CE. ADMISSIBILITY 0:.:' 189
SECURITY. VALU~ OF DEBT o~ OF PROPi:RTY GIVEN AS 226

SIGl>:A'rURE:\S AGENT NOT IS DOCUMENT 313

SIN'o-BVR;ltAN HUDDHI:iT-Govcrned by Burmese: Buddhist Law-

Family .4"r'JJlg~t1te1Jt-R('.dttced to tioCltllleut- 11I1IIIo'veahle
property effected woJrth mOre: I#an Rs. lOO-Tlle eJJ,:ct oJ 11011-
,.~gjstrtfiO". \\'here cert.ln immoveable properties otre acquired
by :l Sino-Hnnna'1 Buddhh:;t durillg his coverture with the
. Respondent. a Burmese Buddhist, and the property (valued attnOIe
than Rs. 100) was claimed under a family arrangement under
an unregistered document. Held: That the law applicable to
the case wa;; Burmese Buddhist Law. Taft ,M{t Shwc ZitI /llId
.otherS \'. Koo Soo Cholll! and others, (1939) R.L.R. 54S, follow..:d.
The property on the death of the husband, became the pr0perty
of the wife. The Family Arrangement relied on, involved
prope;:rtic:; worth more than Rs. 100 and was reduced to the form
of a dc)ctlment, therefore registration was necessary und'er s. 1 i of
the R~gistration Act. No oral evidence regarding Fnmily
Arrangement is therefore admissihle in Jaw. Ram Gopal v.
TlllsII' Ram atld another, 51 All. 79 iF.B.)
" l\tA SHU HWAY AND TWO oTHlI:RS,v.DAW KYAY HMYIN III
xlviii GENERAL INDEX

PAUli
SPECIAL CRIMES (TRIBUNAL) ACT, 1947, S~. 5 AND 8-Nature of trial
before-Revision oj order of discharge wlle/ltty lics to the Hfgh
COllrt-U1tiot~ JudIciary Act. 1948, s. 24-S. 439. Criminal
Procedure Code-/71terprelaUon oj. Respondents were sent up
for trial before a Special Tribunal constiluted under ire Special
Crimes (Tribunal) Act, 1947, under SS. 4091109 and 420j120rl,
Penal Code and discharged. A revision was filed by Government
and objection was raised on behalf of the Respondents that no
revision lay. Held: Under $. 5 of the Special Crimes (Tribunal)
Aet,1947, cases, coming before the.special Tribunal will have to
be tried as warrant cases. S. 8 of the same Act makes Criminal
Procedure Code applicable to trials before lhe Special Tribunal
and to all matters which arose out of or connected with such
trials and the section further provides that the Spec:al Tribunal
will b treated as if it were a Court of Session. The order of
dicharge in the present case is clearly a matter which arises. Jut
of a case heard by the Special Tribunal acUng as if it w'.:re a
Court of Session exercising orj~inal jurisdiction, The Special
Tribunal must be regarded as a court which is inferior ':0 the
Hight CourL F'urther under s. 24 of the Union Judiciary Act,
1948, the High Court ordinarily hae revisional power over al1
courts sabject b it:; appellate power and the Special Tribunal is
one of such courts. Consequently a revision was competent.
Held /tlrtlu.r: That the terrus of 8. 439, Criminal Procedure Code
is comprehensive in language and full effect must be-given to the
lerms of the section. The main idea underlying s. 439 is to
enable the High Court Ie rectify cases of injustice or illegality
when the perSOn affected is unable toappe.d. Emperorv. Bl~lle1L
nasI (191018 I.C. 116 at 164~165. The Nafion'll Bank of India
Uri. v. G. V. Kotltanriflrama Clzetti and one, (1913) 14 Cr. 1..).
509 at 535. rderred to and applied.
THE UNION OF BUR),[A V. U KHlN' MAUNG LAT AND ONE 376
SPECIAL LEAVE 39~)

SPECIFIC HELIEF ACT, s. 9 361

s.42 21
- - - - - - - - s. 42. JUDr>;',fE:-l'T BY DISTRICT CoURT U:-l'DER 189'
S'l'A~DARD RENT- 308
STATl';\IF.:-lT AND EVIDENCE OF A Co~ACCUSED-How F.\R CAN BE
USED AGAJ;':ST ANOTHER 178
SUBSTA~TJ,\L JUSTICJ:;-REVISION 372
------QUESTION OF LAW-\VHAT JT IS 41
SUMMARY TRIAL 144
Sun UN DEI< s. 9, SPJo;CIFIC RELIEF IAcT AMENDED TO ONE FOR
POSSESSION 361

TENANT-If lllcItldes legtll n~prcscntatit'(-Urba11 Relit COlltrol

Ac/. s. 2 lq-)-Godc of Cidl Procedute, s. 2-Deatll of hI/ant-
i! tenancy termillated-Tramfer of Property Act, s.111. Held:
That legal representatives of a deceased tenant continuing in
occupation of leased premises arc not trespassers, nnder s. 2 (gl,
Urban Rent Control Act, 1948, the definition of tenaut includes
a le~al representative. A person who intermeddles with the
 GENERAL INDEX xlix
PAOE
estate of the deceased is also a legal rellresentative under s. 2,
Code of Civi: Procedure. On the death of a lessee, the lease is
not terminated under s. 111, Transfer of Property Act and the
scope of the said section cannot be enlarged beyond the terms

." of the section. The English Law under which tenancy

terminates on the death of a tellanI,is diff~rellt from the law of
Burma. Mes-,rs, Bnmett v.Mrs. E. Fov.,[e m,d One, (1925) I.L.R 3
Ran. 46 at 47, referred to.
CHew YEE (a) .-\1{ F03N V. KA~ All KONG' AND O~E 304

TENANT BUILDING 404

TITLE To Bl'lLlHNG AFTER TE~ANC,{ TERMINATED 404
TRADES DISrU'fE {A~IENDME:STJ ACT,1948, s. 7 IS)-Rule of interpreta-
tiOIl 0/ ,',oWmellts. Held: That the instrument must receive a
conHruction according to the plain meaning of the words and
senh:nces therein contained. One must laDY at the whole
in5trument, and inasmuch as there may be inaccuracy and
inconsistency, you must, if )'ou can, a~c'":rtain what is the mealling
of the instrument taken as a whole in order to give effect, if it be
possible to do so, to the i:Jlention of the framer of it. It appears
to be arguing in a vicious circle to begin by assuming an intention
apart {rom the language of the instflllUent itself, and having made
that fallaciolls assumption to bend the language in favour of the
assumption so made. But where from the imperfectioh of the
language, it is impossible to know what that intention is without
inquiring further. and seeing what the circumstances were with
reference to which the words were used, and what was the
object, appearing from Ulese circumstanr.es, which the person
using them had in view; for the meaning of words varies
according to the circumstances with respect to which tbey are
used. Charles Rober! Leader ami Henrietta. Lead r v. (;col'/,;e
F. Duffey aud Amyatf Edmolld RaY, (1888) 13 A.C 294 at 301;
The River lVear Commissioners v. William AdnmS(l11 (!lld others,
(187677), II Appeal Cases, 743 at 763, followed. Under s. 7 of
the Trade Disputes (Amendment) Ad if an agreement is arrived
at in a dispute as a result of negotiation~.conducted by either a
Bo;,trd or a Conciliation Officer, sllch an .agreemeni, duly signed
by the accredited representatives of both parties, shall be legally
binding upon both parties to the dispute and failure on the part
of either party to comply with it will be pUlIishable. Therefore,
where a person entered into a contract to employ only members
of the Earth Diggers' Association, but aftenvards failed to give
the work to the members of that Association, he Cl)mmHted an
offence under the Act.

U Nyo v. U Ko Ko GYI 147

TRADE MARK MEANING of-l1we1Jted 1Iame or 'Word-Wlfel,' legal

right to e).clllsive lIse of hade-mark acquired-Limits oJ such
right-ColouraMe imitati01l by rl~fwdallt _PIlssing for-
lJ,jrillge11lellt ofright-Remed:;. Plaintiff was a m:lOl,facturer of
beecHes, their ~oods bore rectangular labels in violet colour
containing the words H MOULAN A BEEDY" with the capital
letter l< 1-1" enclosed in a ring between the words II Moulana
,md Beedy." Their goods had been sold in the market {or the
last 15 or 16 years and they had declared this trade-mark to be
theirJ in 1944 and 1946 which referred to a previou$ declaration
in ~ 934. The first anti second defend:mts left plaintiff's seryice and

.,
 \

GENERAL INDEX

PAGE

recently joined the third defendant in manufacturing and selling

bcedies bearing bbels of identical colour and ::;jz'": and called
.. Moulavi Beedy". the capital letter" M .. being enclosed in a
. . ing exactly like the plantiff:s label. The pldntiff's goods were
sold at Hs. 16 per thousand and the defendant':. at Rs. 12~8.
Upon plaintiff claiming a permanent injunction and damages for
infringement of their trade-mark Held: A trade-mar:" is a
symbol applied or a1tached to goods oJIered for sale in the
market go as to distinguish them from similar goods and to
identify them with a particular owner. The trademark
indicates that is the goods of the proprietor of sl'ch trade-mark
and a mark includes a device-brand, heading, label . .
Of any combination thereof. The word" Mou'J:na"
in plaintiff's' trade*mark is an invented name to dis.nguish
pLainliffs goods from other's goods. The te~t of all i w.ented
word is that jt must have been substantially new at Ih . date of
registration and used only to denote his goods do'vn to.the date
of registration. Its production need not involve any 'great
ingenuity or imenti"n as in patent one. Sintwal v. Emperor,
A.l.R. (1932) Sind 94 1 reierred to.. The registration of the trade
name U Moul:ina Beedy" with the device mentioned waS made
with a view to its being used by pl3intiffs on beedies of their
manufacture and they have all ahng intended to use the label
from' 934 to diztinguish their goods from those of others. The
pl~intiffs have built up a fairly larg~ wholesale business and
were entitled to protection. The fact that a large number of
other makers with other marks with the central circular device
and the alphabet by way of imitation and that no action was
taken against them is irrelevant as it may not be \'!oi-Il'~ while to
spend money on every man of straw who violates the pJaintiffs'
right and cannot deprive the phmtiffs of their right of suit. j
NooI}i Sieea & Co. v. Ramjall Ali, AI.R. (1930) Cal. 678, referred
to. A right of property may be acquired in such a trade-mark
and it is based on the proved r:.sso.:iation in the market of the
devicp., name. sign} symbol or other means in question with the
goods of the plaintiff. The l!se by defendant on such goods of
the trademark will amouil~ to a false representation that the
goods are manufactured_by'llic_plaintiff. Thomas Bear & Sons
(India) Ltd. v. Pmj'ag .Yarain a,/d an other.A.I,R. i1940) (P.C.) 86
at 87, referred to and followed.' Mohallud Esuf v: Rajaratha11l
PflIai, I.L.R. (1933) Mad. 402 i Willitlm Wotlzersrooll aud
allofher v. fohn Currie,S L.R. (Eng. and Irish Appeal Case) 508,
referred to. As the be~dy put on rh~ marker by the defendant
was wrapped round with a paper label of the same colour as
plaintiffs' and the words \I Moulavi Beedy" printed on it with
circular device containing the capital letter" ~I " in exactly the
same fashion as the plaintiffs' amount to colourahle imitation of
plaintffs' trademark; no general rule can be laid down as to
what is a colourable imitation and thill i~ a question of fact to be
decic;ed in each case b.wing regard to the circumstances.
payton & Co. Ltd., v. SlIclIitsg Lampard & Co. LId., (901) A.C.
(P.C.) 308, followed. TIle Court looking at the exhibits and
payin.!{ dlle attention fo the evIdence adduced mu~t come to an
. independent judgment on this point and not surrender its own
independent judgment to any witnees. AlIglo.America1t Drll~ &
Chemical Co. v. Swasiik Oil Mill Co.. Ltd., 59 Born. 373;
R. JOh1Lston & Co. v. Archibald Orr Ewiug & Co., {l881~82J 7 A.C.
219; William Dill/cell v. Goffredo Allel'sat/dro Cllretim mid
auotIter, A.I.R. (1931) (P.C.) IS, referred to and applied. It is not
necessary to give actual proof of rl.eception; it is :mff.cient
there is probability of deception. In the cirCllmstances in which
 GENERAL INDEX Ii
PAGE.

the ddendents entered the trade, the :nan'ncr in which they

executt:d the ~et np of .heir goods' and sold them. U:ey clearly
infritl~erl G.e plaintiffs' right to tbeir trade-mark. >

C. M. BnoTHERs 'V. A. KUNJA,LAN AND TWO oTHERS 26Z

TRADE 'MARK-ln!ritLge11lmt of-OWtJ(.t'sltjpde~(1"1l1illcd according til
Common Law-PassillR off-Fllmtio1ls (If Judge-Opinion of
wzl1JCSS as to similarity oj trade.mark. Held. .. In Burma there is
no ~ystem at registration of tradt'-marks nor for a ':ltatutoly title to,
Ok trade-mark. So the rights of parlies setting tip rival. claims to
ownership of a trade-mark mUf't be determined in accordance
with tte principles of Common Law. Cf. Thomas Somerville v.
POL'Q S'ltembti ami GiOVOl1lJt Hallista C,miilleri, (1887; L.R.
12 A.\,~ 453 at pp 456-45i. rderred to and followed. Leathn
Cloth 1:0. Ud . ...... Americml L'alh~r Cltllh Co. Ltd., 11 H.C.C.
53~: V.~?o/lterspoon v. Currie, L.R.5 H,L. 50,-;; Johmtotz & Co~ v.
arT Ewing & Cll., i A.C. 219; lh:.fiuitiou by Lord CranUlorth.
11 H.L.C. 533~534, re:erreil Io. At Common Law the use vf trade
name or mark which has been adop:ed by ano;her is acUonable
if it tends to mislead by making it appear that the goods sold under
it are the gooils of that utIler. Singer Man1lfacturing Co_ v. L008,
L.R. il8tlD-Sl) 18 Th. D. 394 at pr. 412413; Powell v.
Binnt"ugltam Vinegar Brt'Uif ry Co., L,R (IS961 2 Ch.D. 54 at p. 7i.J.
7eferred to. T. Barlow and a/hers v. Gobindra1ll and a"1otlter.
(l8~7) I.L.R. 24 Cal. 364; Mohamed Esuf v. Rajaraltram Pillai.
(1910) I.L.R. 33 Mad. 402; A. Baldtaji Routlter v. P. A.
Ramaswanri Pillai and Mze.tlter. 1193") A.l.R. ;'Ifad. 8; Heiniger
v. Drol! lltzd anotlter, (1901) I.L.R. 25 Born. 433, discussed. It
wiII not make any difference even if the customers do not know
the nam~ on the firm which is printeil on the front covers of the
books immediately below the trade-mark. The exclusive rigilt to
use a trademark in re~pect of excrcis~ books does not give a
monopoly of the trade-marks in respect of all kinds of stationery.
Thomas Bear & S01lS !India), Ltd. v. Pra)'ag (.larahz ann anotlter.
I.L.R. /1940) All. 446. followed and applied. Th-: National
Sewmg Thread Co. Ltd. v. Messrs. James Chadwick & Bros. Ltd.;
A.I.R. {19481 Mad. 481 at 4~7; lrIohmmd Noordln v. Abdul
J(areem & CO,(193048 R.P.C.491: YorbhireRclish Ca'se;Edge
& Sons, Ltd. y. Niccolls & SOilS, Ltd., 28 R.P.C .. 582: DU1/.lzill \'.
Bartletl & Rickety, 39 R.P.C.426; Byram}; Cowash;e v. IreTa Soma-
blzai1lf0libllllia.rdo~lC, (1915.16) 8 BL.R 551; A. M: Mal~11IIiar
& Co. v. Filllay Fleming & Co., (1929) I.L.R '7 Ran. 169, referred
to. It is the function of the Judge to say whether trade-marks
are similar <1nd it is not .for the witness to express an opinion on
the point. The Swadeshi Mills,Co"Ltd v. Juggo Lal Kamptapat
Cotton Spi1llrillg and Weavillg .Mills Co. Ltd .. I.L.R. 49 All. 92 at
97 and 111; Pay tOil & Co. Lid. v. SlIclIbrg l.ampard & Co.
Ltd., (1901) A.C. 308 at p. 311 ; Seixo v. Provezeude, (1865) L.R.
. 1 Ch. App. 192; Boord & SOlS v.Fagols Hultoll & Co. Ltd., (19161
L.R. 2 A.C. 382; Adamjce Baja Dawoorl & Co. Ltd. v. The
S1lJ~dish Match Co., (1928)I.L.R. 6 Ran. 221 at 234, referred to.

THE TAJMAHAL STATIONERY MART v. K. E. MoHAMED

EBRAHIM V. S. ALlAR & Co. 4l
TRANSFER OF CASES FROM ONE COURT TO ANoTHER 106
TRANSFER OF PROPERTY ACT-Contracts Of trallsjer Of immoveable
p-roperty-Trmtsfer oJ Property AcI, s. 3, m11l0veable property-
Interest ill specific. immoveable property if immoveable
property. Held: Where usu:rudu:ary mortgage of immoveable
lii GENERAL INDEX

PAeE

properly for Rs. 150 was by an unregistered deed the mortgage

is invalid lor want of registration but under s. 53-A of the
Transfer of Property Ad where any person contracts to transfer
for consideration any immoveable property by writing then
1hough the contract is iequired to be regish:red and is not regis-
tered the transferor shall be deh:ured from enlarcing against
tl.e traf'.Sleree an d persons claiming under him an)' right in
respect of the properly other than"a right expressly provided by
the terms of the contract. S. 53-A speaks of cont-act~ to transfer
immoveable property. Immoveable has not been defined in the
Transfer of Property Act but is defined in f.he General Clauses
Ad including lands, btmefils to :.rise out of land, etc., a mortg:age
is a transfer of immuvc.lble property no less than a sale thougl} a
sale involves a tmnsfer of partnership a5 well. S. 53 A appF.;s to
usufructuary. mortga}[cs where the mortgagee in part I erfor-
mance of the contract has taken possession. Itfa Kyi .v. /lfa
ThOll, 13 Ran. p. 274, referred to. Gopal Palldey v. Par.soiatn
Das, LL.R. 5 All. p. 123: Indar S~1~ alJd Olle v. Nallbal. Singh
and others, I.L.R. - All. 553, referred to and apptil:d. U Hmat
and one v. Dmt.' Shwe Lok aud two others, Civil lst Appeal
No. 31 of 1946, High Court ')f Judicature at Rangoon, followed.
Ko U MAR AND ONEv. MA SAW MYAING 80
TRANSFER of PROPERTY ACT, S. 54-Millar PlaitJtiffs-Repte.sented ilL
suit by lI-1/cle-lIlferest if adverse-effect-So 99 of Code of
Chlil Procedure. Held: That under s. 54 of the Transfer of
Property Act a transfer of immoveable property of the value of
less than Rs. ~OO m~y be made either by re~istered instrument
or by dc::Iiveryof possession. As in this case the claim was based
on an unregistered document for Rs. 10 there was no proof of
delivery of possession, the applicant had no title to the property
, , , I
covered by the unregistered deed. Held further .. Where the next
friend \vas the maternal uncle looking afler the minors after thei.
mother's de~th, the fact that he built a hut on the di~puled land,
did not show that he attempted to asscrC any title adverse to the
minors. The objection to rcpresentation even if sustainable was
an irregularity not in any way affecting the decisioll or merits of
the case. Hardi Narain Sahuv. Rud,r Perkash Misser, I.L.R.
10 Cal. 626 a~' 634, followed.

MA TIN NYUNT '11. MA KYI l{YI A'i'D THREE OTHERS 33

TRANSFER OF PROPERTY ACT, s. 54.-5ale of immoveable properly

worth lesj than Rs. 100 by llIzregist'erc:d jale cieeds._Whetlzer
passe:) title. 'Where the plaintiffs claimed purchase of an
immoveable property worth less than Rs. 100 by an unregistered
deed of sale and it was neither pleaded nor proved that there
was oral sale followed by delivery of possession. Held i That
the sale was invalid and did not pass any title to the purchaser.
It was essential either that the possession should change or that
there must be a registered deed. Mazmg Myel MaulJg v.
Ma J(lzine and others, A.I.R. (1936) Ran. 497, distinguished;
MullzukaruPpan Samball alld otllers v. Mll'/m Sa11lban, (i915)
I.L.R. 38 Mad. 1158; Kuppuswamy GOll1zdatl v. Cltinnaswami
GCHzndan mid others, A.I.R. t192811\'Iad. 546 at 548; Solum Lal
atJd otlters v. Mohau Lal alld vaters, OC;281 I.L.R. 50 All. 986
at 990; Triblzovall Hargovalt v. Shanker Desai, {1943f Born. 653,
followed,
DAW YINv. U SEIN I{YV AND Tl:Rl!:E OTHERS ... 119
 GENERAL INDEX liii
PAGE

"'TRANSl-'ER OF PROPERTY ACT, s. 105-lllstrument of lease_

5s. 105 a1UlI07 vf TrauSfcrof Property Act. Held: Tllat a lease is
defined in s. ' 05 of the Tr:tllsfer of Property Act. Uncler
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 ami all otller leases of immoveable property may be
made either by a registered instrument or by cral agreement
!\ accompani~d by delivery of poss...::ssion. A lease implies that
there sh1nlld be two parti~s the Lessor and the Lessee and the

l:, instrurocnt of lease contains covenants that both the Lessor

and the Less~e <lgree to. Therefore a lease cannot be effeeled
Ul~Jess the LCS'>Of is a party to tbe instrument of lease. As E"<hi-
bit A in the case was si~ned by one party only it can in effect be
no more :',an an agreement to lease. Olncrvativlls ill U Tha Nyo
v. iU,Wllg 1.\'I11U Thi1 flY Carr J., (1925) 3 Ran. '379 at 380, fnllowed.
Mt. Nas,ba I v. Mohammad Sayed, (1936) A.J.R. N;l;.!. 174.
distingl1ishL~l.

MAUNG ;,\JAW AND ONE V. U BA THWE AND ONE 71

s. 105
!"RANSFER OF PROPERTY ACT,
_ _ _ _ _ _ _ _ _ _ _-"s.106
404
_ _ _ _ _ _ _ _ _ _ _ s.111
304
TRlAL BEGA~ AS SU.\DlON5 CASE CHA~GED TO \VARRA~T CASE 374

'UNDISCLOSED PRl::'(CIPAL. RIGHTS of 392

:uNioN CITTZE~SHIP (ELECTION) Aq, 1948 s. 8 (2)-Rcfercl/.ce to High
Court by il/misler-" RcsideuCt:" lllcllniugoj t1l s.3-Limitati01l.-
Respondent was born at Tavo)' Oil 27th December 1923 where he
resided till 1935 <lnd Ivent to Penao:! for further stndv. He used
to come b2.ck to Tavoy for one 1110nth every half year tlpto 19-1-1
and was out of Burma from 1941 till the 23rd of June 1946. He
applied for Citizenship tinder the Union Citizenship EJection Act,
1948., This was allowed by the Officer on 1st July 1949 but the
Minister on behalf of the Union referred the application to Conrt
on 20th November 1949. Held: S. 8 (2) of the Act. nnder which
the reference was made, did not prescribe :J.r-y period of limitation
within which the Miuister must refer tile application to Court.
Such omission is deliberate. Therefore there is no period of
limitation for reference by tbe Minister. The meaning of the
word "resides" has to be j!athered from the intention of tilt:::
"legislature in s. 3. Such intention is obtained bv interpreting: the
language according to its obvious meaning. The same word need
not necessarilv have the same meaning in different enactments,
not even in different sections in the same enactment, and therefore
rnlings under s. 20 of the Code of Civil Procedure and other
'statutes are not applicable. Rama Chandra Sakha'ram v. f(eslll1v
Dtlrga'ji. (1882) LL.R. 6 Rom. 100 at 101 ; Parish Council of the
City of Parts}: of Edinbllrgh v. Local GOlJ!:Y1zme,tl Bonrd for Scot~
,land, (l915) ......C. 717 at 722, referred to. As a matter of fact the
context and subject-matter indicate that the natnralmeaning must
'be given to tbe word" reside." The Legislature has chosen this
word instead of the word II domicile. " S. 3 of the Act is onl}' a
Teprorluetion of the s. 11 (ivl of the Constitution of Burma. The
'Legislature clearly regarded the Citizenship ns a matter of the
:utmost importance as it involves rights and duties on the part of
7
 .
-

liv GE-NERAL INDEX

PAe:e- .
the Citizen and the State. The phrase" llas resided for a period
of not h:s; t!lan 8 years" 1l1uslmean actual residence. This \'iew
is further strengthened by the fact that the Legisl:hure has
allowed the choice of two different periods as :llso a margin of
two :-cars out of 10 for absence fron": B;.nna. ]ndged in Ihis way i
the Respondent was not entitled to a Citb:enship Certificate.
Srim.1{i Allilabala Cho.JlIdltllralliv. DhirtJldm Nath Saha and
Ill/lltlier, A.I.R. (1921) Cal. 309 at 31'1, followed.
UNION GOVEn;\/~IENT OF BURMA 'V. QUAE CHU~ BEE 14-
UNION J(JDICIAI~Y ACT, s. 5-Cerlificate-SlIbslatJtiall)1testlO/I. of law-
Nus! be OUt oten to argul}t(nt. Held: Though tr-e sllbjectmatter
of the dispute in the court of the first instance and still in displ,\te
r,
in appeal is not less than l\s. 1O,OOJ no certificate under s. 5 the
Union Judiciary Act can be granted nnless the appeal in 'olves
som(; snbstantial question of law. This condition is satisfie t even
if the question of law is one between the parties and not of general
importance. Howcver the question of law involved must be fairly
open to <'lrgument. \Vhere the principles of Jaw are well settled
their "pl'Jication to a particular set of fa:ts is not a sllbstan!ial
question of law, Rap/IIlIIa/ l, Pr,asad SiI1R" and 01U v. Depuly
C011l11liS5iollcr of FtJrtabgarll and otherS, 541.:\. 126; ],f. C. Fntall
aud OIlC v. H. G. A riff and others, (1935) LL.R. 13 Ran. 7-1-4;
ill,dlmra KtlI'mi v. JuMcoSw!!,hlll/d others, (l9?81 I.L.I{. 50 AH.
208; ,lJlISSlinllllat Umrao Blbi aUfI others. v. Ram KIShci;' and
o!lw's, (It)32j I.L.I-\. 13 Lah 251, reft:rr{-d to. J)u'arka Nath Fni
Moll '"1 C/wuallllri v. Rtvers Siloam Navigat!on CIJ. Ud., fl917)
A.l.R. (P.C.! Ii3; The RiverS Slen,1l Navigation Co. v. ClJoulmull
Doogar lImi oil/as, (1899) I.L.H. 26 Cal. 398. discussed.
HAlEE L. A. :1\1. NAGO{IR l\lEERA & SO:'\5 V. PEHAIULAL
CHOnIAL
UNI()~ JUDICIARY ACT, s. S-Crirllittal CaSc-Sp,-c;al lenve. Herd:
\Vht:re no question of the validit} of any law having regard to
the provisions of the Com;titution as set Ollt in the Union
JUdiciary Act 1 194S, s. 5 I,ll, is involved, no leave for appeal to
the Supreme Court can be granted.
1\106YO (a1 BA THAW (a) l\!AUNG 'THAW V. THE UNION OF
BURMA 399-
UN10N JUDICIARY ACT, S. 5 le)_" 1ilvolves d ireetl)'or illdirectly"_M can
llIg of. Held: S. 5 te) oi the Gnion JUdiciary Act, 1948 like the
SCUHlc! paragraph of s. 110 d the Code of Civil Procedure requires
that the judgment decree or final 01 der mu~t invoh'e diredly or
indirectly some claim or question respecling prorerty of the vnlllt:
of not Je"s than Rs. 10,000. It is the extent to which tlfe decree or
order has operated to the prejudice of tlie Applicant that deter-
mines the value of the appeal whatever m,ly be the value of the
property. If the appeal involves nothin~ h=yond !he subjed-
matter of the appeallhc first paragraph of s. 110 of the Code
applies. The second paragraph of the ~aid st:'cticn applies only
when the appeal involves some claim or question to or respecting
property addit10ual 10 the actual subjectrnatter in dis[>ute in
appeal, Where there was no di~pute abOI!t the ownershil; of a
house, and the dispute related only to the que~tiun whether the
tenancy could be split and the respondent ejected from the house,
and the suit for ejectment was valued at Rs. 1,500 for jurisdiction
the decree did not involve directly or inDirectly s....me claim or
question respecting property of the vall1e of H.s. 10,000 of more
under s. 5 (el of the Vnian Judiciary I,ct, even thol1gh the \alue
 GENERAL INDEX Iv
PAGE

was Rs. 40,000. N. C. Gdlliara v. A.M.M. Mltmg"ppa Clte/ty,

(1934) l.L.R. 12 R?Il. 35:5; M.E. Maolla alld Smls Ltd v, VOIl
Sllni/J ~1('CY. (1926) l.L R. 4 I~an. 92: GualJ{l/Jla11il,k'll/J .-1111111(11 v.
S.R.Sam$oll, (19311 I,L.R. 9 Ran 52: p.L.M.e.T.:l!. J.:lI~ids'Wa
/lathl/il Chdlvar v. P.LM CT./{. [(rishnapp,l Chdlyar, (Civil
Misc. Arpin No. 10 of 1949, High Court, H!!ll.). referred to.
Dhll1l11a Mal ..nil olhers v Raj Sahib La! II,di SdJ.!l1r, 75 I.e. 65-1- ;
A. V. Subrall/ll'1I1'IA)'yarv.Se'ln111111111.(I916j J.L"I{ 3- l\Jad.S-1-3;
lIla/wraja Kc);!Jo Pms"d SlIJ[;1I ..... S1JilI11 Sanw La!, 3 Pat. L.J. 317
at 321, referred to.
MRS. CO~STP.:'\CE M. \VI~ITER V. A. M. KHA~ 65
UNION JUDICIARY ACT,:->. 24 376
---------1948 226.
UNSOUNDN <;SS OF ~lIND AS DEFENCE 352
UrPEll BUR~lA L.I,.:-<n AND REVE:':UE REGUJ..ATIO-':, s. 45-SlIle for
arrears of Rt'IJCll1Ie-S. 41 (I) (d)-Rules 170 and 171. HeId:
Under the Upper B'Irma Land and Hevenue l~e~llla\iol!, s. 45
read with s. 171 a sale of immf)v.eable property hy As:>istant
Collector will have to be confirmed ~y the Collector, ,tIlt! only
w'len the sale becomes absoillte the title does pass. But when
the s:'dc is cordirmed, it takes eifeo.;t from the date of the sale.
M. :\1. SHERAZEE '/1. DAW KIUN SA:>: 124
URBAN RENT CO~TI~OL ACT, 1946-S5.5. 11, Hi, 17, 18 mId 19-
Standard rC11! fi.1;ed-WJlCf!l~r ~ffccti'/1e from d{lle Of A ct or (tder.
Held: There is nothin~ in the Urban Rent COntrol Act to
indicate that rent in the respect of :tn'>, premises after the
('o'n~ncncementof the Act should, in all cas:;:;, ~)e reckoned to he
at the rate fi~ed by the Rent Controller. A contract of lease,
ngreed upon between the parties, should be considered to be
binding and subsistLng IInW it is modified by agreement Or by
operation of law. There is no prod,;ion in the 1946 Act to
stlpport,the conteQlionthat the COntratt\'al right shall be deemed
to have beeil IIl>ldil1ed ,vilh effect fro:n the date the Act came
into force. whee an m:der lixing standard rent is passed. This
would be gi\'in~ a retrospective effect to the order, for which
clear prodsions would hI:: required in ~he Act, expressly or by
implication.
S. f. ABOW.-\TH AND FIVE OTHERS V. T. H. KHA'l 308
UHB-\N Rr::>:. COXTROL ACT, 194$-S.11 (1) (dl-' Bona fide' reqllil;ed
for erection Or re-ertcllOlt of bllildil1~-!Vltc!lt(,'r lalI,ilord should
Il[SO livc ill IUW house. Heli: \Vhat is req'.dred to be proved
1l11der s.l1 (1) (d) of the Urh.m Rent Control A("t, 1948 is that the
lanctlord should require the premises, wl',ich is in possession of
111e tenant. bOlliijide'for con,struction oCa building thereoll. The
fact that the landlord took proceedings out of spite because rent
was reduced in Rent Control ProceerHngs is only one factor in
jlldgin~ of the bOllii fides. There is nvthing in the clause to
support the sug!.!;estio:1 that the landlord should erect the building
for his own use or occupa:!~.I!.
C. AH Fou:-;OG (Il) CHOW FU'XG ?lIEE (11) CHAW FO~G tIEE V.
K. MOHA)IAT KAKA AND TWO {)THERS 346-,
URBAN l<E~T CO:\'TROL ACT, 1948, S, 11 (ll !f), s. 12, S, 13.{lI_Lalld-
lord purclwsillg afier the Aci-Whclll.U cau flllw, adv(lJlfa,r!,e of
s.1. (0 {f)-Statule COl/structiollgener,El TUft:. Held: The Urban
1
Ivi .GENERAL INDEX

PAGE

Rent Control Act c"lItcmplates t,va distind c1a~ses of persons,

viz" tenant a'.ld persons permitted to remain in 0ccupation
under s. 12 ; s. 11 tl/ of the Act does nut apply to a person who
has been permitted 10 remain in occupation as he is not a tenant
within the meaning of that section. The section applkable to
snch a person is s. 13 (1), .

CHING HONG SEIN v. KHOO HEl:-1 ~1iOON SOCIETY 77

.URBAN RE:-:T CO:'lTr,:oL ACT, 1948. S. 11 (1) AlIID TRANSFER OF
PROPEHTY ACT, s. l06-Col1solidate noNce lllJder-,volice 1/vi
strictly accllrl1tc-Effccl-" Rent law/lilly dut "-Mtnnillgof-
TCIlrJ1/t blli/ding-Title fa bllildillg after lenII'}' terminnted.
The Appellant was 'he tenant of the house No. 4~9C, Prome Hoad,
belonging to the Re>;pondenL In the notice served on tb~ tenant
to determine the ten.1ncy, the number of the house was given a
489 and not 489C and the receipt of the notice was admitted
It was contended that notice was invalid owin,l! to .mention of
the wron.l! 'lUmber. Hdd: The notice was good and effective
in law, The test of suft-::.:iency of notice, is what it would mean
to the tenant conversant with all the facts and circumstances
and not what they would mean tr- a~tranger. Hnrhar BOllerji
v. Ramshaslti Roy, (1919) LL.R. 46 Cal. 458 iP.C.l, followed.
There is no definition of 'rent lawfully due' mentioned in
s. 11 (J) (<1), Urban Rent Control Act,1948. S.2 (i) of that Acf
defiaes standard rent, as the rent fixed D\' Rent Cont.... (lI1~r and in
other cases, as c1efim:d in s. 2 (fJ (iil; where nO standard rent
is fixed hut then.: is a contrachlal rent, such rent must be
deemed to b~ the rent lawfully due. '''here a previous t-:nant
erected a building and his tena'lcy ceased, he could not remove
the buildin:.r <l.nd the la!ldlord 11."1d the right to le,lse out the land
and the hO'Jse sta1lding thereon. GobilldaprnSlld Sltahn v.
Charusheela D,lsce, (1933) LL.R. 60 Cal. 104-2, referred to.

S. L. BARUA V. S. JI. ABOWATH 404

"URBA:\' RE:\'T CONTROL .\CT, s. 19-Decision IlUdcr-By Assistmtt
District COllrt-persona designata-Whether rcvisiiJll lies.
\V.lere the A~.si"t:l.nt Rent Controller of B:'l.ssein fixed standard
rent under~. 19 of the Urb:m Rent Control Act w'deh was :set
aside b' the f<'ir3t A..::i"t:l.Ilt Judge, Bas:"ein and the said order
was sO:lght to be r~':iscd under s. 115 Qf the Code of Civil
Procedure. Held.: That the A'i<:lstant r,rl'Zc is a Persolta
desig'lat.1 and did not act as a court and the Hig;h Court has no
power of intervention in revision. H. A. Az:i~ v. [{t!T.JiJboy,
LL.R.4 Ran. 30:;: Tlte ,1llwicib,1l CorpJration of Rangoon v.
M. A. Slwkllr, (l(25) I.L.R. 3 Ran. 560 at 576, applied and
followed.
AH YAR v. U KALA 285
URB.-\N RENT CO:\'TROL ACT, S. 2 (gJ 304
- 5 . 1 1 (11 401
VALUE OF SUBJECT-MATTER OF ApPEAL 226

\VHETHERIExECUTlON, DISCHARGE OR SATISFACTION OF DECREE 19

- - - - - - - - - - - - ON BEHA."F OF UNDISCLOSED PRIN-:IP.-1.L COULD

BE PROVED 313 ','-1
 GENERAL INDEX

P.\GE

\VITHO'UW \L OF PI~ lS":CUTION-NV re /SJ'IS given-PI/bllc PoliCY

how fa' 11 s,lfr:, ttl/ide -S 494, ';rimillill prOI:cdiln: Co,lc: -Order
of lllgl,>trate w'ld.'t.;r jullicial Where a Magistrate granted
pennission under s. 49l (bl, C'im:ntl fJrocedure Code to with-
ehlW ,I ch.1.rgc on rhe ground of public policy and no other
retSOIlS N'~re given. Held Ott reVI:;tO/l" Tint the Magistrate had
failed to exexise his jl1diciaI dis..:retion and his failure to do so
b .. not recording r~as ):1S is a su:li.:ient ground for interference in
r'vi<ion Re,lsol' IOBt a!\vlvs"be given by a :'.fagistrale to
jll~IifV such ordels In Ro. Sad,ly.lIl. (190Sj 5 :\f::l.d. LT 216;
GuU( Bh'l{!,tlt v. !Varaill Singh, 11 PaL 708; Lak,hllli Nilratn
Verma (lI/d dn<)flJer v. lIfo!;a/;.crl HflIlij, A.I.R. S2 Lah. 36S ;
Ratallsh'l Kavasji Medhor'l v. Keki BehramaSlw Pardiwala alld
others. I.L.R 11915) Bom. 141; Daitt1tY<lya Guvilldrno v.
Emperor, (1938), 25 A.I.R. Nag. 76: Kalm Kasi V'SWall"dhll111 v.
BOw/iIi Madan. Singh aud others, A.I.R. 35 (1948) M"d. 422, not
followed. Abdul Ga"i Y'. A bdul Kader, 1 R:ln. 756, followed.
Empe,..,r v. lrlilnnl1lal Hardasmal and anotlter, A.I.R. (1943)
Sind lb'; Rajllui Kauia Sltaha v. Idris Thaktlr, (1921) 48 Cal.
110li; L'lIcsh GIl/weier Roy v. Satislt Chundra Roy aud others.
22 C.vV &.69; Jagal Chat,dra Royv. KfllitlP,ridi Sardar, (1922}
26 C.W.N'. 880 ; Tlu~ King v. B'l KhiJlll1d others, .-\.LR. (1940)
Ran. 189; Shel Singh v. Jiteneiranallt Sen, A.I R. (931) Cal.
6;)7. referred to. The High Court must always be in a POSitiQIl
to say whether 3 discretion vested in the court has been properly
exercised. Permh;sion to withdraw a. prosecntion cannot be
given as a matter of Course n.)r can it be ll1~reasonably withheld.
It is of considerable p,lblic importan.:e that nothin~ is done in a
cOurt which would give rise to :lIspicions about interferer.::::e in
the course of justice. De1-'e11dra Kumar Roy v. Syed YaY Bakht
CllaudllllfY and others. A.I.H:. (l939) Cal. 220 at 22-i, referred to
and followed.
UNION OF BUR\!A V U CHIT SWE 278
\VITNESSES-WAIVE1~OF-~EFFECT 93
YOUNG 0 "FE~DE1<S' ACT, s. 15 38

G.U.B.L:.P,O -No. 55, H.C.R., 265-54-1,800-11.

l
 BURMA LAW REPORTS

APPELLATE CIVIL.
Before U Thein Mautlg, GMt! JI/stice l l1ud U Sail 111atwg, J.

GURBACHAN SINGH (ApPELLANT) H,C.

1950
v,
Jail. 16~
lOS, K FERNANDO (RESPONDENT),*
Lt'llse and LicclIce-Di/feTcltce belwccll-Eff"'! of ills11'//11twt fo be cOl1side1etl
-So 105 of the Transfer of Properly Act.
A document between the. parties contained clauses that' F allotted in
I

. his business premises a portion mentioned and for allotment of such space
the appellant was to pay a sum of Hs. 100 as" guarantee cQrnmisskl1" on
the busine~s and Radio sales, etc. and that the pOlrlies were to observe
strictly business hours on week days, Sundays and holidays.
Held: That the document was one evidencing the licensing of a
portion of the snit premises for selling Radios, etc.
H cia furl/lcT : The tcst for determining whether a transaction is a lea.se
or a licence is to .see whether the .sole and exclusive occupation is given to
the grantee.
Th~ Acting Sccutary to tile BOdrd of Net'emlC v. Agwl, South Indian
Railway Co. Lid., (l925l 48 Mac!. 368 ; Fraitk IVarr & Co. Ltd. v. Loudou
COllnty COllllcil, 11904) ICE. 713 at 720, referred to.
Secrdary of State for India ill COlltlcil v. Bll1lpalclwudra Ray Cluwdlltlrt,
57 C:;d. 655; f.';lcmcoorl Sumber Co. Ltd. v. Phillip__, (1904) AC. 405,
distinguished.

D. N, Dull for (he appellant.

F. S, Havock for the respondent.

U S,\N MAUNG, J.-In the suit out of which this

,
'1
appeal has arisen the plaintiff-respondent, los, E.
Fernando, obtained a decree for the ejectment of the
.defendant-appellant Gurbachan Singh from the portion
, .
* Civilist Appeal No. 49 of 1949 against decree of 3rd Judge, City
Civil Court of Rangoon, in Civil Regular Suit No. 1092 of 1948.
 ..
2 BURlvIA LAW REPORTS. [1950

H.C. of the premIses known as 217. Sule 'Pagoda Hoad, ~'.

1950
Hangoon, which was in occupation of Gurbachan
GUHHACHAN
SINGH
Singh and for payment of Rs. 500 found to be due to
v. the plaintiff-respondent as " guaranteed commission."
los. E.
FER~A~l)O. The defendant-appellant's defence in that suit as
lJ SAN well as his main ground of appeal in this case is tbat
to.IACNG. ].
he was in occupation of the portion of the suit
premises as a sub-tenant of Fernando and not merely
as his licensee, that tbe agreement, Exhibit A, dated
the 7th July 1947 was a II sham ., documel~t which was
never meant to be acted upon, and thai, in any event,
even in terms of tbe agreement Exhibit A he is not
liable to be ejected from the suit premises. As the
faets of the case have been fully set out by the
3rd Judge of the City Civil Court who tried the suit, it
is not necessary to recapitulate them here. On the
:pleadings the learnee! trial Judge framed six issues as
set out below:
(1) \Vhethel" the agreement dated the 7th July 1947, is
valid and binding on the parties?
(2) Is the defendant a licensee or a sub-tenant of the
portions allotted to him in the suit premises?
(3) Lid the defendant pay Rs. 100 a month as a gnaranteed
conuiiission or as rent? -
(4) Is the-plaintiff entitled to a decree for possession of the
portions of the premise's in stlit ?
(5) Is the plaintiff entitled to get Rs. 250 or any amount as
representing 10 per cent commission on the nett
profits out of the s;lle of goods other than radios,
gramophones, etc ?
(6) Is the plaintiff entitled to get Rs. 500 from the
defendant by way of arrears of guaranteed commission?
On the evidence before him he came to the
conclusion that the agreement dated the 7th July 1947,
was valid and binding on the parties, that the
defendant-appellant.was a mere licensee of the portions
of the suit premises which were allotted to him, that the
1950J BURMA LAW REPORTS. 3

payments of Rs. 100 a month by him to the plaintiff- H.C.

1950
respondent were by way of " guaranteed commission,"
GmWACHAN
that the plaintiff-respondent was entitled to a decree SINGH
for possession of the portions of the suit premises V.
Jos. E.
occupied by' the defendantappellimt and also to FKR~,\~oo.

Rs. 500 due as <lrrears of "guaranteed commission" U SA~

l\1AUl'G,1.
but not the sum of Rs. 250 claimed as commission on
the nett profits out of the s<lle of goods other than
radios, gramophones, etc.
In this a;->peal by Gurbachan Singh it was urged on
behalf of the: appellant that the learued trial Judge
should have held on the evidence, that Gurbachan
Singh who was occupying a portion of the premises in
suit since the 1st of May 1947, was a sub-tenant of
Fernando on the same terms as Harbhajan Singh who
Ind preceded him (Gurbachan Singh), that the learned
Judge erred in not holding that the document
Exhlbit A, executed on the 7th July 1947, was a " sham"
document executed for the purpose of evading the
.Urban Rent Control Act and of meeting any possible
objection by the landlord, that the trial Jl'dge erred in
not giving due weight to the following admitted facts,
namely, (a) that Harbhajan Singh was paying rent
at Rs. 100 per month for the portion of the suit
premises, (b) that' the plaintiffrespondent's account
book shows payment of rent by Harbhajan Singh at the
rate of Rs. j 00 per month, (e) that on the plaintiff-
respondent's own admission the defendant-appellant
had to permit him to occupy a space 4' x 22" X 48" high
for his show case, (d) that the plaintiff-respondent
himself made the entries in the defendantappellant's
account book showing that the payments macle to the
plaintiff-respondent were by way of rent and (e) that the
plaintiffrespondent was still carrying on business in the
suit premise5 although he had alleged that the busineis
had be~n sold to one Mr. R. O. Hindle.
 .'
"

4 JjURMA LAW REPORTS. [1Y50

H.C.
1950 In this appeal three points appear to arise for our
GURBACHAN
determination :-(1) Is the document Exhibit A dated
SIl':GCl the 7th July 1947, <l " sham" one never meant to be
V.
Jos. E. acted upon, or, does it embody the terms agreed upon
FXR!\'A:-.:DO.
between Jos. E. Fernando and Gurbachan Singh?
U SAN
1':1AUNG, J.
(2) If Exhibit A is genuine and valid is it a document
evidencing sub-lease of the portions of the suit premises
mentioned therein or does it operate as a mere Iicen'se
to occupy these portions? and, (3) if Exhibit A is a
mere license is the defendant-appellant liable to be
ejected irom the portion of the suit prewises occupied
by him for breach of any of the conditions contained in
Exhibit A or in pursuance of item 3, which provides
that Gurbachan Siugh would be allowed to carryon his
business in radi a as well as radio servicing for so Ion g
as Fernando carry on his business in the suit premises?
As regards (I), there is no doubt the fact that
although the defendant-appellant actually occupied a
a portion of the suit premises since the 1stof May 1947,
the document, Exhibit A, was only executed on th(;
7th July, 1947. According to the defendant-appellant,
at the end of June 1947, the landlord who visited the
suit premisesfciund three or persons occupying the
pl'einises in addiiion' to his tenant Fernando and that
Fernando was collecting rent of over Rs. 500 from
these persons while he himself was paying only
Rs. 200 as rent. Therefore, the landlord proposed to'
Fernando that the rent should be enhanced. Two or
three days 1a~er, Fernando asked him (Gurbachan
Singh) to sign the agreement, Exhibit A, saying that
he wanted to avoid complications with the landlord
and the Rent Controller. As he had then become
very friendly with Fernando he signed the agreement
on the understanding that his position as sub-tenant
was not to be affected thereby. According to the
plaintiff-respondent, however, before Gurbachan Singh
 1950J BURMA LAW REPORTS. 5

came into occupation it was agreed that he would H.C.

J950
sign a similar agreement as that of Harbhajan Singh,
GUI{BACHAN
his predecessor, who was a mere licensee occupying SINGH

a portion of the suit premises on payment of " Guaran- v,

los. E.
teed commission." Although the defendant-appellant FEm~A:'\UO.

actually occupied the suit premises on the 1st of May U SAN

1\1..\UNG, J.
1947 the agreement could not be executed till the 7th
of July 1947 as he {Fernando} was stricken with grief
owing to the de'ath of his wife and daughter who were
passengers or, S.S. " Harvey Adamson" which sank on
its voyage froin Rangoon to Tavoy. The learned trial
Judge accepted the plaintiff-respondent's version in
preference to that of the defendant-appellant and, in
our opinion, he was right in doine so.' In the letter,
Exhibit 6, dated the 28th April 1947 addressed to
Gurbachan Singh, Fernando told Gurbachan Singh
that he could occupy the portion previously occupied
by Harbhajan Singh if he would refund to Harbhajan
Singh the sum ot Rs. 300 paid by the laiter as
fent to date and that he would have to sign an
agreement in the same fnrm as that executcd by
Mr. Harbhajan Singh. The defendant ,appellant did
have to sign the agreement, Exhibit A and it must
be presumed, unless the conh'aJ~y 'is' proved to be true,
that Exhibit A was the agreement referred to in the
letter Exhibit 6. Although Gurbachan Singh would
have it that the agreement which Harbhajan Singh had
to sign was an ordinary tenancy agreement he has not
been able to substantiate his allegation. He has
neither produced a copy of the agreement signed by
Harbhajan Singh nor cited Harbhajan Singh as a
witness. Furthermore, although he would have it that
in the receipts granted to him by Fernando the
payments were mentioned as "rent" and not as
" guaranteed commission," he has not produced any of
'",ese receipts as exhibits in the suit. He contended
 .'
6 BURMA LAW REPORTS. [1950

H.C. that these receipts were stolen from inside the file
1950
which he kept in this almirah which was not under
GURHAC}-lAX
SI1"GH lock and key :md that these receipts were in his posses-
V.
los. E. sion at. the time he filed his application before the Rent I
FERNA:\Do. Controller for the fixation of standard rent for the
U SA~ portion of the suit premises occupied by him. How-
MAUNG, J.
ever, his explanation is on the face of it, most
unsatis(~ctory. By June 1947, Fernando was disputing
the nature of his occupancy of the portir'n of the suit
premises and it is but natural that any man of ordinary
prudence would keep the receipts under lock and key
as they were valuable documents in support of his
contention that he was a sub-tenant and not a mere
licensee. The failure of Gurbachan Singh to prod lice
the receipts granted to him by Fernando tends to
support Fernando's story that he had recorded in them
payments made to him as "guaranteed commission."
Great stress has been laid by the learned Advccate
for the defendant.appeilant upon the faet that in th,,"
account books of the defendant.appell'lIlt payments t~
Fernando were recorded as rent :;md that the entries
were made by Fernandohim~elf. However, Fernando
was. acting as a parttilTIe Acc()Untantof Gurbachan
Singh and his explanation that he had to enter the
payments as rent because Gurbachan Singh had told
him that this was necessary for Income-tax purposes, is
amply . corroborated by Gurbachan Singh's own
evidence. Gurbachan Singh had to admit in cross-
examination, "I did ask the plaintiff to write the
payments as rents for purpose of Income-tax."
Besides, the fact that the agreement Exhibit A, is
genuine is borne out by the fact that in reply to the
notice, Exhibit 2, dated the 1st June 1948, from
Mr. Pillay for Fernando to Gurbachan Singh that the
latter had failed to carry out the terms of the agreement
dated the 7th July 1947, Ur. Dac1achanji fur Gurbachan
 1950J BURMA LAW REPORTS. 7

Singh wrote in his letter, Exhibit B, dated the 9th June H.C.
lY50
19+8 as foIIows :
GUHBACH"'::-:
SINGH
"Your letter of the 1st in!:tant addressed on behalf of ycur v.
cHent 1Jr. Jos. E. Fernando to my client Mr. Gurbachan Singh, Jos. k.
FI~r'l\'A:mo.
has been placed in my hands with instructions to reply thereto as
ioUows: U SAN'
MAUl\G, 1.
That he 'would be obliged if you would let me know as to
which conditions of tht a,I!.rCt11lt11l h,we been broken by him and
on which particular term your client bases his right to eject him
from the premi~es."
,
If, as the deendant-appelIant now contends, the
. document Exhibit A, dated the 7th July 1947, was a
"sham" one not meant to be acted upon this is not the
sort of reply one woule! have expected from him. He
would have taken this opportunity offered'to him of
repudi~ting the agreement in Iota instead of asking
which of the conditions therein had been broken by
him.
As the answer to the second point would depend
very largely upon a proper construction of the
document Exhibit A, it is l1~cessary to sel out below
some of the important conditions embodied therein.
These are as folIo.ws :
(1) Fernando would allot in his business premises
namely, No. 217, Sule Pagoda Road. Rangoon, the
spaces mentioned below for the purpose of carrying on
a business in radio sales and radio servicing on terms
to be stipulated in the agreement.
(2) The space aIIotted would measure 17 feet in
length and 5 feet in width along the northern side of
the show-room for the purpose of building a teakwood
fixture and also for keeping two show-cases measuring
4' x 22" x 36" high reserving a space 4' x 22" x 48" high
for Fernando's own show-case. Furthermore, a spOlce
5' wide was allotted along the northern side of the
premises just below the loft and another space 5 feet
 ..
8 BURMA LAW REPORTS. [1950
H.C. wide was allotted in the back room with access to the
1950
lavatory and the bathing-room.
GUHB,\CHAN
SINGH (3) For allotting these spaces Gurbachan Singh
V.
JOS. E. was to pay Fernando monthly on or before the 5th day
FEUNANDQ. of each month a sum of Rs. 100 as "guaranteed
U SAN c;ommission" on Gurba,chan Singh's business in radio
MAU!'\G, ].
sales, gramophone record sales and for servicing of
radios. An additional commission of 10 per cent on
l1ett profits on goods -other than radios, radio parts
gramophones and gramophone records illUSt also be
given but beforc such goods were broubht in and sold
in the suit premises prior permission therefore must be.
obtained by Gurbachan Singh from Fernando.
(4) Both Fer'lando and Gurbachan Singh were to
observe strictly business hours as from 8-30 a.m. to
5-30 p,m. on week-days and also Suncbys and other
holidays.
This document, on the face of it, is one evidencing
the licensing of a portion of the suit premises by
Fernando to Gurbachan Singh for the specific purpose
of selling radios, gramophones and grarro;:>honc
records and for the servicing of radios. This is
especially clear from the faet that before Gurbachan
Singh could bring in other goods for sale prior
permission therefor must be obtained from Fernando:
Furthermore, even in the space allotted to him
Gurbachan Singh could only put show-cases of certain
specified demensions. In that space Fernando
reserved to himself the right of keeping his own show-
case. Furthermore, Gurbachan Singh was to observe
the same business hours as those observed by Fernando
himself. From this latter fact it is app;1.rent that
Fernando \~as in control of the entrance to the
premises. On Gurbachan Singh's own admission the
space allotted to him by Fernando' according to the
terms of the docul11ent Exhibit A, was about one-fifth
1950J BURMA LAW REPORTS. 9

Df the whole of the suit premises. Except for the H.C.

1950
portion formerly occupied by Dr. Tsatos as a sub-
GUHBACHAN
tenant the whole premises appear to be one big SIXGH
v.
. common room with one small room at the rear, Jos. E.
FH~IANUO.
Dr. Tsatos' portion being the only one which
had been partitioned off from the rest. After U S'\N
1\1 ,\UXG, J.
Dr. Tsatos had left, the space .occupied by him
was occupied by one NIr. Sielhwa on the same basis as
the defendant-appellant Gubachan Singh, that is to
say, by payment of "guaranteed c.ommission." One,
Mr. Godfrey occupied a portion of the loft by paying
Rs. 45 a monlh as "guaranteed commission." One,
Mrs. Adams occupied a portion of the suit premises
as a sub-tenant. After Mrs. Ad,ms left Gurbachan
Singh was able to obtain from the Rent Controller
permission to occupy the portion formerly oc':upied
by Mrs. Adams on the same terms and conditions
<IS those of Mrs. Adams. It is not known on what
terms Mrs. Adams was allowed to occupy a portion of
the suit premises. However, it seems clear to us that
the defendant-appellant Gurbachan Singh himself
cannot be regarded as a sub-lessee of the space allotted
to him by Fernando as per terms of the document
Exhibit A. He' could never have been in exclusive
possession of this space notwithstanding his assertion
to the contrary. As helel by a 'Special Bench of the
Madras High Court in "The Acting Secretary to the
Board of Reve!'IlIe v. Agent, South 11ldidi Railway Co.
Ltd. (1) "the test for determining whether a transaction
is a lea,e or a license is to see whether sole and
exclusive occupation is given to the grantee." ln this
connection the observations of Kumaraswami Sastri J.
seem apposite. The learned Judge observed' at
page 377 of the Report "A.' lease' is defined in

(1) (1925) 48 Mad. p. 368.

 ..

10 BURMA LAW REPORTS. [1950

H.C. section 105 of the Transfer of Property Act and ;,t
1950
, license' is defined by section 52 of the Easements
GUltnACTJAN
Sr:'.1GH Act. In both cases certain rights are c:lnferred on the
v.
Jos. E. lessee or the licensee. In the case of a license
F.E..1tNA:\'DO. something may be paid as consideration for allowing a
U SAN person-to do an act on another man's land. Both have
MAU~G, J.
several elements in common but it seems to me that
the. difference between a lease and a license is that
in the case of a license there is no interest in immove-
able property transferred to the licensee; ,vhile in the
case of a lease there is' a transfer or carving out of the
interest in favour of the person in whose favour the
lease is granted. One chief condition is whether there
is any right of exc1u"ive possession given."
As observed by Romer L.J., in Frank Warr & Co.
Ltd. v. London County Council (1) 'where a document
does not amount to a demise or a parting in respect of
any portion of the premises with the possession which
the owner has when he executes a document, it would
only amount to a license and not a lease.' On a
proper construction of the document Exhibit A, it
does not appear to us that Fernando has parted with
possession of any of the portions of tbe suit premises
-allottee by him to Gurbach,m Singh. Therefore this
case is very similar to that of Frank WaIT & Co. Ltd.
v. Londoll County Council (1) cited above where by a
contract made between the lessee of a theatre and
the plaintiffs it was agreed that the plaintiffs should
have the exclusive right for a term of years to supply
refreshments in the theatre, ~nd for that purpose
should have the necessary use of the refreshment
rooms, bars, and wine cellars of the theatre, and
that they should have an exclusive right to advertise,
~nd let spaces for advertisements, in certain parts
of the theatre, it was held that the contract did not
11) (1904) K.l. 713 al720.
1950J BURMA LAW REPORTS. III

confer on the plaintiffs an interest in land which could H.C.

1950
form the subject of compensation under the Lands
GURBACHA~:
Clauses ConsoJ:dation Act, 1845. No doubt, It is true SH\GH

that in the case nO\1I unaer consideration Fernando had v.

Jos. E.
allolted certain specified spaces in the suit premises to FERNANDa,.

Gurbachan Singh but since, in our opinion, no U SAN

l\IAUSG, J..
exclusive possession thereof has been given to him
there is no difference in principle between this case
and that of Fral,k Warr & Co. Ltd. v. London County
CouHcil (l).
The learned Advocate for the appellant has referred
up to the case of Secretary oj State/or India in Coullcil
v. Bhupalchandra Ray Chaudhuri (2) and has invited
us to hold on the authority 01 the ruling in that
case that the appellant was a sub-lessee of the portion
of the suit premises occupied by him. There th~
learned Judges who decided that case held, following a
ruling of the Privy Council in Glmwood Sumber Co.
Ltd. v. Phillips (3) that if the effect of an instrument
is to give the holder an exclusive right of occupation of
the land, though subject to certain reservations, or to a
restriction of the purposes for which it may be used, it
is in law a deIVise of the land itself. However, this
case is distinguishable from the case now under
consideration because in our opinion the. effect of
the document Exhibit A was not to give Gurbachan
Singh an exclnsiv~ right of occupation of the spaces
allotted to him. Moreover, any doubt as to the
nature of the transaction evidenced by Exhibit A may
be set at rest by the defendant-appellant's own admis-
sion that at the time he executed this document he
knew that it was not a tenancy agreement.
Lastly, as regards the third point it would appear
to us that the defendant-appellant had failed to pay.
ill 11904: K.B. 713 at 720. (2) 57 Cal. 655.
13) (19041 A.C. p. 405.
 . '

12 BURMA LAW REPORTS. [1950

H.C. the plaintiff respondent Rs. 500 due as "guaranteed

1950
commission" for the five months prior to the date
'CURBACHAr;
SINGH of the sui,t. No doubt, the defendant-aopellant offered
v, to pay this amount if the plaintiff-respondent would
JOS. E.
FRJmAXUO. give him rent receipts therefor. However, this 'is not
U SA::-l" . an unconditional offer. to pay the "guaranteed
J\'1AUXG, J.
commission" due to the plaintiff-respo'ndent and the
defendant-appellant had no right to insist that rent
receipts should be given in acknowledgment of the'
payment of thc sum due to the plaintiffrespondent.
The defendant-appellant had admittedly not only
failed to carry out that part of the agreement by which
a certain spacc 4' x 22" x 48" was to be reserved for the
show-case belonging to Fernalido but also committed
a breach of the agreement by occupying much more
space than was actually allotted to him. In his
evidence he said, " From the beginning up till now I
am in occupation of practically half the portion of the
whole premises." Apart from these breaches of
conditions it is clear that according to Condition 3 of the
<lgreement Exhibit A, the defendant-appellant could
only occupy the portion of the suit premise" allotted to
him for so long as Fernando himself carried on his
business -at th(;-.suit .premises "ne! there is credible
evidence on record to show that Fernando had
entered into a partnership with 1'v1r. O. Hindle in a
cone'ern known as 'Manufacturers Representative
Business and had also entered into an agreement
Exhibit F, whereby all the goodwill, furnitnre, fillings
and stock belongiDg to him lying in the suit premises
were to be sold to Mr. O. Hindle for a sum of
Rs. 20,000 so as to enable !\Ir. Hindle to form a
limited liability company in which he would be a
sJ,areholder to the extent of Rs. 5,000. Fernando's
'e~ldence on this point is corroborated by that of
Mr. O. Hindle and we see no sufficient reason for
1950J BURMA LAW REPORTS.

differing from the learned trial Judge's finding that H.C.

1950
the transaction evidenced by the agreement Exhibit F,
GURBACHAN:
was a genuine one. SIXGH

For these reasons we hold that the learned 3rd ".

los. E.
FERNA~D()_
Judge of the City Civil Court was right in passing a
decree for possession of the portion of the suit U SAN
MAUNG, J-
premises occupied by the defendant-appellant and for
the payment of Rs. 500 as "gu:lr<.tnteed commission."
In the result, the appeal fails and must be dismissed
with costs. Advocate's fee five gold mohurs.

U THEIN MAUNG, C.J.-I agree.

 BURMA LAW REPORTS. [1950

APPELLA TE CIVIL.
Bef.:re U Them Maut1g, Cltie! If/sUa, ami U San MlItlg, J.

H.C. UNJON GOVERNMENT OF BURMA (ApPLICANT)

1950

Jan. 17.
v.
QUAH CHUN BEE (RESPONDENT)."
.
(..11ioll Ciliumltip Election Aet, 1948. s. S (2J-Refermce to HiJ:!ll COllrt by
Minister-" Rt:sideI1ce" l/I(.all;lI[:. 0/ ill $, 3-Limi!afioll.
RC:lpondent wa5 born at Tavoy on 27th December 1923 where he resided
lil11935 and went to Pen:ln,( lor further study. He used to come back to
Ta\"oy for one month every half year upb.> 1941 anel was out 01 Burll1a from
1941 fill the 23rd of JUllE: ly46. He applied for Citizenllhip tinder the Union
Citizenship Electkn Act, 1943. This was allowed by the Ofiic.:r on 1st July
1949 but the .Minister on behalf of the Union referred the application to Court
on 20th Novemb~r 1949.
Held: S. 8 (2) of tll~ Ad, uuder which the reference waB made, did net
prescril~e any periud of limi\:ltion within which the Millisler must rtfer the:
:lpplicatiQIl to Court. SlIch omii>si'Jn iii deliberate. Therefore Ihoere i~ 110
period of lill1itation for reference cy the i\lini'it~f.

The meaning of the word "resides '. has to 'oc gathered from the intention
d the legislatl1re in ~. 3. Such intention is obtained by intt:rpreting the
langlJage accordin~ to its obvious 1l1ealliug.
The same 'word need not necessarily have the same meanill b in difiercnt
enactments. not even in different sections in tbe S:1me efl:lctment, and Ihl'rdore
rulillgs \lndc!" s. 20 of the Code of Cidl Procedure and otJ~er :::talutes arc
llot applicable.
RamtlcIJalldya Sakha'ralll v. J(t:.shal' Dttrga'ji, (1882) I.L.R. 6 BOlll. 100
-at-lOl : Parish Cot/lutl of iht Cil)' (l! Parish Of Edinhurgh v. Loral GO'i,entl/lwt
lJoard for Scot 11l11d, (l91S1 A.C. 717 at 722, referred 10.
As a matter of fact the context ;md subject matter indicate that th.:: n~tllral
meaning lHU5t be given to the \VI.rd "reside." The Legislature ha,'l ciJoHIl this
word instc.'rld of the word" domicile." S. 3 of the -\ct is only a reproduction
{if the s. 11 ~ivJ of the Constitution of Burma. The LegisJ:;\ture clt:'l.I'I::t
regarded the Citizenship a~ :t matter of the ;.;tmo~t importance as i! involves
rights and dlltics 011 th~ part of the Citizen ;tnd the State. Thc phra3c "has
resided for a period of not leu th:ln 8 years" 1111l3t mean actu;11 residence.
Thi. view is further strengtbened by the faet that the Legislature has .lIle" cd
the choice ~f two different periods as also a margin of two years out uf 10 far
absence from Burma. Judged in this \\ay the Respondent was not enlitled to
a Citizenship Certificate.

,. Civil Heference No. 11 of 1949 being reference made by the Altorne-}'-

General on behalf of the Union Government of Burma utlder lOub-scction 2 of
section S of the Union Citizenship (Election) Act, 1948.
1950J BURMA LAW REPORTS. 15
Srimati Allildbaia Cllandhlfralli v. Dhirelldra Nath Salta and another, H.C.
.AJ.R. (19.21) Cal. 309 at 313, follo\ved. 1950

Ul\WN
Tin Matmg (Government Advocate) for the GOVEHN-
MENT 01"
:applicant. BI:Jn[A
v.
QUAH Clll':\"
Teh rVan Hock for the res~ond~nt. BEE.

U THEIN MAUNG, C.J.-This is a reference under

section 8 (2) of the Union Citizenship (Electi0n)
Act, 1948.
The application, the correctness of the decision on
which is doubted by the Minister, is that of the present
respondent Quah Chun Bee.
He \Vas born in Tavoy on the 27th December 1923.
He resided in Tavoy till 1935 when he went to Penang
for further study. He used to come back to Tavoy for
one month every half year up to 1941 ; but he was ont
of Burma altogether since the outbreak of tbe war in
1941 up to the 23rd June 1946 as be dared not retGrn
to Burma earlier. The Citizenship Election OfJicer
has found as a matter of fact that" the period of stay
of the applicant actually in Tavoy was, during the last
ten years immediately preceding the 1st January 1942,
a little over.Jour years" ; and section 3 of the Act
requires an applicant for a certificate of citizenship to
have "resided in any of the territories included in the
Union for a period of not less than eiglit years in the
ten years immediately preceding either the first day
of January 1942, or the fourth day of January 1948."
However, the Citizenship Election Oftlcer has ultimately
held that the respondent is entitled to a citizenship
certificate as his stay (in Penang) should, under the
circumstances, be considered to have been in Burma.
His decision is dated the 17th January 1949, and the
:Minister referred the application to this Court only on
the 20th November 1949. So the learned Advocate
 ..
16 BURMA LAW REPORTS. [19S0
H.C. for the respondent has taken the preliminary objection
1950
that the reference is time barred. However, he is
U:-<ION
GOVEH~~ unable to point out under what provision of law
ME:NT OF
BURllA
the reference is time barred. Section 7 (1) of the
V. Act provides:
QUAH CHVN
BEE.
" If the officer decides th,lt the applicant has established his
U THEIN right to elect for citizenship of the Union, he shall forthwith
MAUXG, C.].
transmit to the lIinister a certifIed copy of his decision together
with the application for the certificate and the af11clavit annexed
thereto."

And section 8 (2) thereof under which the reference

has been made, provides:
II If the 'Minister is in doubt of the correctness of the decision

of the officer, he may refer the application to the High COllrt on

the AppelIate Side. To such a ref~rence by the Minister or the
application nnder section 7(2) the provisions of Order XLI of the
Civil Procedure Code shalI apply."

Section 8 (2) does not prescribe any period within

which the Minister must refer the application to this
Court. This omission must have been deliberate.
since in sub-section (2) of tbe previous section the
Legislature has expressly enacted:
"If the-officer decides that the applicant is not entitled to so
,. elect, the' applicant may file an application in. revision against the
order in the High Court within sixty clays from the date of
the order."

vVe accordingly overrule the preliminary objection.

At the same time we abstain from discussing the
l']uestioll as to whether Article 181 of the Limitation
Act applies to such a reference as it is 110 body's case
that it does.
The learned Advocate for the respondent has cited
several rulings under section 20 of the Code of Civil
Procedure, the Guardian and vVards Act and the
Succession Act and on the meaning of the \Vord

!
"
1950J BURMA LAW REPORTS. 17
" resides." However, as has been pointed out by H.C.
1950
Melvill J. in Ramc1zandra Sakha'ram v. Keslzav
UNION
Durga'ji (1): GoVEHN-
MENT OP
II The word (resident I in legislative en~ctments mnst be BURUA
V.
construed according to what may be snpposecl to have been the OUAH CHUN
intention of the Legislature in using the tern:. The word need - BEE.

not necessarily have the same meaning in different enactments, U THEIN

nor even in different sections of the same enactment." i\-IAUNG, C.].

So we must, in the words of Lord Kinnear in

Parish Council of the City Parish of Edinburgh v. Local
Govemllle1'lt Board for Scotland (2), gather the intention
of the Legislature in using the term by taking the
whole of section 3 of the Act logether and" interpreting
its language according to the obvious meaning to be
specialized only by a reference to the context and to
the subject-matter." The word" reside" ordinarily
means" to d well permanently or for a length of time"
and there is nothing in the context or the subject-matter
pf the section ,0 "specialize" it.
As a matter of fact the context and the subject-
malier are such as to indicate that its natural meaning
must be given to the word" reside." The Legislature
has chosen to use the word" reside" instead of the
word" domicile" ; and as has been pointed out by
Mookerjee C.J., in Srilllati Anilabala ClzaJlllJllIrani v.
Dlzirmdra Nath Saha and a1wthrJr (3) "the question
(of residence) is entirely distinct fr0111 that of domicile
which is often wholly independent of actual residence."
Section :> of the Act i" only a reproduction of
section 11 (iv) of the Constitution of the Union of
Burrr,a and the section 11 (iv) appears in the Chapter
relating to Fundamental Rights. So the Legislature
clearly regarded citizenship of the Union to have been
a matler of utmost importance inasmuch as it involves
II) 11882) I,J".R. 6 Bom. 100 al p. 101. (2) (1915) A.C. 717 at p. 722.
(3) A.!.R. (1921) C.1. 309 at p. 313.
2
18 BURMA LAW REPORTS. [1950
H.C. rights and duties both on tbe part of the citizen and on
1950
UNIUN
the part of tbe state; and the presumption is that the
COVlum- Legislature would not let anyone have the right of
ME:-''l' 01"
RUin-IA citizenship lightly and that it would require the
v. prescribed conditions to be fulfilled strictly. Accord-
QUM} CHU:-<
BEE. ing to this view the phrase" has resided ia any of the
U THEIN territories included within the Union for a period of
MAlIXG, C.].
not less than eight years" must mean actual residence.
'Ibis view is strengthened by the fact that the Legisla-
ture has allowed not only the choice of two different
periods but also a margin of two years out of ten for
absence fro'11 tbe said territories.
Even in a case under the Poor Law, tbe House of
Lords has held tbat the word" resided" did not import
intelligent residence but applied to the bodily presence
of:t pauper lunatic in the particular parisb (See Parish
Caui/cil af the City Parish af Edinburgh v. Lacal
Go,'erulIlenf Board )01' Scotland (1) ; and the rights and
duties under the Poor Law are only a small fraction of
the rigbts and duties of citizenship.
\Ve accordingly hold that tbe ordinary meaning
must be given to the word "re3ide" in section 3 of
the. Act and that the respondent is not entitled to a
certificate' of citizenship as he has not actually resided,
i.e. as he has not been bodily present, in any of the
territories included within the Union for a period of
not less than eight years immediately preceding the
first day of January 1942, or the fourth day of January
1948.
The decision of the Citizenship Election Officer is
set aside and the respondent's application is dismissed.
The respondent must bear' the costs of this
reference. Advocate's fee five gold mohurs.

U SAN MAUNG, J.-I agree.

(t) il915) A.C., 717 at p. 722.

. ,
 1950J BURMA LAW REPORTS. 19

CIVIL REVISION.
]jefore U Thciu J!mlllg, Chief Justice.

R. K DASS (ApPLICANT) H.C.

1949
v.
Feb. 16.
K.N.RM.N.R. NAGAPPA CHETTYAR
(RESPONDENT).'"

Ci't'il Plocedrtre Code, s: 47, OJ del' 21, Rille 9S-Decru-ltoldcr a/fction ftll'chasl1l'
-Delivery oj POSStss;on la-Whether rdates to exccutioll, discharge or
s,llis!acfioll of darce-Remcdy-A[.!relIltut after exc:lIliOIl-Wllethu
'ldjll~tmellt-Wltdlurn;vj;;,ioll Iit"s.
The Respondent having purchased a house at a court auction in exec\llioll
of his own decree applied for delivery of possession under Order 21, Rule 95 of
the Code of Civil Procedure. Later partie:; filed 'it joint petition that applicant
was it) deliver vacant possession aiter removal of buildings bdOft 10lh January
1918 and upon failure the coun 5hollld act in accordance with the original
application. Upon 3 further applic~tiol1 by U10.: I~e",ponde'lt the CUllrt order"d
c:.:ecntlon as first prayed for. On apPl?aI :he District COUIt held that no appeJ.1
lay. It was contended for the appellant that lbc ResponQent is a party to the
$\;it, tllat the ~lucstion of delivery of posses::;ion relOltes to execution, di.charge
or satisfaction of the decree within s. 47 oi the Code of Civil Procedure.
Hetd: The quc.3tion whether npplicant had or had not failed to giye vacant
p055cs'"ion after relllO\ing tile J:,uildin~s before the 10th or Janua,y 1948 aro~e
out of the agreement alld the ~~reeme:lt itself was :ilot ;'lll ~djustmcnt of the
decree.-
Held {MUtey: That thc auction pa.rch::lser's right Lo possessioll ~lgaillst the
judgmentdebtor is not a qucstion relnting to execution, discharge or
s:llisfaction of the decree.
Htltl ; That the question whether there hrls been a breach of a condition in
al~)' :lgreemcnt is a pure que::;tion of fact which the Trial Comt had jurisdiction
to decide and there is no ground for redsion of the order of the Trial Court.
J. A. MllI"lill v. S. M. Has/lilll aJl(i vflws, (1930) LL.[{. 8 Ran. 162, followed.
Sel/labi v. Gallupatrao YlldJrao P'7IIdc, A.I.R. 1.1938) Nag. 212; I;aslIi1/atll<l
Aj'y.lr v. Utl1ll11ltlllSa RC;1!Jl/uw, 0<)02) 25 Mad. 529=12 M.L.J. 1;
f{lltlllya{ Patllllmay v. RmwJ.U Mellon, (1903) 26 Mad. 740=13 i\1.L.J. 237 ;
SalUlhlt TaragmUlr . Hussaili Sahib, (1905) ,Zg Mud. 87=14 M.L.J. 474;
1't-villdra1lllltltu Pillai v. Maya Nadal1, {1920j 7 A.I.R. Mad. 324=54 I.e. 209,
=48 :\r.r....J. 32 {F.B.) : J{ail;lslt Chandra T<lrp.ldar v. Gapol Chandra Poddar,

11 Civil Revision No. 9~ of 1948 against lhe order of the District Court

of Bassein in Civil Misc. Appeal No.5 of 1948 arising out of the order of the
Second Subordinate Jud!!;e, Bassein in Civil EXCCI!lioll I'\o. 52 of 1946.
20 BURMA LAW REPORTS. [1950

H.C. 092.6) 13 AJ.R. Cal. 798=95 r.C.49-1-=53 Cal. 781=30 C.W.N. 649=43 C.L.I.
1949 345 (F.B.) ; KnIipnda Mu}dlerji v. Bma1Jllll,umar DIlUII, 11932) 19 A.I.H..
Cal. 126=133 I.e. 177=59 Cal. 117=35 C.W.N. 877; Bltngwa/iv. Bm"cari
R. K. DABS
v. Lol,(l909i 31 :\11. 82"'1 I.e. 416=6 A.L.]. 71 (F.B.); Muhsiu Ra:';a Khan v.
K.N.R. llai:!,lY Bal,hsh, (1928)15 A.I.R. AlL 368 ... 115 I.e:. 869",50 All. 670-26 A.L.].
::V1.~.R 498; Kedar Na/It- v. Artl1t Clwlldra Sinha, (1937) 24 A.I.R All. 742 -172 I.e.
~AG..\PP.-\
57={193iJ A.L.]. Sl:}9-=I.L.R DD37) All. 921 (F.B.;; TribC1ti Pn1s/;d Singh v.
CHETTYAJ~.
RUJl/IISr,IY Prasad Cha1ldllllr;, (1931) 18 A.I.R Pat. 241 = 133 I.e. 337 = 10
Pat. 670=12 P.L.T. 423 (F,B.); llargoviud Fulchalld v. SIlt/dar RtToji
(1924) 11 A.1.R Bom. 429 = 83 I.e. 932=48 Bom. 550=26 Born. L.R 601
iF.B.) ; Him Lal Molian Lal v. Uamac!lalld1"a,.(1930) 17 A.I.R. Bom. 375=125
I.e. 703=54 Bom. 4i9=32 Bam. L.R. 619; Bri) Lal v. Dllrga, (920)
7 ..\ .l.R L;l.h. 159=56 I.C. 254=1 Lah. 134=132 P.L.R. (1920); Gayl1 Ball!Js/l
Siu{!,h v. Rajellll1"d Bn!Jrldttr Singh, (1928) 15 A.LR. Oudh. 199=110 I.C.83
=3 Lucle 182::-:5 O.\V.N. 108 (F.B.) ; PrO.\1II111O ]{umar Sall)'al v. KfllJ Das
Sanyal, 19 C:l.l. 683 ; ]{ortoll Bibi v. TJ..ill.R.IJ. ClletiYfl1", (1(41) R.L.I~. 7&7;
Haji Dad(l v. Paul/alaI, 169 I.e. 99, considered.

H. Subramaniam for the applicant.

P. B. Sen for the respondent.

U THEIN MAUNG, C.J .-The respondent having

purchased Holding No. 169 of 1935-36 measuring '069
of an acre in Daga Railway Akwet No.4, Daga village,
Bassein East Township with a wooden house,
outhouses, etc., standing thereon at a court sale in
execution of his own decree against the applicant
applied for delivery of possession' of the said property
under Order 21, Rule 95 of the Civil Procedure
Code. While the application was pending the
respondent and the applicant filed a joint application
asking the Court to act and pass orders in accordance
with an agreement between them. The agreement is
to the effect that the applicant was to deliver vacant
possession of the northr:rn half of the said holding
aft~ removing all the building on that half before the
10th January, 1948, and that the Court should" act "
in accordance wilh the respondent's original
application (for deli very of possession) if the applicar:.t
failed to do so. Subsequently the Court found" after
 19.50] BURMA LAW REPORTS. 21

inquiry on further application by (he respondent, that H.C.

1949
the applicant h<ls failed (0 give possession of the said
H. K. DASS
half and ordered "that the applicant (i.e., the
K.l'\.R
respondent) shall have the right to execute his decree 1\1.1\ .l~.
as first prayed for." KAGAI'PA
CI-l!':TTY~R.
Th,e applicant then appealed from the said order
U THEIX
to the District Court, Bassein mainly on the ground i\It\UK'G, C.].
that he had" satisfied the terms of (he compromise
as much as possible under the law" ; but the appeal
was dismissed on the ground that it did not jie in view
of the ruling in J. A. Martin v. S. J11. H ashi'm and
others (1).
According to the said ruling-

I'The right of a decree~holc1er, as ..uction purchaser, to

possession as against t,he juclgment-c1ebtor is not a matter that
comes within the scope of section 47 of the Code of Civil
Procedure. The question as to delivery of possession is not one
relating to the I execution, discharge or satisfaction I of the decree.
If he fails to obtain possession under an application uncleI' Order
21, I<u"~ 95 01 the Code, his remedy is to file a suit and not to
appeal against the order. "

The learned Ac:vocate for the applicant has

contended that the said ruling is wrong, that the
respondent is " a party' -to the suit " even though he
claims delivery of possession net as' a decree-holder
but as an auction purchaser, that the question as to
delivery of possession is a question relating to the
execution, discharge or satisfaction of a decree and
tbat the order of the Court of first insta 11ce is an order
under section 47 of the Code of Civil Procedure.
There has been a considerable c:mflict of opinion
in the decided cases on this question j and the position
has been summarized by (he Nagpur High Court in

(I) (1930; I.L.R, 8 I~an. 162.

22 BURMA LAW REPORTS. [1950

H.C. Mr. Semabi v. Gal1patrao Yadorao Pande (1) as

1949
follows:
R. K. DASS
v.
IOU'. tI The decision of the dispute raised in this case is not free
M.N.H.
NA6,\pl'o\ from clifl1culty. High Conrts in India have taken different vic\.. s.
CHETTTAR. Sir Dinshah Mulla in his Civil Procedure Code, Ecln. 10, p:1.ges
U THRIN j 79 and 180, refers to the c0ntroversy 011 the subject. According
MAUt\G, C.]. to the view taken by the High Conrt of Madras ane! by a Full
Bench of the High Court of Calcutta, the decree-holder retains
~:is character of a party to the suit though he is also the
purchaser, and the question as to delivery of possession is a
question relating to the execution, discharge or satisfaction of the
decree within the meaning of section 47, Civil Procedure Code.
The two conditions l",id down by the section are therefore s:.I.tisJied
and a separ.lte snit for possession is barred under section 47:
Kashillatlw Ayyay v. U ' lm1JlQllsa Rowtllan (2), Kattaj'at Patll1lmay 11.
Raman Jl1cJloll (3), Sandllu TaraRal1ilr v. Hussain Sahib (4)
Vevindra1Jluill1l Pillai v. Maya Nadtlll (5), Kailash Chandra
l'arapdar v. Gopat Cllalldra Poddar (6)} and J(alipada 1.11ukllerJi v.
13asmlialdtJ11ar Dill/a (7), According to the other veiw} "",hich is
the view taken by a Full Bench of each of the High Courts of
Allahabad} Patna, B0l11bay} Lahore} Rangoon and the Chief Conrt
of Ouclh, a clecree~holder purchaser stands on the same footing ;,5
a pllrchaser who is a strangel: so that he may proceed either by an
application uncler Order 21, Rule 9S or by a separate suit [or
posse.ssion. This veh'. proceeds on the grcunds that section '}7
does not apply either because the question. as to the delivery of
possessioh is not one relating to execution, discharge or satisfac-
tion of the decree or uec,-i11se a decree~h61cler after he beconies
purchaser of the property can nO longer be said to be I a party to
the suit 1 : BhaRwati v. Ba1l1i.'an Ltd (8), JlIohsill Rm:a Khatl v.

(I) A.I.I~. (19381 !>ag. 212. (6) (1926) 13 A.l.lI. (al. 798 ~ 93
i21 (1902) 2S Mad. 529 eo>] 2 1.e. 4V4 - 53 Cal. 7S1 = 30
'l.L.).1. C.\V.N. 649=43 C.L.]. 3<.JS
(3) (1903) 26 Mad. 740= 13 (F.B.I.
1LL.J.237. (7) (1932) 19 A .I.R Cal. 126 ... 138
(4) {1905128 Mad. 87 - 14 I.e. In", 59 Cal. 117 .. 35
M.L.).474. C.W.N.877.
lS} (l920} 7 A.I.R 1\lad. 324=54 18) (1909) 31 Ali. 82~1 I.e. 41006
I.e. 209 .. 43Z\Iad. 107", 38 A.L.) . .7' IF.B.I.
M.L.). 32 (F.B.I.
1950] BURMA LAW REPORTS. 23

Haidar Bakhsh (1), [{edar Na/h v. An'" ClwlIdm Sillha (2), H.C.
1949
Tribel1i~
Prasad Sill.~h v. Ramasyay Prasad Chaudllllri (3),
Har.!fovilltl Futclwud v. Blmdar Raoji (4), Hira Lai Mohan Lal v. H. It. DASB
~'.
Ralllc}wlIdra ('5), [/1';; Lal v. Darga (6), ]. A. Jhrli" v. K.N.R.
S. N. Hashim (7) and Gaya Bakhsh Si1J.~1I v. Rajel1dra Ba!wdlfr 1'11.1\'.1< .
N;\GAPPA
Sin.s.th (8), According to the vi~\V taken in Calcutta and rvladras J CHETTYAR.
the application for deliyery of possession falls under section 47
U THEiN
and the order made on the application amounts to a decree, i\IAU~G, C.].
section 2 (2), and is appealable as snch. AccOlding to the other
view, section 47 does not apply to the case and the application is
entirely one under Order 21, HuJe 9S and no appeal lies from an
ord~r made upon such application. "

It will be seen from the above extract that the

majority of the High Courts hold the same view as the
late High Court of Judicature at Rangoon. The
Nagpur High Comt itself followed the Madras
and Calcutta view for the reason (inter alia) that their
Lordships of the Privy Council had observeCl III
Pl'OSU1UlO Kumar Sanyal v. [{ali Das Sanyal (9) :

II It is of the: utmost importance that aIJ objections to

;,;xecution sales should be disposed of as cheaply and as speedily
as possible. n

However, the present case does not relate' to any

objectiol1 to the execution sale. It relates only to the
question whether the applicant has orhas not failed to
give 'vacant possession of half the holding after
removing the building thereon before the 10th January,
{II (1928115 A.l.R.AII.368~1l5 15) (1930) 17 A.I.R Bom. 375 = 125
l.c. 869 ~ 50 All. 670 ~ 26 I.e. 703 = 54 Hom. 479 = 32
A.L.J.498_ Bom. L.R. 619.
(2) (193i) 24 A U-\'. All. 742 = 172 (6) (1920) 7 A.l.R Llh. 159-56
I.e. 57=1937 A.L.J. 889= I.e. 254=1 Lah. 134 - 132
l.L.l'. 11037} All. 921 WB.). P.L R.1920.
fS) (1Q31) 18 A.I.R. Pat. 2..U " 133 (7) (1930) 17 A loR. Rin. 61 = 126
I.e. ;37"]0 Pat. 670= 12 I.e. 209 = 8 Ran. 162.
P.L.T. 423 (F.B.I. (8) (1928)15 A.I.R Oudh. 199"'" 110
{4} 11924) iJ A.l.R Bom.129 ~ 83 l.~., 83=3 Ltlcl~ 182"'3
I.e. 932"" 48 B0111. 550"" 26 O.W.N. 108 (I'.B.).
Bom. L.R 601 (F.B.). i91 19 (;aU83.
24 BURMA LAW REPORTS. [1950

B.C. 1.948, in accordance with the agreement and the

le,49
agreement itself is not an adjustment of the decree
R K. DASS between the decree-holder 'as such and the judgment-
v.
K.:K',H:. debtor as in Kartoll Bibi v. V.M.R.P. Chet/yar (l).
M.N.R.
NAGAl'PA Besides, there is no unanimity even in the High
CHETTYAR.
Courts of Madras, Calcutta and Nagpur. \Vith
U THEIN reference to the question as to whether the decree-
:i\lAUNG. C.J.
holder-auction purchaser's right to recover possession
is a question relating to the execution, discharge or
satisfaction of the decree, Sir Arnold White C.].
observed in Sandhu Taragal1ar and ano/Izer v.
Hussain Sahib (2)" if the matter were res in/ egra,
I should be disposed to hold that the question is not
one "relating to the execution, discharge or
satisfaction of the (leCree. "
Cuming J. has observed in Kallash Clzal1dra
Tampdar v. Copal Chandra Poddar (3):
I' The allction-purchas~rqua. auction-purchaser is not a party
to the suit, and the faet that he is also the decree-holder does not
alter his position in any waYl or make him in a matter in \"hich
he is concerned in the capacity of auction-purchaser a party to
the suit. !l

Pollock]. of the Nagpur High Court has observed

in Haji Dada v. Palmalal (4) :
,. It is true tlJ:lt in this case the cleci'ee-holc1er is himself the
auction-pnrchaser but that makes no difference in principle
After the sale had been held and the sale price had
been set off against the judgment-debt or deposited in Courb
snbsequent proceedings for conl1rming the sale <::re proceedings
behreen the judgment-debtor and the auction-pnrchaser jnst as
proceedings for the delivery of possession to the anction-
purchaser. In these proceecliJ1gs the decree-holder plays no part
and in my opinion these proceedings do not amount to executing
(I) (19\11 II.L.R. 767. (3) (1926) 13 A.!.R. Cal. 798-95 I.C.
(2) 11905128 Mad. 87 - M.L.). 474. 494 - 53 Cal. 781 = C.W.I\. 649=
43 C.L.). 345 (F.B.!
(4j 169 I.C. 99.
1950J BURMA LAW REPORTS. 25
a decree so as to fall within the ambit of PrO\'iso to section 21, H.C.
'C.P. Debt Conciliation Ad. II 1949

R. K. DASS
The High C0urt of Judicature at Rangoon decided v.
KN.R.
that the question. of the auction purchaser's right to J'I'I.N.R
NAGAPPA
possession as against the judgment-debtor is not a CIIETTYAI(.

~uestion relating to the execution, discharge or U THEIN

satisfaction of the decree after due consideration of the I\IAUl'\G, C.].

conflicting rulings which were then available; and I

am not satisfied, ~fter a careful study of the
subsequent rulings to the contrary, that the decision is
wrong. On the other hand I find that it is in
accordance with the rulings of the majority of the
Indian High Courts.
Moreover, in the present case, I am clearly of the
opinion (1) that the question which has been decided
by the Court of first instance relates only to a
condition in an agreement between an auction
purchaser and the judgment-debtor, (2) that it does not
relate to execution, discharge or satisfaction of the
decree and (3) that the learned District Judge is right
in holding that the appeal did not lie.
The learned Advocate for the applicant Ins
submitted that the order of the Court of first instance
might be revised and set aside, even though the order
of the District Court dismissing his appeal be correct
and cannot therefore be revised. However, the
question as to whether there has been a breach of
condition is. a pure question of fact which the Court has
jurisdiction to decide ; and the decision is supported
lintel' alia) by the evidence of Maung Po Thwe,
Revenue Surveyor. So there is no ground for revision
{)f the order of the COl!r! of first instance either.
The application is dismissed with costs; Advocate's
fee three g01d mol1l1rs. The interim order for
stay is discharged.
26 BURMA LAW REPORTS. [1950

CIVIL REVISION.
Btfore U TUll Bj'lI, J.

H.C. S. S. MOHAMED HANIFA (ApPLICANT)

1950
Feb. 9th.
V.
K. O. MOHAMED KASIlvI (RESPONDENT):'"
RIll/gOOI/. City Civil COHrl Act, S. 23_" According to law"-lntaferc1tCt: iD

revisio1l 011 question Of faet-Whel'.- Per111jssiblt~.

t
The phrase Olccording to law" c:mnot be held to exclude cases in which
there has been ;l grossly erroneous decision on facts. A Judge is not bound to
refer in his judgment to each and every item of evidence relied all by the-
parties. The High Court does not ordinarily interfer on a qnestion of [ltel but
it will interfere only when the decision is perverse or so obviously incorrect in
ils nature as to ~tllollnt to an errOr of Jaw. .
Sivll Da:s Dey v. AJhabi mil aile, {1925J 3 Han. 471 at 473; Abdul Qadir
". Narallara Mah"'1 Ghose Clto1vdltury and Olll, (1930 A.I.K All. 210; Malmg
Bo Stl1lJ v. Mmwg Thwl, (927) A.I.R. Ran. 159; MollOnlal JfagtlNlal v.
ji'VaJ/!al AWI'Il11al, (t927151 BOIll. Series 814 at 816; NU[/liIrt1lJl ShivlIaray.m
v. Dhulamm IJariralll, (1920) 45 Hom. 2921 rderred 10.

Dr. Thein for the applicant.

P. K. Basu for the respondent.

U TUN Byu, ].-The plaintiff-respondent
K. O. Mohamed J{asim i;lstituted a suit against the
defendant-applicant-S._ S.lIlohamed Hanifa under
section 25 of the Rangoon City Civil Court Act for the
possession of the e2stern portion of a platform which was
used as a shop at No. 337, Fraser Street, measuring 6 feet
by 3 feet; and his case was that he allowed the defendant-
applicant to occupy the said space of 6 feet by 3 feet
temporarily and that he had withdrawn the permission
so given; while the case for the defendant-applicant
Mohamed Hanifa was that he was a tenant of the
o plaintiff-respondent Mohamed I{,lsim, paying at first a

"* Ch'i1 I~evisi011 No. 60 of 1949 agaillsl the clccre;:c of 4th Judge, Cily Civil
Conrt, H~ll1go0Jl in Ch'jl Hegular No.7 of 1949.
1950J BURMA LAW REPORTS. 27

rental of Rs. 3-8-0 per day, which was reduced with H.C.
1950
effect from the 1st August 1948, under t.he order of the
8.S.
Rent Controller, to Rs. 2-12-0 per day. The learned 4th MoHAMEL}I
Judge of the Rangoon City Civil Court came to the HA~IFA
v.
conclusion' on the evidence before ]lim that the I{. O.
lfoHA:'.J:ED'
defendent-applicant Mohamed Hanifa was only a l{ASIM.

permissive occupant of the pI emises in question, and U Tux Byu--..

j. .
not a tenant, and he granted a decree in favour of the
plaintiff-responded Mohamed Kasim.
Evidence has been adduced by both parties in
support of their respective versions in this case, and
the learned 4th Judge has written a somewhat lengthy
judgment dealing with the points that had been raised
in the case and the evidence adduced by the parties,
giving also his reasons for the conclusion which he
had arrived at. In Siva Dass Dey v. Asliabi and one
(1) it was observed:

,. The phrase l according to Jaw I cannot be held to exclude

cases in which there has been a grossly erroneous decision on
. fact. On the other hand to say that a High Court sbould
interfere where there has been substantial injustice clue to an
erroneons decision on fact would be practically to make that a
High Court a Court of Appeal from the 8111;:11 Causc_ COllrt, ::;ince
in the majority of cases, erroneous decisions on fact essentially
result in substantial inJlJstice; It may be taken therefore til at,
unless it can be shown that the conclusions on f~ct were so
perverse as to lead to a conclusion that the Judge made no serious
~lttempt to deduce them fr0111 the evidence before him or was
uUerly incapable of ll1;l,king such a deduction, a High Court \dll
not interfere in ~-e\'ision on questions of facLI!

The judgment passed by the iearned 4th Judge

shows that it cannot in this case be said tbat he made
no proper or serious attenJpt to reproduce the effect of
the evidence in relation to the points that had been
raised before him, or that he had not made reasonable
(I) (1925) III H,,\U. p. 471 at p. 473.
28 BURMA LAW REPORTS. [1950
H.C. deductions from the evidence adduced by the parties
19.fiO
in this case. It has been urged that the learned 4th
s. S. Judge gave undue importance to the evidence of the
MOHA~IED
H.\:\IFA
v.
plaintiff's witness U Saw Hla Pm and 11nuue significance
K.O, to the Exhibi~ 'c '. document, but it cannot in my
MOHA;\WD
KASDJ, opinion be said that tbe observatioqs, which he made
;U Tu:\ BIT, in this respect, was petverse or really unreasonable.
J. It was also urged on behalf of the defendant-applicant
that the learned 4th Judge did not refer in the
Judgment, which he delivered, to certain evidence in
the case, and it will be convenient to reproduce in this
connection' the observations made in A bdul Qadir v.
Narelldrll ;Ifohan Ghose Chowdhury and another
(l) which reads:
II It cannot be assumed from the mere fact that the Court
below has not referred in detail to ~1l the items of documentary
evidence produced by the parties, that the said evidence has been
igncrecl Or discarded. If the defendant did not, clllring the
progress of the suit, hring certain documents l..O the notice of the
Conrt the blame rests with the defendant. ]f any documents
wcre referred to the Court we are entitled to hold that the Court
must have considered the nature and scope of these clocnn1ents
before forming a conclusion on the qnestions in issne. A Judge is
not bound to refer in his judgment to each and every item of
evidence which "is relied on by the padies. ll

I agree, with respect, with the observation that it is

not necessary to refer in the jndgment to every item of
the evidence which the parties in the case might
consider to be material. The case of Matlllg Eo Saw
y. Mating Time (2) was referred to on behalf of the
defendant-applicant, where it was observed that the
Court would not ordinarily interfere on a question of
fact. but that would not absolutely debar it from doing
so. This obviously cannot be considered to mean

that the Court" on an application for revision under
(11 (1931) A.I.R. All. p. 210. (2) (19271 A.I.R. Ran. p. 159.
1950J BURMA LAW REPORTS. 29'

section 21 of the Rangoon City Civil Court Act, bas H.C.

1950
power to interfere on question of facts in most of
S. S.
the cases. In the case of Mohan/al Magan/al v. 1\loHA~El.F
HA~[FA
]ivanlal Amratlal (1) Crump J. observed in connec- V.
-tion with the case of Nal!z1l1'am Shivllo1'nyan v. K.O,
MOHAMED
Dizulara/ll H ariram (2) as follows: KASBI.

U TUN BYlT~
II But if the judgment in that C,'lse be read l it seems to be a J.
clear inference that what the learned Judges meant to decide was
that the High Court would only interfere upon ;l C]uestion of fact
where the decision was so perverse or so obviously incorrect in
its nature as to amount to an error of law,n

I am unable. to see anything in tllis case which

will indicate tbat the judgme>lt of the learned 4th
Judge of the Rangoon City Civil Court was perverse
or obviously incorrect. I am also unable to see
anything on the record which will indicate that he
had not seriously attempted to discuss the evidence
as a whole in connection with the points that have
been raised in the present litigation. All tbat could
be urged on beh,,]f of the applicallt on the facts of
this case has been made by his learned Advocate,
but it seems to me to be clear in this case that it
qnnot be said that the conclusions which the learned
4th Judge had come to were obviously wrong.
The application for revision is therefore dismissed
with costs, Advocate's fees three gold mohurs.

(1) (1927) 51 Bom,Scr. p. 814at p. 816. (2) {1920) 45 nom. p. 292.

30 BURMA LAW REPORTS. [1950

CIVIL REVISION.
Befort U TI/11 Byu, J.

H.C. R. C. S. AGARWAL (a) MUNSHI (ApPLICANT)

1949
v.
Dec. 7th.
DAHYABHAI (a) D. Z. DABUWALLA
AND TWO OTHERS (RESPONDENTS)!'

Compromise order-Application fa slt aside Arbitration Acl, 1944, s. 33-

Whether application tinder lies.
.'\. comprowisc between tbe parties provided {Or challenging or conte:;til1l!
;tll mallers under s. 33 of the Arbitration Act, 1944. The npplil:;:l.llt made
an independent application under the said section. Upon objtttion that no
independent application lay.
Held: That the compromise contained no provision precluding an
independent application or restricting the remedy and the intention of the
parti('s is not rcle\ant. The dllly of tile Court is only to construe the tcrms of
lhe compromise and so construed an independent application lay

Hla Pe for the applicant.

Roan for the respondents.

U TUN 13YU, J.-The question which falls for

consideration in this reVISIOn case is whether the
applicant R. C. S. Agarwal alias Munshi can, in view
of clause (b) of the terms of" the ccmpromise set out
in the order passed in Civil Hevision No. 35 of 1948
of this Court, file an independent application under
. the provisions of section 33 of the Arbitration Act,
1944, for the purposes set out in that section. It
will be convenient here to set out at once the provisions
of section 33 of the Arbitration Act, 1944, which
reads:
II 33. Any party to all arbitration agreement or any person
claiming under him desiring to challenge the existence or validity

... Civil r~evisjon No, 16 of 1949 <lgaill$l the order of the 1st Assistan t Judge's
Court of Mancl<llay in Ci\-il Misc. No, 82 of 1948, dated the 20th January 19-19,
1950J BURMA LAW REPORTS. 31

:of an arbitration agreement or an award or to have the effed of H.C.

~ither determined shall apply to the Court and the Court shall 1949
Decide the questic.J1 On affidavits." R. c.s.
A&A!t\\",u.
It. will be observed that section 33 allows an applica- (a) MrN'511I

tion to be made-independent of sections 14 to 17 of J)AHYAHIlAI

In)
the Arbitration Act, 1944, where a party to the D.Z.
DABUWALf.A
arbitration desires "to challenge the existence or AND
validity of an arbitration agreement or an award or to TWO OTHF:HS .

. have the effect of either determined." UTUNByu,

].
Clause (b) of the terms of the compromise, it is
urged on behalf of the respondents, precludes the
oa pplicant from making an independent application
which r.ou1d ordinarily be made under section 33 of the
Arbitration Act, 1944, and it reads:
(I (b) That on the aforesaid amendment being made and
-permitted, the trial Conrt shall gi\'e notice to the respondent
{Defendant in the snit) of the filing of the award and the
respondent shall be permitted to challenge and or contest all
matters pertaining thereto uncler section 33 :lnd the other provi-
sions of the Arbitr<1tion Act, 19-141 within tiJirty clays of the date
-of the service of the notice mentioned above on the respondent ot
the illing of the award."

The expression "and tbe respondent shall be

'Permitted to challenge and or contest all matters
pertaining thereto under section 33" has been
contended on behalf of the respondents to mean
tbat it purported to refrain the applicant from making
an independent application under section 33 ; and it
is urged that the applicant could take up all the
grounds which he desired to do under section 33
also in the objection which he might file in the
proceedings under sections 14 to 17 of the Arbitration
Act, 1944. It appears, to me, however, that in the
.absence of the words" in his objection," or words to
that effect in the expression which has been referred to
oabove, the wording of clame (b) of tbe terms of the
 32 BURMA LAW REPORTS. [1950

H.C. compromise is not sufficiently explicit to restrict the

1949
applicant from filing an independent application under
RC.S.
AGA1~WAL section 33. vVe are not concerned witn the intention
(a) MUN~H1
v.
of any of the parties at the time the compromise was
DAHYAlUI,H effected. The duty of the Court here is to see wh.ether
lal
D.Z. clause (b) of the terms' of the compromise can be
DABUW.\LLA
AND construed to restrict the applicant from making an
TWO OTlIEHS.
independent application, which is allowed to him under
U TUN Byut section 33, and the answer must, for the reason, already
J.
stated, be mads in the negative.
The application for revision is allowed wi th costs;
and the first Assi,tant Judge, Mandalay, is directed to
proceed with the application of the applicant made
under section 33 of the Arbitration Act, 1944, in accor-
dance with law. Advocate's fee in this Court will be
three gold mohurs.

.
L
 ".
\{/ 11;/
1950] BURMA LAW. REPORTS. 33

CIVIL REVISION.
Before U Tu" Bj111, J.

MA TIN NYUNT (ApPLICANT) II C.

19-ilJ
v. 1)(,. 13.
MA KYI KYI AND THREE OTHERS (RESPONDENTS}.'~
Transfer of PrQPerfy Act, S. 54-Mi110r plaintiffs-Represented ill suit Ly
. ttucle-hterest if advt'yse-Effecl-S. 99 of Code of Civil Proccdtlre.
Held: That under s. 54 of the Transfer of Property Act a transfer of
immoveable property of the vahle of less than ,Rs. 100 may be made either by
Registered Instrulllent or by delivery of possession. As in this case the
claim was ba~cd on an unregistered document for Rs. 10 there was no proof
of delivery of possession, the applicant had no title to the properl}' em'erect
by the unregistere.d deed.
Held further.. \Vhere the next friend was the maternal uncle looking
after the minors after their mother's deatil l the fact thOl.t he built a hut on
the disputed land. did not show thal he attempted to :;Lsserl any title advcrse
to th~ minors. The objection llJ representation even if sllstainable was an
rregularity not in allY way affecting the decision or merits of the case.
Harrli Naraiu Salw \'. Ruder Perk<lsh Nis5er, l.L.H. 10 Cal. 6.?6at634,
fpllowed.

Ba Thall for the applicant.

Saw Tlln Taik for the respondents.

U TUN Byu, J.-The plaintiff-respondEnts 1-; 2 and

3 are the children of one Daw Pwa Yin, who died in
August 1946. Daw Pwa Yin was, at least at one time,
the owner of the land at No. 16, Maha Thuka Road,
Pa%undaung, which she purchased from Ma Thein and
her husband Ko Ba Aung under a n.:gistered deed
Ivhich was fild as Exhibit B in the present litigation.
Apparently Ma Thein and Ba Aung purchased the
Jand in question, with a hut thereon, from one
Ma Mya Kyi who held a lease of the Jand from the
8ivil Revision No. 46 of 19'19 against the decree of the 4th Jlld~e, City
Civil Court of Rangoon in Civil Suit No. 1017 of 1948, dated the 17th June
J949.
3
 "

34 BURIvIALAW REPORTS. [1950

H.C. Hangoon Development Trust. Ko Ba Aung is dead,

1949
but his wife !vIa Thein was examined as a witness for
M.... TJN
NYUNT the pbintiff-respondents. It might be mentioned that
V.
MA 1{Yr ICYI
the wooden hut at No. 16, Maha Thuka Road was burnt
,\ND THREE down in lhe early part of 1942...
OTHERS.
The case for the defendant-applicant !vIa Tin Nyunt
U TUN BYU,
J. is that she had purchased the land at No., 16, Maha
Thuka Road for Rs. 90 from Daw Pwa Yin who died
in 19-12 after the occupation of the Japanese in Burma,
and she said that she purchased it one' or two months
after the Japanese occupation, that a document of sale
was execnted and that she had lost it. This document
of sale, admittedly, was not registered, and it could not
therefore pass any interest in the land at No. 16,.Maha
Th:lka Road, on to Ma Tin Nyunt. She however is in
pos,ession of the lease deed of the land in question
issued by the Rangoon Development Trnst to Ma Mya
Kyi who was the original owner of the land.
According to U Sein Kyi, next friend of the minor
respondents, this lease deed was, after the death 01
Daw Pwa Yin, found to have been lost. It will be
appropriate here to reproduce the relevant portion of
section 54 of the Tj'ansfer of Property Act, which
reads:
"l54. *
In the case of tangible immoveable property of a value less-
than one hundred l"UpeeS, such transfer may be made either b:r a
l'egistered instrument or by delivery of the property.
Delivery of hngible immoverble property t1kes phce when
the seller places the buyer, or such person as he directs, in
possession of the property.
'* * * *
It will thus be observed that the sale of land of a value
less than Ro. 100 can be effected only by either a
registered deed, which does not exist in the present
case, or by delivery of possession, \vhich also hilS nQt\
 ,
V' i;:
'1:-"
1950J BURMA LAW REPORTS. 35
been proved in the present case. The witnesses for H,C.
1949
the defendant-applicant Ma Tin Nyunt, although they
1\1.\
said they were ~resent at the time the document of XYUr.;T
TIN

sale was said to have been made, did not say anywhere v
MA KYI KYI
in their evidence that possession of the land in dispute AND THREE
OTHEHS.
was also given to Ma Tin Nyunt. Theonlyconc1usion
therefore is that there was no valjd sale effected in U TUN Byu,
),
favour of Ma Tin Nyunt in respect of the land at
No. 16, Maha Thuka Road, even if we were to assume
that the deceased Daw Pwa Yin had executed an
unregistered document of sale in favour of Ma Tin
Nyunt.
There is one circumstance in this case which in a
way militates against the suggestion that Daw Pwa Yin
had sold the land in dispute to Ma Tin Nyunt, namely,
that the sale deed Exhibit B, under which Daw Pwa
Yin purchased the land in dispute from Ma Thein and
,her husband Ko Ba Aung, is still in the possession of her
children, the minor plaintiff-respondents. If Ma Tin
'Nyunt had in fact purchased the land in dispute and
if a document of sale had been executed as alleged by
her, it is very cunous that, after the lease deed issued
by the Rangoon Development Tmst in respect of the
land in dispute had been delivered to her, she should
not also ask for, or endeavour to obtain, possession of
the Exhibit B sale deed under which Daw Pwa Yin
purchased the land from its previous owners. It seems
to me that it is only reasonable to assume that Ma Tin
Nyunt would desir to know how Daw Pwa Yin came
1
to own the land' in question" which she was to
purchase. If Daw Pwa Yin had said, and there is no
evidence on this point, that she had left the sale deed
Exhibit B at home, one would have expected Ma Tin
Nyunt to have made an attempt to obtain it ; and there
is not a title of evidence to show that Ma Tin Nyunt
~yer went to D'Iw PW'l yin's place to demand C1<;Jivery
 ..
3.6 BURMA LAW REPORTS. [1950

H.C. of the sale deed Exhibit B at anytime after the alleged

1949
sale to her. The finding of the 4tl: Judge of the
j\lA, TIN
,NYUXT Hangoon City Civil Court that '!vIa TLJ Nyunt had not
1
. l\IA Kn J{YI
purchased the land from Daw Pwa Yin must therefore
,AND THHJ~E be considered to be' correct.
OTHERS.
There does notappear to be any real substance in
U.Tu~ Hyu,
j. the contention that U Sein Kyi ought not to have been
allowed to represent the minor phiintiff-respondents in
this litigation.. He was their uucle, and [he fact that
be had built l1lits on the land does not 'necessarily
indicate that he had interest adverse to the, minors as
be was looking after the minors after their mother's
deatb, and moreover he, also does not 'attempt to
assert anywhere lilat he owns the land in dispute or
that the minor plaintiff-respondents did not own the
lana in dispute. In' the case of Hardi Narain Sahu v.
Ruder Perkash Missel' (1) Sir Richard Couch in
delivering the judgment of tbeir Lordships of tbe
Privy Council also observed:
II Three questions have been raised before their Lordships
in t[le headng of this appe~ll. The .Grst was disposed of in the
cOllrseo[ the ar,gnment. It was this: that the suil was brought
by the manager appointed by the Court of \V-arcts on behalf of
the infint- plaintiff: and that the manager had no authority to'
represent the plainfiff ill 'it. Without consid~ring he had'
authority or not, their Lordships were of opinion that} if the
plaintiff had a right to sue, the objection was only a foemal one)
and could nof be allowed to be raised in the present appea1."

The faet that U Sein Kyi appears gn the records as the

4th plaintiff-respondent must in lhe circumstances of
this case be considered to be a mere irregularity not in
any way affecting the decision or merits of the case.
It \Vas probably thought by the Advocate appearing
for the minor plaintiff-respondents in the trial Court
 'vf ..;.-'
1950J BURMA LAW REPORTS. 37

that U Sein Kyi ought to be joined as a plaintiff in that H.C.

1949
he had built three huts on the land in dispute.
It has also ljeen argued on 1:Jehalf of the defendant- 1\JA TIN
:\ YUNT

applicant that since the plaintiff-respondents have IlIA KYI v.

I{YI
asked for possession of the land in their amended AND TlJ~Eg
OTHEI$.
plaint a presumption should be raised that the land in
U TUN Byu,
dispute is in the possession of the defendant-applicant, j.
and not in the possession of the plaintiff-respondents.
I regret'that I am unable to accede to this contention.
,Pleadings in mis' cOlintry are often not well or artistically
drafted, and this is one of those instances. In para-
graph 8 of the amended plaint as well as in paragraph 8
of the original plaint the plaintiff-responc:ents alleged
that they were in possession of t!-,e land in dispute,
and it was accordingly superfluous for them to claim
possession of the land in dispute in their ame:lded
plaint and a prayer for that purpose should in the'
circumstances of .this case be trcatcd as a superfluity.
The -Rangoon Development Trust which allowed the
mutation of name in the lease deed granted to Ma l'vIYa
Kyi had not bec:1made a party to the present litigation.
The Advocate who appears for the plaintiH-respondents
submitted during the argumcnt that his clients would
be satisfied, without the relief for the cancellation of
the lease issued to the defendant-applicant Ma Tin
NYUl1t, if it is declared lI)at the minor plaililiff-
respondents are the owners of the land in dispute.
For the reasons already stated above, it appears to be
clear in this case that Ma Tin Nyunt 'applied for
mutation of name to the Rangoon Developm<>nt Trust
without having, any right to do so. The minor
plaintiff-respondents 1, 2 and 3 will therefore be
declared to be the owners of the land in ,dispute, and
tbe judgment aljd decree of the Rangoon City Civil
Couit will be modified in tbat the order for the
cancellation of the lease should be deleted therefrom.
 bURMA LAW REPORtS. [1950

APPELLATE CRIMINAL.
Before U Atmg !ad1ll:, J.

H.C.
1949 . HTEIN WIN (a) TIN SAING (ApPELLANT)
Nov. 15. v.
THE UNION OF BURMA (RESPONDENT)."
Accused agedlj-S. 19A II) fa)~ Arms (Tel1lpoYaryAmclldlllelll) Ac.t,1949-
YOlmg Offenders AeI, s. IS-Proper SCttfctlCC.
There W;1S a skirmish bctwccp. a police party and \Vhite PVOs. Three
of the skirmishers were leU in a paddy field after the skirmish. Appellant
aile of the three, was found holding a Japanese rifle loaded with two livc
c.utric1g:es. He w;>s convicted and sClllc.:nced to transportation for life by
the Trial Court. It was fonnd that he was aged only about 15.
Held .. That under the YO~ln5 OJt'nders Act, s. IS no pers':)ll under 16 shall
be sentenced for death or transportation, However the accused was found
fighting against the police with firearms and the offence was a serious one
and he must be deemed to be a depraved or unruly charader and a sentence ,
of imprisonment sufficiently adequate to prove a deterrenl should be passed.
A ppelhl\lt sentenced for two years rigorous imprisonment.

Clioon Fating (Government Advocate) for the c

responden t.

U AUNG KHlNE, J.-Appellant Hteil1 Win alias

Tin Saing appeals against his conviction and sentence
- of transportatiOirfor-lik--under section 19A (i) (a) of
the Arms'(Teniporary Amendment) Act', 1949, passed
by the 7th Special Judge, Hangoon, in his Regular
Trial No. 2 of 1949. Th e facts leading to the'
prosecution of the appellant are briefly these:
Early on the morning of 15th May 1949 there was
a brief skitmish between a Police party and a band of
White PVOs at Nyaungwaing Kwin, Thingangyun.
vVhen the firing ceased after an hour or so most of the
PVOs took to their heels and only three men were left

CO' Criminal Appeal No. 303 of 1949 being appeal from the order of
Special Judge of Rangoon, dated the 30th August 1949 passed in Special ).
Regular Trial No.2 of 1948.
 . V qt; .
1950] BURMA LAW,lfEPORTS. 39

in the paddy field. Two' of them were the appellant H.C.

1949
and another by the name of Maung Zin, a co-accused
HTEIN
in the lower' Court. The appellant was found holding WIN lal
a Japanese rifle loaded 'with two live car'lridges and he TIl\' v.
SAIl"G

said that the rifle and cartridges belonged to UNION HURMA.

OF

Maung Zin .. Maung Zin. appears to have admitted the

U AU;>\G
ownership of the rifle and the ammunition found. I{IHNg, ].
Both of them were however arrested and sent up for
trial under seclian 19A of the Arms (Temporary
Amendment) Act. 1949, for illegal possession of the
rifle and the cartridges. For security reasons the trial
of the two accused was held inside the Rangoon
Central Jail. When the case was called (he accused
were found absent and they were sent for through the
Jailor in charge. They refused to appear in Court and
therefore the Court acting under section 3A of the
,
Public Order (Preservation) (Am.endment) Act, 1948,
proceeded with lheir trial in their absence. After
I.learing the prosecution witnesses the appellant alone
was charged under' section 19A (i) (a) of the said Aet.
As he was absent from Court the Court deemed lhe
appellant to have pleaded not guilly to the charge.
A list of defence witnesses was subsequently filed by
the defence lawyer, but these witnesses who'were also
the inmates of the jail refused to attend the Court. .
The Court proceeded to pass judgment and as stated
above sentenced .the appellant to suffer transportation
for life.
In his memorandum of appeal the appellant stated
thai: he is a school boy aged about 15 years only.
Acting on this the proceedings were remande,d to the
lower Court to find out the age of the appellant. The
appellant was examined by the Medical Officer
Dr. M. L. Sharma of the Insein Cenlral Jail. After
the examination of the appellant the doctor was of the
.. opinion that the appellant is a boy between 14 and

"
40 BURMA LAW REPORTS. [1950

H.C. 15 years of age. Such being the case; it'is clear that
1949
the appellant cannot be sentenced to transportation
HTEIN
for lif" in view of section 15 of the Young Offenders
.
\YIN :fa)
TIN SAIXG Act. Section 15 of the Young Offenders Act reads as
UNION OF fol'lows:
BURMA.

U Au NO "15. (1) Notwithstandhlg anything contained in any othel'

Kl-IINE, J. law: no person under 16 shall be sentenced to c1c;\th or transporta-
tion, and no person under 16 shall be sentenced to iIilprisonmcnt
except by'-a Court empowered under this 'Part and on the
c.crtHicateof the Court that the offence is ,so serious or the
offender is of so unruly or depra.ved a character that the. methods
of -dealing \vith him provided by this Part- are not suitable.
(2) If ai,)' person under 16 is convicted by any Court
cl11poweloccl under this Part of an offence -which,' by any other
law, is punish1ble witr. dC1th or transportation only, the Court
.nny, on certificate as a~orcsaid, sentence him to impri~onment"
for' not more'than 10 years."

In my .opinion the offence committed by the

appellant was rather a serious one and he must be
deemed to have a depraved or unruly character. Here
in this case before his arrest he was found fighting
. .
against the Police force with firearms iIi the company
of the renegade PVOs. However loath I am to
sen (eljce a young offendcr to a term of imprisonment
lam constraincd in this particular case for the reasons
set mIt above lo award a term of imprisonment. A
sentence of two years, I should think, will be quite
adequate to prove a deterrent. I would therefore
while confirming [he conviction of the appellant under
section 19A (i) (a) of the Arms (Temporary Amend-
ment) Act, 19.t9, reduce the sentence passed upon the
appellant Htein Win alias Tin Saing to two years.
rigorous imprisonment.

(.
 1gSa] BORMA LAW REPoRtS. 41

APPELLATE CIVIL.
nerort U ThdJl MnI/1t.l!, Chicf JI/stire, (wd U Snit ;1}(lfIll!t J.
H.G.
THE TAJMAHAL STATIONERY MAIn 1949
(ApPELLANT) Dec.. 22.

v.
K. E. MOHAMED EBRAHIM V. S. ALlAR &
Co. ( HESPONDENTS)."
Trdde m,Trr..-lll!ril1l!,clJ/(uf o!_Owt1crs/tiP dcfer1l1itud accordi,l!!. (.) ComlllOIl
Lmr,-Pnss;I1,t!. Off-FUlIclh111S 0/ j;rdgc-Op;lIiMt of wi/It 55 as fa similad/Y
of trade l/1arks.
Hdd: In Burma there is no system of regi5tration of trade marks, nor for
a s~.nIt1ll'}ry tille to a traeTe mark. So the rjg~l!s of p:lrties selling np ri\',l!
ct'.lilm: to O\\'!1crspip of a tr:.1.de mark must he determined in accordance ,,\'ifh
the principles r:f Common Law.
Cc. Tholl/lis SomeI'd/Ie v. Paolo Schembri fwd G;11"fl1I1d B/l[ftS{a Gal/offen,
U:-S7J L.U. 12 A.C. 453 at pr. 45fi-457, rC'ferred [0 and followed.
Lcalher Cloth Co, Ltd. Y. Ameriwn Len/Iter Clofh Co. Ltd, 11 H .C.C. 538 ;
" TJTothcrspJolJ v, Currie, L R. 5 H.L. 508 ; ]1l/I1lS'r1l1 r;~ Co. v. Orr E",h.t!. &.
Cn',,7 J\.C. 219; Definitioll hy Lord C1ani.Vllrth. 11 H.L.C. 533-34, referrrd 10.

At Common' La\v the llse of trade name \11 mad,; which has been adopted
b\' another is adion.lhlc if it lends to mislead by making it :tp['l(ar th:It the
goods ~old under it arc lh~ goods of that other.
- . ~Si"-gcr Mnlwfart 1/ rill,!!, Co. v. I,vo!!., L.R (lS80-8t) 18 Ch.D. 39-l at pp. 4'12-413;
PoweU v. RimdJlgltlw/ JTil1fgar BYC7{'cry Co. L.R. (tS96) 2 CIt.D. 54 at p. 79,
referred to.
T. B(}r!cw and otlten v. Gllbdlldram (lnd aI/ollIei', O::r(7) I.L.R. 24
Cal. 364, Mohamed Esuf v. Rnjt11'afnQm Pilla;. (19101 I.C.R. 33 !lIad. 402;
A. Balc1wyi Rowtltet v. P, A. Raml1s"CJal/li Pillr/; I1Ild al/rdl,fl'. t 1936) A 1.R.
(Ma.d.l 8; Heinir,cr v: Drog lind ai/o/lter, (1901) I.L.R25 BOUl. 433, discl1s!:'cd
. It will not make all) difference e\'en if the customcr~ ida 110t kn w the
name of tbe finn which is printed all the frollt covers of jh~ books.immedialcly
below the trade TPark. The exclusive rigLt to use a trace ll1<l.rk in rer-red of
exerci:;c books docs not give a monopoly of the trade lllarks in respect of.
all Itinds of stati,"'.nery.
ThoIl(J.~ B~(Jr & ScJ/lS (huli(J) Ltd..... Pmyag Narail1 aucHtcr, LL,R.
(l9iu) All. 446. followed and applied .

.. Ch'i11:lt Appeal 0:0.44 of 1949 'ag'ainst decree of the Origitml Side in

Civil Reglll~r S.lit No. 1:24 of 19..J.8, dat... (J the 21sl J ly 1949
 .,
42 BURMA LAW REPORTS. [1950
H.C. The Nafio1f.fll SClviug Tht"cad Co. Ltd. v. Messrs~ James Chadwick &- Bros.
1949 Ltd.) A.I.R. '(l948j Mael. LlSI at 487; Mohamed NoordiJl- v. Abdul Karccm &-
Co., (1931) 48 R.P.C. 491; Yorkshire R(lish caSc, Edge & SO/IS Uri. v. N;ccolls
TUE
TAHIAH ~L & S01/$ Uri., 28 R.P.C. 582; DJ/uhill v. Barllct! &- B:ckcl-y, 39 I{,P.C. 426 ;
STATIONERY COUlmjee v. Vera S01ll(tbltrll MatiMa; (ll/(l 011C, (1915-16) 8 B.L,H-.561 ;
MART A. M. Ma!ttl1/;ar & Co. v. Fi/l/..l.Y Flc1IIiup, & Co., {1929J I L.R. 7 Ran. 169,
V. referred to.
K.E. _
MoRAMIW U is the (llnclio111 of the Jtldge lo.say \':hcther trade marks are similar and
EIlUAHIM it is !lot for the witness to express' an" opinio:l. on the poinl.
V. S.ALIAR The Swodl's!Ji Mills Co. Ud. v. Jug,f/,O tal [{flJlJplap,11 Cotlon SPiltllillg fllld
& Co.
Wl'avill g MiJ.'s CJ. Ltd., I.L.H. 49 All. 92' at 97 and HI; PI/ ylon & Co. l.td. v.
Suclling Lamparrl {;J CO. Ltd;, (1901) A.C.~308 at p. 311; Sei.\ll. v: Provc'endt.
(1865) L.R. I ell. App. 192 ; Bvortl & Svll v. ~"gots, Htlfloll & Co. Ltd., (FH6)
L.R.2 A.C, 382 ; Adamju fIaje Dawood (;:' Co, L fd.'v. Tlte Swadesh Matcll Co.,
(1928) l.L,H, 6 Ran, 221 at 234, referred to .

. Mirza Md. Raji. for the appelIant.

]. K. MI/11Shi for the respondent.
U THE10i MAUNG, C.J.-This is an appeal from a
decree for an injuncti~n and other an ciliary reliefs in
a suit for passing-off.
, .
The plaintiffs-respondents' case is (1) that they
have acquired the' exclusive right to the use of the
" Chinthay " Trade Mark in any shape or form or in
any combination on all articles of st3tionery, (2) that the
defendants-appeJlants have started selling in Rangoon
and other pares of Burma certain articles of stationery
such as' exercise books' and pocket note books under
a trade 111ark which is a fraudulent and colourable
imitation of their weIl-known " Chinthay" Trade Mark,
and (3) that the said articles of stationery bearing the
defendants-appelIants' fraudulent trade mark are ;ikely
to .be known by the S2 me name and are likely to be
passed off as and for their famous "Chinthay" Brand
articles of stationery.
The defendants-a;:lpeJlants' defence is (1) that they'
had no knowledge about the alleged Chinthay Trade
Ma'rk of the plaintiffs-respondents, (2) that the latter
have not acquired any exclusive right to use the (.
Chinthay Trade iVlark " which is a very C0ll1310n mark,
 1950J BURMA LAW REPORTS. 43

almost used everywhere in Burma ," (3) tbat no one H.C..

1949
can mistake tbeir mark and design as the mark and
design of the latter, and (4) that tbeir goods conse- THF
TAJMAH.I,.L
quently cannot be passed off as and for the goods of ST.i,.TION'ERY
MART
the latter. v.'
K.E.
Tbe plaintiffs-respondents' case is based on MOHMJim
EllRAHIM
the defendanto-appellants' user of the trade marks, V. S. ALlAR
Exbibits C and 0; and tbe latter pleaded that they had & Co.

ceased to use the trade mark Exbibit D long before the U THEIN
MAUl\G, C.l.
institution of tbe suit. However, the learned Judge on
the Original Side has decreed tbe suit and granted an
injunction and ancillary reliefs in respect of both the
trade marks Exhibits C and D.
In Burma tbere is no system of registration of
trade-marks, nor is there any provision for a stat'ltory
title to a trade mark. So the rights of parties se+ting
up rival claims to the ownership of a trade mark must
be determined in accordance with the principles of
common law. (See Ratanlal's Law of Torts, 10th
Edition, page 329); d. Thomas Somerville v. Paolo
Schembri ami Giovanni Battista Camilleri (l), where
there Lordsbips of the Privy Council observed:

{lIn rvlalta there is no Jawor statute establishing the

registration of trade marks. and no authority exists from whom
an -exclusive right to a pJJ'ticubr trac:e mark CC111 be obtained.
The rights of the parties to this canse are therefore dependent
upon the general principles of the commercial law, some cf which
are referred to in the judgment of the Court of Commerce.
These principl~s have been very fully illustrated and explained by
the House of Lords in the Lcn/her CIOUI Co. Ltd. v. American
Leal/zcr Clotft CO' l L/d. (2) j rVolherspoolt v. Currie (3) ; johnsfoH
& Co. v. Orr Ewing & CO. (4L all of which WE're cases which arose
before the passing of the first British Trades rvfarks Registration
Act in the year 1875.

(I) {lS87} L.R 12 A.C. 453 at (3) Law Rep. 5 B.L. 508.
pp. 456457.
{1) 11 H .C.C. 538. (4) 7 App. Cas. 219.
 .,
44 BURMA LAW REPORTS. [1950
H.C. In the first of "tbese cases, therinterest which a merchant or
194Y
manufacturer has in the trade marlt: which' he uses was _ thus
THE defined by Lord Cranworth (1) ,: 'The right which a manufacturer
TA]~[AHAr.
STATIOXI::RY
has in his trade mark is the exclusive right to nse it .for qle
M:\RT purpose of inc1iclting where, or by wlllm 1 01" at what manufactory,
v.
I{. E. the article to_ which it is afiixed .was manufactured. As soon,
MOHAMED therefore, as it trade mari~ has bern so employed in the market
Ei3RAHIM
V. S. ALlAH
asto indicate to'purchasers that the gOO(~S to ,,'hich ft is attached
& CO. ai"e the manufadtire of a particlll,ar fil'm; it becomes, to that extent,
U THEIN
the exclusive property of the finn; and no one elsp-. has a right to
lIIAUXG.. C:] copy it. or even to approprbt~ ;1~1Y part of itt' if, by sn~h appro~
p~iation unwary Pl1rcl~asers'may be induced, to believe ,that they,
are getting goods which \vere made by the finn to \V~lOm the
trade mark belongs. Had it not been for the views expressed "by
the Court of Apr:ea.l in giving judgment, it-would ,Jnrdly have'
been necessary for their Lordships La observe thnt the 4cquisition
of an exclusive right to a mark or name in connection. with a
particular article ,of commerce can net entitle the O\YJler of t1~at
right to prohibit, the lise by, olhers of such mark or n;j.me in
connecticn \\',ith goods of a totally different character; and that
..
such nse by others can as little interfere with his aCCJuisition or
the i'jght."

At common law the USc of a trade-name or mark

which has been adopted by 'another is actionable only
jf it tends to mislead by making it appear that the
goods sold under it. are the goods of that other. (See
'Ondeihill's L;-nvor1'oas,f'1f[eell Edition, page 307.)
With reference to the law rel~ting to " passing-off,'''
James L.J. has slated ill Sillger Mmllifacturil1g Co. v.
Loog (2) ;
I, I have often encle3.voured to express what I am going to
express now (and probably I have said it in the, same \Yords,
because it is very difficult to lind other words in which to express
it)-tbtt is, that no man is entitlecl to represent his goods as_being
the goods of another man; ~nd no man is permitted to usc any
mark l sign or symbol, device or other means l whereby, \dthout
making a c1jrect hlse representation himself to a purchaser \\'ho
III 1[ II.L.C. pp. 533-531. (21 L.R. 11880-81)[S Ch.D. 394 at
pp. 412~413.
 19.50J nURMA LAW REPORTS.

pm"chctses tram him, he. enables such purchaser to tdi a lie or to H.C.
1949
make :1 false t:epresentation to somebody else who is the 1.lltinwte
customer, That being, as it appears to me.,' a comprehcllsive TIm
TAlMAHAJ.
statement of what' the hw is upon the question of trade mttrk or STATroxJ:o:HY
trade designatioI~t I alh of opinion that there is no such thing as M .... HT

.a rnOliop.:>ly or a property. in the. nature of a. copyright, 'or in the v.

. Ie.E.
natpre of a patent, in, the USE' of any na!ne. \Vhatever name, is :ilIoIUMED
EBRAHIM
used to designate goods; any body may use that name 19 V. S. ALlAR
"designate goods;. always suujeet to this,' that he must not, & Co.'
as I said, m;d;e directly, Ol~ throug'll the medium of another
U -THEIN
'pel:san, a fah;e representation tint his goods. arc the goods .of MAUNG\ . C.}.
another person."

It has also b~e'n stated ina fe\v propositions by Kay

L.J. iiI P01c;ell v. Bir/llillgl/{llilVillcgar Brewery Co. (l) .
. The first contention of the lean'ed Advocate for the
appellants is that there ,vas no evidence whatever to
establish either that the public had grown accustJmed
.. to associate the trade mark bearing the figure of a
Chinthay w.ith the piarntiffs-respon.clellts as manufac-
turers or dealers III exercise books. However, there is
evidence to show (f) that Cbinthay' T1'ade Mark was
used in respect of stationery by 1<'. E. Mohamed
Ebrahim \T. S. Aliar & Co., (2) that when the said
partnership wa'sdissolveci ,in October,1930, the Trade
Mark\vasal1ottecl to Hie piaintiffs-respondents, (3) that
they h,ive continued fO use:it in respect of stationery
manufactured by them, and (4.) that the .respondents'
firm has been known as Chinthay taik 'like the old
firm.' .
_. There is also eviClence to show that Chintlny Trade
Mark exercise books acquired a reputation in lh~
Burilia market both before ,md after the war and that
customers'used to 'ask for them as Chinthay Trade.Mark
books, i:e., even before the appellants began to use the
trade .marks in. que3tion. (See the. evidence of
Shamshuddin, S. A. Ismail, P. K. MOhamecl Gani,
11) [,.R. (1896) 2 Cn.D. 54 at r. i9,
46 BURMA LAW REPORTS. [1950
H.C.
1949
P. K. P. Mohamed Ebrahim, Kader Mohideen and
Abdul Hamid.)
THE
TAHIAHAL The learned Advocate's argument is (1) that it is
STATIONERY
MART
not sufficient for the 'respondents to show that f.!1eir
'V
K. E.
Chinthay Trade Mark ex.?rcise books had acquired a
MOHAMED reputation and (2) that,they must also establish that
EBRAHIM
V. S. ALlAR the public have associated the trade mark with
& CO.
them as manufacturers of or dealers in the exercise
U THIUN
MAUNG, C.].
books. He relies en the following cases, viz.
T. Barlow and a/hers v. Gobrindram and another (1) ;
Mohamed Esuf v. Rajara/nam Pillai (2); and
A. Batchayi Rowllier ,v. P. A. Ramaswa1l1i Pillai alld
'another (3). The first case was one in which the
plaintiffs alleged that they were entitled to the
exclusive use of the number 9000 as a mark for
distinguishing a particular variety of cloth and as
indicating that the same was of a certain quality and of
their ililportation ; but the Court found (1) that the
plaintiffs did 1I0t appear to hm'e for the purpose of .. ),
distinguishing the particular variety of cloth imported
by them, ever IIsed numbers alone and indepel1detltly
of some object design, (2) that different numbers and
different object designs were frequently used by the
plaintiffs to' distingtiish-iriipor1ations .p{ cloth which
were identically the same in quality, kind and measure-
ment and (3) that the purchasers used their own
judgment ill selecting cloth and certainly did not
necessarily buy cloth marked with 9000 merely on the
faith or belief ttat it was the plaintiffs'.
The first case is cited with approval in the second
case but the aclual decision therein is that the plaintiff
is entitled to an injunction as he has succeeded in
proving that he was the first man in the market with
the name "Albert" for the cigars of his manufacture
(II 118971 I.L.R. 24 C,1. 364. (2) (1910) I.L.R. 33 Mad. 4Q2. (.
P) A.l,R. 119361 Mad. 8,
 1950J BURMA LAW REPORTS. 'I]

and that his cigars had .acquired a reputation as such H.C.

1949
before the defendant began to pass off his cigars under
THE:
the same name. '. ']","""HAL
.In the third case the trade mark admittedly' STATIONERY
MAin
belonged to a *m which had been dissolved, the~e"v,'
was no assIgnment of
any goodwill or tr'ide nanle to M:';A~'"D
the plaintiff and there was nothing whatever t. 0 indicate v'EBRAHIM
s
ALlAR
that the market associated the goods bearing the mark & Co.'
with any manulacture by or .trade of tlie plainiiff. YTUHIN
Th ere IS. are f erence 111
. t I'
115 case to
H ern/gerv.
. . Drog .~.AU'G,
-, c.),
and another (1), That, however, is a case in which
it was held that an importer can only protect a trade
mark representing his own reputation .and the
advantage accruing therefrora but not the trade mark
of another, a manufacturer or producer. So the first
and third cases can easily be distinguished as caces in
which the pl1aintiffs had not established that the marks
claimed by tllem were their trade marks. Besides, the
first case has been explained in The National Sewing
Thread Co, Ltd. v. Messrs. 'failles Chadwick & Bros.
Ltd. (2), where a Bench of the lvladras High Court
observed:

Ie As has- been pointed out in T. Barlow Gud others \:.

Gobrilldl'am (lud Qno/her (3) where numbers were used in conjunc-
tion With striking cbject designs and in Mohamed Naordill v.
Abdul Karcc11l & Co. (4), where a "I11me was used along with a
p~ctl1re, if the plaintiff c1ain:s that the goods :1re dealt with l>y U~e
number alone OJ' hy the name alone divorced from the design' or
the picture, it is for bim to make it out and in the absence
of :evideI~ce that the design or., picture i,S. of no cons~queilC~eJ
the legitimate inference should be that it played an important
part along with the ll1.1ffi?er Or the name as the case may be."

The plaintiffs-respondents' case is similar to the

second case as they were first in the field with the
II) (19011 I.L.R. 25 Bom. 433. 131 (I '971 l.L.R. 24 Cal. 364.
:~) A!I:R (1'1~?) Mad:48~ at p.487. 141 (193/) 48 R,P.C. 491,
 48 BURMA LLW REPORTS. [1950

H.C Chinthay Trade Mark and their exercise books were

IlJ49
well known as Chinthay Trade Mark books long before
'fHE
TAlMAHAL
the defendants-appellants began to use ,.nother Chinthay
STAT10':>iXRY
iVIART
mark,
v. Besides, it will not make any differ~rice even if
Ie.E.
MOI;IA~IED cllstomers did not know .the name of the respondents'
.EHl~,\HIM
V. S. ALlAR
firm which, by the way, is printed on the front covers
&C9. of their exercise books immediately below the Chinthay
U l'HEIN Trade Marie Venkateswaran has pointed out at
'l\lH:\G, 'C.l.
page 81 of his Trade and Merchandise Marks in India';

II It i:; \VeJl~settled law that a trade mark need not indicate to

th,e public the ~.ctl1al ownership of the goods in question. A
trade mark merely guarantees to the purchaser tInt the goods on
whidl the Illark is applied emanate from the same source of
trade as the goods that had hitherto borne the sJ.me trade mal:k.
The public need not, therefore, know the specific source of the
articles bearing the trade mark in question, and indeed, do .not
C)ften c~re to know the name of the particular nnnuhctllrer of the
goods, It is sufficient if they identify the goods en which the
mark is applied with a single source, and are able by means of
the mark, to [listingllisb the goods emanating [1"Om this sourc,~'
from goods emanating from other sources. This principle of la\\'
is \\"ell illustrated by the Yorks!Jir~ Relish ct1se (1), Edge &. SOl1S
Lid: v. Niccolls & Scm Lid. (Ii anclDulIhi/l v. Earl/cll &. Ridley
(2)."

[CL Willi.11J1 Wotherspoon lind lin other v. Jo/m

Currie (3), where the Lord Chancellor observed;
"If people have been pleased with an article, it should
be recognized at once by the designation of the article
aithough the cllstomers may not know the name of the
man ufacturcr.'']
So we hold that the respondents have established
their exclusive right to use the Chinthay Trade Mark
in respect of their exercise books.

(1) 28 R.P.C. 582. [2) 39 R.P.C: 426,

13) .~t p. 514.
1950J BURMA LAW REPORTS. 49
"-
The exclusive right to use it in respect of exercise B.c.
1949
books, however, does not give them a monopoly of the
THE
Chinthay Trade Mark in respect of all kinds of TAJ>lAHAL
stationery. There can be no monopoly in the use of STATIONERY
MART
tht; trade mark; a Judge cannot properly decide, .
except on evid ence as to the ciasses or kinds of goods M:~A~'ED
which.are protected by a trader's marks, and there is l~~~~::R
little or no evidence of the respondent's stationery, - &~.
other than their exercise books, having been well U THEIN
known in the market by the Chinthay Trade Mark, i.e., MADNG, c.).
of association in the market of the trade mark with
such .other stationery. In Thomas Bear & Sons
(India) Lid. v. Prayag Narain and another (1), their
Lordships of the Privy Council have held that the
appellants, who had acquired a proprietary right in
respect of their elephant trade mark with reference to
their cigarettes and smoking tobacco, were not entitled
to an injunction to prevent the respondents from
:selling their chewin{; tobacco with the elephant trade'
mark. [See also the above extract from Thomas
S0111erville v. Paola Schembri and Giovanni Battisla
Camilleri (2}.J
SO we hal d that the respond ents have acquired a
propTietary right in respect of their Chinthay Trade
Mark with reference to their exercise books only.
The next contention of the learned Advocate for
the appellants is that their trade marks cannot be
mistaken for the respondents' trade mark and that
tbeir exercise books cannot therefore be passed off as
and for the respondents' exercise books. With
refen;nce to this contention we must deal with the
appellants' trade marks Exhibits C and D separately.
The respondents' trade mark is a Chinthay standing
with one front leg raised and it is somewhat like what
is popularly known among tbe Burmese people as
(11 I.L.R. (19401 All. 446. (ZI (lod7) L.R. 12 A.C. 453 at pp. 456457.
1-

,
so BURMA LA.W REPORTS. [1950
H.C. Toe-Naya; the appellants' first trade mark is a sitting
1949
Chinthay and such as is usually seen near Pagodas;
THE
'l',ullAHAL the only difference between them is as regards their
STATIONERY
MART
posture j and the proper test is whether the trade

K. E.
mark on the appellants' goods is likely to deceive a_
:MO~IA}IED purchaser who is acqliaillted with Ihe respotldmts'
EBIIAHIM.
V. S. ALlAR trade mark but who trusts 10 his memory. (See
& CO.
Byramjee Cowasjee v. Vera S01llabhai Motibhai and
U THEIN another (1\ and A. M. Maltl/Iliar & Co. v. Finl,1y
MAUNG, C.l.
Flemillg & Co. (2), and compare the NatioHal Sewing
Thread Co. Ltd. v. Messrs. James Chadwick & Bros.
Ltd. (3), in which Govindarajachari J. observed that
the test in all these cases is "whether the general
impression left in the mind of a customer who had
previously bought the plaintiff's goods is such that he
is likely to accept the defendant's goods, when they
are offered to him, in the belief that they are the
plaintiff's."
It is the function of the Judge to say whether the,
trade marks are similar; and it i's not for a witness to
express an opinion on the point. [See The Swadeshi
Mill~ Co. Ltd. v. ] I!ggo Lal [(amplapat Colton Spinnmg
aHd Weaving kIills Co. Lid. (4)]; so the Judge, looking
.at th'e'exhibits before him, must not surrender his own
independent judgment to any witness. [See Payton &
Co. Lid. v. Sntllitlg Lampard & Co. Ltd. (5).] .
The learned Judge on the Original Side has found,
though only by implication in the finding regar.ding
trade mark Exhibit C, that the appellants' trade mark
Exhibit D is similar to the responJents' trade mark and
that customers are likely to be deceived thereby; and
we agree with him. Customers who have bought the
respondents' exercise books may remember that their
(11 (1915-16) 8 L.B.R., 56!. (4) I.L.R. 49 All. 92 at pp. 97
(2) (19291 I.L.R. 7 Ran. 169. and 111. 1,.
(3) A.I.R. (1948) Mad. 481 "I V. 487. i51 (1901) A.C, 308 at p. 311,
 1950J BURMA LAW ~EPORTS. 51

trade mark is a Chinthay ; but they may not remember H.C.

1949
whether it is standing or sitting. With reference to a
THE
similar differenc.e Govindarajachari J. observed in TAH'AHA'.
The Nalional Sewing Thread Co. Ltd. v. Messrs. James STA~'~'::RY
Chadwick & Bros. Ltd. (0, ,. The witness refers to ..
K. E
a difference in the posture of the birds in the two MOH'UKD
-designs. It is true that there is some difference, but ~ l~R~~:~R
no importance need be attached to this as a purchaser & Co. I
cannot b..: expected to make a detailed comparison of U THEIN
MAUNG. C.].
the two labels before buying." Besides, the respon-
dents' exercise books are well known by their Chinthay
trade mark; and their Lordships of the Privy Council
have observed in Thomas Bear & Sons (lndia) Ltd.
v. Prayag Naraill and another (2) :
" Their Lordships think that the test of comparison 0' tile
marks side by side is not a sound one, since a purchaser will
seldom have the two marks actually before him when he makes
his purchase; anel marks with many differences may yet have an
element of similarilY which will cause deception, more especially
d the goods are in practice asked for by a name wbich denotes
the mark or the device On it. This has been settled in Enl(land
since the case of SeiXD v. Pro'Veze~ldc (3), where there will be
found some remarks by Lord Cranworth, L.C.} very relevant to
this matter. He also pointed (at p. t 97) that the adoption by a
rival trader of a mark which wonld C1use his goods to bear the
same na'me in the market, may be as much a violation of the
tights of the first owner as the actual copy of his device. This
same view was taken in the case of ]olmstoll & Co. v. Orr Ewillg
& Co. (4), a C1se relating to the use of two elephants on tickets
placed upon goods for sale in India."

The appellants' trade mark, Exhibit C, however,

stands on different footing. It consists not only of tbe
Chinthay in a sitting posture but <llso of two dragons-
. one on each side of the Cbinthay. The dragons are
copies of the dragons on the City Hall of the Rangoon
11) A.l.II. (1948) Mad. 481 at 487. 13) 11865) L.R. I Ch. App. 192-
(~) J.L.R. Il.4~) All 441i. (4) 7 J\pp. Ca,. Z19.

"
 .'
52 BURMA LAW REPORTS. [1950

H.C. Municipal Corporation. They are much larger than

1949
the Chinthay itself; they are not by any means less
TAJ~~AL promir,ent than the Chinthay even ~hough the latter
ST~:;;.r::::-RY happens to be in the middle j and we are of the opinion <,
v. that the trade mark containing them, as aforesaid,
M;:;'A~"ED cannot be mistaken for.a trade mark consisting only of
v~~.R1~:~." a Chinthay. The respondents themselves could not
& co. have been sure of their ground in respect of this trade
U THEIN mark Exhibit C, since they wrote in Exhibit E, "We
MAUNG, c.]. understand that you have been recently manufacturing

* * 1,{< exercise books * ,~ * with the trade

mark of Chinthay or Dragon 011 them j" B. K. Deb, a
partner in the respondents' firm and Maung Ba Shwe,
the designer of th<. trade mark, have deposed that they
would call it Chinthay and Dragon trade mark, and
therG is no evidence whatsoever of the appellants'
exercise book with the said trade mark having been
passed off or referred to as Chinthay Trade Mark books
at all. As a matter of fact the addition of two different
symbols, viz., the dragons, is so conspicuous and th~' . \- ,
total dissimilarity of the general combination of marks
is such that to anyone at all acquainted with the
respondents' trade mark, we can hardly think that even
on the most cursory glance there could be any
deception. [Cf. the remarks of Lord Cranwortli in The.
Leather Cloth Co. Ltd. v. The American Leather Cloth
Co. Ltd. (1) and the remarks of Sale J., in T. Barlow
and others v. Gobrindram and another (2).J This case
is somewhat similar to Boord & Son v. Bagots, Hullon
& Co. Ltd. (3), where the rivalry was between a cat
in sitting posture got up as a puss in boots and.a cat
standing on a barrel. There it was held:
II That the applicants' mark \vas not calculated to deceive,
there being no resemblance between the two marks, and that the
(I) 1\ H.C.C. 538. [2) (1897) I.L.R. 24 Cal. 364.
131 (1916) L.R. 2 A.C. 382.
 1950] BURMA LAW REPORTS. 53

mere possibility of confusion arising from the insufficient descrip.. H.C.

1949
lion of the opponents' mark by ignorant people in foreign
markets was not a ground for refusing: registration." THE
TAIMAHAL
STATIONERY
[Cf. Adamjee H aja Dawood & Co. Ltd. v. The Swedish MART
Match Co. (1 )], in which a Bench of the late High..
IC E.
Court of Judicature at Rangoon observed: MOHAMED
EBRAHIM
"\Ve are of opinion that the plaintiffs have established V. S. ALlAR
& Co.
sufficient user of (Three Star' and I J. W.T. Star' label as would
justify us in restraining any other competitor in Burma from a U THEIN
MAUNG I C.J,
colourable imitation of either of these marks) but they have not,
in our opinion established a right to restrain all and sundry
from using a design for matches in which any number of stars
is a dist~nctive mark.'!
We accordingly hold that the respol)dents are not
entitled to any relief in respect of Exhibit C.
The appellants say that they registered the trade
.. mark Exhibit D on the 17th March, 1948, and discar-
ded it in June, 1948, i.e., about six months before the
institution of the suit, when they adopted the trade
< ;)1ark Exhibit C instead thereof. However, the respon-
dents are entitled to an injunction to prevent them
from using the trade mark Exhibit D again and also to
ancillary reliefs for the use of the trade mark in respect
of exercise books only during the said period. At the
. same time the learned Advocate for the respondents
has had to admit that the wording of the decree under
appeal is too wide. \
So the decree under appeal is set aside: Instead
thereof let there be a decree for (1) an injunction
restraining the appellants and their agents from import-
ing into or selling in Burma exercise books bearing
the Chinthay Trade Mark Exhibit D or any mark
whatsoever which might be a colourable imitation of
the respondents' Chinthay Trade Mark, Exhibits A and
B, (2) an order directing the appt:llants to deliver up
(I) (1928) l.L.H. 6 Han. 221 at p. 234.

,
.. ~I
 .,
..
54 BUI{,MA LAW REPORTS. [1950
H.e. all exercise books bearing the said offending trade
1949
mark Exhibit D in their possession or control, (3) an
THE
TAJMAHAL order that the Official Referee of this Court do take
STATIONERY
MART
accounts of the exercise books sold by the appellants ,
v;
K. E.
under the said offending trade mark and do submit
MOHAMED his report in due cour~e.
EBRAHIM
V. S. ALlAR The parties must bear their own costs in both
,81: CO,
Courts up to this stage.
U THEIN
MAUNG, C.}.
U SAN MAUNG, J.- I agree.

_-~, -' -~. J..

i
 1950J BURMA LAW REPORTS. 55

APPELLATE CIVIL.
Before U Tluill Matmg, GMe! Jttstia, dud U SII1I J1!ewng, J.

MA KIN KYI (ApPELLANT) H.C.

1950
v.
Jim. Z3.
MA THAN TIN (RESPONDENT). *
Burmese Buddhist Law-Estate of deceased stepgralldparml_RJvlll claims
of d(wghler of Kilitha attgJder and Apatiltha dallgllier-ftlsfice, cquit)
ami good collsciwce-Kililha, if illegitimate.
Held: That in a contest to the estate of a deceased step-grandparent
governed by Burmese Buddhist Law, as between the child of a Kilillta
daughter and the daughter of an Apalitllw son, both arc entitled to inherit.
A Kililha child is not an illegitimate child but only inferior to children born of
parents who live openly to~tther.
U E Mmmg'!'. Buddhist Law, p. 194/195. refened to.
!lin Stin Hla v. MclUng Sciu Bmlll, 11903-04) 11 L.B.H. 54, dislingllished.
Diges!, 1,17, referred to.
The status of an Apalitlha son cannot be higher than that 01 a Ki/itlln son.
MlfllukJ'e, Vol. X, t'-. 51, referred tao
](illamu Mingyi's Vise:.t, Vol, I, s. 301, referred to.
A Kilitltll child will, uillike an Aplllilllw child, exclude other relations
from inheritance.-
U E MauIllfs Buddhist L'il~v, p. 225, referred to.
The peculiar circumstances in the cale did not Iii ill with tl~e cor.tingencies
in th.;: c:ue law nor provided lor in the Dlw,lIIlJ1alhals and in accordance with
the principles of _j1l8tice.~e9t~!t)' and good ..:onscicnce, each claimant was held
entitiec1 to half.

Sa Than for the appellant.

U THEIN MAUNG, C.J.-U Shwe Din and his first
wife Daw Dwe adopted Tun Pe as their apatiithu son.
After Daw Dwe's death without any natural issue
U Shwe Din had some intimacy with Ma Mya Lay
without living openly with her. Ma Mya Lay gave
birth to Ma Thein Shwe as a result of the said intimacy.
.. Special Civil Appeal NO.3 of 1949 against th(; Decree of the High Court,
Rangoon, on the Appellate Side in Civil1ud Appeal No. 92 of 194', dated the
27th J.lIl4ary 1949.
 .'
.
56 BURMA LAW REPORTS. [1950

H.C. When Ma Thein Shwe was a few years old, her mother'
1950 Ma Mya Lay left U Shwe Din's protection and lived
MA KIN KYI with another man. U Shwe Din then took Ma Thein

},fA THAN Shwe into his household and brought her up in his
TIN.
house. Subsequently U Shwe Din married Daw Shin.
U TaRIN.
MAUNQ,C.].
Ma Khin Kyi is a daughter of Tun Pe. She was
born in U Shwe Din'~ house after the death of
Daw Dwe while Tun Pe was living with U Shwe Din.
Tun Pe lived with U Shwe Din up to the time of his
death, and even after Tun Pe's death Ma Khin. Kyi
continued to live with U Shwe Din for about 7 years.
Then her mother married again and took her away
from U Shwe Din's house. However, she returned
to his house after some interval and lived there till she
got married to Ko Kyaw. Ko Kyaw died in 1942 and
thereafter she lived with Daw Shin up to the time of
Daw Shin's death in or about the year 1945.
~[a Thein Shwe married Maung Tun Naing while
'.
she was living with Daw Shin; and after the marriage
she and her husband lived with Daw Shin up to the'
. , .,.
time of her death. Ma Thein Shwe gave birth to
Ma Than Tin in the house of Daw Shin ; and after
her death her husband went back to his parent's
house, leaving Ma Than Tin with Daw Shin. So Ma
Than Tin was living with Daw Shin from the date of
her birth up to the time of Daw Shin's death.
Now, Ma Khin Kyi and Ma Than Tin are rival
claimants under the Buddhist Law to the estate of
Daw Shin. The learned Assistant Judge held that
Ma Than Tin is not entitled to any share in Daw Shin's
estate, as her mother Ma Thein Shwe was an illegitimate
child of U Shwe Din and an illegitimate child is
entitled to inherit only in thp. absence of a legitimate
or adopted child. On appeal the learned District
Judge held that the kilitha child stands on an equal
footing in the matter of inheritance with the lipatittha l
 1950J BURMA LAW REPORTS. 57

child in the absence of superior heirs, that tbe kllitha H.C.

1950
step-grandchild therefore stands on an equal footing
!\lA KIN Kn
with an apatiltho step-grandchild as regards tbe right v.
l\JA THAN
to inherit the estate of the step-grandparent, and that 1'IN.
Ma Khin Kyi and Ma Than Tin are entitled to equal UTHEIN
shares in the estate of Daw.Shin. The decision of tbe MAUNG, C.].

learned District Judge has been confirmed by

Mr. Justice Aung Than Gyaw on second appeal, and his
Lordship has observed in the course of his judgment
the~ein :

I( In this case, hQ\vever, the contending claims have been

made. not to the estate of the deceased parent but to the estate of
the deceased stepgrandparent, and in view of the fact that both
the child born of the kilitha daughter and the daughter Lorn of
the apatittlza son had been broughfup together in the household
_of the stepMgrandparent-circumstances which cIo not fit in with
4 the contingencies met with in the case law or provided for in the
Dltammallzals--the rule of justice, equity and good f.:onscience
followed by the lower Appellate Court would appear to commend
;itself as the best melnS of arriving at a just decision in this case."
4

This is an appeal under section 20 of tbe Union

Jucliciary Act, 1948, from the judgment and decree in
the said second appeal.
The principal grounds of appeal are (1) that it
has already been laid down in Ma Sein Hla v. Maung
Sein Hl1an (1) that an illegitimate child is entitled to
inherit the estate of his deceased parents only in the
absence of a legitimate or adopted child, and (2) that
the judgment in the second appeal, which is based on
the r~le of equity, justice and good conscience, is
contrary to the law laid down in the said ruling.
Before dealing with the said grounds of appeal, we
must clear the ground by getting rid of the underlying
idea that a kilitlza child is an illegitimate child.
U E Maung, now Acting Chief Justice of the Union,
(1) (1903-04) 11 L.B.R. 54.
 .,
.
58 BURMA LAW REPORTS. [J950
H.C. has observed at pages 194-J95 of his Burmese
1950
Buddhist Law:
MA. KIf: KTI
v.
!ITA THAN . The kilitlta has been cles~ribecl in the dauzmalhats (1) either
(l
TIN.
as, a-child' be~otten while in pursuit of amorous pleasure' or
U TUIIN a child, male or female, begotten by man and woman in pleasure
MAUNG. C.I.
by mutual consent but who do not live openly together.' Such a
child is not an illegitimate child; he is not without rights of
succession in the parental estate i but his rights are inferior to
those of chik1i:'en born of parents I who live openly together.'
Hence in Ala Hnya v. Ala 0" Swill (2), the term' nsually be-
gotten child I was suggested as more accurately descriptive of the
kililltl. child.
1J

And we are in respectful agreement with him.

Ma Seill RIa v. Maung Seill Hllan (3) is not_an
authority for the contention that an illegitimate c!lild
is entitled to inherit the estate of his deceased parent
only in the absence of legitimate alZd adopted childrm.
It merely decided that "in the absence of legitimate
children or step children, a step oon though illegitimate ,
may inherit from a stepmother to the exclusion of
collateral heirs." It does not contain any express
reference to adopted children. Even though it may be
contended that keillilila children, who have the same
rights as children bor-n-e -in hi\vful \vedlock, -also ~ome
under tile category of legitimate chiidren, the status of
an apalillha child is much inferior to that of a keillillla
child. When there are natural or keiltima children, an
apalittha child is not entitled to share in the estate of
the adoptive parents. [See Maung Mya Ma1l1tg v. Ma
Mya Sein (4)]. Even in the absence of natural and
Ileillima children an apatittha child is entitled to only
one half of the estate of the adoptive parent and other
relatives of the adoptive parent are entitled to the

(1) Digest, I, 17. 131 (1903-041 11 L.B.R. 54.

12) 9 L.B.R. I. I~J A.I.R. 119361 Ran. SIS. i
 1950J BURMA LAW REPORTS. 59
other half. [See Milll11g Gyi aud one v. Maung Aung H.C.
1950
Pya (1) ; and Ma Than Nyun v. Daw Shwe Thit (2).J
tIIA Kn: I{YI
The status of an apatittha child cannot by any means
be higher than that of a kilitha son, since section 51 of

MATHAI.;'
TIN.
Manukye, Volume X,provides :
U THEIN
M.\UN'G, C.].
H The law by which properly is divided, or not, between a

child begotten in youthful wantonness, without man'iage, and the

relations of the deceased father anel mother. is this: if a husband
and wife have propertYl given to them by their parents, from
whom they are living separate, and have a son, begotten in
wantonness before marri~ge, and shall die) leaving no legitimate
offspring, the relations of the dec"eased shall not say this is not the
child of a marriage sanctioned of the parents, he is a child of
their own desires, we will take the properly j they shall not have
it, let the child of the deceased have the wLo1<;.
In another case; if the deceased w~re in reach of their
parents' inheritance, though the son claim it} he shall not 1-)ave it,
his parents not abiding by the commands of their parents have in
the gratification of their pJ.ssions begotten him, beinR careless of
the honour of their family. Tbough his parents die after his
grandparents, he sball not sh:u'e in the grandparents' property;
let the relations of his parents only divide his parents' share."
Section 301 of Kinwunmingyi's Digest, Volume I, is to
the same effect. So a kilitha child will, unlike an
apatittha child, exclude the other relations as regards
. properties which were in the possession of the parents
at the time of their death: and U E IvIaung has
actually stated at page 225 of his Burmese Buddhist
Law:
II Though the dha'J/llIl1l/wls are silent as regards the rights of

an apa tilllza child as against a Mlilha child. it seems reasonably

clear, from the let that the kilifhl1 child excludes collaterals of
the deceased parent, that a kililha child will exclude an apatillha
child."

And V Aung Tha Gyaw J. himself has observed in

the course of his judgment in the second appeal" on
(1) (19W l.L.R. 11 Ran. 661. (2) (1936-37) I.L.R. 14 Ran. 557.

,
 .,
:
60 BURMA LftW REPORTS. [1950

H.C. the principles laid down in the Dhamlllathats a c'ase

1950
- mig11t POSSI'b ly b e found for the postponement of the
'.

MA J(~~ J(YI apatittha.'s claim to that of the kilitha child in the

M\.y;AN property of their. deceased parent.' However, his
-
U Tl'EIN
Lordship abstained from going into the question
'IAUN';, c.}. .
furtLer, as (1) Ma Than Tin had not appealed from the
decree of the District Court, (2) the claim is not in
respect of U Shwe Din's estate, and (3) both Ma Khin
Kyi, the daughter of the apaiittha son, and Ma Than
Tin, the daughter of the kiZitha daughter, had been
brought up together in the household of the step-
grandparent Daw Shin.
So we hold that the decree under appeal is not
contrary to the rulir.g in Ma Sein HZa v. Maung Sew
HIlat1 (l) and that having regard Lo the peculiar
circumstances, which in the words of U Aung Tha
Gyaw J. "do not fit in with the contingencies met in
the case lawaI' provided for in the Dhammathats," it
really is in accordance with justice, equity and good
,
conscience.
The appeal is dismissed. There is no order as to
the costs of this appeal as it has been heard ex-parte
in the absence of the learned Advocate for the
respondent. .

U SAN MAUNG, J.-1 agree.

II) (190304' II L.B.R. 54.

 1950] BURMA LAW REPORTS. 61

APPELLATE CIVIL.
Before U T/Jci1~ Mmmg, GM'j J1lStice, ilnd V Sail Mall1Jg, J,

HAJEE L. A. M. NAGOOR MEERA & SONS H.C.

1950
(ApPLICANT)
Jan. 27.
v.
BEHARILAL CHOTMAL (RESPONDENT). ,
U";OII J"dici,~ry Act, s.S-Ccrtijicale-Subs/al1tial qucstiou 0/ JI1'JU-ftb4!>t
be olle oPen to argumwt.
fIeld: Thol1!!h the subjectMmatter of the dispnte in the court of the first
instance and still in dispute in appeal is not less than Rs. 10,000 nO ecrU
ficate under s. 5 of the Union Judiciary Act can be granted tllllcl:s the
appe.1.1 involves sc.me substantial question of law. This condition is satisfied
even if the question of law is one between the parties and not of l'{cncral
importance. However the question of law involved must fairly open to
argument. Where the principles of law are well settled their appJicu.tion to
a particular set of facts is not a substantial question of law.
Raghunath prasad Singh aud olle v. Deputy CommiSsjo'lU of ParlnbgarlJ
and olhers. S4 LA. 126 ; M. C. Fa/ail and Ollev. Ii. G. Arifj and others, (1935j
I.L.R. 13 Ran. 744; Maf/mra Kn;-Jn; v. Jadgco Singh fwd others. (1928),
;::' \I.L.R 50 All. 208; MU5M11lmat Umrao Bib; aud others v. Ram Kislun ami
otll#rs, {l932J I.L.R. 13 Lah. 251, referred to.
Dwarkll Naill Pai Mohall C!wudlmri v. Rivers Steam N(1j)igat;OIl Co
Lid., (1917) A.LH.. (P.e.) 173; Th~ Rive~s Steam Navigation CO., Y. ChOHt~
mull LJoogwr and others, (1899) LL.R. 20 Cal. 398, discussed.

P. K. BaSH for- the applicant.

E. C. V. Foucar for the respondent.

U THEIN MAUNG, C.J .-These are applications

under section 5 of the Union Judiciary Act, 1948, for
certificates which are necessary for the purposes of
appeals to the Supreme Court of the Union of Burma.
The subject-matter of the dIspute in the Court of
First Instance and still in dispute on appeal is not less
it Civil I\Iisc. Application Nos. 27 and 28 of 1949 for leave under section 5
of the Union Judiciary Act to appeal to the Supreme Court against the
jlldgm~nts ~nd rlecree~ if} Civil 1st Appeal Nos. IS tind 16 of 1949.
 .,
.'

62 BURMA LP_W REPORTS. [1950

H.C. than Rs. 10,000 in each case. However, the judgments

1950
and decrees from which it is proposed to appeal to the
HAJJ.:E Suprem~ Court affirm the decisions un the Original
:-';AGOOR
i\lREHA & Side of this Court. So the appeals cannot be filed "
SONS
V. under section 5 of the Act without a certificate of this
BEHARlLAL
CHOTMAL
Court to the effeci that they involve some substantial
question of law.
U TBl!l~
fi'lAUNO, C.J. Mr. P. K. Basu, learned Advocate for the applicants,
relies on Raghunath Prasad Singh dnd another v.
Deputy Commissioner of Partabgarh and others (1),
where there Lordships of the Privy Council have held,
with reference to a similar condition in section 110 of
the Code ot Civil Procedure, that the condition is
satisfied if there is a substantial question of law be-
tween the parties, even though that question be not of
general importance. However, as has been held in
M. C. Patail and ,mother v. H. G. A riff and others (2), the
question of law that is involved must be fairly open to
argument. Where the principles of law on a point are
well settled, the application of those principles tot
-,
a particular set of facts cannot be said to be a
substantial question of Jaw within tbe meaning of
section 110 of tbe Code. [See M athura Kurmi .v.
]ag,deo Singh and others (3), whicb has been followed
in M IIssa1Jlmat Umrao Eibi and otker's v. Ram Kishen
ami others (4).J
Mr. Basu has contended that Dwarka Nath Pai
Mohan Chaudhuri v. RiversSleam Navigatiol/ Company
Limited (5), wbich was relied upon by us as an autbo-
rity on tbe question of tbe burden of proof, bas
not been reported in the authorized Reports. that it
must therefore be deemed to have been of doubtful
authority, and that the law as to the burden of proof
III 54 1ndian Appeals, 126. (3) {192811.L.R. 50 All. 208.
(21 (1935) l.L,lU4 Ran. 744. (41 (1932) I.L.R 13 Lah. 251, I
(5) {19171 A.I.R. P:-ivy CounciL 173, ~.
 ]905J BURMA LAW RE.PORTS. 63

cannot be taken to have been settled by it. However, H.C.

1950
even though it may not hav", been published in the
HMEE
authorized series, th", fact remains that it is a rding of NAGOOH
MEERA &
their Lordships of the Privy ..council. It does not SONS
appear to have been dissented from, or even doubted, v.
BEHARJLAL
since its publication as long ago as 1947 ; and it has CHOnu.L

been discussed by Pollock and Mulla in their work on U THEIN

MAUNG, C.].
the Indian Contract and. Specific Relief Acts without
any adverse commen t whatsoever.
Mr. Basu has further coqtended that their LQrd-
ships of the Privy Council must be deemed to have
.. spoken with two voices" on the same question in view
of their decision in The Rivers Stearn Navigation Co. v.
C1IOultmill Daogar and others (1). However, that was
a case under section 9 of the Carriers' Act, 1865,
which reads:
H In any snit brought against a common carrier" for the loss,

damage, or non..clelivcry of goods entrusted to him for carriage,

Jo. 'it shall not be necessary for the plaintiff to prove that such Joss
01" damage or non-delivery was owing to the negligence or
cl'iminal act oi the cJ.rrier, his servants) or agents."

As has been pointed out by Pollock anel Mulla in their

work on the Indian Contract and Specific Relief Acts,
7th Edition at page 496, as regards goods delivered to
a common carrier he is liable even if there be no
negligence on his part except in certain cases, and
under section 9 of the said Act the bnrdtn of proof lies
on him to disprove negligence. The third. paragraph
of the head-note to that ruling also shows" there were
facis showing that no adequate means had been provid-
ed by the defendants for extinguishing a fire on
board, and that the watch was ,inefficient," and that
the defendants were accordingly hdd to have failed to
exonerate themselves.
11) 11899) H .F. 26 Cal. 398.
 .'
64 BURMA LAW REPORTS. [1950
H.C. So we cannot certify that any substantial question
1950
HAJEE
of law is involved in the proposed appeals to the
NAGOOR Supreme Court. The applications are dismissed,
MF.ERA &
SONS Advocate's fee for each application three gold mohurs. "'\
. ~,

BEHARILAL
CHOTlIIAL U SAN MAUNG, J.-I agree.

U THEIN
MAUNG,C.J.

'- .\ <'
."
 /

1950] BURMA LAW REPORTS. 65

APPELLATE CIVIL.
Before U Thtm,}.fmwg, Chief Justice', and U Sail Matmg. J.

MRS. CONSTANCE !vI. WRITER (ApPLICANT) H.C.

1950
v. F,b. 3.
A. M. KHAN (RESPONDENT).*
UnitJn Judiciary Act, s. 5 lc}-" I ll'Volvcs directly Or i.~d,rutly "-J1I eanill g lIf.
lleld: S. 5 (el of the Union Judiciary Act, 1948 like the second p'arul:Taph
of s. 110 or the Code of Civil Procedure requires that the judgment, decree
or final order must involve directly or indirectly some claim or que~tion
rC5pecting property of the value of not less than H.:J. 10,000. It is the extent
to which the decree or order has opelated to the prejudice of tl1<3 Applicant
that determines the value. of the appenl whatever may be the value of the
property.
If the appeal involves nothing beyond the snbject matter of the appe;tl the
first paragraph of s. 110 of the Code applies. The second parai:raph of
the said section :lpplies only when the appeal involves some claiill or qucstipn
to or respecting property additiollaJ to the actual su~jcct matter in di"ipllte iJi
appeal.
\V~:ere there was no dispute about the ownership of a house, :lnd the
dispute r~lated only to the f;luestion whether the tenancy could be split and the
:respondent ejected from the house, and the suit for ejectment was valued at
'R:>. 1~500 for jurisdiction the decree did not invoh'e dire..;t1y or indirectly some
claim or question respecting propert\' 'If the valne of Rs. 10,000 o. more under
s.5 (c) of the Union Judiciary Act, C\'cn though the "alne was Rs.40,000
N. C. Gallium v. A.M.M. i'lltlrugapp" Clut/y, (1934) I.L.R. J2 l~an. 355;
M. E. Moolll, & SonS Ltd. v, Leon Shah' Sway, (1926) I.L.R. 4 Ran, 92;
Gn.mamQlIikkam Amwal v. S. R.Samsoll, (1931) 1 L.R 9 Ran.52; P,L.M.C.l'.M.
Kasivis'i.lJollollian ClteJlyaT v. P.L,/tf.C:f.K. J{r;s!JlwPPa C!JellNr, (Civil Misc.
Appln. No, 10 of 1949 High Court, Hgn.), rf'fcrrcd to..
D/wllna Mal and others v. Rai Sahib Lat Moli Sag/IT, 75 I.C, 654;
A, V. StlbramatJ;a AyyaT v. Sellammal, (1916) I.L,R 39 Mad. 843; Maharaja
KesllO Prasad Singh v. Shiva Saran Lal, 3 Palna L.J. 317 at 321, referred to.

V. S. Vmkalram for the applicant.

Dr. Thein (er the respondent.

U THEIN MAUNG, C.J.-This is an application for

a certificate under section 5 (c) of the Union Judiciary
Act, 1948. The certificate is required for the purpose
* Civil Mhc..~Pfllication !,\o, 1(> of 19-19. -<>

~
 ..
66 BURMA LAW REPORTS. [1950

H.C. of an appeal from the decree in Civil First Appeal

1950
No. 17 of 19+9 in this Court setting aside the decree
Mus. CON~
STANCE 1\1.
of the Rangoon City Civil Court anddismis~ing the
WHITER
v.
present applicant"s suit for ejectment from the upper
A. M. KHAN. floor of her house "Of the present respondent who is 'c
U THEIN her tenant in respect of the whole house. .
I\j,\Ul\{;, C.].
The suit and the first appeal were valued for the
purpose of jurisdiction at Hs. 1,500 only; but the
learned Advocate for the applicant now contends that
the whole house is worth about. Hs. 46,000 arid that
he is entitled to a certificate under section 5 (c) of
'the Act as the said decree "involves directly or
indirectly seme claim or question respecting property"
worth not less th"n Hs. 10,000.
There never has been any dispute between i!1e
parties a's to the applicant's ownership of the whole
house and' tbe respondent's being her tenant in
respect of the whole house The only question in
dispute \Vas as to whether the applicant could, under
the circumstances of the case, split the tenancy an~~ .\
eject the respondent from" part only of the house. .
Section 5 (c) of the Union Judiciary Act, 1948
Eke the second paragraph of section 110 of the Code of
Civil Procedure requires that the judgment, decree or
final order ml1st involve directly or indirectly some
claim or question respecting properly the value of
which is not less than ten thousand ru pees; and so far
as the said paragraph is concerned it has been held in
N. C. Glllliara v. A.M.M. M urugappa Chelly (1) that
it is the extent to which the decree 01' order has
operated to the prejudice of the applicant ,that deter-
mines whether the decree or order is subject to appeal
or not, and whatever may be the value of the property
in respect of which a claim or question is involved in

\11 119341 !.L.R. q )leO. 355.

1950J nURMA LAW REPORTS. 67
the appeal, no appeal lies under section 110 unless tbe H.C.
1950
va.lue of the loss or detriment which the applicant has
ilIl~S. Cox-
suffered by tbe jJassing of the decree or order, and ST"Xt:I~ 1\1.
\Vr~ITEn
from which he seeks to be relieved by His .Majesty
".
il.. M. KHAN'.
in Co.uncil; is Rs .. 10,000 or upwards. [See also
M. E. Moolla and SOilS Lid. v. Leon Shain Sway (1) U THCIN
i\IAt:::-:G~CJ.
Gnanamanikkam A 111n: III v. S. R. Samson (2) and
P.L.Ai .C. T.lvI. Kasiviswanalhall Clut/yar v. P.L.M.e.
T.K. KrisJznllppa Chdlyar (3). Cpo DJzamll1 Mal and
others v. Rai Sahib Lala Moti Sagar (4).J
Besides, the Higb Court of Madras has held in
A. V. Subralllania Ayyar v. Sellatl/111al (5) that the
second paragraph of section 110 of the Code of .Civil
Procedure applies only to cases wi1ich involve some'
claim or question to or respecting property additional
10 Ihe actual subieet-111atter in dispute in the appeal and
that first paragraph of the section alone applies if
nJlliillg beyond the llclual subjectmalter in dispute is
imoh'ed. [See pp. 846 and 849 of the Reports. See
.,')so Maharaja Tl.esllO Prasad Siugh v. Shii'a Saran
Lal(6~J .
In the present case nothing ueyond the actual
subject-matter in dispute is involvEd and the value of
loss or detriment which the applicant has sufferred
by the passing of the decree, i.e., by the dismissal of
her suit for ejectment is much less than Rs. 10,000.
So we cannot grant a certificate under section 5 (e)
of tbe Union Judiciary Act, 1941'.
The application is dismissed witb costs; Advocate's
fee three gold mohurs.

U SAN IVIAUNG, J.-I agree.

iii (1926) I.L.R. 4 Ran. 92. (4) 75 I.C. 654.

(2) (1931) LL.R. 9 Ran. 52. (5) (1916) J.L.R. 39 Mod. 843.
(3) Civil Misc. Appl. No. 10.0{ 1949 16) 3 Pflt.L.J,3J7at;l1'"
111 this Court.
68 BURMA LAW REPORTS. [1950

CRIMINAL REVISION.
Before U Tun Byu 1 J.
\,
H.L:. MAUNG MYA MAUNG AND ONE (ApPLICANTS)
1950
V.
Jan. 26.
THE UNION OF BURMA (RESPONDENT).*
Arms (E1I1erl1.wcy Punishment) (Temporary) Aet,1949, s. 2 (1) (d).
Held: That Arms (Emergency PL1nishment! (Temporary) Act. 1949 has
been enacted for certain special purpose. \\'here it is in conflict with the
Arms Act it must be held to supersede the more general provisions of the
Arms Act.

Khin Ai at/lIg for the applicants..

Chooll Foul'Ig (Government Advocate) for the

respondent.

U TUN BYu, J.- The applicants Maung Mya Maung

and his wife Daisy Mya were sent up for trial
.~
apparently under section 2 (1) (d) of thc ArmJ
(Emergency Punishment) (Temporary) Act, 1949.
It appears tbat Daisy Mya has been granted bail,
buf the bail for the 1st accused Mya Maung was
ref used on the ground tbat at present it is not possiblc
to say thatt1lcre are no reasonabkgrounds for thinking
that the offence for which tbe lstaccllsed Mya Mallng
was sent up would not fall under section 2 (1) (d)
of the Arms (Emergency Punishment) (Temporary)
Act, 1949.
The applicants lvIya Maung and his wife Daisy
Mya thereafter applied to this Court (1) to quash the
proceeding pending against them in the Court of the
5th Special Jlldge, Rangoon, and lvIya Maung also
Criminal Revision 1\10. loB of 1950 being review of the order of the
5Lh Special Judge of RangoJIl,da!ed 22nd December 1949 p<;:lsed~n 9riminall
Hegnlar Trial NI;l. 58 of 1949, ~,
1950J BURMA LAW REPOR:tS. 69
applied tint bail might be granted to him pending the H.C.
1950
hearing of the case in the C:;ourt of the 5th, Special
Judge, Rangoon. It has been urged that the evidence of !\fAUNG 1I.IYA
1'1AmwAND
U Maung Gyi, P.S.O. (P.VV. 1), does not show that the O:"lf;
v.
revolver, which had been seized, was, in fact, delivered TAl': UNION
OF BUlnl.A.
to the accused Mya lvlaung. However, it appears that
the prosecution has at least two more witnesses to be U Tux Byu,
J.
examined, and in that circumstance it could not be
said that this is a case where there is no evidence on
which it could be said that the revolver which had
been seized was a revolver which belonged to the
Government and which had been delivered to
Mya Maung. The application to quash the proceeding
appears to me to be premature. Ai present there does
not appear to be any evidence against the 2nd accused
Daisy Mya. She is, however, on bail and as the
prosecution has at least two more witnesses to examine
only, I think it will be well to wait and see what is the
nature of the evidence adduced by those two
\vitnesses. The learned Special Judge will no doubt
discharge'the 2nd accused Daisy Mya, if he finds at
the conclusion of the evidence adduced by the
prosecution that no charge could reasonably be framed
against her. It has also been argued strenuously on
behalf of the accused Mya Maung that the case of the
prosecution against him does not fall under the Arms
(Emergency Punishment) (Temporary) Act, 1949, but
that to put it at its worst the case against lvlya Maung
would fall merely under section 22 of the Arms Act.
The Arms (Emergency Punishment) (Temporary) Act,
1~49, has been enacted for certain special purposes,
and where it is in conflict with the Arms Act, it must,
in law, be held to supersede the' more general provi-
sions of the Arms Act. It is not possible at present to
say definitely that when the evidence for the prosecu-
tion is con~luded the case against the 1st accused
 ..
70 BURMA LAW REPORTS. [1950

H.C. Mya Maung would not fall under the provISIOns of

1950
clause (d) of section 2 (1) of the Arms (Emergency
l\t.\1J~G
MAU:-;G MW
My.... PllnishP1ent) (Temporary) :lI.ct, 1949. It must accor-
O:->E dingly be held that the 5th Special Judge, Rangoon, \,
>.
'[liE U;-;lON was correct in refusing the bail of the applicant
OF BUI01A,
Mya Mallng in his order, dated the 22nd December,
V TUN Bn\ 1949.
].
This application for revision is dismissed.

) ,

1,
i965] BURMA LAW ~EPORtS. 71

APPELLATE CIVIL.
Bljore U Ttm Byu and U AU1Ig [{lIillc, Jf.

MAUNG lIJAW AND ONE (ApPELLANTS). H.C,

194')
71.
Dcc.-23.
U BA THWE AND ONE (RESPONDENTS}."

ll/slrlllllculof lease-Ss.l0S (If/(' 107 of TrmJsfcr of Proper(y Act.

licit!: That a lease is defined in s. 105 of the Transfcr of Property
Act. Under s. 107 a lease of immoveable property from year to year for
allY term exceeding one year can be made only by a registered ills(rtl~
ment "and all other leases of immoveable property may be, made cilhe.f
"b.v:l re.gj~tered instrument or by o~al agreement accompanied by ~elivery of
possession,
A lease implies tha~ there should be tWll parties the Lessor and
the Lessee and the inf'trulllcnt of lease contains covenants tint both the
Lessor and tbe Lessee agree to. Therefore a lease cannot be effected ulless
th-e Lessor is a p;irty \0 thc instrument of ~ease. As Exhibit A in the case
was signed by one party only it ra~l in effed be no more [han an agreemcnt 10
lease.
Observalio1lS ill U Tha Nyo v. Mg. Kytl'iO Tha by Gl1rr I., (1925) 3 Ran.
?)9 at 380, followed.
Mt. ;"7(lsi!Jall v. Mohammad Sdy.:d, (19361 A.I.R Nag. 174, distinguished.

San Thein for the appellants.

Ze ya for the r-espondents.
U TUN Byu, J.-The plaintiffs-respondents
U BaThwe and Daw Sein Nyo are husband and \I'ife,
and Daw Sein Nyo isa daughter of one U' Po Khant
tJ)fough the latter's first wife Daw Pan On, who are
both dead. The defendants-appellants Maung Maw
and Ma Kyi are also husband and wife, and
Maung N.aw is a son of U Po Khant through his
subsequent wife Ma Pwa Toke, who is still alive. The
case for the plaintiffs-respondents is that they, 'in'pr'
about the month of January, 19+6, penni'tfed the
.;. .. Civil First Anr,eal No. 47 of 1949 agains~ dccrf:e of 2nd Judge, HangOOIl'
City Civ~1 Court in Civil Regnlar:Stfit Nq~ ..1.533 of 1947, dated l~tJnul:y '1949.
72 BURMA LAW REPORTS. [1950

H.C. defendants-appellants to occupy and use a room on

1949 the top-floor of a house at No. 23-25-27, Phongyi
MAm~G Street, Rangoon, and that on the 5th February, 1946,
MAW AND
'ONE they also leased out a room on the ground floor of the I,
V.
U BA THWE same house to the defendants-appellants, who however
AND ONP; deny that they went into occupation of the 'said
U TUN B'tu, rooms in the circumstances alleged by the plaintiffs-
J.
respondents. The case for the defendants-appellants
is that the house No. 23-25-27, Phongyi Street was a
property which was acquired by U Po Khant during
his coverture with the subsequent wife Ma Pwa Toke,
mother of the first defendant-appellant, and that they
went into occupation of the s<!id rooms in their own
right as co-heirs in the said house.
The first que,tion to be determined is whether it
has, in this case, been proved that the defendants-

appellants are tenants of the plaintiffs-respondents in
respect of the room on the ground floor. It has been
contended on behalf of the defendants-appellants that
l ..
Exhibit A which the plaintiffs-respondents had
designated in the plaint as " lease bond, is not admis-
sible in evidence in view of !.he provisions of section
107 of the Transfer of Property .Act, the relevant
pprtion of which .reads ;;LS follows:

II 107. A lease of immoveable property from year to year

or for any term exceeding one year) or reserving a yea~'ly rent,
can be macIe only by a registered instrument. .
All other lea~es of immoveable property may be made either
by a re~isterec1 instrument or by oral agreement accompanied by
delivery. of possession.
\Vhere il lease of immoveable pl'operty is made by a
regi:;tered instrument, such instrument Of, where there are more
instruments than one, each such instrument shall be executed by
both the lessor anel the lessee: 11

It will be necessary in this connection to consider II

whether the Exhibit A constitutes in law an instrnment
 1950J BURMA LAW REPORTS. 73
H.C.
d lease, and a lease is defined in section 105 of the 1949'
Transfer of Property Act, and the relevant portion MAU~G MAW
reads: AND 01:1:
v,
,. lOS. A lease of immoveable properly is a lransfer of a right U BA'TiIWE
AND O~E.
to enjoy such property, made for a certain time, express
Gr implied, or in perpetuity, in consideration of a price paid or U TrlN Byu.
J.
promised, or of money, a share of crops, service or any other
thing of vJlue, to be rendered periodically or on specified
occasions to the transferor by the transferee, who accepts the
transfer on such terms. "

Thus, a lease implies a transfer of a right to enjoy' any

property, and it implies also that there should be two
parties, viz: the lessor and the lessee, in that an
instrument of lease contains covenants by both the
lessor and the lessee. It is difficult to apprehend how
a transfer of a right in an immoveable property c"n be
affected unless the lessor w"s a party to the instrument
of lease. It cannot be disppted lhat in the present
>
.case the Exhibit A was signed by the defendants-appel-
lants only, and not by the plaintiffsrespondents. It
must acconlingly be considered to be, in effect, noth-
ing more than an agreement to lease.
In the case of U Tka Nyo v. Maullg J(yalO Tlza (1)
Carr J., after reciting the provisions of the first
part of section 105 of the Transfer of Property Act,
observed as follows:
(l It is quite clear that the cl0cument now in ,question is not

a IC.1se within this definition. It is not rxecutecl by the lessorl

the land-o\\"nel\ and, consequEIlt"IYJ it cannot transfer any right
to the property. It is, in fact) merely <In agreement to cultivate
and pay rent. The document, therefore, does not come within
the provisions of the Tl<IIlsfer of Property Act at all,_ ancl it is
unnecessary to consider those provisions further. "

Those observations ipply properly to the circum-

stances of the present case, the difference being
(II 119251. 3 H;\n. 379 at 380.
74 BURMA LAW REPORTS. [1956
H.C.
1949 tbat in the present appeal the subject-matter relates to
'1
n;f AUNG AW
l\
a bouse while in the other case it relates to a paddy
AND 0 " ' land. The Exhibit A in the case now under considcra-
l' B/1'H\\"E tion was not only executed by the defend,ll1ts-appellants \,
"~NE. alone but it also contains the words "od3~0'J11i ", which
u TUjBYU. ~Iso tend to suggest that>the document was in reality
Il1 the form of an agreement to lease the room men-
tioned therein.
The case of Mt. Nasiban v. Moha1Jlmad Sayed (lj
was referred to on behalf of the defendants-respondents,
but it does noi appear-' that the question whether
the rent tiote is a lease within the meaning of section
105 of the Transfer of Property Act was discussed at
all in that case. Tile finding of the Second Judge of
the l~angoon City Civil Court that the defendants-
appelJ.ll1ts are tenants of the plaintiffs-respondents in
respect of the room on the ground floor must therefOl'e
be considered to be correct.
The next question is whether there is evidence to
prove, that the defendants-appellants occupied the
room on the top floor under tbe lease am1 licence of
the plaintiffs-responden Is. It is diflicult to appr~ciate
that if the defendants-appellants \vent into occlipation
" of'the roeHn alme top~floor of fheir own'icord and in
the exercise of their own right as co-heirs in the said
house, why they should have executed the tenancy
agrecment, Exhibit A, for the lease of the room in the
ground floor; and it miglit be mentioned that this
tenancy agreement was executed about one month
after the defendants-respondents had occupied the
room on the top-floJr free of rent as alleged by them.
If the defendants-appellants are co-heirs in respect
of the top floor, they obviollsly were also co-heirs in
respect of the other part of the house. It appears that
some of the rooms in the Phongyi Street were in the
\
{Ij (1936), A.L.R }\ak 174.

"
 1950J BURMA LAW REPORTS. 75
H.C.
occupation of other 'persons at the time, and it does 1949
Ilot appeal' that Maung Maw and 'his mother ever l\fArNG [VIAw
obtained any share in the rents of any 01 the rooms in ANn ONE,
v.
the house inguesbon. There is also nothing on the U BA.THWE
AND ONE:
record to suggest that either Maung Maw or his mother .--,-.
ever attempted to exercise or c~aim any share in the U TUN; j3YU,
).
rent of the I rooms which were occupied by other
persons. It is, therefore, only' reasonable and proper
that the statement oUhe plaintiffs-respondents that
:rvlaung Maw and 'his wife occupied the room on the
top floor with their, consent should bc accepted.
Moreover, there do not appear anything .on the record
to suggest that Maung Maw's mother ever livec! in any
of the rooms in the house in question free of rent and
in the exercise. of htlr own right after the death of .ber
husband.
In respect of. the question of nuisance U Ba Thwe
stated,as follows:
H Some time in September 47 the 1st defendant.
slarted ~bl1sing me and stat~d that he wonld see that I left the hcuse.
The defendant;l buseel my wife also sta.ting tln.t she was the lesser
wife of 0 Po Khan!} deceasecl. My \\"ife is U Po Khapfs
daughter. He also thrcat.cnecl to ass}ult me and slJrlcc1 1TI<lking
~ ]puc1 nrises and throwing the fllrniture ahcllt.
. This took place some lime about the 14th 01' 15th of
September 1947. As the conduct of the 1st defendant became
intolerable I had to go and get the assi~tance of the Local P.V.O.
organization. \Vhen some of the P.V.O.s C<lJTI'e and intervened
the 1st clefend.:mf ceased to make those noises but scan after
they left he again stal'ted lllakin~ abuses. On the 22nc1 of
September 1947 I sent a lawyer's notice to the defendant."

The statement of U Ba Vi, Treasury Officer (P.W. 2)

also supports the statement of U Ea Tbwe anel it
reads:
II SCJme time last Thadingyut one eyening I heard a commo-
tiOl~ from the rlirection of the defendant's room. Actually I heard
76 BURMA Li\W RBPolns. t1950
H.C.
1949 the defendant shouting out from the ground floor to the effect
that this suit house helonged to U Khant and his wife only and
MAUNG MAW
AND O~t!:
he told the plaintiffs to leave the premises within thl'ee days.
V. And after that there used to be frequent altercations belween'
tT BA 1'HWE
them and I used to hear loud noises being made frol11 the rool11 \.,
.,AND mm:
of Manng Maw fr0m upper floor. This continued for about two
U TUN ByU,
weeks.
r. /.I

It is clear, therefore, that the nuisance was repeat-

ed Or some days and that this was not a matter
of one day only. According to Daw Thone (P. W.n
she
also heard the 1st defendant-appellant Maung' Maw
abuse Daw Sein Nyo, the 2nd plaintiff-respondent.
Thus, it is clear that the defendants-appellants can be
considered to have committed acts of nuisance as
alleged by the plaintiffs-respondents who are their
elders. The plaintiffs-respondents are, therefore,
entitled to an order of enjectment of the defendants-
appellants from both the rooms in the house at
No. 23-25-27, l?hongyi Street, Rangoon, and to
possession of the said rooms. i
For the reasons indicated above, the cross-objection
is, therefore, allowed with costs and the judgment arid
decree of the Second Judge of the Ihngoon City Civil
Court are modified to. the extent indicated above; with
the result that the appeal of the defendants-appellants
is dismissed with costs.

U AUNG KHINE, J.-I agree.

~
1950J BURMA LAW REPORTS: 77

CIVIL REVISION.
Htfore U 1'1m Byll, J.

CHING HONG SEIN (ApPLICANT) H.C.

1950
v.
Jan; 27.
KHOO HEIN KHOON SOCIETY (RESPONDENT).*
Urbem Rent ConlroJ Act, 1948, s. 11 (1) (fl, s. 12,. s. 13. (I)-Landlord
jmrclldsing aJler tlle Act-WlilllIcr cau lake ad1Jmdtlge of s. 11 III
(f)-Sill/lite COilS/ructiou gemrdl rule.
Helll: the Urban H.ent Control Act contemplates two distinct classes of
persons vi::., Tenant and Persons permitted 10 remain in occllp:liion under
s.12., s. 11 (J) of the Act does not apply to a person who has been
p"ermitted to remain in occupation 38 he is not a tenant within the meaning
of that section. The section applicable to such a person is s. 13 (1).

1. S. Chahl for the applicant.

HI" Pe for the respondent.

U TUN Byu, I.-The plaintiff-respondent society

obtained a decree against the defendant-applicant
Ching Hong Sein for possession of the g,ound floor of
a house at No. 125, 20th Street, Rang00n, in Civil
Hegular Suit No. 674 of 1948 of the Rangoon City Civil
Court. It appears that Ching Hong Sein thereafter
applied for and obtained a permit under section 12 of
the Urban Rent Control Act, 1948, allowing him to
continue to be in occupation of the premises in
question. It was probably on the strength of this
permit that Ching Hong Sein appliecl under section
14 (1) of the Urban Rent Control Act, 1948, for
rescission of the decree which had been passed against
him in Civii Regular Suit No. 674 of 1948. The
plaintiff-respondent society objected to the said
-Ci .... iI Revision No. 77 of 1949 against the order of the 3nl Judge of
Rangoon City Civil Court in Ciyil Re~ular Sll!t No. ~74 9 1948 1 ga!~g
?tp Ng.ve!TIb~r 1949!
78 BURMA LAW REPORTS. [1950

II,C, application of the defendant-applicant' on the ground

1950
that they require the premises in question bona-fide for'
CHIl'W Hmw their own use and occupation. The learned 3rd Judge
SEI~
v. of the Rangoon City Civit Court held that there was
1{Hoo HEI;\,
evidence befo're him to indicate that the plaintiff-'
\,
KHOON
SoqIETY.
-'- respondent society required the premises in question
U Tu~ BYUI
bonafide for their own use and occuPation. It
..J "
appears to me that there are sufficient materials before
the .learned 3rd Judg.= on which he might properly
arrive at the conclusion whiclJ he did.
The point, which has been strenuously urged in
this Conrt, is that the learned 3rd Judge erred in law
in dismissing the application of the defendand-applicant
in view of the explicit provision in, the 1st proviso
to clanse (f) of section 11 (1) of the' Urban Rent
Control Act, 1948, which reads:
,
II Provided that for the purpose of this -Clanse the term
, owner' shall not include any person except the person whu
was the owner of the said premises on the lst day of IVlay ]945, ' I
01" has after that date become the owner by the devolution of the)

said premises upon him by inheritance; 'I

It is not disputed tha(' the plaintiff-respondent

society purchased the premises at No. -125, ,20th
Street, only on or abQut the 4th August 1947, that is,
after 1st IvhlY 1945. It has accordingly been
contended on behalf of the defendant-applicant that.
,

the plaintiff respondent society could not take ad vantage

of the provisions of clause (f) of section 11 :1) or those
of clause (c) of section 13 (I) of the Urban Rent Control
Act, 1948.
The question, whicharises,.is ,,'hether the provisions
of section 11(1) (j) can De said to be applicable in the
pref>ent case. It is clear that seciion 13 (1) 'ma!,es
provisions for persons who had been allowed to
Villtinue tq be in possession of the premises which ~
1950J BURMA LAW REPORTS. 79
H.C.
they occupy, while section 11 (1) relates to cases 1950.
against tenants. Thus, 11,;0 distinct classes have been CHIXG HONG
created, namely, (1) tenants and, (2) persons who h~ve SEIN
v.
been permitted to remain in occupation under section KHOO HIBN
KnoON
12 j and it follows that the provisions which will SOCIRfY.
~pply- to persons who halle' been permitted to rem~in
U TUN Byu
in occupation under section 12 are the provisions J. .
which have been enacted in section 13 (1). It has,
huwever, been contended on behalf of the clefend an t-
applicant that a person who lias been permitted to
remain'in occupation under section 12 is also a tenant
within the mearoing of section 11 (1) of the Urban Hent
Control Act, 1Y48. However, as sectiol1 13 (1) has
been specially enacted for perso:1s who have been
allowed to continue to be in occupation under section
12, it must be held that it is section 13 (1), and not
section 11 (1) which will apply to persons who have
been permitted to remain in occupation under section
12, the general rule of construction of a statute being
that a special provision of an Act \ViIi override the
more general provision in that Act. The 3rd Judge
of the Hangoon City Civil Court was therefore correct
in his decision.
The application for revision is dismissed, and
Advocate's fee will be fixed as 3 (three) gold mohurs.
80 BURMA LAW REPORTS. [1950

APPELLATE CIVIL.
BeJore U Sail' Matlllg, J.

H.C.
1950 KO U MAR AND _.ONE (ApPELLANTS). \
Jan. 31. v.
MA SAW MYAING (RESPONDENTS)."
Trtl1lSjcr oJ Proptrrty Act-Contmcts of fHlIISJt:YOJ imJJloveable propcrty-
Transfer of ProPtrly Acts, s. 3, immo7Jel1bl, properly-Intaest in spedfic
imnJot'cl1ble properly, if Hllmo~eable property,
Held: Where usufructuary mortgage of immove;lblc property for Hs. 150
was by an unregistered deed the mortgage is invalid for want of registration
but under s. 53..\ of the Transfer of Property let where any person
contracts to transfer for consideration any immoveable proper.ty by writing
then though the contract is required tc be registered ancl is not registered the
Transferor shall be debarred from enforcing against the Transferee and
persons claiming under him any right in respect of the property other than a
right opressly provided by the terms of the contract. S. 53A sp~aks of
contracis to tr"nsfer immoveable property. Immoveable has not be'en defined C'
in the Transfer of Property Act but is defined in the General Clauses Act
and includes lands l benefits to arise out of land, etc; ; a mortgage is a tramif<:r
of immoveable property no less than a sale though a sale involves a transfer of
ownership as well. S. 53A applies to usufructuar)' mortgages where,
the mortgagee in part performance of the contract has L'lken possession. (;
Ma Kyi v. Ma Than, 13 Ran. p. 274, referred lo.
Gopal PaIJrley v. Parso/l11Jl Das, I.L.R. 5 All. p, 123; It/dar SctJ amI allo/l/l:r
v. Nnubal Singh tlud otllers, I.L.R. 7 All. 553. referred to and applied.
. _.. U Hma! QtufJUle v.}),nw._!J'}il..' ~.E~_ ~1!tl12'!.O ot.!l~rs, Civil 1st Appeal
No. 31 of 1946,}"!igh CO:1Tt of judicature at HangoDII, followed.

H La Scin for the appellants.

U SAN MAUNG, J.-In Civil Regular Suit No. 64 of
1947 of the Court of the Second Assistant Judge,
Pak6kku, the plaintiff-respondent Ma Saw Myaing sued
the defendant-appellants Ko U Mar and Ko Po Tar for
,possession of the suit land on the ground that about 10
years before the date of the suit she and her husband
Ko Po Thaung, now deceased, mortgaged the suit land
* Civil 2nd Appeal No. 104 of 1948 against the decree of Dislrict Court Of
rtl!f:okku in Civil Appeal No: 10 of 1948 1 4atcd 5th August 1l7t? ~
 ~
>-

"'.-j. ; ~',..,,,,
~'F

1950J BURMA LAW REPORTS. 81

with a Chettyar of Nyaung-u for Rs. 150 by a registered H.C.

1950
deed, that about eight years ago the first appellant
Maung U Mar redeemed the land from the Chettyar Ko U MAR
AND ONE
at their request and that after she herself had redeemed - MJ,. v,SAW
the land froni Maung U Mar for Rs. 200 'during the l\IYAING.
Japanese occupation period the appellant Maung U Mar U SAN
and his son the second appellant Maung Po Tar l\IAUNG. J..
forcibly ousted her from possession thereof. The two
defendant-appellants by their- written statement denied
that tbe -suit land was mortgaged by the plaintiff-
respondent and her husband to the Chettyar of
Nyaung-u as alleged or that -the first appellant had
redeemed it from the Chettyar at the 'request of the
plaintiff-respondent. They contended that the first
appellant purcbased this land over 20 years ago from
the Cbettyar of Nyaung-u, who was its owner and tbat
when during the Jap;tnese occupation period the
respondent Ma Saw Myail1g tried to redeem the land
from him for a sum of Rs. 200 he had reported the
, matter to the District COmmis5ioner who ordered him
to return to the- respondent the money ;'vhich he had
accepted for fear of the Japanese. In her reply to the
writt~n statement the respondent contended that the
suit land was in fact ,mortgaged by her and her
,deceased husband to Ko Kan Htu, Ma Ngwe Bwint
and their son Ko Ba Thein for Rs. 150 by way of
usufructuary mortgage invalid for want of a registered
document, that these persons in turn mortgaged the
land to the Nyaung-u Chettyar without possession, that
the appellant Maung U Mar was in possession of the
lanc;l -as tenant of the original mortgagees Ko Kan Htu,
!vIa Ngwe Bwirit and Ko Ba Thein and that O!l their
death Maung U Mar redeemed the land at the request
of herself and her deceased husband Ko Po Thaung,on
the-distinct understanding that it would be returned to
them on payment of the money paid, namely, Rs. 150.
6
82 BU&MA LAW REPORTS. [1950
H.C. The Assistant Judge dismissed the plaintiff-
1950
respondent's suit on the ground that it did not belong

.
Ko U MAR
AND ONE to her and her deceased husband Ko Po Thaung. On
M.\. SAW..
an appeal being preferred to the District Court of
MYAING. Pak6kku by Ma Saw Myaing the learned District Judge \
U SAN remanded the case to the original Court for trial of two
MAUNG, J.
issues, namely':
(1) Whether the suit land had been made over by
Ma Saw Myaing and Ko Po Thaung to Ko l{ali Htu,
Ma Ngwe Bwint and Ko Ba Thein by waY,of security
for the loan of Rs. 150 and when did they do so? .
(2) Whether Ko Kan Htu, Ma Ngwe Bwint and
Ko Ba Thein had mortgaged the suit land to M. S.
Subramanian Chel'yar of Nyaung-u ?
The Assistant Judge answered the first issue in the
neg:ttive, but the District Judge held that the plaintiff-
respondent's contentions on these points were correct.
He further held that M. S.Subramanian Chettyar of
Nyaung-u who had purchased the suit land at a Comt
auction in 19~5 acquired no more than the right titrj~
and interest which Ko Kan Htu, Ma Ngwe Bwint and
Ko Ba Thein had in the suit land, that is, the right of
a person in occupation in whose favour was a
usufructuary- mortgage which was invalid for wan t of
registration. He further held that the right which the
defendant-appellant Maung U Mar had was acquired
by purchase from ,the Chettyar. Thereafter relying on
the ruling in the case .of Ma Kyi v. Ma Than (1.) the.
learned District Judge held that the defendant-
appellants were in no position to resist the plaintiff-
respondent's claim for possession which was based
upon her title. He therefore set aside the judgment
and decree of the Assistant Judge and decreed the
plaintiff-respondent's suit for possession with costs.
Hence this appeal.
(1) 13 Ran. p. 274. .\
 Vt,
rep
1950J BURMA LAW REPORTS. 83

In appeal it has been contended by the learned H.C.

1950
Advocate for the appellants Ko U Mar and Ko Po Tar
Ko U MAR
that the learned District Judge's findings of fact are AND ONE
erroneous. However, 'as pointed out by the learned v.
MA SAW
- Judge thllre is no doubt whatsoever that the plaintiff- MYAING.

respondent was the original owner of the suit land in U SAN

view of the admission made by- Ko U Tha .(D.W.3) who MAUNG, J.
is no other than the elder brother of the defendant-
appellant Maung U Mar. Furthermore, there is strong
evidence on record to show that it was mortgaged by
Ma Saw Myaing and her deceased husband to Ko Kan
Htu and Ma Ngwe Bwint for Rs. 150 by way of
usufructuary mortgage invalid for want of registration.
Therefore whatever interest the successors-in-title to
Ko Kan.Htu and Ma Ngwe Bwint might havc in the
, land in suit cannot be higher than that of the original
mortgagees. However, as pointed out by the learned
Advocate for the appellants, the learned District Judge
has overlooked the fact that according to the evidence
) called by the plaintiff-respondent herself the original
mortgage of the suit land to Ko Kan Hlu and Ma Ngwe
.Bwint was -not done orally but by an instrument in
. writing and that this case isq. therefore distinguishable
-from that dealt with in Ma Kyj v. Ma Thon (1). Of
course the original deed of mortgage is now no longer
traceable, but there is specific evidence relating to
its execution and to its contents. Ko Po Sin (P.W. 10)
-stated:
" I know the land in suit. It originaJly belonged to Ko Shwe
Thein and M<11 Laik Yauk. I saw this land later in the possession
.of Ko Po Thaung. I do not know how he got it. Ko Po Thaung
said that he had bought it for Rs. 50 * ** I do not know
the bOlmdaries of this land. But Ko Po Thaung had' no other
land ancl so I say that it is the land in suit. About 20 years ago
!Que morning Ko Phu Nyo came and called me and I \Vellt along
(I) 13 R"n. p. 274.
84 BUR:MA LAW REPORTS. [l95(}
H.C.with him. At Thugyi's house, Thugyi asked me to write a
1950
document on a stamp paper. Ida not remember what was the-
KoU MAR value of th,e stamp paper. I had to write the bcundaries of the
AND ONE
v. hind in the document. I do not remember it. I had to write it
MA SAW as the land in Kugyunkwin. Ko Kan Htu and Ma Ngwe Bwint \.
MYAUlG.
executed it first and then Ko Po Thaung _and. Ma Saw Myaing-
U SAN executed it. I signed it as a st;ribc. Ko Phll Nyo, ho Pyu. Ko
MAUNG J
Shwe Lu signed. The mortgage was for Rs. 150 "

The evidence of Ko Po Sin is corroborated by tliat of

Ko Phu Nyo (P.W. 9), son of the headman referred to
by Ko Po Sin. This witness said that he and Ko Shwe
Lu signed the mortgage deed as witnesses but could
not remember whether the deed was signed by the
mortgagor and the mortgagees. However, the probabi-
lities are that the parties also signed the document as
stated by Ko Po Sin as otherwise there was no point
in the witnesses signing the document as well. ,
As the original mortgage of the suit land by Ma Saw
Myaing and her deceased husband Ko Po T~aung to
Ko Kan Htu and Ma Ngwe Bwint was in writing the "
learned District Judge in decreeing the suit for:)
possession has overlooked the provisions of section 53A
of the Transfer of Property Act; which read:
01 53A-.-Where any person contracts to transfer for considera-

"tion any immoveable property by writing signerl by him or on

. his behalf from \vhich the terms neceSS:lry 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 the
transferee, heing already in possession continues in possession in
p3.rt .performance of the contract. and has done saine ad in
furtherance of the contract,
and the transferee h:lS performed or is willing to perform his
part of the contract,
then, notwithstanding that the contract, though required- to
be registered, has not been registersd, or, where there is an
instrument of transfer, that the transfer has not been completed
in the manner prescribed therefor by the law for the time being ':I
 v
1950J BURMA LAV\T REPORTS. 85

in force l tlte Ira1tsferpy or any 'Person claiming under him shall be H.C.
1950
.deb?-rrecl from enf.orcing against the transferee and perso1tS claimillg
m,deY him any right In respect of the property of which the Ko U:\fAR
AND ONE
transferee has taken or continued in possession other than a
l
V.
right expressly provided by the terms of the contract:" lJA SAW
MYAING.

No doubt whereas section 53A speaks of " contracts U SAN'

to transfer immoveable .property," a mortgage as MAUNG, J.
defined in section 53 of the Transfer of Property Act is
"the transfer of all interest in specific im"moveable
property" for the purposes mentioned therein.
Immoveable property has not been defined in the
".'.
Transfer of Property Act as section 3 thereof merely
says" , immoveable property' does not include stand-
ing timber, growing r.rops or grass." However,
immoveable property is defined in the General Clauses
',. Act as including "land, benefits to arise out ')f land
and things attached to the earth, etc." As this
definition is not ;ery helpful for the purpose of
ascertaining whether an interest in specific immoveable
property is" immoveable property" with'in the meaning
of section 53Aof' the Transfer of Property Act, 'we
shall have to look to the case law bearing. on the
subject.
In the case of Gopal Pandey v. Parsotam Vas (1)
.Mahmood J. in speaking of a simple mortgage said
at page 139 ;
(I Jurisprudence recognises it as DBe )9 the various species of
jura in re aliena, o.r estates c~rved' out '0 the full ownersbip of
property: It may happen that the right, though not apparently,
but in reality, is tantamount to absolute transfer, in its. virtual
effect. For instance, when land of the value of Rs. 100 is
pledged by hypothecation in lieu of a debt amounting to Rs. 101,
the mortgagor is sit;nply a nominal owner, and his nuda propridas
is worth less than zero. I am, .therefore, of opinion that the
rights created by hypothecation in this country amount to
nothing more or less than a transfer of an estate amounting to a
(11 J.L.R.:; All. p.123.
86 BURMA LAW REPORTS. [1950
H.C. transfer of i11111l0Vrabie properlY~ though of course not an
1950
absolute transfer. The feature which distinguishes hypothecation
Ko U MAR from other forms of mortgage consists iJ; the fact that it cloes not
.AND ONE
entitle the mortgagee to enjoy the physical qualities of the
subject of the mortgage."
MA SAW
MYAING.
\
U SAN The same learned Judge in a later case in Inaar Sen
MAUNO, J.
and another v. Naubat Singh and oth~rs (1) in dealing
with a usufructuary mortgage observed at page 556 : _
H In my judgment in lhe case of GojJal PmJdey v. Parsofa11l
Das (2), I explained what full ownership means, and what its
incidents are, and also what the exact nature of occupancy-right
is in these Provinces. 1 there. said that a person in full
ownership can ~lienate anyone or more of its component
elements. The question before the Court in that case related to
simple mortgage or hypothecation but my argument applies also
l

to the case nOw before us, because I said, adopting another

passage from Austin that the ftill ownership being'composed of
l
"
these ri,ghts I indefinite in point of user", unrestricted in point of
disposition, and unlimited in point of duration f': any alienation of
these rights would be a mortgage, so long as the object of
alienation was security for the payment of a debt in money. 'i l

I further said, quoting from another jurist, that any lone or more -
of the subordinate elements of o\vnership, such as a right of
possession or user , may be granted out while the residuary 'right
of ownership, called by the Romans 1ltlda prvptietas, remains
- nnimpaired. The elements of the right which may thus be
disposed of without interference '.'lith the right itself,-in other
\,",oreis, which may be granted to ORe person over an object of
which another continues to be the QWller,-are known as jUl a i11
re alitna..' Such being my views as to the nature of proprietor-
ship, I am unable to hold that the right of the usufructuary
mortgagee ~s a right which can be called a transfer of proprietor~
ship; and having regard to section 58 of the Transfer of
Property Act, and especially clause (a), governing the whole
section, and ch.use (d), referring in particular to usufructuary
mortgage, I cannot agree in holding that the execution of. a
usufructuary mortgage ~mounts to a transfer of the proprietary
right. u

(I) I.L.R. 7 All. p. 553 (2) I.L.R. 5 AlL p. 123. 1

 1950J BURMA LAW TI.EPORTS .. 87

In coming to this conclusion the learned Judge, H.C.

1950
though differing from the Chief Justice that a usufruc-
Ko U MAR
tuary mortgage involved a temporary transfer of the .AND ONE
v.
proprietary rights, nevertheless adhered to his former l\IA SAW
opinion that a mortgage amo,lllts to " transfer of MYAING.

immoveable property. Therefore a mortgage is a U SAN

MAUNG, J.
transfer of immoveable property no less than is a sale
though a sale ~ involves a transfer of ownership of the
property as well. Hence section 53A of the Transfer
of Property Act also applies to usufructuary mortgages
where the mortgagee in part performance the or
.contract has taken possession of the property. I am
fortified in this view by the judgment of a Bench of
the late High Court of Judicature at Rangoon in
U Hmat and one v. Daw Shwe Lok and two others (1).
,. There the learned Judges, affirming the views of the
District Judge of Myingyan that section 53A of the
Transfer of Property Act would stand in the way of a
rrortgagor who after having executed a deed of
mortgage, which was invalid for want of registration,
sued the mortgagee for possession of his land without
first offering to perform his part of the contract, namely,
repayment of the loan, observed:
" It was pointed out by Sir Arthm' Page C.)., iu M a Kyi v.
ft1a Tho1J and another (2) that unless a usufruchmry mortgage wa~
in writing and the transaction fell within section 53A of the
Transfer of Properly Act the terms of the mortgage could only be
relied upon when they were embodied in a duly registered
written instrument. In the case which I have just mentioned
the con tract was an oral mortgage and its terms could in no \vay
be elicited and the plaintiff should have sued Ior possession
relying upon his title. The defendant could not have resisted
such a suit because the oral mortgage could not have been
proved and the most that he could get would be a stay in a

(I) Civillst Appeal No. 31 of 1946 of the High Court Qf Judicature

at Rangoon. .
(21 13 Ran. p. 274,
 :r)r'!.
'~'fJ
"~i'-'"

88 BURMA LAW REPORTS. [1950

H.C. proper case so as to make the plaintiff execute an instrument
1950
which could be registered. But here instead of an oral mortgage
Ko U MAR
AND ONE

MA SAW
MYAING.
.. we have a contract in writing. 'Unless, of course, there bad been
part performance the writiug could not ~ave been proved because
the deed was unregistere:l, but there was part performance. *
.
* * The learned District Judge was, in my view, right in
U SA~
sayioR that the suit was 'lot mlint3inable in its present form
MAUXG, J..
because section 53A of the Transfer. of Property Act was a
complete answer to it."

In the case now under consideration the document

is now no longer available but its terms can be gathered
with reasonable certainty from the evidence of Ko Po
Sin (P.W. 10). a witness called by the plaintiff-
respondent herself. The suit land was mortgaged for
Rs. 150 and the necessary inference is that it was
liable to be returned only"on repayment of the money .. ;;"

lent. Therefore the plaintiff-respondent was not

entitled to sue for possession without first paying the
money to the defendant-appellants and getting from
them a refusal to deliver the land on such payment. Y
In the result the' appeal succeeds. The judgment
and decree of the District Court of Pakokku in Civil
Appeal No. 100f 1948 are set aside and the pbintiff-
respondent's .snit is dismissed. As the appellants
succeed on a point of law which was not taken either
in the Court of first instance or in the Court of the
District Judge, Pakokku, I would direct that each parly
bear its own costs throughout.

\
 1950J BURMA LAW REPORTS. 89

APPELLATE CIVIL.
Before U TU1l Byu, J .

.U AUi~G KHA AND ANOTHER (ApPELLANTS) H.C.

1949
v.
DeC. 13.
DA W MI (RESPONDENT).'"

Limi!ation Act, 55. 4 and 14_Cotlrts Emerge1tcy Provi'$iotls Act, 1947.

An ~pplication for execution was filed in 1944 but closed on 2nd February
1945' an.a the decree-holder made :l. fresh application for execution within tht:
H.eaning of s. 4 of Limitation Ad-on 20th May 19.J8 claiming that as the
Court was closed up loUle 31st :Uarch 1947 under the provision of Courts
Emergency Provisions Act, the period' during which the Court was cl(lsed
'shuuld be t:xduded.
Hclrf: That the apf,01ication wns barred by limitation. S. 4 of the Limitation
.Act does not extend the period 01 limitation and lime during which the Court
was c1o!cd'could not be excluded in computing the period of linlita[on. S.4
ilJ distinct irom s. 14 of tht: Limitation Act and the languagt: employed in s. 4
ha:> nothing to do with computing the prescribeci period or nltering it.
Maqbul Ahmad v. Pra/ap N arain Singh, LL.H. (l935) 57 An. 242 at 248,
referred to and followed .
.t
Tun Otdor K)'G1v Thaung for the appellants.

g. R. Venkairam for A. N. Basu for the respondent.

U TUN Byu, J.-The respondenLDaw Mi obtained

a decree in Civil Regular Suit No. 20 of 1944 in the
then ubdivisional Court, Meiktila, during the Japanese
occupation of Burma, and she applied for the execution
of the said decree in Civil Execution Case No. 3 of
1944. The appellants also appealed against the decree
passed against them in Civil Regular Suit No. 20 of
1944, and their appeal was known as Civil Appeal
No. 38 of 1944 of the Court of the then Additi~nal
Divisional Judge, Meiktila, sitting at Mahlaing. The

records of Civil Appeal No. 38 of 1944 and those of
.. Civil 2nd Appeal No. ilS qf 1945against the decree a! the Oistr;ct Court:
-of Meiktila iT" CivH Misc. Appeal No 14 of 1948. dated tJte 16th Aug.ust 1948.
 90 BURMA LAW REPORTS. [1950
H.C.
1949 Ci viI Execution Case No. 3 of 1944 are said to have
U AUNG
been lost now, probably because of the trouble which
KHA AND occurred at Meiktila recently. The Assistant Judge,
ANOTHER
v. Meiktila, before whom the respondent Daw Mi, the \
DAW }1I
decree-holder, filed a fresh application for execution,
U TUN ByU, namely, Civil Execution :l)Io. 11 of 1948, observed at
J.
page 1 of the judgment, dated the 27th May, 1948, as
follows;
II An appeal was presented against the decree in question on

12th December 1944 in Civil Appeal No. 38 of 1944 of the Court

01 the Additional Divisional Judge, eiktila (sitting at Mahlaingl.
The record of this appeal shows that the appeal had never
been dealt with by the Judge himself when the Court ceased to
function sometime in Feb~uary 1945. There.are three entries in
the diary of proceedings of that case. The first two entries were
signed by somebody on behalf of the Judge (presumably the'
Bench Clerk of the Court although it was not the same individual
who signed the second e"try). The third entry (dated 2nd
February 1945) was not signed by anybody at aiL"

It thuB appears to be more or less clear that thee Y

Assistant Judge must have seen the record of Civil
Appeal No. 38 of 1944 when he made the. statement
which has been reproduced above. Moreover, it is
clear from the copy of the diary orders filed at page 10
of Civil Execution Case No. 11 of 1948 that the'
Assistant Judge could not have made the above
statement merely by looking at the copy of the -diary'
orders filed in the proceeding before him because there
was nothing in the copy of the diary orders so filed
to show what took place on the two earlier dales.
The District Judge in the judgment passed by him
observed that Civil Execution Case No.3 of 1944 was
closed on 2nd February, 1945. It appears to me that.
the learned District Judge must also have had the'
records of Civil Execution Case No. 3 of 1944- witlI'
him at the time he wrote the judgment, as the records. ..,
'.
 1950] BURMA LAW REPORTS. 91

were existing then. It must, in the circumstances, be H.C.

1949
presumed that his observation was based on what he
U AUNG
saw in the records at the time he wrote the judgment.
.
KHA AND
,In any case, it is now ,too belated to allow the ANOTHER

'respondent Daw Mi to convert her application for DAw MI.

execulion into an application to revive the old U TUN Byu,
execution proceeding which she filed in 1944. Daw J.
Mi has herself only to blame for the mistake, if any, in
making a fresh application for execution in May, 1948.
, She apparently knew best as to what occurred to her
execution application filed in Civil Execution Case
No. 3 of 1944, and her conduct in filing a fresh
application for execution in May, 1948, instead of
trying to revive the old Execution Ca'e ~o. 3 of 194+
also suggests that her execution case of 1944 must
have been 'lllowed to be closed on the 2nd February,
.'
1945,' as observed by the learned District Judge in his
judgment passed on the 16th August, 1948.
The learned District Judge was, however, wrong
il:<, holding that the application for' execution filed in
t!)'e Civil Execution Case No. 11 of 1948 was in time.
Section 4 of the Limitation Act provides that:
.
Co~rt
Where the
II
. - .
period of limitation 'expires on a d:lY when the
is closed the proceeding can De filed on the day that Court
. re-opens. "

Section 4,' is thus distinct from the provisions of

section 14 of the Limitation Act, and it makes
provision for a different circumstance.
In the case of Maqbul Ahmed v. P"alap Narain
Sillgh (1)" Lord Tomlin in delivering the judgment of
Their Lordships of the Privy Council stated:

II I t is "to be noted that there is a marked distinction in form
between section 4 and section 14. The language employed in
section 4 indicates that it has nothing to do with computing the
(11 1.L.R. (1935).Vol. 57 All. p. 242 at 24M,


'92 BURMA LAW REPORTS. [1950

H.C. prescribed period. What the section provides is lhat, where the
1949
period prescribed expires on a day when the Court is closed,
U AUNG notwithstanding that Cact the application m~y be made on the.
KHA AND
ANOTHER day that the Court re-opens: so, that there is nothing in the
v. section which alters the length of the prescribed period. \
DAW MI.

U TUN ByU, Thus, the applicat,ion for execution liled in Civil

J. Execution Case No. 11 of 1948, which was filed only
on 20th May 1948, must be considered to hav" been
time barred in view of the provisions of the Court
(Emergency Pruvisions) (Repeal) Act, I947, under
which Civil Courts in Burma were considered for the
purpose of section 4 of the Limitation Act to be closed
only up to 31st March 1947.
The appeal is therefore allowed with costs.
Advocate's fee three gold mohurs; and the judgment
::mc1. decree ofthe District Court will be set aside, while ,
. the judgment and decree of the Court of the Assistant
Judge, Meiktila, will be restored.
I \ ,
)

.\
 1950] BURMA LAW REPORTS. ?>

. APPELLATE CIVIL
Before U Tr/1l BY/I, J.

DR. MISS A. G. D'NETTO (ApPELLANT) !-Lc.

1949
v. Dec. 24.
MA .AIN YU AND OTHERS (RESPONDENTS)."
~:.-
Code of Civil Procedure. Order 11, Rule 27, -Recordi/lg ojl.,Jcvidcllce of wit-
llC$SCS- W,dvcd w lite Trwl Court-5ccOJld Appeal-E rrOIlCOllS jitu{illg of
facl- Wheu cau be qllestioned-Legal cffccl frulnfacts-Question of ldw.
Hefd : That. when a witness had been waived delibera.tely by the party, no
opportunity should be given under Order 41, Rule 27, Code of Civil Procedure
in appeal.
The proper legal t:ffect of a proved fact is esser.~ially a question of law.
Najar Chandra Pol v. SlmkllT and ofhers, 45 I.A.183 af 187 ; Rarn Gopal
and_ QuotJnyv. Shamskllalon ami others, 14 I.A. 228 cit 232-33, referred to and
apl?lied.
" Where the Lower Courts had not attempted to consider what was th e legal
effect of cert3in facts proved in the case an:! gave undue consideratio!' to be
absence of a witness there is sufficient ground for interference under
5: t l00, Code of Civil Procedure.

P. B: Sen for the appellant.

Leong for the respondent No. 1.

Respondents 2, 3 and 4 absent.

U TUN Byu, J.-The plaintiff-appellalit Dr. Miss

A. G. D'Netto, on 2nd December, 1940, purchased two
pieces of land, one being a garden land and the other a
paddy land, from one Tan Wain Si and his wife
Ma lvlya Yee and children, including the first defendant-
respondent Ma Ain Yu. Tan Wain Si died in 1942
after the Japanese occupation of Burma and Ma MyajYee
is also dead. Ma Thoung Yin, Maung Sein Tun and
. * Ci vii 2nd Appeal No. 30 of 1949 against the decree of District Court of
',i\rnhent in C~\'i1 Appeal No. 27 of 1948, dated the 23rd April 1949 .
'94 BURMA LAW REPORTS. 11 ')50
H.C. Ma Tin Shwe, the remamlOg defendant-respondents,
1949
are Ma Mya Vee's legal representatives. On the same
DR. MISS
day the parties also executed an agreement whereby
..
A.G.
D'NETTO
.
the plaintiff-appellant agreed to resell the lands back \
l\JA AIN Yu to the vendor5 within three years on repayment of the'
J\ND OTHERS
purchase price of Rs..2,000 and on the condition that
TUN BYG,
].
the vendors also pay regularly the annual rental of those
two pieces of land, which came to about Rs. 240 per
'annum and also pay the land revenue due thereon.
The vendors, as required under the said agreement to
repurchase, paid the annual rental of Rs. 240 to
Dr. Miss D'Netto and they also paid the land revenue
for the first year. In the second year they only paid
Rs. 100 towards t':J.e rental due by them, and they also
did not pay the land revenue for the' second year.
No payment W:lS made by them either towards tbe
annual rental due by them 0, for the land revenue lor
.
the third year. Both the lower Courts found that the
vendDrs had nDt confDrmed to the conditions of the
agreement to resell the lands in dispute to them arld
that the vendors had thereby lost their right lo
repurchase those lands under the agreement to resell,
and I fully agree with their finding in this respect.
The AdvDcate for the-plaintiff-appellant has sub
mitted that this case ought to be remanded for further
evidence to be recorded in view of the provisions of
Order 41, Rule 27 of the Code of Civil Procedure. It.
has' been urged that the discretion allowed under
Order 41, Rule 27, of the Code of Civil Procedure
ought to be exercised where the ends of justice require
it. It appears that U Tun Tin, a Police Officer, whose
evidence is .now sought tD be recorded, was subpoenaed
in the Original Court to appear as a witness on
8th December, 1947, but he was unable to attend
Court on that day. Subsequently the plaintiff-
appellant filed two fresh lists of witnesses, llilmely, on\
 1950] B URMA LAW REPORTS. 95
H.C.
20th March, 1948 and 21st April, 1948, but the name 1949
U Tun Tin was omitted from the lists of witnesses so DR. MISS
filed. There balsa nothing in the diary orders of the A.G.
D'NETTO
case to suggest that any at.tempt had been made by the V.
plai.ntiff-appellant to seek the help of the. Court in MA AIN Yu
AND OTHERS.
obtaining the attendance of U Tun Tin. The plaintiff- P TUN Byu,
appellant must therefore be considered to have J.
deliberately waived the' attendance of U Tun Tin as a
witness, .and in the circumstances she could not be
considered to have suffered any injustice if the case
were decided against her for want of U Tun Tin's
evidence, in that she deliberately took the risk of
proceeding with the trial of her case without the
evidence of U Tun Tin; and she accordingly has
herself only to blame. ~ he obviously ought not to be
given a second opportunity of adducing evidence where
that evidence had been deliberately abandoned.
The next question is, wh~ther, on the evidence
produced in this case, it has been proved that Dr. Miss
. !
", D'Netto executed the deed of reconveyance in
'November, 1943, under coercion and fear. It has
been urged, howtver, on behalf of the defendant-
respondents that no second appeal lies on the ground
of erroneous finding of facts, which is of course a well
established prosposition of law. In the case of N afar
ChQ1ldraPal v. Shukur and others (1) Lord Buckmaster
in delivering the judgment of their Lordships observed:

H Questions of law and of fact are sometimes difficult to

disentangle. The proper legal effect of a proved fact is esssen-
tially aquestion of law, so also is the question of admissibility of
evidence ,ancI the question of whether any evidence has been
offered on one side or the other; but the question whether the
fact has been proved, when evidenc;:e for and a,gainst has been
properly admitted, is necessarily a.pure question of facL"

II) 4S LA. 183 .1187.

96 , BURMA LAW REPORTS. [1950
H.C.
1949 'Sir Richard ,Couch also observed in the case of
DR. MISS
Ram Gopal alld another v. Shamskhaton and others (I}
A.G. as follows;
O'NgTT

MA ;;~ Yu I'The facts found need not be qut:stioned. It is the soundness \

AND OTHERS. . of the conclusions from them that is in question, and this is a
.U TUN BYu, m.J.tter of law."
J.
Thus it can be said that a second appeal will lie if
the Court below has approached, the question from a
wrong angle and the evidence on the record is such
that it indicates that the Coun below should have
obviously, on the faets so proved, arrived at a converse
answer. It will therefore be necessary to examine
what are the proved facts in this case, and they can be
stated to be as follows : -
(1) that the plaintiff-appellant Dr. Miss D'Nello
was under no legal obligation to reconvey -,
the lands to Ma Mya Vee and Ma Ain Yu
in April, 1943 ;
(2) that the consideration of a sum of Rs. 2,000 ',' { -
which the plaintiff-appellant paid for the
purchase of the land~, was in British
currency_;
(3) that the defendant- respondents paid for the
reconveyance r f the lands in November
1943 in Japanese currency, wQich had then
depreciated in value, VIde the Schedule of
section 3 of the JapaneseCurrency (Evalua-
tion) Act, 1947;
(4\ that a Police Officer visited the plaintiff-
appellant some time before the reconvey-
ance in favour of the defendan(-'respondents
was executed, and in consequence of whic:h,
visit she sent" ope Mr. Menon to go a.nd see
11) 17 1.A. p. 228 at 232.33.
 1950J BURMA LAW REPORTS. 97
H,C.
her Advocate Mr. Eusoof, a well-known 1949
member of the local Bar;
DR. MISS
(5) Mr. Eusoof, to use his own words, advised A G.
D'NETTO
Mr. Menon as follows: V.
!\IAAJNYU
., I told Mr. Menon that the phintiff (Dr.) was" lady and AND OTHERS..
nobody knew what the lap Kimpetai would stoop to U TUN BYU t
do and tha t it was best to see that the transfer was J.
made 50 that there might not be any harassment.
This was my final advice. I saw this Chinaman
(witness pointing out at Ah Yin) but I could not say
whether his visits to my house and his meeting
with me was before or after the II final advice tJ I
had given. I myself was frightened to act in this
matter, that is to say! dared not give professional
ad vioe freely lest I might be harassed by the
Japanese Kimpetai."

(6) and th'ere is als'J nothing on the record to

prove that the plaintiff-appellant was in,
need of money towards the end of 1943
i'
" while on the other hand she had,already
sent a reply, Exhibit B, to the lawye!"'s
notice sent on behalf of Ma Mya Yee tha:
she could not comply with Ma Mya Yee's
, request for reconveyance of the lands sold
to her.
Do not these facts, if they are considered together,
lead to one inference only, namely, that Dr. Miss
D'Netto would not have resold the lands back to
Ma Mya Yee unless she was in fear and under some sort
of threat ur coercion? There can, in my opinion, be
only one answer, and that is in the affirmative. !t is
clear that Dr. Miss D'Netto was, at least, at first
reluctant to resell the lands to Ma Mya Yee in view of
the reply which her lawyer .sent in reply to the-notic:e
sent by the lawyer who was acting on behalf of
'Ma Mya Yee. There does not appear to be anything on
7

98 BURMALAW REPORTS. [1950
H.C. the record which' wiTI clearly indicate why the state-
1949
ment"Of Dr. Miss D'Netto ought not to be believed when
DR. MISS
A.G. she said that the Police Officer came and questioned
D'NETTO
her about her demand of payment in British notes. \
v.
MA Am Yu 'Fhe Exhibit C, lawyer's notice, dated 10th September
A~D OTHERS.
1943, sent on behalf of Ma Mye Yee on the other hand
U Tu~ Byu,
J. also suggests that such visit was likely to have been
made, because in that letter. it was alleged that
Dr. Miss D'Netto had insisted on payment in British
notes. It must be considered to be a seriQus matter to
accuse a person during the Japanese occupation of.
Burma of insisting on payment in British currency as it
is wellknown to all who had lived in Burma during the
Japanese occupation that the Japanese looked suspi-.
ciously upon all persons demanding payments in
British currency and that they were inclined to deal ,
har,hly, if not cruelly, with such persons.
.'\. perusal of the judgments of the lower Courts
shows that both the lower Courts have not attempted"
to consider what was the legal effect of certain facts
which have been proved in this case. Both the lower
Courts appear to have omitted to consider the effect of
those facts, and instead they appear to have given
undue consideration to theabsence"ofU Tun Tin as a
witness for the plaintiff-appellant. The fact that
U Tun Tin was not called does not necessarily raise
a presumption that his evidence, if adduced, would
not be favourable to the party waiving him.. Other
circumstances of the case should also be considered
before any such presumption is raised.
The appeal is accordingly allowed, and the judg-
ments and decrees of both the lower Courts will be set
aside, with costs. in all three Courts. The plaintiff-
appellant Dr. Miss D'Netto will be entitled to the
cancellation of the deed of sale dated 1st November,
19+3, ar)d .also for possess:ot! of the lands mentioned 'I

,
 ,1950] BURMA LAW REPORTS. . 99

therein on payment into Court of a sum of Rs. 1,500 in H.C.

1949
existing currency, less the amount payable to here
DR. MISS
:as costs. A.G.
D'NETTO
V.
1JA AIN Yu
AND OTHERS.

U TUN Byu.
J.

"
 ~

100 BUR'MA LAW REPORTS. [19501

CIVIL REVISION.
Before U Tuu Byu 1 J.
\
H.C. Eo S. COHEN (ApPLICANT)
1949

A:'g. 21.
v.
V.E.RM.AR. CHETTYAR FIRM (RESPONJ?Ei-n). *
Revision 0/ order grantillg appltcatio1J tinder Order IX, Rul'.13, Code of ClVll'
Procedure-bltcrlomtory orrier. -
fIeld: That where an application under Order IX, Rule 13 of the Code of
Civil Procedure for zetting aside an e.t: pl1rtc decree was granttd by the Trial
Court a revision J:es to the High Cf)urt.
The High Court will not interfere in r~viion against an Interlocutory'
order unless some grave injustice or hardship would result on failure to do' so.
Radha Mohall DatI 1', AbbtJ.$ 4li Bis'Was and otters, (19S1j 53 All. 612 at
617-1?; U Bn U v. U Ywei, (1948) B.L.R. 172; L.P.R. Cltelfya"r Firm Y.
R. K. Baner;i, (O.R.) (1931) 9 Ran. 71, applied. ,
It is difficult to sec how grave injustice or real hn.rdshjp could be said to be-
sustained by the p!3intiff if an e.~ parte decree in his favo~r is set aside and llc..
is compensated in costs therefor.

Ria Seill for the applicant. .1 '

K. R. Vmkalram for the respondent.

U TUN Byu, J.-The plaintiff-applicant E. S. Cohen:

filed a suit in 1941 for the recovery of a sum of
Rs. 1,327-8, which was said to be the amount of
brokerage due to him by the defendant-respondent
V.E.RM.AR. Chettyar Firm in respect of the sale of
certain immoveable properties which the defendant-
r~spondent firm sold to one C. Twa Sein and Daw
Khin Wan for a sum of Rs. 43,500 and which suit
was known as Civil Regular No. 4075 of 1941 of the
late Rangoon Small Causes Court. The records of
this case were lost during the Japanese occupation
* Civil Revision No. 62 of 1949 against the Order of the 3rd Judge, City
Civil Court of RangooD, in Civil Suit No. 241 of 1949. dated the 23rd .August ' j
1949.
 ,

1950] BURMA LAW REPORTS. 101

of Burma. In 1948 E. S. Cohen applied for the H.C.

1949
:reconstruction of this case, and his application for the
E. S. CoHEN
Tec0I1struction was allowed. .
It appears that Nachiappa Chettyar first a'ppeared V.E.RM.AR.
CHETTYAR
on behalf of the defendant-respondent firm in the Civil FIRM.

-Miscellan"ous case No. 155 of 1948~ that is, the casel.'in U TUN ByU".
J.
which E. S. Cohen applied for ~he reconstruction of the
Civil Regular Suit No: 4075 of i 941. He however
:failed to put in further appe"rance on behalf of the
'Chettyar firm after 10th October, 1948, and as he was
'in Rangoon up till 14th December, 1948; it must be
;assumed that his absence from Court on subsequent
dates was deliberate.
The order for the reconstruction of Civil Regular
:Suit No. 4075 of 1941 was passed on 4th April, 1949.
It is not disputed in this case that Nachiappa Chettyar,
, .agent of the defendant-respondent firm, left for India
'0n 14th December, 1948, and that no arrangement was
made for some months for someone to be appointed in
,the place of Nachiappa Chettyar until 17th June, 1949,
when S.K.T. Sathappa Chettyar, the present agent of
the defendant-respondent firm, was appointed, with the
;result that the suit, which was pending in the Rangoon
Small Causes Court in 1941 and which after the
Teconstruction became known as Civil Regular Suit
No. 241 of 1949 of the Rangoon City Civil Court, was
heard ex parte agaimt the defendant-respondent firm, .
:and a decree was passed in favour of E. S. Cohen with
costs on 27th May, 1949.
S.K.T. Sathappa Chettyar. the new agent of the
defendant-respondent firm, applied on 27th June, 1949,
to set aside the ex parte decree pAssed against the
<defendant-Tespondent firm on 27th May, 1949, and his
application was allowed with the result that the ex parte
Jiecree was set aside on 23rd August, 1949. The
learned 3rd Judge of the Rangoon City Civil Court
,

"..

102 BURMA LAW REPORTS. [1950l

H.C. however ordered the defendant-respondent firm to,

1949
furnish security in the sum of Rs. 1,500 as security-
E. S. COHEN
v. for costs and the claim made by E. S. Col"en. leis not
V,E.RM.AR.
CHETTY,,\R
disputed in this case that the defendant-respondent
FIRM. firm owned certain properties in this country, that .it \
U TUN ByU, continues to maintain an office even at present at ,the-
J.
same old address at )\io, \14, Mogul Street, that S.K.T.
Sathappa Chettyar collected rents, after the departure-
of Nachiappa Chettyar, from the tenants of the'
defendant-respondent,' that he also paid taxes on behalf
of the defendant-respondent firm and that S.K.T.
Sathappa Chettyar also transacted a sale of a house-
on behalf of the defendant-respondent firm on,
23rd March, 1949, under a special power of attorney,.
apparently sent to him from India. It will thus be
observed that the defendant-respondent firm had not
ceased to function after t he departure of Nachiappa' r
Chettyar for India in December, 1948, and that in fact
S.K.T. Sathappa Chettyar was doing what was necessary'
for the defendant.res~ondent firm in respect of their\.
properties in this country. It seems to be obvious that"
the defendant-respondent firm must have known after
the departure of Nachiappa Chettyar for India in'
December, 1948, that the suit which was filed against
them in the Rangoon Small .Causes Court in 1941
would be reconstructed and that after the reconstruc-
tion the hearing would be proceeded with agains t them
ex parte as Nachiappa Chettyar had left for India
without leaving anyone to represent the firm after his
departure to Ie.dia. The inactivity of the defendant-
respondent firm in this respect appears to me to be
deliberate, especially when they had appointed S.K.T_
Sathappa Chettyar to look after their property in
Rangoon and when they were even able to send him.
a special power of attorney for the purpose of.
effecting .a sale of a house in Rangoon in March;..
 1950J BURMA LAW REPORTS. 103

1949 ; .and Sathappa Chettyar in his evidence stated as H.C.

1949
follows:
E. S. COHEN
v.
tI I collected the rents from the tenants for the firm in V.E.RM.AR.
question after Nachiappa had left. -II- * * ~ also paid taxes on CHBTTYAR
FIRM.
behalf of the firm. After giving the taxes, I used to send the
surplus money -to Indin. ~ gave: statement of accounts in my U TUN BTU.
letter. 1 sent the money to Ramanathan Chettyar. II T.

The substituted service made upon the defendant-

respondent firm at No. 114, Mogul Stre'et, must
therefore be considered to have been good and
effective.
The real question which is to be considered is,
whether an application for revision lies in the circum-
stances of the present case. Ip the case of Radha
Mohan Daft v. Abbas Ali Biswas and o~her:; (1) it
was observed :
"

,I An order granting an application under Order IX , Rule 13

of the Code of Civil Procednre is not a decree within the

, meaning of section 2 (2) of the Code and is not appealable as
, such. Certain interlocutory orders are appeqIable under sf"ction
104 and Order XLII I of the Code of Civil Procedure, but this is
not one of them. But a right of appeal has been expressly
provided from an order refusing !O set aside an (X parte decree.
This proyif;iion was in the old Code. This P~9yi~i.o!! _is ~ to .1~e
found in the Civil Procedure Code now in force. Now this could
never have been a mere freak on the part of the legislature to
provide for an appeal in the One case and not to provide for an
appe:tl in the other case , nor could this matter be regarded as a
casus 01JllSSl/S. We have every reason to uclieve that the act of
the legislature was ~eliberate and there was an lmcloubtec1
intention to give a finality to an order setting aside an ex parle
decree under Order IX, Ru~e 13 1 of the Code of Civil Procedure.
It may net be useful to probe into and discuss the policy under-
lying the text, but it is obvious that the legislature has a marked
leaning for a procedure promotive of the decision of a case, Up81l
the merits) and, therefore, it is natural that express, provisions
should have been made to ensure the attainment of that encl.'"
~
il) (1931) 53 All. Series 612 at 617-13.
 ~

104 BURMA LAW REPORTS. [1950

H.C.
1949 Thus it will be necessary for the plaintiff-applicant
E. S. COHEN
E. S. Cohen to show that the present application falls
v. strictly within the provisions of section 115 of the Code
VcE.RM.AR.
.CHETTYAR. of Civil Procedure. The last paragraph of the head-
FIRM.
note in the case of U Ba U v. U Ywet (1) reads: .\
U TUN BYU 1 II T' .I . f . . . .
J. he High Court wJi not wter ere 111 reVISion agamst an
Interlocutory Order unless sorne ~rave injustice or hardship wculd
reslllt from a failure to do so. I!

The same observation was made in. the earlier case

of L.P.R. Cheltyar Firm v. R. K. Bm.l1erji (iJ.R.) (2).
It is difficult to see in' this case how grave injustice.
or real hardship could be said to have fallen upon the
plaintiff-applic.ant by reason of the order setting aside
the ex parte decree which had been made in his favour
except that he lost the benefit of the ex parte decree.
He cor:ld in any case be compensated in costs. ,
The learned 3rd Judge of the Rangoon City Civil
Court was apparently aware of the entire circumstances
under which the ecr .parte decree was passed in that
it was passed by (he same Judge who set aside the -.
ex parle decree; and in any case he appeared (0 have
had materials before him on which he might arrive at .
the conclusion which he came to. However, as I have
observed earlier, it appears (0 me that the defendant-
respondent.firm should have appointed another person
in tbe place of Nachiappa Chettyar to look after the
case which had been instituted against them as far back
as 1941. The defendant-respondent firm will be
directed, besides furnishing the security as ordered by
the learned 3rd Jl1dge of the Rangoon City Civil Court,
also to pay the costs incurred by the plaintiff-applicant
in conrection with the application to set aside the
ex parte decree. The respondent will also pay the
costs incurred by the plaintiff-applicant in the
U) (19481 IJ.L.R. 172. (2) (1931) 9 R.n. Series 71

 1950J BURMA LAW REI'ORTS, 105

'reconstruction proceeding, that is, in Civil Miscella- . ~~

neous case No. 155 of. 1948. There will be no costs E s-c
. OHEN
:in this Court. The costs in other matters will be left v.
. t o' b e d eCl.d ed at t Ile conc I '
USlOn a f tlle Ileanng
. b y th
,. e V.E.HM.A R
CHETTYAR

Court which will hear this case subsequently. The ~.

-order of the 3rd Judge, Rangoon City Civil Court, is U TUJ'. BTU,
:modified in the sense illdicatec above.

"

'-
 ."

106 BURMA LAW REPORTS. [1950'

CRIMINAL REVISION.
Before U Ttl1l Byu, J.

H.C. THE UNION OF BURM.\ (ApPLICANT) \

1950
Jan. 13.
v.
KYAW HLA AUNG AND OTHERS (RESPO.~DENTS).*-

Code oj Criminal Procedure-So 528 (4~ alld (5)-1nIl15/e1' of cases /1'01/1

Due Courf tv another-Rcasonsfor-To be recorded-Fllllcfiolls jud,cial--
Persolla/ klow!edge of Judge.
Held: S. 528 (5) of the Cod~. of Criminal Procedure provides that a
Magistrate making an order shall ret'ord in writing his reasons for so doing
A transfer of a case at the whim or caprice of the Magistrate seriously inlerferes-,
with the working ('{ Courts and shakes the confidence oi the public. Transfer
of a case is.a judicial function and must be exercised with due observance of
the procedure and fonnalilitoi which have to be followed.
Sttgllomal TlIhi/ram v.' Pllll/audds Rclu1II,ll, A.I.R /1936) Sind 237 at 240 ;
Go;,vl1rdhalldas Kapur v.Abbas Ali, A.I.R. (1930) Lah. 168 at 169, applied.
It is a fundamental of the due a:Jministratiol1 of justice that Judges and
,
afagistrates should not only be fair and impartial but sbould also appear to>
reasonable persons to be fair and impartial.
I'ell/l TheI,,,r alld ano/fler v. KiJ1.lf..Empcror, 10 RafJ. 180, followed.
l
Mya TheiJi (Government Advocate) for the"
applicant.
U TUN Byu, J.-lt appears to me that a common,
judgment can properly be passed in respect of Criminal"
Revision Nos. 55B and 56B of 1949 in that they arose
from the orders of the same Special District Magistrate,.
Akyab, and that the irregularities which appeared to
have been committed appear to be the same or almost..
the same in both cases.
The diary order of the Special District Magistrate,.
Akyab, dated the 16th May 1949, which was recorded in
'* Criminal Revisions Nos. SSB and 56B of 1949. Review of the order of tHe-
Special District Magistrate of Akyab. dated the 7th February 1949 passed in
Criminal Regular Trial No. ~5 of 1948 and 3D of 1949 of the Court of the Sub-
divisiol11l1 M:.l.gistrate, Akyab, on the recommendation of the Se~sjons Judge,,~
Arakan, dated the 3rd September 1949 in Crimin,d Revision Nos. 96 and 100-
of 1949. ./
 1950J BURMA LAW REPORTS. lOr-
Criminal Regular Trial No. 85 of 1948 of the Court of H.C.
1950
the Subdivisional Magistrate, Akyab, reads as follows:
THE UN!ON"
OF BUHMA.
,( Order passed.
elSe withdrawn under section 528 (4) of Criminal Procedure
".
KYAW flLA .
AUl\G
Code. AND OTHEi~S..
Accused discharged:
Case returned to S.D.M. I' U TUN ByU,.
J.
This diary order appeared to have recorded about three
months after the Special District Magistrate had passed
his order of 7th February 1949, where he ordered
the proceeding in Criminal Regular Trial No. 85 of
1948 to be closed and directed the accused in that case
to be released. A perusal of the order of the Special
District Magistrate, dated 7th February 1949, shows that
he has not anywhere stated in that order his reasons
for transfering the case which was pending in the Court
of the Subdivisional Magistrate, Akyab, to be dealt
with by himself. Moreover, the diary order recorded
" by the Special District Magistrate on 16th May 1949,
does not also show for what reason the Special District
Magistrate purported to trdnsfer the case to be dealt
with by himself under section 528 of the Code of
Criminal Procedure. No application for transfer
appeared. to have been made by the parti",s in connec-
tion with this case, and this appears to me to afford
greater reason why the Special District Magistrate
should set out the reasons which impelled him to
transfer the case and to deal with it himself.
The diary order dated the 1st July 1949, which was
recorc1edby Special District Magistrate, i\kyab, in the
record of Criminal Regulor Trial No. 30 of 1949 of the
Court of the Subdivisional Magistrate, Akyab, is as
follows:
41 Case is \yithdra\nl and' returned to S. D.i\.(, Akyab. AU
1I
accused discharged.
108 BURMA LAW REPORTS. [1950
H.C.
1950 The learned Special District Magistrate's order in this
"THE UNION
connection is atpage 21 of the proceeding. In this case
OF BURMA too no application for transfer was filed; nor was any
O.
l{YAW HLA reason recorded by the Special District Magistrate
Am';G
AND OTHERS. to indicate why he considered it was necessary \

:u TUN HYU,
in the interests of justice that the case should be taken
J. over to his file and dealt .vith by him.
It might be mentioned at once that no notice was
issued by the Special District Magistrate to the opposite
party in both the cases before he passed the orders
which have heen referred to above. The Special
District Magistrate .had also not opened separate
proceedings for the purpose of taking action under
section 528 of the Code of Criminal Procedure, and
it will accordingly be necessary to reproduce the
provisions of section 528 (5) of the Code of Criminal
Procedure, which read:
" 528 (5). A Magistrate making an order under this section
shall record in writing his reasons for making the same. II
It is thus clear that the law requires that "the reasons I'
for the transfer of a case should be recorded, and the'
reason for this provision appears to be that a transfer
ought not to be made lightly. In the case of Sugnol/lal
Tahilram v. Phaiandas Relumai (1) it was observed:
I~ \Ve hope that this learned Magistrate will in future consider
and understand the scope and purpose of section 526! Crimi nal
Procedure Code, for a t\.1agistrate to transfer a case from cne
Court to another at his whim and c3.price wOllld be seriotlsiy
tointerfere with the working of the Courts and would shake the
confidence of the public in those Courts. II
Again in Gowardlzandlzas Kapur v. Abbas Ali (2) it
was also observed-
" . . . . . the functions of the District Magistrate under
section 528, Criminal Procedure Code, which empowers him to
(I) A..I.R. tJ936) Sind, p. 237 .t 240.
12) A..I.R. tJ930) Lah., p. 168 at 169.
 1950J BURMA LAW REPORTS. 109

transfer cases from the Courts of the Magistrates subordinate to H.C.

1950
him, are judicial functions and must cOllsequently be exercised

.
THE UNION
with due observance of the procedure and formalities which have of BURMA
to be followed in all other judicial matters."
KYAW HLA
Au~'1
I must say that I fuily agree with the observations in fhe AND OTHERS.
two cases quoted above.
U TUN BTU,
The order of the Special District Magistrate, Akyab, J.
also shows clearly that he was importing his own
knowledge in considering that case. In Vellu"'Thevar
and another v. King-Emperor (l) the second paragraph
of the headnote reads: .
II It is a fundamental of the due ac1ministratio!l of justice th.t

. Judges and Magistrates should Imt only be fair and impartial, but
also should appear to reasonable persons to be fair and impartial,
aild that neither accused persons nor litigants should have any
reasonable ground for supposin~ that the Judge br Magtstrme who
is trying a case in which they are concerned is "biassed either
in their favour or against theE1."

It is thus clear that tbe Special District Magistrate,

Akyab,should bave, if he had personal knowledge in
the case before him, transferred it over to another
o
Magistrate for the latter (0 consider whether the trial
should proceed or not, after having taken action under
section 528 of the Code of Criminal Procedure. It will
moreover be observed from what has been briefly
stated above that serious irregularities have been
committed by the Special District Magistrate, Akyab, in
. respect of the two cases, namely, Criminal Regular Trial
No. 85 of 1948 and Criminal Regular Tri:ll No. 30 of 1949.
The orders of the Special District Magistrat~ passed in
connection with those two cases, whereby he purported
to transfer those cases to be dealt with by himself and
under which the accused in those two cases were
released, will be set -aside. The proceedings in
Criminal Regular Trial No. 85 of 1948 and in Criminal
(1) 10 Ran. p. 180.
al0 BURMA Ll1.W REPORTS. [1950
..
.~9~o' Regular Trial No. 30 of 1949 will be returned to the
TH;U;;IO~ Court of Subdivisional Magistrate, Aky,b, for him to
OF BURMA deal with the cases from the stage he had left off
j{YA1~ HLA before the Special District Magistrate pa ssed his order r
."NDA~~:E1<S. referred to earlier in this judgment.
n T-B
...... UN yU,
If the accused in any of these cases feel that they
J. have a case for transfer it is for them to move the
superior Court in a regular way, or ifthey feel that there
is no c<lll>e against them, it wiII be open to them also to
move the higher Court to quash the proceedings against
them, but it is difficult to conceive how this can
properly be done until the evidence for the prosecution
has been recorded. The proceedings of the trial
Court will be returned to the Court of the Subdivisional
Magistrate, Akyab, with a copy of the order passed by
this Court. .

.~


1950J BUR>MA LAW REPORTS. 111

APPELLATE CIVIL.
Before U San MaJllfg, J.

MA SHU HWAY AND TWO OTHERS (ApPELLANTS) H.C.

1949
v. Dec. 12.
DAW KYAY HMYIN (RESPONDENT).'k
:Siuo-Burman BlIddltist-GovtrtJed by Burmese Buddhislla11l-FaIl11/y A rrallgc-
me.nt-RcdtICfd to doc1tnzellt-bnmoveable proptrty effccfefJ wortll marc
thaIL Rs. lOO-The effat ojllon-registratioll.
\Vhere certain immoveable prvperties are acquired by a Sino-Bnrman
Buddhist during his coverture with the Respondent, a Burmese Buddhist, and
-the propert)' (valued at more than Rs. 100) was claim ..xl lmder a family
.arrangement rnder an unregistered document.
Held: That the law applicable to the case was HUTmcse Buddhist Law.
TUIl Ma Shwe Zm ntzd of/leTS v. KOD SOD Chong aud others, (1939)
.R.L.P. 548. follO\yc{l. '
The property on the death of lhe husband, became the property of Ule wife.
The Family Arrangement relied on, involved properlies worth more than
Rs. 1( 0 and was reduced to the form of a document, therefore registration was
~nece.s!;ary under s. 17 of the Registratio"n Act. No oral evidence regarding
1 ,
,'the Family Arrangement is therefore admissible in law.
Ram Gopat v. Ttltslti Ram a1ld a1lof/zer, 51 All. 79 (F.B.J.

T.i1'l H fa for the appellants.

N. C. Sen for the respondent.

U SAN MAUNG, .f.-This is an appeal against the

judgment and decree of the District Court of Moulmein
affirming the judgment and decree of the 1st Assistant
Judge, Moulmein, in Civil Suit No. 147 of 1947 for tbe
eviction of the defendant-appellants Ma Shu Hway,
L. Hoke Lyan and L. Hoke Kin from the garden lands,
in suit. It is common gronnd that the original holding
which was later sub-divided into the two pieces of
"land in suif was acquired by the late .U Saung
,during bis coverture with the plaintiff-respondent
.. Ci .... i1 2nd Appeal No. 25 of 1949 against the decree of District Court of
1I1oulmeiu in (;ivil Appeal No. 29 of 1.t;..f.8,dated the 26th March 1949.

-.


112 BURMA LAW REPORTS. [1950'

H.C. Daw Kyay Hmyin. U Saung was an eilldallngyi having:
1949
some children bv his first wife.
MA SHU
HWAY AND
Among h'IS c'h'ld'
1 ren b y D aw Kyay H.mym. was one
TWO OTHEf<S
'V.
Kyee Shain 1 now deceased, the husband of the 1st \.
DAW Ky,AY
H:riYIN.
defendant-appellant Ma Shu Hway and the father <if
the 2nd and 3rd defendant-appellants. Kyee Shain
U SAN
MAUNG,]. pnideceased his father U Saung who himself died about
eleven years before the date of the suit. After the
death of U Saung the lands in suit were in the posses-
,ien of the defendant-appellants who, according to Daw
Kyay Hmyin, were in possession thereof with her
permission. The defendant-appellants, on the other-
'hand, alleged that U Saung had before his death made
a family arrangement wherehy the lands in suit were
allotted to the 2nd and 3rd defendant-appellants.
and that this arrangement was binding upon Daw Kyay
Hmyin who had acquiesced in it. It was claimed that
U Saung was a Chinese Confucian, but this claim was
later abandoned in view of the overwhelming evidence',.
on record that he was a Chinese Buddhist. In fact
there is credible evidence on record to show that
U Saung was a Sino-Burmese Buddhist. In any event in
view of the ruling of the Privy Council in Tan M a Shwe
;. Zin (Jnd others v.-z{ooSoo Cl101tg DlIdoihers. (1) the law
applicable to this case is Burmese Buddhist Law. The
learned Judge who tried this case has held that even if
there had been such an arrangement as that alleged by
the defendant-appellants, it would not amonnt to a
family arrangem~nt which is binding in law in view of
the fact that under the Burmese Buddhist Law on the
death of U Saung his wife Daw Kyay Hmyin, and not
>

the defendant-appellants L. Hoke Lyan illld L. Hoke

Kin, was the heir to U Saung's estate. The learned
District.Judge on appeal by the defendant-appellants
held that although the evidence disclosed that there was ,
(1) (1939) l<.L.R. p. 548.
 v;"fV~
1950J . BURIVfA LAW R.EPORTS. 113

some sort of an arrangement as tbat deposed to by H.C.

1949
U Ba Than (D.W. 4), the transaction having been reduced
II1A SHU
tv writing was invalid for want of registration and HWAY AND
evidence relating to the terms of the agreement TWO OTHEJ{S. V.
inadmissible in law. After having given most anxious DAW H:YAY
. J-hrYJN.
consideration as to whether or 1I0t the alleged arrange-
ment would or would not be binding upon Ma Shu ~J,\UKG, U SA~
].
Hway if she had really consented to it in view of the
fact that at the time it took place the parties were
acting in the belief that Chinese Customary Law was
applicable to tbe matter relating to the succession to the
estate of U Saung on his death, I have come to the
conclusion that a decision on this point will not be
necessary in VlCW of the fact that no eVidence relating
to the transaction would be admissible in Jaw.
According to U Ba Than, the arrangement in which
, all the parties concerned acquiesced was cmbodied in a
document which was cxecuted by Maung Kyi, son of
U Saung by his first wife, Daw Kyay Hmyin, her son
J":yi Lun ;lnd her daughters while Ma Shu Hway affixed
her signature as the de facto guardian of her minor
children the 2nd ilnd 3rd defendant-appellilnts. The
land in suit which WilS IVorth more than Rs. 100 WilS
entrusted to Kyi Lun for the bencfit of the 2nd and
l~~
3rcl chfendant-ilppellilnts. Kyi Lun himself obtained
a garden and a house situated thcreon while Kyi l\1aung
obtained a garden at Thayetgon and a paddy land at
Gwegon. Daw Kyay Hmyin and her daughters
received no properties, but they were to be maintained
by Kyi Lun until such time as they married.
Now, if a family arrangement is in fact reduced to
the form of a document registration (when the value of
imrilovable property involved is Rs. 100 or upwards) is
necessary by section 17 of the Registration Act, and
the absence of registration makes the document
inadmissibl p in evidence,' urlder section 49 of the
S
114 BURMA LAW REPORTS. [1 \150
H.C. Registration Act, in proof of the arrangement, and
1949
under section 91 of the evidence i\ct no other proof
HWAY
l\lA SHU
AND. tl1ereof can b '
e given. S ee R\.o11'z G' J' Ranl
Oj~a I v. T U IS!L
TWo ~TlIF.l<S 'and anotlzer (1). Therefore no oral evidence regarding \
DAw ]{YAY the alleged family arrangement is admissible in law.

HMYIN. On the death of U Sau.ng, Daw Kyay Hmyin became

U SAN
MAUXG, J. t J1e owner 0 f tl1e garden
- IancIs .111 'SUIt
. ancI as t I1e
defendant-appellants cannot claim to be in adverse
possession thereof for the statutory period of twelve
years necessary to give them a prescriptive right thereto,
they are liable to be evicted therefrom.
In the result the appeal fails and must be dismissed
with costs, Advocate's fees three gold mohurs.

~,.

) .

<
III 51 AI,. p. 79 (f.B.I. 4
 v ,(i~,:
1950] BURMA LAW REPORTS. 115

CIVIL REVISION,
Before U Attl/g Tlw C;yaw, J.

MAUNG THEIN NGWE (ApPLICANT) H.C.

U MAUNG MAUNG (RESPONDENT)."

v. -1949
Dec. 6.

Ower 21, Rule 89 (1) (bl Codc of C'Vi! Procedure-PersolL handing such
properly or Itoldiu?, ill/crest acquired before snle- Revisioll.
Where a decree-holder purchased property ill public auction and deposited
25 per cent' on the date o the sale but prior!o confirmation a{:pliecl under
Order 21, H.nle 89 ofthe Code of Civil Procedure to !:ct aside the sille slating
that the juJgmentMdebtof had sold the house to him long befvre the court sale
explained th~ drr:UIl1~tances under which he had to hid, and asked that the sum
deposited by him be takt~n to he the 5 per cent for payment to the Purchaser.
Held: Til,,! his failure to clepo.;it in Court the amount specified in the sale
. proc1amatior! as that for the recovery of which the sale was ol'dered was a
, mere technical error. The e~ectlting Court was wrong: in holding th~t the
applicant was not competent to present an application under Order 21, Rule 89
of the Code of Civil Procedure. This error on the part of the Comt re'Sulted in
its failure to exercise a jurisdiction vested in it by law.
The execution sale is complete after the hid has been <lcc-cpted and the
(icposit paid under Rille 84.
Mailollled Yacoob v. P.L.l?JJ. FirJII (ll/d otllcY'$, (1931) 9 Han. 608,
followed.

Soc for the ~pplicant.

. Thein Maung for the respondent.

U AUNG THA GYAIV, J.-The applicant in this case

successfully bid at a Court auction held in Civil
Execution No. 88 of 1948 of the Court of the subor-
dinate Judge, Bassein, in respect of the house belonging
to the judgment-debtor, Maung Chit. The property
was knocked down for Rs. 495 and a quarter of this
sum, amounting to Rs. 124 was deposited in Court
by the applicant on 5th January 1949, the date on
.. Civil Hedsion :-Jo. ~3 of 1949 against the order of the Districl Court of
f3!lssc:in in C.ivill\'lisc. Appeal No.8 of 1949, dnted the 30lh May 1949.
116 BURMA LAW REPORTS. [1950

H.C. which the sale took place. On the 21st January 1')49,
1949
the applicant filed an application under Order 21,
TH~;~~~~WE Rule 89 (l) ib) of the Civil Procedure Code for setting
v. aside the sale describing the circumstances in which
U MAUNG . , .
MAUNG. he became the hIghest bIdder for the property and
u AUNG agreeing to deposit in Court the amount specified in the
TllA jGYAW, sale proclamation for the iecovery of which the sale
was ordered. In respect of the deposit of 5 per cent
required of him under Order 21, Rule 89 (1) (Il), he
pleaded for exemption on the ground that he himself
was the purchaser.
The executing Court on the objection raised on the
respondent'~ behalf held that the applicant had no
11lC1ts standi to enable him to present an application of
this nature under Order 21, Rule 89 of the Code, as by
the failure to deposit the balance of the purchase money
within fifteen days from the date of the sale, the sale ,
in fact had not been completed and that the only course
open to the Court, under the circumstances, was to set
aside the sale and conckct a fresh one. The deposi~'
made by the applicant in Court was ,11,,0 ordered to be
forfeited. An appeal laid before the District Court met
with no success as the learned District Judge was of
the same.. opinion that the sale not having been
completed, the applicant had no right to make his
application under Order 21, Rule 89 of the Code.
On the date on which the app1icant made his
application under Order 21, Rule 89, the Court had
received no information as to the applicant's default in
respect of the deposit of the balance of the purchase
money. The applicant had complied with the. provision
of Rule 84 by depositing 25 per cent of Ihis
purchase money in Court and under Rule 85, the full
amount of the purchase money became payaHe before
the Court closes on the 15th day from the date of the
sale of the property. Under Rule 36, where a defi\ult'.
 V
1950] BURMA LAw REPoRTS. 117
had occurred, the Court may forfeit a deposit and the H.C.
1949
property shall then be resold. At the time the applicant
MAUl\'G
made his application under Order 21, Rule 89 for setting TUEINNGWE
. aside the sale, the Court had not been informed of the U
V.
~dAUNG
applicant's default regarding the payment of the full MAUNG.

purchase money and no orders bad been passed as to U AUNG

Tn,\ GYAW,
the forfeiture of this deposit and the resale of the J.
property. There was no question whatsoever that the
sale had not been completed. The applicant's liability
to pay the balance of the purchase money and the
consequences of non-payment are matters of mere
procedure following the actual sale compkted by the
acceptance of the bid and the payment of the deposit of
2S per cent of the amount of purchase money. An
execution sale is completed after the bid has been
, accepted and the deposit paid under Rule 84. [See
Malzollled Yacoob v. P.L.R.M. Firm a.nd others (1).J
There was therefore no justifiable gronnd in this case
h\r treating the sale wbich the applicant was applying
to set aside as still incomplete.
Under Order 21, Rule 89, any person, "either
owning such property or holding an interest therein by
virtue of a title acquired before such sale, may apply
to have tbe sale set aside on his depositing in
Court-
(a) for payment to the purchaser, a sum equal to
5 per cent of the purchase money, and
(b) for payment to the decree-holder, the amount
specified in the proclamation of sale as that
for the recovery of which the sale was
ordered, etc.
The applicant stated in bis application that he was
such a transferee as described in this rule, the
judgment-debtor having sold the house to him long
(1) (1931) 9.1~an. 608.
"
 / j ))
f :,;. .,.
:;.';;'

118 tlURMA LAW REPORTS. [1950

H.C, before the Court sale took place. In regar.d to the
1949
deposit of 5 per cent of the purchase lnoney, a sum of
:to.-IAUNG
THEIN NGWE
V.
Rs. 124 belonging to him was already in deposit and he
was quite justified in his plea that he might be exempted
.
,

U MAUNG
I\lAUNG. from complying with this rule. Tn his pr'ayer he asked
U AUNG for the Court's direction to set aside the sale on' his
THAGYAW
J. ' d eposl't'mg III
. Cour t tl1e amoun t 'speci f i ecI 'III tl1e
proclamation of sale as that for {he recovery of which.
the sale was ordered. This undoubtedly was a mere
technical error which if pointed out by the Court,
could easily have been rectified by the applicant. As
matters then stood, the applicant need only deposit fifty
odd rupees or mO"e to comply with this condition
before his application could be entertained by the
Court. This being the case, the executing Court
was evidently wrong in holding that the applicant

was not competent to present an application under

Order 21, Rule 89 and th1t the conditions set out in the
said rule had not been satisfied. This error on th,'
part of the Court resulted in its failure to exercise a
jurisdiction vested in it by law. .
The order of the executing Court will be set aside
with the direction that the applicant's application
brought under Order 21, Rule 89, be disposed of
according to law. Costs-three gold mohurs.

,
 1950J BURMA LAW REPOR:tS. 119

APPELLATE CIVIL
Before U Thcill M(lfl1lg, Cltic! J1l.'tlet, (11Jd U San illa,i1I~r::, J.
"~,

DAW YIN (ApPELLANT) H.C.

1950
v. Feb. 9.
U SEIN KYU AND THREE OTHERS (RESPONDENTS). f'

Trallsfer of Property Act, $. S.f.--Sale of ;1II11tvt'cablc property wjlllI less III an

Rs.I00 by unregistered sale dccd- Whether p{lsses fitlc.
Wh~re the plaintiffs claimed purcha:sc of an immoveable property worth
less than Rs. 190 by an unregistered Deed of Sale and it was neither pleaded
nor proved that there was oral sale follower! by delivery of po::;se$~ion.
Held: That the sale was in",:alid and did not pass any tilleto the purchaser.
It was essential either that the possession should t:hange or that there must be
a,Hegistered Deed.
Malll1g !llyn Maullg v. ,\fa Kltinc and v/fsers , l\.l.R (936) Han. 497,
.... distiJ1gujshe~1; l11lltllllkarupp,m Samban (J1ld ollltrs v. Mlltlm Sam!;all, (1915)
I.L.H. 38 Mad.US8 ; ]{IIPPII~7.0rt1llj GOllndrl!t v. Chill!laS1!'omi GOlIl!drl1/ "lid
o(f/,;n, A,LH. (1928ll\1ad. 546 at548 : SO/Lr,1I Lal !llld oUlcn. v. Moltrl'll L,:l owl
olhers, t1928) I.L.1\.. 50 All. 986 at 990 ; TyibllOVl11l Hargov(!1Z v. SIJ'lIIker
,<' .Desai; (I )-13) Bom. 653, (oHowed,

S. T. Leong for the appellant.

Kyaw \Government Advocate) for the respondent

No.2.

U THEIN MAUNG, C.J.-The plaintiff-appeltmt

Daw Yin sued the defendants-respondents for posses-
sion of a piece of leasehold land and for a mandatory
injunction to demolish their building on it alleglllg
that" Kl100 Soo Ee, who was a purchaser of the sui t
land at a revenue sale for arrears of land revenue,
resold the same to the plaintiff for Rs. 75 by sale deed
dated the 12th February, 1937 ;" and the main issue
which has been framed by the Court of first instance
'l! Civillst Appeal No. 56 of 1949 against the decree of the 3rd Judge, City

Civil Court, Rangoon in Civil RegnlarNo. 71 of 1949 -

120 BURMA LAW REPORTS. [1950
H.C.
1950
as suggested by the learned Advocates for the plaintiff-
appellant is "whether Khoo Soo Ee (since deceased)
DAW YIN
V. who bought the suit land at the reveI:ue sale retrans-
U SEIN KyU
M~D THRE]';
ferred tile same to the plaintiff by an instrument dated
('
OTHERS. the 12th February, 1937 I"
U THEIN In the course of her evidence she merely stated
ilfAUNG, C.J.
" He executed a sale deed in my favour. It is the sale
deed. He also gave me the certificate which he
received from the Rangoon Development Trust at the
time of the auction. I continued to live on the suit
land after having purchased the suit land from
Khoo Soo Ee." Her case was very definitely that-
Khoo Soo Ee resold the property to her by a sale deed.
She never suggested in her pleadings, at the time
of settlement of issues or in the course of her evidence
that the sale was by deliz'ery of possession. However,
her suit having been dismissed on the ground, inter 'r
alia, that the sale deed is not admissible in evidence
for want of registration, her learned Advocate has
contended th?,t the sale was also by delivery of'
possessIOn.
She and her mother Daw Kyaw got a lease of the
land from the Rangoon Development Trust on the 7th
July, 1920; butthe leasehold and the building, which
they had erected on it, were sold by the said -Trust and
purchased by Khoo Soo Ee in Rent Recovery Proceed-
ings on the 18th January, 1937.
According to her, she continued to live on the suit
land after purchasing it from Khoo Soo Ee till Rangoon
was occupied by the Japanese (i.e. till March, 19'12)
when she shifted to Mandalay without ,leaving, anyone
in charge of it. On her return to Rangoon in 1948
she found that her house had been destroyed during
the Japanese occupation of Rangoon and that the third
and fourth respondents had been living in a hut thereon
as tenan ts of the first and second respondents;

j,
 1950) BURMA LAW REPORTS. 121
Incidentally, the leasehold stands in the name of H.C.
1950
the second respondent as mutation of names in 11er
DAW YIN
favour was sanctioned by competent authority 011 the
",
1st September, 1948, i.e. qefore the institution of the U SEll" KyU
M"D THREE
pJaintiff-appellant's suit. uTHEH5.

As Spargo J. has pointed out in Maung M)'a Maltllg U THEIN

MAUNG, C,J.
v. Mn [{hine and olhers (1), "it is not intended (by the
Legislature in enacting section 54 of the Transfer of
Property Act) tbat, when actual physical delivery is
impossible because the vendee is already in possession,
it should be necessary that the sale should be by
registered instrument."
'However, it has also been beld in Muthukaruppan
Sarnban and others v. 11Iuthu Slllllb'l1'l (2) :
" A sale of tangible immoveable property of the value of less
., than 1-<5. 100 effected by an unregistered instrument (withoht <IllY
prior oral sale) followed by delivery of possession is invalid and
inoperative to pass 1he title to the property uncler section 54,
Transfer of Property Act (Iv of 1~82)_
A document which affects immoveable property, anel which
is required by law to be registered is, if it is not registered,
inadmissible in evidence to prove the nature of possession of the
person claiming uncleI' it, such as, the adverse cha.racter of the
possession."

Besides, Srinivasa Aiyanger J. has observed in tbe

course of his judgment in Kllppuswallli GOlliZdan v.
Chimwswmni GOlmdan and others (3) :
. II The expression I s:lle l;y delivery of property' should
properly be construed only as referring to and comprising a C:lse
v,-here the parties :lgt'ee that the transaction of sale should be
effected b:~ delivery of property and only in that way and cannot
possibly be construed as to inclUde a case where the parties agree
to reduce to the' form of a do~ument the terms cl the sale. The
moment the parties for some reasOn consider that it is not
- - - - - - - - - - - - - - - - _...
(I) AJ.H. (1936) Fall, 497,
__
(2) (1915) I.L,R 38 Mad.U58.
..,

(3) A,LR (1928) Mad, 546 at 548,

122 BURMA LAW REPORTS. [19~O

H.C. sufficient to effect the transaclion of sale by mere delivery of

1950
properLy, but require that as evidence of such transactioil there
DA\\' YL\' should be a cleed or clocument l the transactio:1 can scarcely be
V.
U Sm:'>l KyU
correctly described as one effected by mere delivery of property.
-,,
ANI) THREE F1lrther in the case of what are called sales effected by. delivery of.
OTHEHS.
propertYl ther.e is presumably a refer_cnee to the terms having been
TJ THEE" settled by and between the parties by parole ant; then the transac-
l\!AUNG, C.l.
t
tion effected and carried Oll by delivery. But the moment the
parties reduce the terms to \vrHing , it is the writL1g that there~
after must be regarded as containing and setting out the terms of
the conlract, and it would not be an apt or COlTect description of
the transaction to call it a sale by delivery of property.!J

In the present case, there is no allegation in the

pleadings or 'he evidence of the sale having been made
by delivery of posse~sion at all. The plaintiff-appellant
clearly based her claim on a sale by deed. It was
only when the sale deed was found to be inadmissible
in evidence for want of registration that her learned r
Advocates argued that the sale was by deliv'~ry of
possession also; and there is no evidence whatsoever
of the property having been actually delivered by
Khoo Soo Ee to her. In this connection it must be
noted that Mukerji J. has observed in Soillm Lal and
others v. Mohan Lal and others (1) :
I~1 we look into the reason of the rule we _shall see at once
that, for the publicity of the fact that title has passed, it was
est:ential that possession should change. It was this change
in possession tint was accepted as a criterion of transfer.
It must, therefore, be taken that , when the legislature said that a
transfer of tangible immoveable property of the value of less than
Rs. 100 could he made by delivery of the property, it meant
actual deli\'ery and not a constructive delivery.)! ,
Under the circumstances of the case tbe question
did not even arise as to whethedhe plaintiff-appellant
was entitled, in spite of section 91 of the Evidence Act
and section 49 of the Registrati on Act as amended by
(I) (19281 I.L.H, 50 AIl. 986 at 090.

". t'
.,
,
 1950] BURMA LAW REPORTS. 123
section 10 of the Transfer of Property (Amended) H.C.
1950
Supplementary Act, 1929, to show that she had
D,\wYJX
purchased tbe property" by delivery," i.e. by the seller V.
U SEIN ({VO
placing lier ill po:;sessiun though there'vas a sale-deed A~l) Tlmgn
which was \mregistered and therefore inoperative. OTHEl~5.

[eL TribllOval1 Hargovall v. Shanker iJeslli (I).J U THEI:\'

l\1AUXG, C.].
The lower Court is right in holding that the
plaintiff-appellant has failed to prove her ti,tle to the
leasehold and in dismissing her suit.
The appeal is dismissed with costs.
U SAN MAUNG, J.-1 agree.

"

(1) (1943) Bom. 653.

124 BURMA LAW REPORTS. [1950

APPELLATE CIVIL.
Before U ]"11" BYI', Chic] Justice, and V 011 Pc, J.
t
H.C. M. M. SHERAZEE (ApPELLANT)
1950

F~b. 24
v.
DAW KHIN SAN (RESPONDENT).*
UpPer B/itllla Lal/d lIl/d RctJc1LlIC Regtlld/jon, s. 45-'-'Sale fot arrears of
RevCJl1te-S.41 (1) (d)-Rules 170 alld 171.
Held: Under the Upper Burma Land and Hevclluc Regulation 5.45 read
\vHh 5.171 a sale of imllloveable prvperty by Assista:lt Collector will havet'1 be.
conJ1rmccl by the Collector, and only when the sale becomes ab!jollltc the
tille does pass. But. when the sale is confirmed, it lakes effect from the date
of the :;ale.

P. N. Basil for the appellant.

U TUN Byu, C.J.-The plaintiff-appellant M. M. p

Sherazee was originally the owner of the lands at

Yebok Kwin No. 575, Amarapura Township, measuring
about 600 acres, and these lands were sold on or about.
tile 7th December 1943 for Rs. 800, for the recovery of
arrear of land revenue to the defendant-respondent
Daw Khin San. A dispute arose between M. M.
Sherazee and Daw Khin San as.to.wh\l was the actual
o\vner of those lands, and on the 4th February, 1946,
e Tun Pe, Registrar of the District Court, Mandalay,
was appointed by them to collect and receive the rents
due on those lands. M. M. Sherazee next instituted a
suit known as Civil Regular Suit No. 41 of 1947 of the
Court of the 1st Assistant Judge, Mandalay, for a
declaration that he was entitled to receive the sum of
Rs. 1,066-8-0 which was in the hands of U Tun Pe,
being apparently the amount which remained from the
rents received by him.
.,. Special Civil Appeal No. 4 of 1949 against the decree of the High
Court on the Appell;!Je Side in Civil 2nd Appeal No. 78 of 1948, dated ,
11th Dc-::cmber 1948.

I'

,.
1950J BURMA LAW REPORTS. 125

The case for the defendant-respondent Daw Khin H.C.

1950
San is that she is the owner of the lands in question in
.l\LM.
that she had purchased them at a revenue sale when SHERA%EJ!
those lands were sold to her by the Revenue Officer DAWv.KUIN
U Soe Ya for the recovery of arrear of land revenue, SAN.

that thos.e lands were subsequently mutated in her U TUN Byu,

name, and that the revenue receipts in respect of those C.).

'lands, were issued in her name for the years 1945-46

and 1946-47. M.M. Sherazee, on the other hand, also
alleged that he applied to the Additional District
Commissioner to have the revenl1e sale of the lands in
'dispute set as\de and that the sale was set aside, which
was however denied by Daw Khin San. The suit of
the plaintiff-appellant was dissmiscd with costs. His
appeal against the judgment and decree of the Court
of tbe Assistant Judge was also dismissed, with cO.,ts in
Civil I~egular Appeal No.6 of 1948 of the District
Comt of Mandalay. The appeal of the plaintiff-
appellant against the judgment and decree of the
.. District Court was also dismissed by the High Court,
with costs, in Civil Second Appeal No. 78 of 1948.
It has been submitted on behalf of the plaintiff-
appellant in this Special Appeai that there is no
evidence to indicate that the revenue sale was, in fact,
confirmed by the District Commissioner or Collector
and that in the circumstanccs no title in thc lands in
qucstion could havc' passed to thc defendant-
respondent Daw Khin San. It will be necessary,
therefore, to consider carefully what is the real effect
of the Upper Burma Land and Rcvcnue Regulation
and the relevant rules made under it. Clause (d) of
section 41 (1) of the Regulation allows tbe arrear due
for the land revenue to be recovered by means of
attachment and sale of any immoveable property
belonging to the defaulter, wbo is, for the purpose of
this case, lVL M. Shera?ee. A sale, it is oby(ous, may

J'
126 BURMA LAW REPORTS. [1950

H.C. be in the nature of the absolute sale or a provisional

1950
sale, depending on the circumstances of each case, and
M. M.
SHER.-\.ZEE thus clause (d) of section 41 (1) of the Regulation does
V.
DAW KHIN
not afford any help in solving the question under
I"
SAN. consideration. Under section 42 (1) of the Upper
U TVN Hvu, Burma Land and Revenue Hegulation. the purchaser
C.).
of an immoveable property wh.ich has been sold for
the recovery of arrear of land revenue takes it free
from all encumbrances or burden, and it is difficult to
appreciate how the consequences contemplated in
section 42 (1) can ensue until the sale becomes an
absolute sale. Thus, section 42 also does not afford
us any real a3sistance.
Section 45 of th" Upper Burma Land and Revenue
Regulation certainly appears to be material. and
relevant, and it will be convenient to reproduce it
here: ;:"

"45. (II lVhe1l (l sale of any properly 11l1der this chapter for
the recovery of an arrear has become absolute the l->roceeds.
thereof shall be appliod, in the lirst place, to the payment of the
arrear, and, in the second place, to the payment of any other
arrear, or of any sum recoverable as an arrear under this chapter,
which may be ciue to the Government from the defaulter.
(2) Any balance of the proceeds of the sale which may
remaii1 after satisfaction of the.claims of the Government under
sub-section (1) shall, subject to the clirection~ of <'.ny Court with
respect to fhe application thereof, be paid to the defaulters. II

The words "TVhm a sale has become

absolute" in sub-section (1) have been underlined by
me. It will be observed that section 45 (1) shows
clearly that payment of the arrear of land reveJ1ue from
tbe proceeds of the sale marie uncler section 41 (1) (d)
is to be made only after the sale has become absolute,
and it might properly be said that the sale made under
section 41 (ll (el) becomes effective only after it has
beep made absolute ,mder section 45. It will illso be

.,
\i
1950] BURMA LAW REPORTS. 127

only proper, in this connection, to consider the relevant H.C.

1950
rules made under the Upper Burma Land andl(cvenue
"M" M.
Regulation in order to ascertain when the sale made SHERM::EE
by the Revenue Officer U Soe Ya can be considered v.
VA\\, KH1N'
to become absolute. Rule 170 prescribes the SAN.

procedure which is to be followed in con-ducting a U 'J'liN BYU

sale for the purpose of section 41 (1) (d) of the C.J.
Regulation. l~ule 171 (1), which appears to be more
relevant to the question now under consideration
reads:
"171. (J) A sale of immoveable property by an AssistJ.nt
Collector nnder Rule l?O slFlll be subject 10 yonfirmation by the
Collector. "

It is clear that Rule 171 (1) shows that the revenue

sale made under Rule 170 must be confirmed by higher
l(evenue Authority before the sale can become an
absolute sale, and that this is so has also been made
clear in sub-rule (3) of Rule 171, which is as follows:
"(3) On confirmation by the Collector, tbe sale shall become
absolute subject to any orders passed on appc,tl or revision.
'\Then the sale has become absolute, a certificate of sale shall be
given to the purchaser in the prescribed form all payment of
stamp dutYl ~,nc1 if the property is not situated in an area uncler
supplementary surVCj\ it plan of the land concerned shall he
attached to the certificate. II

Thus, sub-rule (3) of r~ule 171 also shows that the sale
certificate in respect of the revenue sale conducted by
U Soe Ya under l~ule 170 will be issued only after Ihe
sale has become absolute, anel not before. It follows
that wh'"n sub-rules (1) and (3) of Rule 171 are read
together, the sale made under Rule 170 requires an
order of confirmation before that sale can be considered
to be an absolute sale, or in other words, the sale made
by the Revenue Officer U Soe Ya cannot be considered
to be an absolute sale until it is c;ollfinn~d by hii\her
128 BURMA LAW REPORTS. [1950

H.C. Revenue Authority. Sub-rule (2) of Rule 171 also

1950
lends support to the view expressed above, and
M. M.

.
SHEHAZEE

DAW KHIN
it reads:
t:
SA:\'. to(2) A sale shall not be confirmed until a period of 7S clays
from the date On which revenue f ell due and also a period of one
U TUN HyU,
C.). month from the date of the sale have elapsed. At ;my time
Lefore 511Ch periods have elapsed the sale shall, ancI at any time
before confirmation tile sale may, be set aside by lhe Collector if
the defaulter himself pays, or any person whose interest in the
land has been estabtished to the sltisfaction of tbe Colt ector pays
on behalf of the defaulter, the amount of the arrear and costs,
together with 10 per cent of the purchase price to be paid
as compensation to the auction purchaser, provided that where
the payment of the arrear and costs is for any reason accep!ed
more than one month after the clate of the s31e the Collector may,
for reasons to be recorded, require a payment up'to 25 per cent
of the purchase price as compensation.
If the property has been b::mght il~ for Government the :;
purchase price for the pm'pose of calculating the compensation
shall be taken to be the amount of the arrear and costs."

It will be observed that sub-rule (2) gives power to the

Collector before the sale is confirmed to set aside
a sale made under Rille 170, a power which he might
or might not exercist after a b pse of 75 clays or more,
alleI"thus" sub-rule (2) could also be said. to indicate
that the sale made by a Revenue Ofllcer under Rule 170
is only a provisional sale, and not an absolute sale.
The commentary in Mulla's Code of Civil Procedure,
11th Edition, at page 264, under the heading" Vesting
of property in au~tion-purcbaser " reads as follows:

(I In the case, however) of a Court ~ale, tbe? property

cloes not vest in the purchaser immecliately on the sJle thereof.
The reason is that a co~npnlsory sale cloes not become absolute
until some time after the sale. A period of at Jeast thirty
clays mllst expire from the elate of sale before the sale can become
absolute. During that period the sale is liable to be set aside at
the instance of the jUd/{ment-deL,tor on the ground of irr~gularit!'
 1950] BU~MA LAW REPORTS. 129

in publishing or conducting the ale, or on deposit by him H.C.

1950
in Court of the amo . m t specified in the s~l1e proclamation together
with a pei"centa~e on the purchase money by way of compensation M. M.
SHERM-:EE
to the purchaser. The application by the jnc1gment,c1ebtor to set V.
aside the sale in either of these two cases rul"st be made within D.-\ W lOlIN'
SAN.
30 days from the date of sale. vVhert:~ no such application
is made, the Court must make:111 order confirming the sale, and U TUN Byu,
it is upon such conflrm1.tion that the sale becomes absolute." c.).

vVith respect to the learned Judge who heard the Civil

Second Appeal No. 78 of 1948, the above passage
quoted from Mulla's Code of Civil Procedure appears
to us to apply generally, for the reasons already set out
above, to the sale of immoveable property which had
been sold for the recovery of arrear of land revenue
under the Upper Burma Land and Revenue Regulation
',>
and the rules made under that Regulation. The fact
that the sale, after it is confirmed, might be considered
to have taken effect from the date of the sale made by
the revenue officer under Rule 170 does not, and cannot,
I:' .
Ul our opinion, mean that the title in the property sold
under Rule 170 vested in the purcha,er before the sale
becomes absolute. The s,lle made by U Soe Ya does
not, therefore, vest the title in the lands in dispute in
, Daw Khin San unless that sale has been confirmed as
required under Rule 171 (1).
We must say that we are unable to see that there is
any evidence on the record under which it might be
presumed that the revenue sale made by U Soe Ya
must have been confirmed. The defendant.respondent
Daw Khin San, on the other hand, slaled in her cross-
examination as follows:
II I did not apply for i3sue of sale certif1c:lte because I \Vas
not aware of my necessity to do so. n

The sale certificate would be issued in view of

Rule 171 (3) only a', ,r the sale has been confirmed
9
130 BURMA LAW REPORTS. [1950
H.C. under sub-rule (1) of Rule 171. It appears to us that
195u
a perSon who applies for the confirmation of the sale
1\J. i\I.
SlJERAI.EE made under Rule 171 will obviously ask for a sale
V.
DAW KJlIN
certificate to be issued to him or her, as t he case might
SAX. be. 1t is therefore only reasonable in the circum-
o TUN ByU, stances to conclude thnt the revenue sale made by
C.).
U Soe Ya has not been confirmed as required under
Rule 171 (1).
INe 111uSt, however, observe that it is difficult to see
how the plaintiff-appelbnt M. !vI. Sherazee can be
said to have allY claim to the money which is in the
hands of U Tun Pe, the Registrar of the District Court
of Mandalay, unless the revenue sale has been set
aside because once the sale is confirmed it will be the
,I)urchaser who will be entitled to the money. in the
hands of U Tun Pc, as it might be said that the title p
of the purchaser after the sale is confirmed relates
back to the elate of the sale made by the Revenue
Oflicer under Eule 171 ; and the finding of the Court,
in connection with the allegation that the revenue sale
ha~ been set aside is against hinl, t!.ncl we i1111St say that
this finding appears to ns to be correct. This special
appeal 11ll1St, therefore, be dismissed bnt we do not
think it is necessary, in so far as this special appeal is
concerned, to award allY costs against him.
U ON PE, J.-. I agree.
 1950J BURMA LAW ]{EPORTS. 131

APPELLATE CRIMINAL.
lkfol'c U 011 Pe al/d U Sml .Mal/ug, Jl.

BA MAUNG (ApPELLANT) H.C.

1950
v. Mar. 9.
THE UNION OF BURMA (Re:SPONDENT).*
High Treason Act-S. 3 (l)-Offf1lce ul/der High Treasoll Act_When
committed.
Held: Under s. 3 of the High Treason Act in order to constitute an
ofience under the High Treason Act the purpose and intention IUttst be of a
general public n<ltllre as contr<ldistillct from a private one such as theft or
robbery.
R . .,' Gordon, fliS!) 21 State Trials, 486 at 644, 645; R. v. Hardit, l1B20)
1 state Tdals (N.S.) at 765, followed.
In a criminal case it is 1101 incumbent for an accused 10 show wh:,f was
"t:\ the object 3l1d tile meaning of the ;lets done, but for the prosecution 10 make
these out <lgainst the accw;ccl. The 01111 is upon the rroscculion to shot\' that
the object of the multitude whkh rise and assemble to attain the same by
force and violence is of a general pnhlic nature as distinguished from a merely
Jo-, 'I)"' rivateone.

O. S. WOC1!, for the appeliant.

L. Choon FOling (Government Advocate) for the

respondent. .
The judgment of the Bench was delivered by
U SAN MAUNG, I.-At abput 4 a.m. on tJ~e morning
of the 11th September, 1948, a large party of men
numbering about 500 attacked Kungyangon, a Town-
ship Headquarters in Hanthawaddy District, from
several sic1cs. Some of the men raided the houses
inside the town and took whatever property they could
lay their hands on.. Some of the men concentrated
their attack on the police station area and looted
'* Criminal Appeal No. 61 of 1950-Appeal from the order of 1st Spedal
"Judge of Hanthawadcly, dated the 25th ,January 1950, in Criminal I?e~lIfar
Trial No.2 of 1949,
132 BURMA LAW REPORTS. [1950

H.C. firearms from the houses of police officers who lived

1950
cither inside the police station com round or in the
BA 1\L\U~;G
t'. hou,es near by. The police station itself was attacked
THE U~I;)::-i
OF B01m ..\"
but the attackers were held at bay by the incessant <'
Bren-gun fire from that place. At about 6 a.m., the
U S,\N
l\JAUXG, J. attacker, fOLmd themselves attacked by a Government
reinforcement of military policemen and 'levies.
Threupon they Hed from Kungyangon and were
chased to near-by villages such as Kamakasai, etc. At
a spot about SUO yards away from Kungyangon, the
appellant Ba Maung was found hiding in a paddy
field. On the approach of Government forces,
Ba !VIallng surrendered himself. He was unarmed at
that time and told his captors that he had to follow
the Hed-flag Comll1uni"ts for fear of them. The
leader, the Red-Hag Communist Bo Myint Aung, was p
also arrested that morning by the military but he was
not sent up for trial as he was killed subsequently for
making an attempt to escape. On the 29th adobe" -{4, ,J:
1948, about SO days after his arrest the appellant
Ba Maung gave a confession which has been admitied
in evidence as Exhibit B. On th" strength of this
, confession, and .rom .tlw fact,that the Guard'writer
U Chit Tun was killed at the time of the incident,
apparently by tbe attackers, the appellant was sent up
for trial under section 396 of the Penal Code by
KUI)gyangon police. However, after the evidence of
the witnesses for the prosecution was he<1rd by the
learned Special Judge, ]-I anthawacldy, who trierl the
case, the Ie<1rned Judge framed <1 cha;ge under
section 3 (1) of the High Treason Act, 1948 (Burma
Act, No. XIV of 194 8). The defence was to tbe
effect that the confession Exhibit B was not a
volunt8rY one and tbat in any CVf;nt the appellant h<1d
t6 follow the men who went to att<1ck Kungyangon for-
fear of them and that therefore L e was entitled to the'
 '-

1950J BURMA LAW REPORTS. 133

benefit of section 94 of the Penal Code. The learned H.C.

1950
trial judge, however, held that the confession was
BA ;-.I,Aui\G
voluntary, that it amounted to admission of pnticipa- 'J.
tion in the attack upon Kungyangon by a group THE UNiON
01' BURMA.
of rebels and that since the offence committed was one"
U SAN
committed against the State and puniShable with death, i\L\UNG, J .
section 94 of the Penal Code was irrelevant. He accord-
ingly convicted the appellant under section 3 (1)
of the High Treason Act, 1'.148, and sentenced him to
death. Hence this appeal.
I n this appeal, it has been strenuously urged by
the learned Advocate for the appellant that if any
offence was committed by the appellant, it was one
punishable under section 395 of th~ Pen;ll Code and
that there was also sufficient evidence on record to
show that he was compelled to join the dacoits by
threats which reasonably cause him to apprehend
'" that death would be the consequence if he had
refused.
!!;. ~ c" It is therefore necessary to consider carefully
whether the offence committed by the appellant was
punishable under section 395 of the Penal Code or
,onder section 3 (1) of the High Treason Act, 1948,
assuming of course that he was not entitled in any
event to the benefit of section \14 of the Penal Code.
Now as observed by ~'!ansfield C.J., in R. v.
Gordol1 (1) :
It Tlfc qut:stion always i~, whether the intent is,
by iorce and violence! to attain <Ill objec~ of a general
and public nature, hy any instnllnenls1 or by clint of their
numbers. V'l:oever incites: (1chifes, enCOl1ra~es or is allY way
aiding to such a mnltHuc1e so as:-cmblerl with sllch intent, though
he does not personally appear among them, or with his Own
hands commit any viole.nce whatsoever, yet he is equally a
princip~l with those who act, and guilty of lJi,!.!;b treawn:'

(I) (1781) 21 State Trials 4f'6 at pp. 644, MS.

 134 BURMA LAW REPORTS. [1950

H.C. In the words of Lord President Hope in R. v.

1950
Hardie (1) :
BA i\IAu1'\G
V. II To . prove ~uch levying of war it is the ptupos-: and
THE Ui"JO"
OF BURMA. intention, 'the. object which they have in view. which congregates.
U S.-\N
l\lAUX(l. J.
anel assembles them together, which gives them the impul~e ih
their arming, and in their risin~; it is that which constitutes
"'
treason, and distinguishes ~he crime from that of rict, or any
other rising for any private pl~rpose that can be imagined;"

These observations by Mansfield C.J., and. Lord

President Hope were quoted with approval by a Bench
of the late High Court of Judicature at Rangoon in
AU1/.li Hla and others v. Kii1g-EllIpcl'ol' (2) where it
was held that when a multitude rises and assembles to
attain by force and violence any object of a general
public nature, it amounts to levying war against the
King, and that it is not thc number or the force, btlt
pc
the purpose and intention, that constitute the offence
and distinguish it from riot' or any other rising for a
private purpose. Although this ruling was in respect, ,~.

of an offence under section 121 of the Penal Code,

now repealed, it is n"t inapposite for a case under the
High Treason Act, 1948, as section .2 thereof
which defines an offence punishable u'nder that
Act reads:
"2. \Vhoever wa::!es WUt- against the Union or any Con~ti~
tuent Unit thereof, or assists any Slates or person or incites or
conspires with any person \vithil1 or without the Union to wage
war against the Union or any Constituent Unit thereof, Or
attempts or othepvise prep;wes by force of arms or other violent
means to overthrow the organs of the Union or of its Constituent
Units established by the COll~titution, or takes:; part or is
concerned in or incites or conspires with any person within or ~
\vithont the Union to make or to tak~ part or be concerned in
any sucb attempt shall be
guilty of the offence of High
Treason."

(1/ (1820) 1 State Trials <N.t".) at p. 765. (2) 9 Ran. 404.

 1950J BURMA LAW REPORTS. 135

From this section it is clear tbat in order to constitute H.C.

1950
an offence under the Higb Treason Act, 1948, tbe
BA ?lJAU:::G
purpose and intention must be of a general public v.
nature as contradistinct from a private one such as THE ei'<ION
of BUHMA.
theft or robbery. On tbe other hand, the essence of
U SAN
an offence of clacoity is tbe commission of tbe offence TlIAUNG. J.
of robbery by five or more persons jointly. See
section 391 of tbe Penal Code.
In a criminal case it is not incumbent for an
accused .to show what was tbe object and the meaning
ot the acts done, but it is tbe duty of the prosecutors
to make out their case as against tbe accused. There-
fore, in a case under the Higb Treason l\ct, 1948, tbe
onus is upon the prosecution to sbow that tbe object
of the multitude wbich rises and assembles to attain
th'e same by force and violence is of a general public
"> nature as distinguisbed from' a merely private one.
Hence it is necessary to analyse tbe evidence of tbe
case now under appeal to see whether the prosecution
'has succeeded in establishing that the object of the
"' men who attacked Kungyangon on the morning of the
11 tb September, 1948, was of a general public nature.
In tbis connection, it is interesting to note tbat
wbereas the prosecution has set out to .prove from tbe
'vei'j' outset tbat the men who had al!acke'd Kungyan-
gon bad committed dacoitv, it was tbe learned Special
Judge, wbo on the evidence before bim, considered
tbat the offence committed was one under the High
Treason Act, 1948. According to Maung Tbein Maung
(P.\V'. 11, a Guard-writer of Kungyangon Police
Station, wbo resided in a bouse inside tbe police
station compound, he "l\V the lu,oes go up tbe house
of Maun!!, .Cbit Tun anel bring bim down from the
. home as a captive. Tbe lusoes demanded JVlaung
Chit Tun's sten-gun and was told by l\laung Chit Tun
that it was deposited at the police station. The lrtsocs
136 BURMA LAW REPORTS. [1950

H,C. thereupon searched Maung Chit Tun's house and on

1950
finding the sten-gun there, took Maung Chit Tun away
13-\ l\lAUNG
threatening to kill him because he had told them a lie,
".
Tim UNJO~ Maung Chit Tun was subsequently found dead a short
OF RUHlJA.
disbnce away froin the polic.~ station with a gun-shot .--
,
U ::1.-\:'<
MAUKG, ]. wound, "\Vhile the lusoes were attacking the police
station compound shots were heard from the town
area as weIl.
According to Maung Tin Shwe jP.W. 2), a clerk of
the Co-operative Stores which was situated about two
furlongs to the east of Kungyangon police station, the
lusoes who attacked the town from four directions,
also attacked the Co-operati"ve Stores and took away
c10things and groceries to the value of Rs. 4,500.
According to Maung Tun Hla (P.W.3), a teashop
keeper residing about onc furlong to the e,tst of the
polic~ station, the lusoes attacked the whole town
,)
including his own shop which was looted of properties
to the value of Rs. 35. According to lvIaung San 'Win
(P.vll. 5) who lived about' 2 or 3 furlongs to the..
southeast of the policc station, about 30 or 40 lusoes
attacked his house and took away Rs. j 60 in cash and
jewellery to the value of Rs. 100. According to
Maung Kyi Han (P.W. 7), a Special Police Constable
. residii1g in the 'police station compound, while they
were defending "gainst a group of lusoes who
approached the police station area saying" Policemen,
surrender your "rms I", another group of lusoes came
fr0111 the rear and disarmed them. Thc police station
itself held out against the lusoes by incessant Bren-gun
fire. IvIaLmg NYUll Shwe iP.vV. 8) and Maung Ba Pu
(P.W. 9), other Police Const<lbles who lived inside the
police station compound "Iso ,,-poke about a large party
of men attacking the police station compound shouting
out to the policemen to lay down their arms and about
their being dispossessed of their firearms by the lusoes. i..
 1950} BURMA LAW REPORTS. 137

The appellant Ba Maung, when questioned by H.C.

1950
U Ba Tun (P.W. 13), Township Magistrate, Kungyan-
13,\ MAUNG
gon, in order to 'lscertain whether he wished to confess V.
THE UNION
of his own free \vill, said," I have come to give a OF BunMA.
confession about the fact that I was one of those who
U SAN
came along when Kungyangon was attacked by rebels ;\IAU:"G, J.
("iI~~) on the 8th lazim rj Taw/hahn." However, in
the body of his confession, he is entirely silent as to
what was the -object of the so called rebels in
attacking Kungyangon. He spoke of the fact that he
was on his way back from a pongyikyauug where he
was keeping sabbath when onc Po Sai', a villager of
Banbwegon came and called him away to meet
Bo Myint Aung on the road to the east of T;nvkhayan-
lay village. There Bo lVIyint Aung asked him whether
it was true that the police station officer had asked his
help in the arrest of Mya Lwin and Aung Pe, ~ext,
'..;
he went along with Bo Myint Aung and party to
U Pa U pagoda at Kamakalun village, where they
tJ " arrived at 8 p.m. There they found four groups of men
each numbering about 80 or 100. Some of the men
were armed with guns and others with pointed bamboos,
etc. Then at about 3 a.m., Bo Myint Aung gave
orders for an advance on Kungyangon. On arrival
near Kungyangon, the men advanced saying "Yebaws,
let us advance." On arrival at a spot about 500
Llthoms from Kungyangon there was firing. vVhen
sound of gun-fire was heard all the men took shelter
by lying down in the paddy fields. Thereafter, some
of the men advanced, some continued to lie on the
ground while otbers ran away from the scene. vVben
the sound of gun-fire ceased, he got up to find
military-policemen in the vicinity. He thereupon
surrendered himself. He was unarmed at t bat time
and, in fact, he never had any' arms from the very
, beginning.
138 BURMA LAW REPORTS. [1950

H.C, Although the appellant tried to say that his confes-

1950
siDn was not voluntary, he more or less acJhered to it
HA
..
MAl'~G
,

THE U~JO:'\
OF BUR~f,\.
when he was examined under see!ion 364 (2) of the
Criminal Procedure Code. (He did not elee! to givc . ,.~

evidence on behalf of his own defence.)' He stated

U SA~
I\,IAu:\:(;,1 that at the time Kungyangon was attacked by the'
rebels, he was brought to Kungyangon by them while
he was on his way back from monastery and that he
surrendered to the police as soon as he could. Of the
defence witnesses cited by him, Hla Maung (D. W. 4)
who was 'a military policeman at the'time of occurrence
and who is now a private citixen in Hangoon, stated
that he was one of those who arrested the appellant
Ba Maullg and th?t Ba Maung surrendered saying,
" vVc are good men." Ria Aung (D.W.5), who waS
also in the military police stated that at the time of
Ba !\hung's surrender, Ba Mating said that he haeno v
come with the attackers for fear of them and that one
of h is nephews had been killed for not joining the
insurgents. Ma Sein Tin \D.vV. 6), sister of 13i' ~

i\'fau!Jg stated that 13a Maung was called away by the

Heel-J1ag Communist Po Sai after being beaten and
that one of her sons, who had been called away by the
Heg-Hag Communists one month before the attack on
Kungyangon, had been killed by them.
From the above reSU1Jle of the evidence adduced in
the case it is clear that there is no direct evid ence on
record to show what was the object of the men who
attacked Kungyangon on the morning of the 11th
September, 194ti. Therefore, regard must be had to
the circumstances appearing in evidence in order to
come to a finding on this point and it is settlecllaw that
when a fact has to be proved by circumstantial
evidence, the circumstantial evidence ou record must
be conclusive. In this connee!ion, the observations of
their Lordships of the Privy Council in the case of
 1950J BURMA LAW REPORTS. 139

Mahbub Shah v. Killg-Emperor (1) are not inapposite. H.C.

1950
There, their Lordships, in de31ing with section 34 of
BA ?lIAUN(;
the Penal Code, said that it is difficult, if not impos- V,
THE U;:.aoN
sibie, to procure direct evidence to prove the intcntion OF BUR:'f..\..

of !'\n individual, that in most cases it has to be inferred U SA:-;

from his act or conduct or other relevant circumstances MAVl':G, J.
of the case, and that when circumstantial cvidence has
to be relied upon" the inference oLcommon intention
within the meaning of the term in section 34 should
never be reached unless it is a necessary inference
deducible for the circumstances of the case." In
Maung Mytnl v. The Union of Burma (2) a Bench of
this Court pointed out th3t in this connotation
" necessary inference" must mean the only reasonable
inference possible not merely the" probable inference."
Now from the facts and ci"cumstances appearing
Cl
in this case we are not prepared to hold that the only
reasonable infercnce possible is that the men attacking
Kungyangon on the morning of the 11th September,
'194l:\, had as their common object the attainment by
force of an object of a general public nature. No doubt,
the appellant in giving his confession about 50 days
after the occurrence dubbecl them as rebels and some
of the witnesses for the prosecution as well as for the
defence refen:ed to the inciden"t as an attack upon
Kungyangon by rebels. However, it is not what a group
of persons are called that make rebels but the nature
of their common object in assembling themselves.
The overt acts of the men who attacked Kungyangon
are not inconsistent with tI".e view that their sole object
was to r<tllsack the town for the purpose of obtaining
arms and valuable properties. They, indiscriminately,
attacked private houses as well as the houses of police
ofticers. They looted" private property as well as

11) 0944-45) 72 1.A. 148. [21 11948i I3.L.[~. 3i9.

140 BURMA LAW REPORTS. [1950
H.C.
1950
firearms belonging to the police. They no doubt asked
the policemen to surrender their arms but this may be
fl.,\. MAUNG
1'. with a view to avoid unnecessary bloodshed. In fact,
THE UNION
OF HUHMA.
they only killed the Guard-writer Chit Tun (assuming
U S,\N
that they are really responsible fer his death) because
l'I'1ArN(;. J. he told them a lie as regards fhe Steng~lt1 which he
was asked to give up. Therefore on the circumstantial
evidence on record it is at least open to doubt whether
the object of the men who attacked Kungyangon was of
a general public nature such as for example, the disrup-
tion of Government or the undermining of tbe morale
of the police force. The appellant is entitled to the
benefit of dOl'bt on this point.
Now it is a n1<ltte~ for consideration what offence,
if any, has been committed by the appellant Ba .lVlaung.
In this connection we have no hesitation in coming to ,
the conclusion that the confession Exhibt B given by him y'

was voluntary although some days elapsed before he

gave his confession. The whole tenor of the confession
was to the effect that he had no prior kriOw!edge ofthe
object of Bo Myint Aung and his men, that he was
more or less compelled to go along with them. These
are circumsbn~es which can be taken inte considera-
tion ill his favour. His confession -is' full of circum-
stantial details of which he alone could be aware. It
is corroborated by the fact that he was arrested about
500 yards away from Kungyangon as stated therein,
that the leader of the attacI,~rs was, in fact, Bo Illyint
,\ung and that the attackers, who numbered about
500 or 600, attacked Kungyangon from all sides. It is
also corroborated by his own statement in Court.
There is, therefore, sufficient evidence on record to
show that the appellant was one of a large gang of
dacoi ts, who attacked Kungya'ngon on the morning of
the 11 th September, 1948. The question now for
consideration is whether be Bhoulcl be given the benefit
 1950J BURMA LAW REPORTS. 141

of section 94 of the Penal Code the relevant pal tion of H.C.

1950
wh ich reads ;
I3A MAUNG
V.
H 9+. Except mU'-der, and offences against the. State pnnishahle THE U:-;lON
with death, nothing is an offence which is clone by a person who OF BURMA.

is compelled to do it by threat:>, which: at the time of doing it, U SAN

reasonably cause the apprehension Cnt iustaut death fo that person ~1AU;\"GI J.
will vtlrer'wise be the COllst:qlltnCC,"

Neither in hiG confession nor in his statement before the'

Court did the appellant contend that the threat was of
such a nature as to reasonably cause him apprehension
of instant death. He did not also give evidence on
oath as to the circumstances which led him to
apprehend th.lt instant death would be the result if he
did not join tht; dacoits. His own sister lvIa Sein Tin
(D.W.6) merely stated that he was beaten, a fact not
~ even stated by the appellant himself. The fact that
about a month before the occurrence, the appellant's
nephew was taken by tbe Red-flag Communist and
killed was not sufficient to make the appellant (0
apprehend that instant death would be the result if he
had refused to join' the clacoits. For tbese reasons, we
consider that appellant is not enlitled to the benefit of
section' 94 of the Penal Code and that he has
committed an offence punishahle under section 395 of
the Penal Code.
Now, the question arises as to whether in this appeal
we can alter tbe conviction of the appellant under
section 3 (1) of the High Treason Act, 1948, to one
punishable under section 39.5 of the Penal Code. As
held by a Bench of the Calcutta High Court in the
case of Lala Ujha v. Quten Empress (1) which was
quoted with approval in Maung iV/yin! v. The Uniol1 oj
Burma (2\, if the prosecution establishes certain acts
constituting an offence and the Court misapplies the
:11 26 Cal, 863, 12) 1!948) B.L.R. 3i9.
142 BURMA LAW REPORTS. [1950
H.C. law by charging and convicting an accused person for
1950
an offence otllCr than that for which he should have
B.\ III.\UNG
V. been pr;:lperly cbarged and if notwithstanding such
THE UXION
error the accused has by his defence endeavoured to ,-
010' BURMA.
U SAN
meet the accusation of the commission of these~ acts,
?I,'[A(!NG, J then the appellate Court. may alter the charge or finding
and convict him for an offence which these acts
properly constitute, provided the accused be not
prejudiced by the alteration in the finding. In Ohtt
MOl/IIi!. v. The Union of Burma (1), a Bench of this
Court altered the conviction of Ohn Maung under
section 3 (1) of, the High Treason Act to one under
section 302/34 of the Penal Code on the ground that
the facts e~tablished. an offence under section 302}34 of
the Penal Code and that the accused was not
prej"diced by the alteration of the finding.
v'
In this case also we find that the appellant had by
his defence endeavour;;d to meet the accusati"on of the
commission of the acts which constituted an offence
punishable under section 395 of the Penal Code
although he had been wrongly charged by the trial
Court under section 3 (1) of the High Treason Act,
19+8. Therefore, he will not be prejudiced in any way
by the alteration of the finding to cjrie '{mder se,ction
395 of the Penal Code. (vVe refra'in from considering
whether the appellant would be prejudiccd if the
finding is altered to one under section 396 of the Penal
Code as and our judgment there is at least an element of
doubt as to whdher the offence committed is really
one under section .396 <!nd also because the punish-
ments for the offences under sections 395 and' 396 are
the same.)
For these reasons, we would set aside the conviction
and sentence of the appellant under section 3 (1) of the
High Treason Act, 19+8, and instead convict him for
1
(1) (19491 b.L.R 139.
1950J . BURMA LAW REPORTS. 143

an offence punishable under section 395 of the Penal H.C.

1950
Code. As regards the sentence, regard being had to
HA IIIAU~G
the very minor part taken by the appellant in the 'll.
THE U:'l1IO:--
incident, that he might have been led by some form OF BUH:'IIA.
of compulsion to join the dacoits, that he surrendp,red U S . \N
"-s early as he could and that he \Vas convicted on lV1AU:,\(;, J.
the strength of his own confession, we consider that
the appellant should be awarded the lesser penalty
provided by the law. VIi.; therefore direct that he
do suffer transportation for life for the offence under
section 395 of the Penal Code.
14+ BURMA LAW REPORTS. [1950

CRIMINAL REVISION.
Bejure lJ TIltJ llyu, J.

H.C. AROKIYAM (ApPLICANT)

19;:;0

Feb.lS. v.
SAVARI MUTHU (RESPONDENT).'"
Crimi1lal Procedure Cot/e, s. 350-Evitleucc parlly ItCdrd by OI'C Judge ana
coNtiuued /ly IlIloihcr-Whdlt(r valid-WaivCY by (Jccuscd-EJfccf.
\Vh~j'e one IHagistratc heard a case under SUl11nlary procedure and his
successor continued the hearing from the point left off and convicted the
accused.
Held: end!;f s. 263 of the C,l<!e a Magistrate need not record e\'idel1l.;~ in a
$lI11lJnary trial. But if he does record the eddellce, that evidence d'.H:;; ho~
form part of the record for ~\CCon1illg to s. 263 the jmlgulCllt recording
the s:lbstance of the evidence "shall be the only record." 'fhercfl)re in a
5l11nm;,ry [:iaI, one i\bgistr;ltc cannot use the evidence recorded by his pre
dece~sor under s. 350 of the Code. Conviction based on sue h evidence
is illegal for the error c')~nnlitlcd by the Ill:l!h;lrat<.:~ alleds his jurisdiction.
EIIJPC/\JY v. l1clIIl11ulas [)";V{PISl1lglt and officI's, (l936) A.J.R. Sind 4 . ;
Nanuicr v. Desl/li( r, 55 i\Iad. 795 at 799, I eki'retl to.

Myi!ll Tooll for the applicant.

U TUN 15VlJ, J.-The respondent Savari Muthu filed

on 27th April, 1949, a complaint under section 500 of
the Penal Code against the applicant Arokiyam, which
became known ;'s Criminal Summary Trial No. 171
of 19+9 of the Court of the Second Additional Magis-
trate, l(angoon. U Ba Thaik, the then Second
Additional Magistrate, heard the case partly till 15th
September, 194\), and U Hla Maung, who succeeded
him as Second Additional Magistrate, Rangoon,
continued the hearing of that case from 19th October,
1949, from the point left off by his predecessor
U Ba Thaik. On 22ml 0f:tober, 1949, U Ria Maung
-II Criminal Revision No. 75-13 ryf 1949 being review of th~ order of 2nd
Additional Magistrate of Wmgoon, dated 22]]d October 1949 passed in Criminal
Summary Trial No. 171 of 1949.
 1950J BURMA LAW REPORTS. 145
found the applicant Arokiyam guilty under section RC.
1950
504 of the Penal Code, and he sentenced the applicant
to pay a fine of l~s. 40 or in default of payment to AHOKtYAllf v.
suffer 40 days' rig)rous imprisonment. Ro. 15 out of :'I-JUTHU.
S.-\VARI

the fine, if realized, was to be paid to the compI~linant

U T lN ByU. t

Savari tv! uthu. The applicant was also ordered to pay ].

Rs. 7-12-as costs to the complainant or in default of
payment to undergo seven days simple imprisonment.
The question which arises is whether the subse-
quent trial by U Hla Maung, who succeeded
U Ba Thaik after the case had been partly heard, is
illegal. In Emperor v. Hemaudas Devansingh and
others (ll it was observed as follows:
II Section 263 cloes not prevent a !vfagbtratc who tried a
C:lse in a summary way from reconiing evidence: it merely sars
tbat he need not but if he does it cannot l we think, by reasal! of
t> section 264 form part of the record. Reference may be made to
the case o[ Namucr v. Desalier (2). Vve therefore do Iwt think
-;;;
evidence so recorded comes within the meaning of section 350. II
'1 '\_
I' respectfully agree with the above observation, and it
follows that section 350 of the Criminal Procedure
Code does not give the Magistrate jurisdiCtion to
continue in a case left off by, his predecessor as is done
in Criminal Summary Trial No. 171 of 1949. The
error comlllitted can, in my opinion, be said to be an
. error which affects tbe jurisdiction of the learned
Second Additional Magistrate who succeeded
U Ba Thaik because he purported to give himself
jurisdiction to continue tbe trial from the stage left off
by bis predecessor in a case which is not covered by
section 350 cf the Criminal Procedure Code. A
waiver by the accused does not give jurisdiction to a
Magistrate to try a case in a way which is not sanctioned
by law as is done in the present case. .
(I) (19361 A.I.rL, S;nd p.40. (2) ;5 Mad. p. 795 at p. 799.
10
146 BURMA LAW REPORTS. [1950

H.C. The conviction and sentence passed- upon the

1950
applicant Savari Muthu in Criminal Summary Trial
AROKIY.... M
". No. 171 of 1949 will be set aside, and the fine, if paid,
SAVAIU
i\IUTHU.
will be refunded to Savari Ilfuthu. The record of the ' ...,
Court of the Second Additional Magistrate, Rangoon,
'u Tu~ Byu,
J. will be returned to the District Magistrate, Rangoon,
for retrial by another Magistrate whom he thinks fit to
direct.

"

 1950] BURMA LAW REPORTS. 147

CRIMINAL REVISION.
Bt/ore U TUIJ Byu, C,J.

U NYO (A PPLfCANT) H.C.

1950
v. F~b. 22.
U KO KO GYI (RESPONDENT)."'

Rule of tJJlerprc!olion of documetzls-Trade. Disputes (Amendment) Act.

1948-8. 7 (5).
Held: Tbat an instrument must receive a construclion according to the
plain meaning of the words and sentences therein contained. Que mllst look
at the\vhole instrument, and inasmuch as there may be inac:cnracy and
inconsistency, one must, if one can, ascertain Wllat is the meaning of tile
in::trllmt:nt taken as' a whole in order to give effect, if it be possible to do S0,
~o the intention of the framer of H. It ,Ippears to be arguing in a viciot~s
circle to begin by a.ssuming an inlention apart from the language of the
instrmncllt itself, and havinlt, made that fallacious assumption to bend the

..
,~
language in favour of tile assumption so made. But where from the inipc:--
fection of the language, it is impossible to know wllat that intention is
without inquiring farther, and seeing what the circumstances were with
reference to wbich the \Yards were used, and what the object, was appearing
;", '_'rom these cin:uillstances, whicJl the person using tllCIll had in view; for the
~neanilJg of words varies ac.::ording to tbe circulllstances with respect to which
they are lIsed .
. Charles Robert Leader a1J(l Helltidta LUlder v. George F. Duffey ami
A11lyatt Edmond Ray, (1888) 13 A.C. 294 at 30l j The River Wear C01l1Illis-
si'otiets v. William Ai/allison auti others, 0876-7J, II Appeal Cases, 743 at
763, followed.
Under s. 7 of the Trade Disputes (Amendment) Act if an agreement
is arrived at in a dispute as a result of negotiations conducted by either a
Board Of" a COllcilialion. Officer, sllch an agrcement, duly si~ned by the
accredited representatives of both parties, shall be legally binding upou both
parties to the dispute and failure 011 the part of eHht:r"party to comply with
it will be punishable.
Therefore, where a person entered into a contract to employ only Jllel1lbe-rs
of the Eartll Digger~' A'Ssociatioll, but aHerward';3 failed to give the work to
the 111embersof that Associatioll, he cOlllmitted an offence under the Act.

Dr: Thein for the applicant.

* Cdminal Revision No. nB of 1949-Review of Order of tile Eastern
Subdivisional IVIagistrate of Rangoon, dated 5th October 1949 pas:;ed in
Criminal SUIl1marr Trial No. 449 of 1948.
 "
148 BURMA Lfl_W REPORTS. [1950

H.C.
1950.
Tin Maung (Government Advocate) for the
respondent.
U Nyo
v.
U KoKoGYI. U TUN Byu, C.J.-It appears that the applicant
U TUN ByU, U Nyo obtained a contract, which included earth
c.).
digging work, from the Rangoon Development Trust
and that a dispute arose between him and the
labourers, who were members of the Earth Diggers'
Association, Rangoon, and whom he had employed in
connection with the contract obtained from the
Rangoon Development Trust. The Earth Diggers'
Association stlected nine members to represent the
Association in settling' the dispute, and whose names
were mentioned in Exhibit H. On 28th October,
1948 an agreement was concluded as embodied in
Exhi~it B, which was signed by U Nyo, the applicant,
and Maung Ngwe Than and Maung Khin Maung, who Ji
1"

signed the agreement as representatives of the Earth

Diggers' Association. (
,_of

200 or 250 labourers belonging to the E'lrth "

Diggers' Association attended work on 29th October,'
1948 at U Nyo's premises, and it is clear from the
statement of reasons set out by the Eastern Sub-
diviSional Magistrate that U Nyo and his son Bo Thein
were not willing to provide work for all the labourers
of the Earth Diggers' Association on the 29th October,
1948, that there was work for only 200 coolies on that
day, that U Nyo insisted that the work for that clay
should be divided between 100 labourers from the
Earth Diggers' Association and 100 labourers from the
men who were at the disposal of U Nyo, and 'that the
labourers of the Earth Diggers' Associaiion declined
to work because all the labourers of their Association
\vere not employed on that day. According to U Nyo,
what took place was that the labourers of the Earth
Diggers' Association want~d to monopolise the work of
 1950J BURMA LAW REPORTS. 149

loading and unloading the earth on the day concerned H.C.

1950
and that he asked them to share that work on 50-50
U }ho
basis with his labourers, which the labourers of the v.
Earth Diggers' Association declined to do. U 1(0 Ko GYI,

The Eastern Subdivisional Magistrate found that U TUN BYl1,

U Nyo had committed a breach of both items 2 and 4 CI.
of the agreement Exhibit B, and he sentenced> U Nyo
under sub-sec1ion (5) of section 7 of the Trade
Disputes Act; as amended subsequently by the Trade
Disputes (Amendment) Act, 1948, which reads:
II (5) If an agreement in a dispute is arrived at between the
parties thereto, as a result of the negotiations conclucted by
either a Board or a Conciliation Officer, stich art agloeement duly
signed by the accredited r~presentatives of both p:trties shall be
legally binding upon both parties to the dispote and failure on
the pal t of either party to comrly with or carry out any of the
terms of such agreement shall be punishable with simple

.,
"

},-,
imprisonment which may exlencl to three months. or with fine
which ffi1y extend to two hundrecl rupees or with both. II

Item 2 of the Exhibit B agreement shows that the

control and allotment of the labourers belonging to
the Earth Diggers' Association were assigned to the
Association. Item 3 of the agreement provides that
the terms and conditions under which the labourers
are to perform their work were left to U Nyo to be
decided by him, while item 4 of the agreement shows
that it has been agreed that the labourers of the Earth
Diggers' Association, who had already been employed
by U Nyo, should continue to be employed by him
until the contract work. which U Njo had obtained,
, was completed. The contention made 011 behalf of
U Nyo is that item 2 of the agreeme;lt refers to
allocation of labourers of the Earth Diggers' Associa-
tion inter se .for the work to be allotted to them from
day to day by U Nyo, and that item 2 of the agreement
did not invest the Earth Diggers' Association with
150 BURMA LAW REPORTS. ()950
H.C. po\\'er to allocate its labourers for the different kinds
.\950
of work which might be required to be performed. It
U Nyo
v. has also been contended that the power to decide as to
U KoKoGYi.
how many labourers from the Earth Diggers' Associa-
U TUN BYU, tion will be required to perform a particular kind of
C.J.
work is assigned under item 3 of the agreement to
U Ny'l and that U Ny@ has power, under item 3, to
decide how many of his labourers, who did not belong
to. the ~arth Diggers' Association, sho'uld join with
the labourers of the Earth Diggers' Association in
performing a particular kind of .work required under
the contract which U Nyo had obtained from the
Rangoon Development Trust.
Lord Halsbury, in the case of Charles Robert Ltader
and Henrietta Ada Leader v. George F. DuffEY alld
Amyalt Edmo1Jd Ray (1) observed as follows;
'l An these refinements and nice distinctions of appear
"'01'<15 "'j:
to me to be inconsistent with the modern vie\\'---which is I think
in aCCOrd21lCe with reason. and common se.nse--that 1 whatever till
the instrument l it must receive a ~onstruction accorcling to the ". ;.: ~_"f
plain meaning of the words anel sentences. therein contained.
Bllt I agree that yon must look at the whole inst1'lnnent, and
inasmuch as there may be inaccuracy and in('on~istency, you
must, if you can, ascertain what is the me~ning of the instrument
taken as a whole in order to give effect, if it be possible to do so,
to tIre intcntion of the fra:l1cr of it. But it <lppears to me to bc
arguing in a vicious circle to begin by assuming an intention
apart from tIle language of the instrument itself, and having made
that fallacious assumption to bend the language in favour of the
assumption 50 made. Jl

In The River f,Vear Commissioners v. FVJltiam

Adamson alld others (2), Lord Blackburn gbserveJ-
as follows;
Ii In all t:ases the object is to see what is the. intention
expressed by the words llsed. But, from the imperfection of

iii (\888) 13 A,C. 294 a\301. (2) (\876-7), 11 Appeal Cases, 743 at 763. .(
 1950] BURMA LAW REPORTS. 1St
. language, it is impossible to know what that intention is without H.C.
1950
inquiring farther, and seein~ what the circumstances were with
reference to which the words were used, allel what' was the U Nyo
to
object, appearing from those circnmstances, which the person U l{oKoGyI.
using them had in view; for the meallinR of words varies
ac...:ording to the circmllstance<; \VHh respect to which they were U'l'ux
C.}.
Byu,

used."
o

Thus, in order to ascertain the true meaning of

items 2 and 3 of the agreement, Exhibit B, it is only
proper to read them in the light of other items of the
agreement, bearing also in mind the background which
gave rise to that agreement and the purport for which
the agreement was intended to secure for tile labourers
of the Earth Diggers' Association.
It appears to me that if item 2 of the agreement
is read in the circumstances set out above, the
meaning of item 2 becomes clear and unmistakable.

U Nyo first paid tbe labourers at the rate of Rs. 3-4-0

. pe.r sadram, and when he found that the labourers
\;'ere not willing to work at that rate and were
demanding for an increase, a negotiation foJlo\yed
between him and the representatives of the Earth
Diggers' Association which resulted in the agreement
Exhibit B, wbich was signed by U Nyo, aild by
Ngwe Than and Khin Maung as representatives of the
Earth Diggers' Association. The fact that there was
a dispute between the labourers of the Earth Diggers'
Association and U Nyo before the agreement was
signed must necessarily suggest to the representatives
of the Eartb Dig~ers' Association that provisions ought
also to be made in tbe agreement so that the.concession
which they had obtained for the labourers from
U Nyo would not be rendered nugatory.subsequently,
arid tbismust have been the reason which gave rise to
tbe insertion of item 4 of tbe agreement, the effect of
whicb was that U Nyo shoul<i continue to employ all

,,
"
l;'
152 BURMA LAW REPORTS. [1950
H.C,
1950
the Iabourers of the Earth Diggers' Association.
U Nyo
There can be no doubt as to what item 4.means. r

v. It is clear that there was work for 200 workers only

U KoKoGvI,
on 29th October, 1948; and under item 4 of the
UTUN BYU I
C.).
agreement the'labourers of the Earth Diggers' Associa-
tion, who numbered at least 200, should have been
empl~yed by U Nyo on' that day. It is therefore clear
that U Nyo committed a breach of item 4 of the
agreement on 29th Odober, 1948 in attempting to allot
half of the work available for that day to his labourers
who did not belong to the Earth Diggers' Association,
It has, however, been argued on behalf of U Nyothat
the offence which he was alleged to have committed
was only in respert of item 2 'of the agreement, '~nd
it will accordingly be necessary to consider whether
U Nyo's conduct on the 29th October, 1948 amounted
to a breach of item 2 of the agreement. It seemS to
me to be clear, even if we accede to the conlention,
which has been put forward on behalf of U Nyo, th .. t .
he had power to decide under item 3 of the agreemer::7

how many labourers belonging to the Earth Diggers'
Association should be allotted to a particular kind of
work to be performed on the 29th October, 1948, the
fact that therewas work only for 200 labourers on the
29th October, 1948 would give the Earth Diggers'
Association, and not U Nyo, power to allocate labourers
for the earth digging work to be performed on the
29th October, 1948, because item 2 must be read with
item 4 of the agreement. In other words, even if We
give item 3 its widest construction, it was not possible
for U Nyoto take shelter under that item in view of
the fact that the work which was available for the
29th October, 1948 was one whi ch must all be allotted
to the labourers of the Earth Diggers' Association in
view of item 4 of the agreement. '1'hus, so far as the
work on the 29th October, 1948 is concerned, it was 1

,
 1950J BURMA LAW REPORTS. 153

for the Earth Diggers' Association to decide which H.C.

1950
out of, their)abourers should be allotted for the earth
U Nyo
digging work available for that day. The attempt on v.
U ICo Ko GYJ.
the part of U Nyo to allot half of the work to his
labourers, who did not belong to the Earth Diggers' U Tu~ Byu,
c.).
Association was contrary to the provisions of item 2
of the. agreement, which should obviously 1:re read
with item 4.
A"nother point which was urged on behalf of
U Nyo was that the Exhibit B agreement had no
binding force in that it was signed by only two out of
nine persons who were nominated by the Earth
Diggers' Association, vide Exhibit H, and it was
consequently argued that the pripciplc of the maxim
"dtlegatus lIon palest drlegaye" applies 10 the
present case. No case or authority has been cited

.
)r

,
for this contention, and I am unable to see any force
in this argument. This is not a case wh.ere persons,
who have been delegated with certain powers under a
: ,statute or a rule made under a statue, have attempted
to further delegate the powers so received by them to
some other persons. There is also nothing in Exhibit
H to indicate that nine persons must aU act together
or that there should be a quorum of a specified
number for the action of the persons who had been
nominated to be effective or binding upon the Earth
Diggers' Association. The Exhibit B agreement
shows that Ngwe Than and Khin Maung signed it as
representatives of 'the Earth Diggers' Association only
on the 28th October, 1948 after Ngwe Than and
Khin Maung had also signed in Exhibit K2 as
representatives of tile E'lrth Diggers' Association on
23rd October, 1948, where U Nyo also signed. It
might be mentionedthat Ngwe Than was the Secre
tar)' of the Earth Diggers' Association while Khin
Maung was its Organising Officer. The fact that the

.'
,
154 BURMA LAW REPORTS. [1950
H.C, labourers attended work at the premises of U Nyo on
1950
the next day after the agreement was signed also
c ~YO indicates that the Earth Diggers' Association had
l.' Ko KoGy', approved of the agreement Exhibit B. Ih the absence
U Tu:lIYU, of anything in Exhibit H or'in the record of the case
C,). to snow that ~gwe Than and Khin Maung had no
power "to sign an agreenlent on behalf of the Earth
Diggers' AssociatIon, it must in the circumstances of
this case be held that they did not exc'eed their powers
in signing the agreement Exhibit B and that they
were accredited representatives of the Association,
There is also the contention th3t Ngwe Than and
Khin Mallng acted beyond their powers in view of
Exhibit A to enter :nto an agreement of the nature
indicated in Exhibit B. I also do not think that there
is any substance in this contention. Items 2 and 4 of
the agreement were items which were inserted 'I'
obviollsly to protect the interests of the labourers
belonging to the Earth Diggers' Association, Items 2
and 4 do not in any way deal with any matter which:'
might be said to affect the right of the lahQurers of the

Earth Diggers' Associ.lion which existed prior to the
2~th October, 19+8, and the question that items 2 and
4 of the agreement are ultra ~h'es of the powers of the
representatives of the labourers belonging to the Earth
Diggers' Association docs not therefore arise, It is
obvious that items 2 and 4 were necessary to enable
the labourers of the Earth Diggers' Association to
enjoy fully the concession which h'ad been made to
them under item 1 of the agreement.
It is possible, however, that U Nyo might not have
fully appreciated the meaning of item 2 in Exhibit B
agreement when he persisted in giving out half of the
work available on the 29th' October, 1948 fo his
labourers who did not belong to the Earth Diggers'
Association, but this wiH not afford him any defence

~
 . 1950J nURMA LAW REPORTS. 155

to the prosecution under section 7 (5) of tbe Trade H,C.

1"50
Disputes Act as .snbsequently amended in 1948,
U N'vo
although it . migl.t be said to be a circnmst-ance v.
indicating that U .Nyo ~'as not acting maliciously U KoKoGYI

',iI towards labourers of the Earth Diggers' As,sociation on U 'fUN Byu,

c.],
the 29th October,1948.
The fine of Rs. 100 imposed upon U Nyo does not
appear to be excessive, ancl tbe application for
revision is tberefore clismissed.

..
if

~~."

~
'"
\',
 156 BURMA LAW REPORTS. [1950 .
APPELLA TE CIVIL..
BejOft: lJ Sm/ M al/ult, J.
'f
H.C.
1950 KO lVIAUNG GYI (ApPELL~N'j')
1,tb. 2 '{'.

lvlAUNG NYI NGE AND ONE (RESPONDENTS). *

A"Pt'dl-.vOPl~jo;llrltJ' of 1UCC!';sa ry fwly-Effect oj.
\Vllcre the plaintiff !lIed a suit for the recovery of r,ossession of a piece of land
from the hl defelHlant and ;Idded his own vendor as a p;\rty to the Stli( and
th~ Court IlCld that the vendor was the owner of the land and conveyed good
title to the Plaintiff and decreed Ute suit: the ddendant prc(erred all appeal
hut did not make the v<"lldor a party to the appeal. The District Conrt
('ismissf:d the appeal 01. tilt: ,grvlllld that the appeal was incompetci11 for
the failure of the defendant-appellant to ,Hid the VcndQT as a pady.
II dd: That as the vendor was a necessary party to the suit and it
haVIng been found that thc vendor was the owner and the decision ~IS to his
{J\\-nclship has become linal. the principle la:d down in V.P.R.V.
Chuknlirgli1Il C/tdl." a,[{1 Olli: v. Seetllm Ad!; and other" I.L.H. 6 Rail .
29 P.C. r\l'pli.cd. and the appeal was rightly dismissc{! as incompetent.
The lilJding tllal the vcndar WOlS the owner has beco:nc I"C5
betweell the \'CIHlar and the defendant.
judicI~,a

V.P.R.I'. ChokalillR.lPJI Clldty Illld olle v. See/iii Ad,; Dud others, '2 H.an.
'J.:
..
~'

.-

p. 5.j.1 ; SlIlIdura RamllmljaJl} Naidu v. Siv<llhtgam PilJd; and elJ/otller,

47 !\lad. p. 150; Strajlll l1ull Khall v. Abdul Nfl/mum, 29 Cal.
p. 2Si ~ MIIlllli RiM Y. Tirlvkl Natll lInd others, 58 LA. p. 158. followed.
,\fa Ott Thin ..... !IId Nf!.we Yilt mltl anolJlu, 7 Hall.398; Lakltajee a1ld
another \'. Scill !Jm;s I1l1d lit/aliter. A.I.R. (1940) l\an. 97; AT/llu)'; dud
others v, Rakk'l J{"du11fbdll, A.I.R.1l93S) I\lad. 501, distinguished

S. R. Choudlmry for the appellant.

Po Aye for the respondent.

U SAN MAUNU, J.-In Civil Regular Suit, No. 110 of

"
1947 of the First Subordinate Judge, Yamethin,' the
plaintiff-respondents Maung Nyi Nge and Rabiya sued
-II (:idl 2nd Appeal No. 20 of 1-)49 against tile decree of the District
COllrl of Yalllcthin in Civil Apt'~al No. 12 ,)f IlJ4B. dated 4th Decemher 1948
I
 1950) BURMA LAW FEPORTS. 157

the defendant-appellant Ko Maung Gyi and one other, H.C..

1950
M.R.M.M. Miyappa Chetty~r by his agent Para mar
Sinn, for possession of the suit hnd which he had Ko G~iu'G
purchased from :M.R.M.M. Miyappa Chetty~r. The .
o ' l\1AUNG NY!
land was actually 1Il tile possessIOn of the appellant NGX Awn
ONE.
Ko l\1aung Gyi, who alone contested the s~lit on the
ground that he was in possession of it as its owner, MAUXG, USAN
J. "
having purchased it from one Muthuviru, a former agent
of M.R.M.M. Miyappa Chettyar. Muthuviru was not
added as a party defendant but he figured as a witness
for the defence. As for the defendant M.R.M.M.
Miyappa Chdtyar, however, he filed a written statement
admitting the plaintiff-respondents' claim. The suit
was decreed with costs as against the defendant-
appellant and on appeal to the District Court of
Yamethin the learned District Judge by his judgment
in Civil Regul~r Appeal No. 12 of 1948 dismissed the
appeal on the grouud that it was incompetent for failure
~
,. to add M.R.M.M. Chetlyar as a party respondent.
l-"ence this appeal to this court by the defendant-
appellant Ko Maung Gyi.
. In coming to the conclusion that the defendant-
appellant's appeal was incompeknt the learned District
Judge relied upon the ruling of the Privy Council in
V.P.R. V. CllOkalingam Clzeffy and one v. See/hal Achi
and others (1), in which their Lordships affirmed the
judgment of the late High Court in a case between the
same parties (2). The cases relied upon by the learned
District Judge are of course converse of the present.
There it was held that where in an action againstseveral
defendants the trial Court dismissed the suit and on
the plaintiff preferring an appeal against only one .of
the defendants omitting to join the other deftndanh
from whom the respondent received his title,' the

OJ 6 l(an. p. )9. (2) 2 Ran. 5H.

 "

158 BURMA lAW REPORTS. [1950

H.C, plaintiff could not attack,the title of the respondent in
1950
appeal. '
Ko GYlMAUNG H owever, III
. my opInIOn D' . t J' ud ge
' .. tl1e Iearne d "Islnc
MAUN~" NYI was right in holding thatthe principle underlying the -r
NSE '~D decision in V.P.R.V. ChokalingaJlLChelty's case (1\ is
O~E

..
'
-,' -' applicable to the preseflt case.
M~U;:'NJ. Now, when a person sells a piece of immoveable
property to another, it is his duty to give pussession of
the property to the buyer and not to leave the buyer to
get possession for himself. The implied contract to
give possession 'contained in every sale of immoveable
property, may be enforced by the buyer by a suit for,
specific performance, See Sundara Rarnanujalll
Naidu v. Sivalinga'n Pillai and another (2). Order I,
Rule 3 of the Civil Procedure Code provides that" all
per~ons may be joined as defendants against whom any
I.E
right to relief in respect of or arising out of the same
act or transaction or series of acts or transactions is
alleged to exist, whether jointly, severally or in th\,.
~
.~

alternative, where, if sep:\rate Stlits were brought agaill~ "

such persons, any common question of law or fact would
arise." Here the plaintiff-respondelits' right to
possession of the suit land arose, Ollt cIthe sale of the.
land to them by M.H.I1I.IvL Chettyar and if sepa'rate,
suits were to be filed by them as against IvLR.lvl.M.
Chettyar, who was under a duty to give them possession,
and against the defendant-appelbnt Ko Maung Gyi,
who was actually in possession of the suit land, the
same question 0f fact would arise, namely, whether Of
not M.R.M.lvL Chettyar was the owner of the suit land'
~t the time' of its"sale to the plaintiff-respondeiHs,
Further more, the relief which the plaintiff-respondent
claimed ag8inst lvI.H.M,M. Chetty81 must be deemed
to be in tbe 8lternative to the 'relief which they claimed
_:~.
(1) 6 Ran. p. 29. (2) 4i Mad. p. 150.
 1950] IWRMA LAW REPORTS. 159
1
1f as against the defendant-appellant Ko Maung Gyi. H.C.
~
r;? 1950
Hence IVJ.R.M.!vI. Chettyar was a proper party in the
) Ko MAUNU
suit by the plaintiff-respondents for the poss'lssion of GYI

>, the land in dispute. MAU~G

V.
NYI

~ In Serojlll_Huq Khon v. Abdul Rahman (1) the W'E AND

ONE.
,~ plaintiff sued for recovery of possession of land against
defendant No.1 (the person by whom the plaintiff was U SAN
J\.1 .... Ui\6, J

dispossessed), after a declaration of his right as
purchaser from the defendant No.2, for an order for the
registration of the plaintiff's name under the Land
Registration Act, for mesne profits and also for a refund
of the purchase money from the defendant No.2 in case
,
the plaintiff's claim against the defendant No.1 failed.
The defence was that the suit was aad for misjoinder
of parties and causes of action, and the learned Judges
> of the Calcutta High Court observed at page 259--
" Theil, it is c1~ar [hat fhe de]e11donl No.2 is a 1l(ccssnry party
to the suit: for the plain/ijJ is bound Lo brillg il1 ;h~ defendont
No. Ziti auy suit ~'.!hiclt ht: brings a.~aillsJ th( dc-fclldtl1ll No.1 for
~ecO'l'cr'Y of possession of liz,: laml. Similarly, when he sues the
defendant No.2 for a refund of the mOl1~YI he is bound to brir;g
in the defendrmt No. 11 so that he may have it decided in the
presence of both parties that the defendant No.2 had no ]'ight to
sell. him Jhe land."

In the present case although it is true that the plaintiff-

respondents have not claimed as against M.R.M.M.
Chetlyar a refund of the money the observation
just quoted is not inapposite as it was held therein that
the plaintiff was bound to bring ill the defendant No.2
in any suit which he brought against the defendant
No. 1 for recovery of possession o( the lanel.
:? Having been joined as a party defendant in Civil
Regular Suit No. 110 of 1947 M.R.M.iV!, Chettyar :lad
acquired an interest in the result of the suit although
(1) 29 Cal. 1'. 257.

.'
 160 BURMA LAW REPORTS. [1950
H.C. no decree was passed against him. The decision id
1950
that suit as well as that in any appeal arising therefrom
1\0 ~J,\'l;'::(j
GYI
would 0Ferate as res judicata as between lVI.R.M.M.
V.
l\'IAUNG NYI
Chettyar and Ko Maung Gyi who were co-defendants -(
NC;E AND in the suit as (1) there was a conflict of interest bet:,veen
OXE.

. USA\!
:\IAUNG. J.
them, (2) it was necess~ry to decide that conflict in
order to give the plaintiff the relief which he claimed
and (3) the question between them was finally decided.
See MlJJmt Bibi v. Tirtok! Nath and others (1). The
question which had to be decided was whether or not
the suit land belonged to M.RM.M. Chettyar or to
Ko Maung Gyi at the time of its sale to the plaintiff-
. respondents.
The case of Ida On Thin Y. Ma Ngwe Yin and
another (2) cited by the learned Advocate for the
defendant-appellant is distinguishable inasmuch as
in that case th0 respondent in the appeal did not derive
his interest through the party who was not joined as a
party respondent in the appeal. The case of Laliliajee, ,
ami anal/Iei' v. S"i" Dass {illil another (3) is ;lIs6''I
distinguishable in that in the suit giving rise to the
appeal in that case the suit was dismissed as against the
first defendant so thai this defendanl could not be
deem'ed to be interested ill the result of the appeal at
the time when the period of limitation for an appeal
against him had expired and therefore his joinder as a
respondent to the appeal bv the second defendant was
not necessary. In Arutay! and others v. Raklia
KudulIlban (4), which was strongly relied upon by the
the learned Ad\'ocate for the appe1l:inl, a suit was
brought by A against Band C in wl1ich he
claimed certain plot of lan(1. C claimed it as vendee
from A and the .trial Court held that A was the owner'
and B was not. An appeal was filed by C in which A
(I) 58 l.A. p. 158.
(2) I.L.R 7 Han. 3?S.
(3) .~.J.R. (1940) Rall. 97.
(4) A,I.K (1938) Mad. 501. .,'"

<,
 19S()] BURMA LAW REPORTS. 161

alone was impleaded as the respondent with the result H.C.

1950
that B was not a party on the record in the appeal. It
I Cour t' s d ecree nega t"IVlllg
was con ten d ed tl1at tl1e t na Ko M AUNG
GYI
B's title became final in the absence of an appeal by B IVI.\UNG NYl
and operated as a bar to C's atte-mpt to r,"open that NGE AND
ONE.
decision and it was held by Venkatasubba Rao and
Abdur Rahman JJ. that the trial Court's finding ~~u~,-;;~ J.
negativing B's title did :not operate as res judicata
against C who claimed through B. In coming to this
decision the learned Judges distinguished the case dealt
with by them from the case of Clzokalingam Clzetty v.
Seethai AcId ( I) in the following words:
" In short, the basis of the Privy Council decision is the fact
that there was a finding in favour of defendant 1.. ., there, who was
not impleaded. Here, as already sho\vn, the position is the exact
opposite; the person who is not impleaded is the one ag~:linst
whom there is a finding. The difference may be thus "illustrated.
>( In the Privy Council the finding in favour of defendant 1 became

~
final. Supposing the plaintiff shoud succeed in his appeal, what
would be the effect? There would be a finding against the
J
1 ":n1aining defendants that they obbinec1 no valid title. Th~it
\vould be inconsistent wi th the other finding in favour of defenc1'lnt
1, '.vhich had been allowed to become final. On the finding of
the Appellate Conrt, the other defendants wonld have a right of
_action against defendant 1 for breach of covenant of title; but, on
the findinR of the first Court, defendant 1 had and conveyed a valid
titie-the resulting position being inconsistent and incongruous.
In the present case, by defendant 1 succeeding in the appeal
(which in fact has happened) the absent pariy:sllffers no prejudice,
but on the contrary gets a benefit."
Al'ulayi's case (2) is distingllishable from the present
inasmuch as in the event of the defendant-appellant
Ko Maung Gyi succeeding in his appeal the absent party,
namely, M.R.!VI.M. Chettyar, would get no benefit, but
on the contrary suffer a prejudice. For these reasons
I hold that !VI :R.M.M. Chetty;r was a necessary party
in the appeal by the appellant Ko Maung Gyi against
11) I.L.R. 6 Han. p. 29, (2) A,I.R. (j93811\1,d. $01.
u

l~
162 BURMA LAW REPORTS. [1950 .

H.C;. ,the hldgment and decre\l in Civil Regular Suit No. 110
'1950
.of 1947 of the Court of First Subordinate Judge,
Ko "~IAUNG y'
, GYI' ame't'h'111. .
v, In the result the appeal fails and must be dismissed
MAUNG Ny] " '{
NGB AND with costs, Advocate's fees two gold mohurs.
ONE.

U SAN
MAUNG, J.

"
"

 1950J BURMA LAW REPORTS. 163

APPELLATE CIVIL.
Before U Thein Matmg, GMt! II/shee, ami U San Mmmg, J.

ESOOF GOLAM MOHAMED PIPERDI (ApPELLANT) B.C.

1949.
v. Dec. 5.

ARIFF MOHAMED BHAM AND O:-lE

(RESPONDENTS). *
Appeal-Points oj law-When can be raised lor tlte first t;me-Esloptcl-Whal
constitutes estopPel-Sale by one oj lite G.well/ors.
When a question of law is raised for the first time in an appeal upon the
construction of a document or upon facts admitted or proved beyond COJltro-
versy, in the interest of justice, the plea should be entertailled~ But the course
ought not in any case to be followed, unless the court is satisfied, that the
evidence upon which the COllrt is aske~l to decide. establishes beyond doubt
that the fads. if. investigated would h:1Ve supported the new plea. The
evidence given on one point cannot be interpreted or treated as eVidence of
another point not raised by fhe parties in the frial court, where evider;ce is
'" neccs:mry, ,'1r is not complete, l'ermission fa ral3e a new point will not be
granted.
COIl1Jeclicut Fire !IlSlIrtltJCe Co. v. KflvaIJllgh, (1892) A.C. 473; Ram Kinker
,. ''?ni and fluotlter v. Tllfmd Allir ami others, A.I.R. (931) All. 35 (F.B.) ;
A.R.M.N.d. Chcttyar Firm v. RN.V.S. Cliettyar aud athel"S, (1938)
R.L.R. 256: M. E. Moo/ht Sam, Ltd. v. Burjorjee, (1932) l.L.R. 10 Ran,
242, followed.
If a perSon by word or conduct has intimated. tha.t he ,consents I to an act
which had been done or that he will not offer opposition, he cannot then
qt1esiion the legality of the <lct, afterwards.
CaJmcross v. Lorimer, (1860) 3 l>.hcq. 8li at 829. followed.
'Where there are s{fveral executors, and nne of them only proves the Will
and is granted Probate then1he is the only person who can deal with Jhe estate,
where the power of management was given to executors jointly and severally,
one of the executors who proved the 'Viii can sell the properties of deceased .

Dr. Ba Han for the appellant.

.
Dr. Thein for the respondents.
U THEIN MAUNG, C.J.-This is an appeal from the
decree dismissing the appellant's suit for declaration
that the deed of sale by which he sold certain
'* Civil First Appeal No. 4l of 1949 aga.inst the decree of the District Court
9f AlPhers~ in qVil Suit No: 6 of 1946~ d<1ted llie 3rd May 1949;
 ,
164 BURMA LAW REPORTS: [1950
H.C. immoveable property to the 2nd Respondent was null
1949
and void and for recovery of possession of the said
ESOOF
GOLAM property from her.
MOHAMED
PIPERDJ
The property in suit is a -io share in what may r
ARIFF
v. conveniently be referred to as House No. 69, Lower
MOHAMED Main Road, Moulmein. It originally belonged to
BHAM
AND ONE. M. S. Mitchella, two of whose children arc Aisha Bee
U THEIN
Bee, 2nd Respondent and Adjim Mitchella, vVitness
!llAUNG, C.]. No.3 for the defendants. It was sold at a public auction
sale held on the 11th January, 1940 to C. M. Bham
who is a son of the 2nd respondent for a sum of
Rs. 19,000 only. Subsequently, C. M. Bham agreed
with his brother Ariff Mohamed Bham, the 1st respon-
dent, that the latter should pay for and take the
property. However, the 1st respondent was unable to
pay the sum of Rs. 19,000 then. So he asked
M. C. Jeewa to pay the said amount and purchase the '-r-
property in M. C. Jeewa's name and also to pay him
Rs. 500 in cash to meet the expenses. M. C. Jeewa i~.
a bIOther-in-law of Adjim Mitchella as the latter haL'
married his sister, Ameena Bee Bee. . So he agreed [0
pmchase the property as requested and thereby
heip Aisha Bee Bee, the 2nd respondent. (See the
evidence of M. C. Jeewa's elder sister, Hawa Bee
Bee, vVitness No. 1 for the Plaintiff). Thereafter,
M. C. Jeewa, C. M. Bham and the 1st respondent
entered into the agreement, Exhibit A, dated the 28th
February, 1940. The said agreement contains a clause
to the effect that the 1st respondent might purchase the
said property from Tv. C. Jeewa for Rs. 19,000 within
5 years from thc date thereof. It also contains another
clause to the effect that the 1st respondent must repay
tlu: sum of Rs. 500 "during the period of this agree-
ment or when it becomes llull and void."
M. C. Jeewa purchased the property in pursuance
(If the said a~reement am] ~ot it transferrt;q 19 hirp. by;
 1950] BURMA LAW REPORTS. 165
the H.eceivers who sold the property at the public H.C.
1949
auction as per Exhibit 1, dated the 27th March ESOOF
., 1940. GOLAY
MOHAMED
~I. C. Jeewa died on the 12th November, 1943, PIPl-;RlH

leaving a Will, Exhibit B, dated the 28th August, v.

ARIFF
1943. In that Will he appointed the appellant and MOHAMED
BHAJ',f
Haji Momin Bee Bee, who is his own sister and the AND ONE.

mother of the appellant, to be the "executor and U THEIN

executrix respectively and trustees of this my vVill." MAUNG, C.J,

He also wrote therein, " my said executor and executrix

shall look after and manage my estate properties
either jointly or severally for the benefit of my
estate."
Thereafter, the appellant in his capacity as executor
to the Will of M. C. Jeewa sold the said property for
Rs. 19,500 only to the second respondent by the sale
t deed dated the 1st July, 1944, Exhibit 2, which contains
recitals to the effect that it was being sold in accordance
with the agreement, Exhibit A, and that the transfer
g .vas being made to the second respondent not only
with ti,e consent but also at the request of the
1st responden:. This transfer was during the period
of the Japanese occupation and the sum of Rs. 19,500
was paid in Japanese currency j and the suit, out of
which the present appeal has arisen, is one for
declaration that the sale by Exhibit 2 is null and void
On the ground that the plaintiff-appellant , l never freely
consented to the execution thereoL" The grounds for
such declaration as set out in the ame'1ded plaint are
as follows:
"6. That subsequent to the doath of the said deceased, the
1st defendant with the help and connivance of the 2nd defendant
and others used to threaten the plaintiff as Executor of the estate
of the said deceased as well as the member of his family to the
effect that unless the plaintiff reconveyed the suit properties to the
1st defendant or his nominee, he, '~he 1st defenc1ar::t, would report
166 BURMA LAW REPORTS. [1950
H.C. to the Japanese Military Police that they Were pro-British and had
1949
in their possession large sums of Bdtish currency.
ESOOF
GOLAlIl
* '*' ~
:MOHAMED 11. The plaintiff contends and submits that he as Executor of
PIPERDI the estate of the said deceased is not bound by the Deed of 'I
v.
ARIFF C"nveyance dated the 1st day of July, 1944, as he had never freely
MOHAMXD
consented to the execGtion thereof. On the contrary, he submits
BHA!tf
AND ONE. that the defendants and otl;ers at their instigation exercised
coercion and undue influence over him, and forced him to
U THEIN
MAU~G, C.J. e~ecutethe said Deed."

With reference to paragraph 6 of the amended

plaint the plaintiff-appellant has filed particlllars,
paragraph 2 of which reads :
II The others who used to threaten the plaintiff are Arjim
Mohamed Salay' Mitchella and Khatiza Bibi who are the brother
and sister of lhe 2nd defendant."

The defence which was common to both the

respondents is that the plaintiff-appellant accepted the "
purchase money and conveyed the property of his own
free will. ")
The main issues for decision in the trial Court were
Issues Nos. 2, 3 and 4 which are as follows:
"2. Was the deed of sale on the 1st April 1944 executed under
coercion. threat and undue influence as allegec1lin paragraph 6 of
the Plaint?
OR
3. Was the deed of slle effected by his own free will ?
4. What is the legal effect of the sale? Is it valid or void in
law? fl

The trial Court has decided all these i~sues in

favour of the respondents and dismissed the suit;
hence this appeal.
The first contention of the learned Advocate for the
appellant~ is that the learned District Judge should
have held that the deed of sale was executed under ..\
 1950J BURMA LAW REPORTS. 167

coerCIOn, threat and undue influence as allegcd' in R.C:

1949
paragraph 6 of the plaint. However, after a careful
examination of the evidence, circumstances and proba- ESC?PF
GOLAM

.
MOHAMED
bilitks, we have come to the conclusion that the PIPE~Di
learned District Judge is right in holding that the ARIFF
appellant executed the sale deed of his own free will.' lIoA"tof1!P
BHA;\I
In his examination-In-chief the appellant improved ANomm:
upon his statement in paragraph 6 of the. amended' U THEIN,
plaint and deposed: MAUl\;G I C'.T.

" Mitchella anel Bham saiel that if we elielnot accept Japanese

currency they would report the matter to th e .three authorities
that were then in po\ver, namely, the Japanese Administration, the'
Burmese Government and the I.N.A."

He has also added-

(I \Vhen my mother and aunt learned then that! the matter
t would be reported to the authorities if we did not accept Japanese'
currency, thfY said' \ve have no option but to accept Japanese
currency.' I then went and -col1fultec1 a lawyer Mr. Jabbar who
;c:;/ t6>1 me tbat I would have to accept the Japanese currency.'
Accordingly the suit property was conveyed to the second
defendant 'under a Registered Deed which was drawn up by
Mr. Jrthbar."

His allegation about the threat to report to the

three authorities is not supported by his witnesses
Mogul Ahmed ancl Abdul Klnliq (P.Ws. 1 and 2)..
Mogui Ahmed, In whose house the appellant,'
- Momin Bibi ancl Hawa Bibi lived, merely deposed
" Ariff Md. Bham then brought with him some Japanese'
currency. He sent lor the plaintiff. and said' I have
brought muney for payment.' Th.e plaintiiI promptly
replied 'I don't agree. I am not goIng to accept the
Japanese money.' Ariff Md. Bham .then said to.him
'You cannot refu,e to accept. If you do so I ab1
going to report the matter to the officer.' After that
, the two. visitors and the pl,\intiff went off to see
 .'

168 BURMA LAw REPORTS. [lI)S()

H.C. Mr. Jabbar.' Abdul Khaliq, whose house was built

1949
by M. C. Jeewa, deposed (Piperdi asked them
ESOOF
G of, \?<I wha~ money they had brought. Ariff Bham said
1\101U\ VE.O
PIPERDJ.
that they had brought Japanese currency. Piperdi '(
Y. ~;aic1 to him (I had to pay English money and
AmF7
MORl,"" I cannot accept Japane.se money. If you are unable
BIt: "
A~D Ddt!:, to pay British money now, do not pay now. You
U 'L ,'"
can make payment only when you are able to, pay
MAUl'r0, r~,J. tbe 'price in British currency.' Upon that Ariff Md.
Bham said ( I have brougbt money. You must accept
it and if you refuse I will bring the matter to Japanese
M.P.' When he made that threat Mogul Ahmed and
I were present. One Burmese goldsmith also was
present. Upon tl,at threat, Piperdi went off saying
that he would consult his mother and elderly relatives.
in C\ short time he came back, and together with the
two visitors he went Jff in the direction of Chaungzon." ~

On the other hand the appellant's own mother

Momin Bibi has deposed (( They did . not bring then
..~

Japanese currency but they brought on the thild

occasion and on this occasion only the first defendant
said that if the Japanese currency is not accepted,
report will be made to the authorities concerned. This
time I h,td direct talk \vith first defendant but with
Azim Mitchella from behind the screen. Both of
tbem told that they wopld pay through proper
;',ulhorities, l'iz., through COl/rl. At that time my elder
brotber Hazim Cassim Jeew", my nephew Hashim
MitcheUa, hopse owner Mogul Ahmed, Khalik and
others were present. On that occasion only plaintiff
accepted the Japanese currcncy, after' the first
defendant stated that he would pay through proper
authorities. Then they all went to Mr. Jahbar and the
money was paid theTe."
According to the above extract, the first respondent,l
and his father-in-law Adjim Mitchella, who is her own~
 1950] BURMA LAW REPORTS. 169
brother-in-law, merely said that "they would pay H.C.
1949
through proper authorities viz., throughlCourt." They
ESOOF
'said it in the presence of several others including her GOLAM
fl.IOUAMED
elder brother and nephew and the two witnesses
'" Mogul Ahmed and Khaliq ; and she does not even refer
PIPERDI
v.
ARIFF
to what they said as a threat. She also says tbat they MOHAMED
flUAM
all then went to Mr. Jabbar and that the money was AND ONE.

paid there, i.e., before Mr. Jabbar. . U THEIN

M'AUN6, C.] ."
Mr. Jabbar is a Higher Grade Pleader who had
prepared and attested the Will Exhibit B j and the
appellant's own allegation" I then went and consulted
a lawyer Mr. Jabbar who told me that I would have to
accept the Japanese currency" tends to show that the
threat, if any, was just to pay throclgh Court as stated
by his mother Momin Bibi. Besides it is quite clear
from the appellant's own statement "Accordingly the
SI~t property was conveyed to the second defendant
under a registered deed drawn up by Mr. Jabbar," that
in transferring the prop0rty he was acting on the legal
" ';advice given by Mr. Jabbar.
Mr. Jabbar (D.W. 2) has denied that the appellant
ever came to him for opinion as to whether Japanese
money should be accepted or not; but he has also
stated" The plaintiff Piperdi executed the document,
of his own free will and accord and accepted the
consideration of his own free wilL"
As regards the surrounding circumstances, the
op~ion of purchase was to be exercised within five years
from the date of Exhibit A, i.e., within five years from
the 28th February, 19~0 ; and the purchase in exercise
of the option is by Exhibit II which is dated the 1st July,
1941-. So the option was exercised just about eight
months before the expiry of the prescribed period.
The first respondent's case is that the appellant himself
reminded him to repurchase the property, that the
appellant even visited Pein.Jegon with him to see his
 ., .
170 BURMA LAW REPORTS. [1950

H.C. mother about the matter and that his mother had to sell
1949
her jewellery for the pu rpose of renurchasing the
ESOOF
GOT-AM property. The appellant admits" one day, during the'
JV~~~~~;~ rains in 1944, before the repurchase of the property the '(
. v.
ARiFF
first defendant took me to Peinnegon 10 his molher
MOHAMEU in connection with ~be same property"; and
A~~~~E. , E. A. Mitchella (D.W. 4) has given evidence of his
u D;';;JN having sold her jeweilery for Rs. 21,500 as she was in
'MAUNG, c.]. 'need of money to repurchase the properly.
"
Having regard to tbe relationship between the
parties and having regard to the fact that the testator
M. C. Jeewa had bought tbe property in his name
just to help the second respondent, the probabilities
are tbat the appellal1t reminded her and her son as
alleged.
H?ving regard to the relalionship of the parties
and having regard also to the fact that the fir4lit "'-
respondent's wife Halima Bibi was then living with the
appellant, who is her cousin, and Momin Bibi, who is ,
her aunt, it is highly improbable that they would have .
.. "

been threatened as alleged in paragraph 6 of the

amended plaint or al all. In fact there might not hav~
been any necessity for any such threat at all inasmuch as
... --- (1) tbe appellant's rnother had admittedly red~emed a
mortgage of tbe same property with Japanese currency
although the mortgage was effected before the war and
the~efore on a loan of British currency, (2) the appellant
himself had admittedly bough I a house and some paddy
lands'in 1944 paying for them in Japanese currency
and (3) the appellant bas staled" During the Japanese
occupation all sales and purchases were made with
Japanese currency."
, We I1lUst add (1) that the appellant has not made
any attempt to prove that Khatiza Bibi threatened him
at all although according to his particulars she was on e ,
of those who used to threateu him, (2) that there is no
 . '.
1950] , BURMA LAW REPORTS. ' 171
evidence whatsoever of the relations between the parties H.C.
1949
and their relatives having been strained in any way
., after the alleged threat or coercion and the resale, aESOOF
OLAM
(3) that the lawyer's notice for cancellation of the sale- , MOB,"lED
. PIPEIWI
.deed for coercIOn 'and undue 1I1fluence over the v,
appellant, without reference to coercion or undue M~:~~;F.D
influence over any other person, is dated the 23rd ANDHilA" O~E.

September,1946 (see Exhibit 3) although Moulmein T -.-".,

was admittedly reoccupied by the British on or about M~U;;:,"C.J.

the 1st October, 1945 and (4) that the notice was given
about two months after the Japanese Currency
(Evaluation) Act, 1947 had come into force.
The case for the appellant in the lower Court was
that the sale deed was voidable on "lccciunt of threat,
coercion and undue influence, the particulars of which
were set out in paragraphs 6 and 11 of the Amended
Plaint and in subsequent Particulars. He also stated
in paragraph 15 of the Amended Plaint," The cause of
action arose during June and July, 1944 when the
i'-.' c: ~fendants exercised coercion and undue i1!fluence
against the plaintiff as explained in the foregoing
paragraphs hereof." However, the learned Advocate
for the appellant has asked for permission to raise a
question, which tvas not raised in the District Court at
all; as to whether the sale deed Exhibit 2 is not void
or voidable for the reason that the appellant alone
could not sell the property. He has referred us to
COl'meeticut Fire Insurance COinpany v. Kavalla!:)l
(1) j Ram Rinker Rai and another v. Ttlfani rlhir a.nd
others (2); and A.R.M.N.A. Cheltyar Firm v. R.M.V.S.
Cheftyar cnd others (3) as authorities for the view that
such a question can be raised on appeal.
The first case was one in which their Lordships of
the Privy Council held that the appellants, whose
(1) (1892) A,C. 473. (21 A.1.R. ([931) All. 35 IF.B.).
13) (1938) R..L R. 256.
 ., .'

172 BURMA LAW REPORTs. (l9S0

H.C. charges of fraud and deceit had failed, could not be

1949
allowed in final appeal to contend for the first time that
ESOOF
GOLAM
the pleadings and evidence disclosed such negligence
MOHAlI1ED or breach of duty by the respondent as their agent as ,
,
/

PtPElml
v. was "in law sufficient to make him liable. Their
ARIFF
MOHAMED
Lordships did observe t!Jerein :
.BHA]\[
AND ONE.
U \Alhen a question of law is raised for the first time in a court

U THEIN of last resort, 1:-,pon the construction of a docump,nt, or upon facts

MAUNG
' c.). .h
elt iButte
er ac ' d or proved beyonc1 controversy, 1' t 'IS no t on Iy
competent but expedient, in the interests of justice, to entertain
the plea."

But their LOidships have carefully added:

lC The expediency of adopting that course may be doubled,

when the plea cannot be disposed of '" Hhout deciding nice

C(uest;ons of fact, in considering which the Court of ultimate
review is phcec1 in a much less ac1v~mtageous position than the ""
Courts below. But their Lordships have nO hesitation in holdill~
that the course ou~ht not, in any case, to be followed, unless the <,
Court is satisfied that the evidence upon which they are asked tr'.'
decide establishes beyond doubt that the facts, if fuily investigated,
would have supported the new plea. To accept the proof
adduced by a defendant in order to clear himself of a charge of
fraud, as representing all the levidence which he could h,lve
brought forward'in order to rebut a charge of negligence, might
be attended with the risk of dE>lng injustice."

The second case was one in which the Full Bench

refused permission to raise a new question and
dismissed the appeal. There the appellants' case
originally was that defendant No.3, Mt. Batasi
had no right to grant the lease as her husband
died as a member of the joint f",mily; and they
were not allowed by the FuJI Bench to raise the
alternative question that, even if her husband was
separate from the plainfIffs, she could not grant
the lease.
 1950J BURMA LAW REPORTS. 173

However, the case has been cited as the Full Bench H.C.
1949
observed in the course of its judgment therein:
ESOOF
'. GOLAM
"A point not taken in the Court below, whether the l\JOHAMED
r omission '.. . as by the appellant in that Court or whether the PIPERDI
V.
respondent failed to support his decree by taking the point, will ARlFF
1\'IoHAMEn
not be permitted to be raised, except possibly: DBAl.!
A!'\D ONE.
1. Where the point may be described as involving a
question of public policy e.g., U THEIN
MAUNG, C.].
(1) involving jurisdiction j
(2) involving the principle of res judicata;
(3) where the decision of the point would prevent future
litigation.
In the above instances the point will be allowed to be
argued 011/y tf it can be dceid~d upon the materials befol'e the emlrt
and does not i!lVolve the taking of further evidence, or the sending
of the case , or any issue, back to the lower Court, or a c1el~ision
of a question of fact.
II. vVhere the plaint discloses nO canse of action, or the
written statement, no ground of defence. it is not a ground for
:-J' ,~rmitting a new point to be argued, merely:

(l) that it was omitted by oversight in the Court

below; or
(2) that the matel'hls are all on the record ancl that
the answer to the point is plain."

In the third case the appellant was not permitted to

raise the question of law as to whether the security bond
executed by a guardian-ad-litem of minors was not void
on the ground that the guardian had no authority to
dispose of their property as (1) the appellant's suit
"was based upon allegations tending to show the
fraudulent and collusive nature of the transaction
culminating in the execution of the security bond"
and (2) "the question as to the validity or
otherwise of the security bond depends upon certain
state of facts which the materials on the record
ar~ insufficient to en<\ble Us to determine on~
174 BUR'MA I AW REPORTS. [1950

H.C
1949
way or the other." Mya Bu J. observe.d in the course
of his judgment therein:
ESOOF
GOLAM H The principle therefore is that a question of law raised for the
?10HAMED
PIPERnI first time in a court of last resort sh6111c1 receive consideration only 'f
v. if it is based upon facts either admitted or proved beyond
ARIFF
r..IOHAMl!D controversy. "
BHA:\1
AND O:-iE.
In the last case there is a reference to M. E. Moola
U THEIN
MAUNG, C.],
Sons, Limited v. Bmjorjee - (1). In that case a claim
was made against a company in liquidation for damages
for breach of contract to purchase immoveable property.
The only question in issue in the Courts in India was
whether the purchaser named in the written agreement
contracted on his own beh"jf or as agent for the
company. Upon an appeal to the Privy Council by
the liquidator he contended for the first time that the
agreement was inoperative as it was unregistered. .
",
The facts before the Board indicated, but were
insufficient to determine definitely, that there had been
a course of conduct, or an agreement, by the liquidate:" 'J"
precluding him from raising any point. except that
dealt with in India. In thc circumstances above stated
their Lordships of the Privy Council refused to
cOlisider the contentioll as to non-registration.
In thc' present case, there
.
are facts and circumstances
.
which indicate that, if the appellant had raised the
question as to the validity of the sale deed on the
ground of his having had no right nor authority to
scn the property by himself, the respondents might
have been able to plead and prove estoppel under
section 115 of the Evidcnce Act which and the
illnstration to which read:
H 115. vVhen one person has, by his declaration, aet or
omission, intentionally caused or permitted another person to
believe a thing to be true and to act npon such belief, neither he
- _..
(I) (1932) U ...H. 10 Han. Z4~.
 1950] BURMA LAW REPORTS. 175
nor his representative shall be allowed, in any suit or proceeding H.C.
1949
'behveen himself and such person or his representative, to deny ..,..,..
the truth of that tUng. EsooI<'
GoLAM
lillis/ration. MOHAMED
. A intentionally and falsely leads B to believe that certain land PIPEHDr
v.
belongs to A, and thereby induced B to buy and pay for it. AmFF >-
The lanel aftenrards becomef' the property 1 and A seeks MOHAMED
BHAM
to set aside the sale on the gronnd that, at the time of the sale, MID ONE.
he had no title. He mnst not be allowed to prove his want of
U THEIN
title. Jl MAUNG, C.].

In fact the evidence and the circumstances indicate

that the respondents might be entitled to the benefit
of protection by section 41 of the Transfer of Property
Act, even if the validity of the sale were questioned by
the appellant's mother Momin Bibi. The section is a
statutory application of the law of estoppel, the general
principle of which is thus stated by the House of
Lords in Caimcross v. Lorimer (1) :
H If a man, either by wonIs or by conduct, has intimated

that he consents to an act which has' been clone. and th'lt he will
;, : "JEfer no opposition to it, although it could not have been lawfully
done without his conse11t, and he thereby induces others to do
that from which th~y might have abstained-he cannot question
the le~alHy of the act he ,had so sanctioned-to the prejudice of
those who have so given faith to his words or to the fair inference
to be dm W11 from his conduct."

Besides, the learned Advocate for the respondents

has mentioned that the appellant alone has proved the
Will, Exhibit B, on the 4th July 1949 and got probate
thereof on the 10th August 19+9, i.e. after the
decision of the suit and during the pendency of th e
appeal, il'. Civil Miscellaneous No. 14 of 1949 in the
District Court of Amherst; and this statement of fact
is not denied by the learned Advocate for the appellant.
As a result of probate having been applied for
and obtained by the appellant alone, his mother
(1) (186,0) 3 M.c~. 827 at 829,'
176 BURMA LAW REPORTS. [1950

H.C. Momin Bibi is no longer entitled, as a joint executrix,

~.~4J
to question the validity of the sale; the title, which has
ESOOF
GOLAM
vested il' the appellant alone, may feed the estoppel
l\IOHA\IED
PIPERDI
under section 43 of the Transfer of PrQperty Act: a~d '(
v. section 227 otthe Succession Act read with section 311
ARIFF
MOHAMED thereof may have the salJle effect.
BHAM
AND ONE.
So permission to raise the new question must be
refused even according to the principles which have
V THEIN,
MAUZ\'G, C.J, been laid down in the rulings cited by the learned
Advocate for the appdlant. To accept the proof
adduced by the respondents in order to clear
themselves of the charge of threat, coercion and undue
influence as representing all the evidence which they
could have brought forward in order to meet the new
plea might, in the words of their Lordships of the
Priv~' Council, be att~nded with the risk of doing
injustice. vVe are not at all satisfied that the evidence ,.
before us "establishes beyond doubt that the facts, if
fully investigated, would have supported the new plea."
. The question being allowed to be raised at this stagl '/:..~

will necessarily involve not only the taking of further

evidence or the sending of the case, or at least some
issues, back to the lower Court but also decision of
rlew questions of fact.
vVe clo not think that there is any risk of injustice
in refusing permission to raise the new question at all
inasmuch as clause 2 of the vVill, Exhibit B, provides
" That my said Executor and Executrix shall look after
and manage my estate properties either jointly or
severally for the benefit of my estate." The appellant
himself has maintained in his evidence-in-chief " I was
appointed Executor and my mother Executrix; and
acc0rding to the terms of the will we could act either
jointly or severally."
The learned Advocate for the appellant has referred
. )
\.Is to seetlO11s 65.'\ an~ 76 (q) of tl1e Tr~nsfer of
 1950] BURMA LAW REPORTS. 177
Property Act in connection with the meaning of B.C.
1949
".man~gemeJlt." However, these sections relate to the
Ef;OflF
mortgagor's power to lease and the liabilities of a GOLAM
MOHAuEn
;. mortgagee in possession; and there is no reason why PIPtcHUI
. ' , the power of management of an executor should be so v
..\HfFF
, limited as tbat of a mortgagor or a mortgagee. On MOH ..!,:\IEJl
BUAM
the other hand we are of the opinion that an executor AXD OXE
can in the course of his management of the estate U THEI~
of the testator sell any property in the said estate in l\fAUW<T, C.].

accordance wilh an agreement for sale thercof which

was entered into by the testator himself.
VVe accordingly refuse permission to raise the new
question and dismiss tbe appeal with costs.

U SAN MAUNG, J,-I agree.

',"
., '.-'
,~~

12
178 BURMA Lf.W REPORTS., [1950

APPELLATE CRIMINAL.
Bt'faJe U ThLiu Manng, Chief Justice, and U Sa1J Ma1l11g, J.
~l

H.C. BA PE AND ONE (ApPELLANTS)

1950.
Jm~. 21.
V.
THE UNION OF BURMA (RESPONDENT)."
Evidence. Jr.!, 55.30, 101 alld 133-Co/lfcnioJl of a co~a~wsed mid lestimouy
of (I1J approvu-DislincUoll-Crjmillal Procedure Code, s. 342 (I) (2)-
Sia/ell/elli and evi'/eltcc of a CtH1CCI/sed !tow far Wit be used lIgl/iJJs,t
allo:hcr.
Held: That the. confession of a co-accused is not on the same footing :\5
testimony of all approver which is stlbstantive evidence in the sense that
conviction can be based In it alone under s. 133 of Evidence Act. 1
there be no prima facie evidence against an accused person, confession of a
co-accused should be excluded It cannot be used to fill lip the gap in the
evidcltce of the prosecution.
Khaw To'w 11ml olle v.1'hc UII;OllO! Burmll, (l9~S) B.L.H. 310, followed.
Similarly evidence ~i':en by a co"~cct1sed under s. 342 (1) as amended, i
of the Code of Crimin;l.l Procech\re IJl<ly he llsed as a.t!,"ainst a coaccused 'when
1hec0-a,:.cll'cd h;).J npporllmity 10 cross~t::xamine and of c:llling e\idence in
1'ebultaJ. ,~'''- ;.
U Sm,' and /line llihers v. T/le Ul/iOIl of Blll'lI/a, (19~S) R.L.R. 217; II,
followed.
Po Hall and TOil Ei v. The ](i1Jg, (194i) R.L,R. 31<JJ distinguished"
But it is a fund:l.lnenlal principle that in a criminal trial the burden of
llro0f lics-on the prosecl1tiontoestablish the charge beyond reasollable doubt
and lhi$ principle has been recognizcd in s. 101 and illustration fa) to tha"t
scction t,,!,!:e:her with definition of ' proved' ill s. 3 of Evidence Act. \\'here
an accused pcrson should have b:"cn c!i:,ch:lr~cd [01" \\"aot of prima facie
evi(\enre <1g<1inst him. the eO'ld should nolllse the evidence of a cO-<iCCnsed
given under s. 342 (I) of lhe CoJe 0[ Criminal Procedure to fill 111' the g~ps
in 1he prosecution. The word used in s. 342 (1) is may and not 'shall. I

King-Emjleror v. U U.Jllurpnla, 1-1- I.L.R I\'an. 666 (F. B.) 681, followed.

L. ChoMl FOllg (Government Advocate) for the

respondent.
U SAN MAUNG, J.-The two appellants Ba Pe and
Khin Maung and their co-accused Maung Pay, who
* Criminal Appe:ll No. 29-.J- of 19+9 being: app-::al from order of Additional
Special Judge of 116nywa, dated 25th JlIly 19~9 passed in Criminal ReguJ;\r;-
Trial No. SO of 1948. I
 1950] BURMA LAW REPORTS. 179

has not appealed, were sent up for trial uuder section H,C.
1950
302/3-+/394 of thr Penal Code in Criminal Regular
.
BA PEAi'D
" Trial No. 80 of 1948 of the Additional Special Judge, oNE
'" Monywa, bnt they were each, convicted under section THB
UXION OF
394 only and were fenlenced to various terms of BURMA.
imprisonment. However, sincc the alleged offence U SAN
under section 394 took placc on the 11th June, 1948, MAUNG, J.
while the Penal Code and Criminal Procedure
(Temporary) Amendmcl~t Act, 1947 (Burma Act
No. LXII of 1947) was still in force so far as
section 394 was concerned, the sentences were illegal.
Accordingly the two ilppellants :mel Maung Pay wore
asked to show cause why their sentences should not be
enhanced to death or transportation for life, vide
Criminal Revision No. 163A of 1949.
The facts of this co,se, which lie within a narrow
compass, are as follows: On the 6th lasan of \Vaso
last (11-6-48) the deceased Paw Tin, son of Ma Shwe Mi
(F"W. 2), a resident of J{udJ,w, went for a visit to a
;::,
neighbouring village of Kyabaing never to return alive.
His body was found on the road between lvIinywa and
Kudaw with more than a dozen dah cut wounds,
Minywa is a village si luated about a call distance to
the north of Kl1daw, The matter was reported by
U Ba La (P. W. I), Headman of Minywa, to Monywa
Police who at once started investigating the case, On
the 15th June,194+, U Ba U (P.W. 9), Sub-Inspector of
Police, !vIonyw,l, arrested the appellant Khin Maung
on suspicion, and ou the next day he arrested the
appellant Ba Pe and their co ,accused Maung Pay.
On the 17th June, 1943, both Ba Pe and Maung Pay
offered to point out to the Police Ihe places where
some of the properties exbibited in the case were
hidden. Accordingly Ba Pe and Mallng Pay tool,: l!le
Police and the search witnesses U Ba La (P.W. 11 and
U T<\\V (P. vV. 6) to the sever'll spots where Exbibits 1, 2,

1XO BURMA LAW REPORTS. [1950
H.C.
1950 3, 4, Sand 6 were discovered. Except for Exhibit 6
BA PE ANI>
(a blood stained dashe), which was fonnd in a dirt heap
O:-i:E about :l call distance to the north of Manng Pay's
'I':
THE honse, the exhibits, namely, the blood stained currency ,
UNION 01"
BUHlIfA. notes (Exhibit 1), the blood stained gold ring \
U SAN
(Exhibit 2), the bloqd stained wristlet watch with,
MAU:-'G, J. leather strap (Exhibit 3), the handkerchief (Exhibit 4)
and the dagger (Exhibit S) were fonnd at the places
actnally pointed ont by Maung Pay althongh the
appellant Ba Pe was with Manng Pay at the time the
latter pointed ont the places where these exhibits were
hidden. The blood stained cnrrency notes were
discovered in a ditch about 20 cubits to the west of
Manng Pay's honse. The blood stained gold ring and
wristlet watch were also fonnd there wrapped np in
the handkerchief. The dagger was fonnd in a hedge
to the north east of l\iJaung P,lY'S honse. As for the ~
blood sbined dashe (Exhibit 6) it would 'lppear that
after Manng Pay and Ba Pe had taken the search party
to the dirt heap abont a call distance to the north '~ff 7
c

.!.'

Manng Pay's hOl1se the actual'spot where this c1ashe

was fonnd '.1'as point0c1 ont by Ba Pe himself. On the
.f8th Jnne, 1948, Manng Pay's confession (Exhibit G)
was recorded by U Win Mallng (P.\V. 10). Subdivisional
Magistrate, Monywa. In that confession Ivlaung Pay
implicated the appeilants Ba Pe and Khin JliIaung for
the robbery of the exhibit ring and the wristlet watch
belonging to the deceased Paw Tin and Ba Pe for
the actual murder of the deceased. oi1 the 19th
Jnne, 1948, these properties were identified by
Ma Shwe i'vIi (P.\V. 2), the mother of 'Paw Tin,
and Ma Myi Yi (P.vV. 3), his sister, as those
belonging to him at an identification of properties
held under the supervision of U Tun Shein (P. VV. 7),
Myothugyi of Monywa. On the 28th Jnne, 1948,
the clashe (Exhibit 6) \\as sent by U Ba U (P.W. 91'

 1950J BtJR.MA LAW REPORTS. 181

to the Chcmical Examiner for the chcmical B.C.

1950.
analysis of the blood stain detected on the
BA PE A:'\D
dah. Unfortunately, the reply from the Chemical ONE
V.'
Examiner to the effect that blood was detected on [he THE
eNIO~ OF
dashe but that the amount of blood was not sufficient HemtA .
for futher examinati'on was flIed not as an exhibit, as
U s,u;
it should have been done, but among the papers in the MAUKG, J.
process file. On the 29th June, 1948, the case against
the appellants and Mallng Pay was sent up for trial
with the result mentioned above.
In the confession, Exhibit G, l\iIaung Pay mentioned
how about 4 or 5 days before the occurrence of this
case the appellant Ba Pe had prop03ed to him and the
appellant Khin Maung that they s;lOuld waylay and
rob Paw Tin of his properties, how their attempt to
waylay hiln O~l the night of the conspiracy was in
'. vain, how on the night this case occurred they verified
from Ma Shwc Mi, mother of Paw Tin, tbat P,tw Tin
h~d nqt yet returncd, how they went and waited at a
silot on the west of Kudaw vilJage, how Khin Maung
went into Kuclaw to verify.whether Paw Tin was still
there, how 011 Khin NLlung's return with the message
thatPaw Tin was coming out of Kuclaw Ba Pe ordered
that Khin Maung should precede Paw Tin while
Maung Pe and he (Ba Pe) would follow Paw Tin from
behind, how Maung Pay being ;,fraid did not follow
Paw Tin but was ncar cnough to sec Ba Pe go up to
Paw Tin and cu t him several times with elah, how
subsequently Ba Pe came with a wristlet watch, a ring
and Rs. 7 in cash saying that these were the properties
which he bad robbed from Paw Tin, how at Ba Pe's
request he had hidden them in a ditch near his house
in the presence of Ba Pe and how the dagger an d ti,e
dashe were hidden respectively in the hedge near his
JlOuse and in the dirt heap some distance away from
his house.

182 BURMA LAW REPORTS. [1950

H.C. Th is confession was more or legs adhered' to by

1930
Maung Pay in giving evidence on behalf of his own
B). !'E Al"U
oN ..: defence. However, as pointed by us in Kliaw Taw
v.
TilE
alld one v. The Union of Bur1l1a (1), the confession .,
UNION OF of a co-accused is not on the same footing as the I
BURMA.
testimony of an approver, which is substantive
U SAN
l\I.\n:G, J. evidence in the sense'that a conviction can be based
on it alone, '&'ide section 133 of the Evidence Act. If
there is no evidence against an accused pcrsoll or if
the other evidence on record is insufficient to
establish a prima facie case against him the confession
of a co-accused must be excluded altogether as it
cannot be used to fill gaps in the prosecution evidence
or to supplen1<"nt evidence which is otherwise
insuff1cient. Therefore in this case it is necessary to
see whether, apart from the confession of the
co-accused Maung Pay, the evidence adduced by Ihe
prosecution as against the appellants Ba Pc and
Khin ~laung is sufficient to cstablish prima facie that
they have committed offcnces punishablc under seet~:'n
. 1'

394 of the Penal Code or any other offence punishal>le

uncler that Code, and it seems de"r to us that there is
no evidence on record sufficient to establish such a
prima faci'e case as against tile appellant .Khin Maung.
There is, no doubt, the evidence of 1VI<J Shwe Mi
(P.\V. 2), mother of the deceased Paw Tin, that the
appellant Khin lVIaung came with a watch on the
evening of the day of occurrence to enquire if Paw Tin
was at home as he wished to send the watch for. repair
and was told that Paw Tin was away at Eyabaing.
Khin Maung again came with Maung Pw at about
lamp lighting time allCl again at child sleeping time to
enquire if Paw Tin had arrived and on both these
occasions Ba Pe was seen on the road. There is also
the evidence of i\ifaung Nyan Sein (P.VV. 4) to show that
~
."
/1) (l~181 B.L.n., p. 310.

 ..
1950J BURMA LAW REPORTS. 183

while he and P,IW Tin were drinking liquor at the H.C.

1950
house of Ma Km Shi of Kuclaw at a110ut lamp lighting
HA PE ANU
time of the clay of occurrenc Khin Maung came and ONE
V.
had a cup of liquor and at that time he had a dashe THE
UNION OF
with him. However, the fads discl03ed in the BURMA.
evidence of Ma Kan Shi and Maung Nya11 Sein as
USAN
regards Khin IVhung are not in themselves sufficient MAUNG, J.
to establisb prima facie that Kbin Maung bad anything
to do witb tbe robbery and the murder committed on
Paw Tin. Unless tbe confeosion of Khin Maung's
co-accused Maung Pay is made use of in the same
way as the testimony of an approver-which is not
permissible in law--there is nothing to connect
Khin Maung with the offence with which he has been
charged. Therefore Khin Maung should have been
discharged from the case at the time charges were
framed against Ba Pe and Maung Pay .
The case as ag'1inst Sa Pe, however, stands on a
different footing. Evcn excluding the confession of
,:.Maung Pay in so far as it Ins ilu1licated him, there is
, sufficient evidence to conncct Ba Pe with the crime
which was committed on the night of the 11th June,
1948. Only five days after tbat date both Ba Pe and
Maung Pay offered to produce the properties exhibited
in the case and in fact botb of them went together to
show the spots where Exllibits 1. 2, 3,4 anc! 5 were
found although the actml pointing out of these spots
was made by Mauog Pay. As regards the blood
stained dashe (Exhibit 6), it was found at the spot
pointed out by Sa Pe him3elf and although the nature
of the blood stain on the dah has not been determined
there is ample evidence on record to sbow tbat the
dashe was stained with blood. The ring (Exhibit 2)
and the watcb (Exhibit 3) have been satisfac;orily
identified by Ma Sbwe Mi (P.W. 2) and Ma Mya Yi to
be those belonging to tbe deceased Paw Tin, and there
 ..
184 BURMA LAW REPORTS. [1950
H.C. is the evidence of Ma Shwe !VIi that when Paw Tin
1950
left the hous~ on the day of occurrence he was wearing
BA PR A~[)
QNg the ring and the wrist watch which he used to wear
".
TIU: daily. By saying this !VIa Shwe !VIi undoubtedly "'j
1J:-;lOX of
BUR~I:\.
meant to refer to the exhibit ring and the wrist watch
as tbose usually worn by her son. That the exhibit
U SAx
M.AU~,G, J. ring b~longd to the dece;;sed Paw Tin finds support in
the evidence of Ba La (P.W. 1), Headman of !VIinywa,
who had himself purch<tsed it for Paw Tin frorn one
Ko Kyin, a goldsmith of Monyw:l, about a ye<tr before
the evacu<ttion of the British. The evidence of the
Investigating OlJi.cerU Ba U (P.W. 9) that the appellant
Ba Pc was OI1C of those who had offend to produce
the exhibit pl'Opertips is corroborated by the f,<lct that
in the search list Exhibit B relating to the finding of
the exhibit w<ttc h and ring there ilre entries to the
effect that these properties were produced by
!VIaung Pay and Ba Pe, and this search list was signed
not only by t-hung Pay but also by the appellant
1
Ba Pc. From these circumstances it may be presul11cd\'
that the appellant Sa Pe was one of those concerned
in the robbery as otherwise he would not have been a
party to the productiOn from their hiding places of
. the exhibit stolen properties -<tnd . the exhibit blood
stained d<th. Section 114 of the Evidence Act provides
that the Court lU ty presu'u, the existence of any fact
which it thinks likely to have happened, regard. being
had to the common course of natural events,- human
conduct, etc., in their- relation to tl1" facts of the parti-
cll1ar case; and the illllstrations to tint section though
affording valuable guidance in the matter,' are not
meant to be exhaustive. '
After charges have been framed against the two
appellants and their co-accused !VIaung Pay under
section 394 of the Pen<tl Code, Mal1ng Pay offered to
give evidence on oath 011 behalf of his own defence, "
 ..
1950] BURMA LAW REPoRTS. 185

while the t vo appellants did not elect to do so. They H.C.

1950
were accordingly examined under section 342 (2) of
UA pg .4.;\,1)
the Criminal Procedure Code and they denied in toto ox:;.;
v.
all the allegations made against them by the prosecu- THE
Ul"luN OF
. tion. Both the appellants stated that they h,td been IfUR~I."
falsely implicated by their co-accused lI'1aung Pay
U ~.-\N
because of an old grudge. The appellant Ba Pe i\L\l.lNG, J.
denied having offered to produce the stolen properties
or having pointed out the spot where the blooe! stained
dashe was found.
The accused Maung Pay in giving evidence on
behalf of his own defence more or less adhered to the
statements made by him in his confession except that
he,denied that he was a party to th'l conspiracy to rob
the deceased Paw Tin. He alleged that he came to
know of Ba Pe's intention to rob Paw Tin only when
fhe latter was seen coming out of Kudaw village and
that he was a more or less unwilling spectator to the
robbery and the murder of Paw Tin. He admitted
',chat he hid the stolen properties in a ditch ncar his
house in the presence of th~ appellant Ba Pc but
contenckd that he only did so for fear of Ba Pe.
,Now, :as has. been held by a Special Bench of
this, Court in U Saw alld lIine others v. TILe Unioi'l oj
Burma (I) evidence given on oath by an accused
person under section 342 Il' of tnc Criminal
Procedure Code, as amended, may be L1sed against the
co-accused in the case although the weight to be given
to such evidence will depend on the circumstances of
each case. The case of Pu Han and TU/l Ei v.
The Kill!; (2) cited by ~he learned Advocate for the
appellants in support of his contention that IIhung Pay's
eviderice should be left out of consideration not only
as against the appellant Khin Mating but also as against
the appellant Ba Peis distinguishable inasmuch as in
(I) (19481 B.LR" p. 217. 12/ (19471 RT..R, p, 3'9.
 .. '
186 BURMA LAW REPORTS. [1950

H.C. the present case the appellants not only had an

1950
opportunity of cross-examining Maung Pay but had
B.\ P..: AND
ONE actually done so through their Plealler U Tin Saw.
V. They also had an opportunity of rebutting the evidence
THE
UNION OF of Maung Pay by cilin's witnesses to show that they
BUHMA.
were not on good terms with him.
U SAX
MAUl\'G, J.
Therefore we see nC1 re:\SO:1 why tl1C evidence of
Maung P,ly should not be taken into consideration as
against the appellant Ba Pe against whom the prosecu-
tion has estabiishd a prima facie case. As regards the
appellant KI1in Mal.lI1g however the case against hiin
stands upon a different footing. Although the learned
Additional Special Judge framed a charge against him
under section 39+ of the Penal Code at the end of ihe
case for th~ prosecution, there was on record no
sufficient evidence lo w.1l'rant such a charge being
framed against him. Therefore, it will be altogether
opposed to the gencrally accepted principle regarding
the burden of proof in criminal cases so to use the
evidence which his co-accused Maung Pay has given, !,
under section 3+2 (1) of the Criminal Procedure Cocl~
to fill gaps in the prosecution ca3e against him. For,
'as observed by Dunkley J. in [{Iug-Enlperal' v.
U JJallli7pala (I) " It is a fundamental principle that
in a criminal trial the burden of proof lies upon the
proseclltion to establish the charge against the accused
beyoncl reasonable dou bl. This principle is enacted
in section 101 and illustralion (a) to that section, read
with the definition of I proved' in section 3 of the Act.
'.' * .' In a crimirnl trial the burden of proving
everything essential to the establishment of the charge
against the accused lies upon the prosecution, and ~hat
burden never changes." Therefore in a criminal case
wh-ore an accu'sed perso'l1, who should have been
discharged for want of evidence sufficient to establish
, (1) 14 Han., !'. 666 (F.B,) at,681.

'.
 1950J BURMA LAW REl'ORTS. 187
prima facie a criminal charge against him, has been H.C.
1950
wrongly charged by the trial Court, the Court should
BA FE AXil
not use the -lvidence of a co-accusl'd given under oNE
section H2 (1) of the Criminal Procedure Code to fill THE
V.

the gaps in the prosecution case. As pointed out by U~ION 01"

BUIUJA.
Wright J. in Po Hall allii Tllll Ei v. The King (1)
U SA:'\
what section 3+2 11) enacts is that the evidence of an ;\.lAUXG, J.
accused person '. 111ay II be used against any person
tried jointly with him and not" shall" be so used.
It will be entirely in consonance with the generally
accepted judicial principle for the Court to use a wise
discretion in disregarding the evidence of a co-accused
in so far as it implicates an accused ;:Jerson against
whom the prosecution itself has failed to establish a
prima facie case. For these reasons we would dis-
regard the evidence of Maung Pay in so far as it
implicates. the appellant Kbin Maullg. vVe would
,
also remark that even if ll,hung Pay's evidence is
taken into consideration as against Khin ~Iaung it is
doubtful whether the conviction of Khin Maung under
section 394 of lhe Penal Code can be upheld. The
conviction and sentence. on Khin Maul1g will therefore
be set aside and this appellant acquitted and released
so far as this case is concerned.
As regards the appellant Rl Pe however, the
evidence of Maung Pay affords strong corroboration
to the prosecution case that the properties surrcndered
by both Ba Pc and Maung Pay were in fact those
obtained hy robbing the ckceased Paw Tin. It also
tends to show that l3a P~ was one of the assailants-if
not tbe assailant-of the deceased Paw Tin. The only
evidence adduced by Ba Pe in his defence is that of
MaungShein(D.vV. 2) and Maung Tha Lun (D.W. 5).
Accordi'ng to Maung Shein, he "iitnessed an altercation
between Maung Pay and Ba Pe at tbe rail line near
(1) {194il F.' .R, p. ~19.
 -
188 BURMA LAW REr~()R:rS. [l9S0

H.C. i'vlinywa about 4 or 5 days before tb" Burmese

1950.
Thingyan, but he did not know the origin of the
BA PE AND
QNE
altercation or the fitnl result of it. Accordi ng to
Maung Tha Lun however, the altercation between
:THE.
UNION 01" MaungPay anel Ba Pe took place about 4 or 5 days
BURMA.
before Paw Tin's dcath. It is not known whetber
U SAN Maung Tba Lur! and Mai.ll1g Shein were referring to
r.1AUNG, J
the same occasion. If they wcre doing so, they were
-entirely discrepant as regards the probable date of the
event deposed to by them. Besides, evidence such
as tbat given by !vJaung Shein and Maung Tba Lun
can be easily concoted anel it is well known tha't in a
criminal case friends and relatives of an accused
person usually rally ~'ounel to his aid in an attempt to
save. bim. We therefore consider th;>t the learned
trial Judge wbo bas had an opportunity oJ seeing tbese
witnesses and appril;sing their credibility w'as rigbt
in rejecting their evidence.
For tbese rea ;ons we w,ndel confirm tbe conviction
1
of the app2lhn[ 8,.\ P" un :ler section 39+ of the Penal "
Code. As regards ti,e sentence we have already men-
tioned in the earlier part of this judgment steps have
been taken so to enhance the sentence as to be in
compliance with the law.
U THEIN MAUNC;, C.J.-I agree.
 ..
1950J BURMA LAW REPORTS. 189

ORIGINAL CIVIL.
Btfurc V 111l11g Tlta G)'II'W, J.

AZAIvI KHAN (PLAINTIFF) H.C.

1950.
v. Mal'. 23.
DAvV KHIN AND OTHEHS (DEFENDANTS).*

Evulc1Jce Act-5s, 32, 43, 65 alld 7()-[Jrt:vivlls depositio/t ill Crimi/wi case
'Whether admissible-Iu'fgmell! ajCrimi/lal COllrl if rd~"I.'tI1Jt ill Civil ca.~c
-Copy (1f d,'posiliol/-llC>1 bColrin..: scal-Sccoudary evide'//ce admi55ibilify
of-r0s juclicata-Jud!lJIwl by DI~triet COllrt uuder s. "12, Specific Rdief
Act-lVltdlte~" lite Dislri::! Cmrl lcaalfy compi:lcnf tv issuc m:gati'oc
diclaraJion-Nafure oJ Sll~!I hr/S(liclioll-Chdll~C ,)[ religion right 10
illherital1CcJ if affected-Caste Di5auiJilics RCl1lovc1 Act, 1850.
Plaintiff who \Vas 62 years old, brought a S~lil for adminh,lratiOll and
pal'tition claiming tbat he was the ddest surviving son of the deccacd by hh;
first wife. The suit \\:":1.5 resisted by the widow and othel's illler alia" on the
ground th:1t the Plaintiff was not a son of the deccased bnt was the son of llis
first wife by'her previolls lllarriage, ~lnd tbat issuc \V:l.5 rt'.> j!/flicatll bi' reason
of a prior decision on admission in a sllit brought by the decea~ecl ;IS
Plaintiff in tile District Courl of l'dyaullgmya :lg:lifJst the prcu:nt Pbintiff as
defendant for a decl;~r:lti{)11 that the present Plaintiff was not his son but \Vas
his step son. The I'Jai'ltiff by way of reply contended tlln! the District COlllt
,h:lc1 no jarisdiction to grant a tlC'gative c1er:l:lratirm under s. 42 of the Specillc
Reiie! Act and that t [}(;l"t,;fore the prCViOtl5 proceedings C0U tel not be I'~s jlldimtrJ
ill asubsequent suit. Dtfend.ants als.) relied on ..:\'ic1e:nce givell by the deceased
in a Criminal case between the deceased a~Hllhe present Plaintiff in which the
decer.sed stated th:lt the present Pbintifi \v:ts his stclyson; and- also relied on
the judgment in the Criminal ca<;<,.
Held: Th:lt the Plaintiff was admiltedly at a &mc1\'ant:lge w1l-=n he has 10
prove incidents which took place 63 or 6'1- ye;tfS ag,), but it is Plaintiff's duly to
~ive cOilvincing cvic1cn("c regarding his claim of paternity.
Kh11'(lJII Ahmed Khan \'. MI. HarlJlflzi JOtal/am al/d olhers, (1921) A.I.R.
Onclh, p. SI, referred ta.
The statement by the deceased rehting to the l':latianship by marl iage
between the presenl plaintiff and the deceas-=d in a Crimin,l1 case is admissible
under s. 32 (S) of the Evidence Act.
A copy of the judgment in the Criminal cJ.se, however, is irrelevant under
s.43 of the EvUence Ad as the exi-.;tence of such a judgment W:lS not relevant
for any purpose .
.M ullt/lIldi Begum v. DIlrga P,asad {'tlui al/ollter, 4'0 I.C. 452 ; Pedda
Vcu]wtap.lthi v. GllJlagllllla Balappll and others, A.I.R. (1933) Mad. 429 ;
'* qvil Regular S.lit No: 110 of 1948;
190 BURMA LAW REPORTS. [1950
H.C. L. Sri Rtllll and villers v. Mulwffld Abdul Nalzil1l Khan and 411vtlu:r, A.l.K
1950 11938) Oll,lh, 69, referred to.
AZAY KHAN As the pmceedings in the Criminal Case had been lost or deshoyed, We
O.
DAW KHJN defendant \\'a~ entitled to uive secondary evidence of th~ ct)nl~nts of the
,<
Mm oTHEns. relevant doctl~nent filed in the criminal case. The ohjeclion that lllc copies
did not b:;:1r 1l1e Seal of the Court fwd therefore, could llot be considered as
certified copies of Pllblic documents is entenahlc.
-Sri Rtlm and Of/lOS \'. MIII;nm1Jlll~1 Abdul Rahim Kltt.w anti others, 172 I.e.
SS2 ~ K. O. Kalalldall v. V. P. KUlI,'Il/1l11j IOdatlfl and others, 6 Mad. SO ; III t/le
lJIal/a of Co/Jisilm behiJc':lf "A ViI" ami" lJrcllhilda," (1880) 5 Cal. 568 ;
C. P. Narni" Sillgh v. B, P. NMaio Siugh, 5 Patna 777, referred to.
Copyists who prepared the ;,:opies having" sworn (0 the genuineness of the
copies and the signatures appearing thereon there is a presumption tllat the
aets of the Court h.IVC bet:n r~g>llarly carried O~lt.
Bijlln/II <lllti allOt/te" v. Sri BlUIgwnn IIm{ others, A.I.!? (1926) All. 691,
foHowed.
Copy of lhe judgment ill tho.: Civil Suit in the Di::trict Court of 1\Iyaungmya
between the deceased ;:md the plaintiff j:; admissible as the issue now raised
Imd been concluded by the dcd~ion of a ccmpetcnt COllrt in a previous suit.
MarOli La.l:IJ/<l1l Koshti find otltcr.~ v . .Tagall1wl!Joll Lllc!llllalldas Gade".,a{
aud liIlOlht'r, A.f.H. ~1939J Nag. 72, referred to.
The qnesti01\ w!JeUler the pbintiff W:lS sun or step son had bee:l linally
raised and determined in the previous suit and was therefore, res jltrltcn fa.
The appJicali,)Il of the principles of rcs /!ll!icata (knlt with by:.:. 11, C.P.C.
should not he influenced by le(:hnicaJ consideration but by malter of subslance
within the limits ~llowcd by law.
[{alip,ufo Dc .1IId otherS v. Devijaf>l1dl1 D.lS lim! others, (19301- LA.. 57,
followcd :lnd :lpplied,
The District Comt 1\( .\1 y.ll1ngllly.l {la:1 jurisdiction to enlerlain the prCyiO\lS
dispute. Jl\ri~(liction m~IY be divided into three heads with reference 10 (a)
Ult: ~ubjecl m:lttcr, (b) the parties or (c) the pnrticular question which (':lJls
for decision; where the Court possess(;s inherent jurisdidion and merely
aSSlllneS or exerd:-;es it in an irregular or illegal manner the judgment is l)(>t
a nullity.
SuJ.:h La] Sheik \'. Tar,l Chllllel Ta, 33 C:ll. 68 ; Ash:/tusll Sikd,lrv. l1c1l11ri
Lill Kirlall1s, I.L.R. 35 C?1. 1)1 ; H.. N. Roy v. R. C.. Barna Sarma, (l921) I.L.H.
48 C:l!. 138, referred to.
In entertaining the prc\iolJs suit brought by the deceased for a "leclaration
that the present Plnintlff was a step ~on, the District Court was acting within
its competence.
B. S. Vakl1fba \'. T. A. Raisillf!Jlji find "tlleiS, (1910) 34 Bom, 676;
Clti;uletsallli MudaUt'r alld another v. A. !Jllf{!alitzr, 29 Mad. 48, referred to.
J)aw P,lI! v. Ma HlliJl M'ly, A.Lit (l9H) Ran. 220; MahlJlud Shalt v
pirShah,A.I.R.(l936) Lah.S5S; MI/lfll~ 41111~ T/Jqill V, Mdl'Ug /1" Mall/lt, l
11940) Ran. S-t, (Hslingrlishe~1.
.
1950J BURMA LAW REPORTS. 191

Plaintiff's contention that ~\ll the parties claimed- through the dt:ceased and H.C.
therefore the pica of res jl,dicll!a was not a.... J.i!able is not Ic~al[y sustainable 1950
bec;'l.use plainliff is not c'aiming under the deceased. AZ.HI KHAN
Sycd Asltgar Rem Khan v. Sycrl Mohamed Meluli llvssdn l{/iall al/d ".
o/hers, 30 LA. 71; Mupp{/uctr MW others v. l'ij"yafh<lIlJIIUlI, 6 Mad. 43, DAW KHI.N
Axn oTHlWS.
di~tinguished.
Under the Caste Disabilities Removal Act. 1850, the rule of 11 oha.redan
by which a non-l\'!l1slin is excll;c1ed from succession to a l\luslim has been
.tL:'1'\V
abrogated and Plaintiff Ind 110t b5t his right of inherib.ncc by apostacy.
Rllpa aurl others v. SI/rder Mirza (/1111 Offl';/,.<>, A.I,R. (1920) L:lh. 2i6;
C..V.N.T. Chidambaram Chdty.lr V. il[,1 Nyeil1 May (tl/d others, (J Ran. 243,
followed.

]. N. Dut! ")
I
Mr. Nair ~ for (he plaintiff.
I
Mr. ]aganatlzan)

Dr. Sa Han ")

S. R. Chowdry rI for the defendants.

I
M. E. Dawaodjee J

U AUNG THA GYAW, ].-This is :l suit brought :':'y

the pbintiff Azam Khan, in jarilla pauperis, fur
administration and partition of the estate of the late
Rahim Khan Rasool Khan (aj U Po Sin alleging that
he was the eldest surviving son of the deceased
R. R. Khan by his Burmese wife named Ma Ngwe
Bwint. The estate left bchind by the deceased is said
to be of considerable value being estimated at 36 lakhs
and the plaintiff has made his cbim for his share
permissible under the Mohammedan law valucd at
Rs. 71akhs.
The 1st defendant Daw Khin is the surviving widow
of the deceased a11d the 2nd defendant Majid Khan
Rahim Khan iG a son of 'the deceased by the said
Daw Khin. The 3rd defendant, Hamiel Khan Rahim
l\han is a son of the cle<;:eas~d born of his I nelian wif~
 ..
192 BURMA LAW REPORTS. [1950

H.C. Aslm Bibi long since deceased. The 4th, 5th and
1950
6th defendants are the daughters of the deceased
AZAM KHAN
v. R. R. Khan (a) U Po Sin by his deceased Burmese
DAW lCHIN
A:-.:n OTHERS.
wife Daw Ngwe Bwint. These defendants were ,
-,(

therefore born of the same mother as the plaintiff.

They ale not, however, prepared to admit the plaintiff's
claim that he "'as the deceased's son. The 1st, 2nd
and 3rd defendants also deny that the plaintiff is a son
of the deceased. They have- alleged that the plaintiff
is the deceased's step-son and was begotten by
deceased Daw Ngwe Bwint with her previous husband
named Maung Po Su.
These defendants have further pleaded that the
plaintiff's present ouit is barred by the principle of
res judicata by reason of the fact that the question of
the plaintiff's status as a son of the deceased was
already raised and decided in Civil Hegular Suit No. 19
of 1915 of the District Court of MYaun~mya. They
also rely on an admission said to have been made by
J_ .
the plaintiff in his statement made before the 1sfr
Additional Magistrate of Moulmeingyun in his Criminal
Regular Trial No. 81 of 1913 in the course of his
examination as an accused person to the effect that he
was a sOli of U Po Si1: CertaiIl documentary exhibits,
the admissibility of which in evidence is disputed,
have been relied upon in respect of these defences set
up on the defendants' behalf.
It has also been contended on behalf of the 3rd
defendant that the plaintiff, having embraced the
Buddhist faith and committed apostacy thereby, has
rendered himself incompetent to claim a share in the
estate of a deceased Mohamedan.
The plaintiff has in his reply denied all knowledge
of the bringing of Civil Suit No. 19 of 1915 in the
District Court of Myaungmya and of the judgment
passed in the sa.id suit a.nc. ha.s a.lso contended that th~ i,
 1950] BURMA LAW REPORTS. 193

said proceedings' were fraudulent and collusive and are !-l.C.

1950
therefore of no legal force or effect. He also denies
AZ.ut KHA~
that he mad,; the admission attributed to him in the v.
DAW KHIN
;-'
crimi' al case brought before the 1st Additional AXU OTHERS.
Magistrate of !vI oulmeingyulJ. At the trial an
U AllNCi 'rnA
additional legal plea has been advanced on the GY-\WjJ.

plaintiff's behalf to the effect thitt the District Court of

Myaungmya \Vas not cOlupetent to pass the decree it
did in Civil [?egular Suit No. 19 of 1915.
The following issues therefore arose for decision in
this case:
1. Whether the plaintiff is a son of R. R. Khan (al
U Po Sin, deceased? .
2. Whether the suit is barred by the principle of
res judicata in view of the decr~e passed in 8ivil
Regu!ar No. 19 of 1915 of the District Court of
.J.i'
Myaungmya ?
3. vVhethcr Civil l?egular No. 19 of 1915 of the
J)istrict Court of :Myal1ngmya was a fraudulent and
'".v.. .
coliusivc suit and of no legal force or effect?
4. Whether the plaintiff has no right of inheric
tance to any share in the estate of R. R. Ehan (al
U Po Sin by reason of his "postacy ?
5. To what relief, if any, is the plaintiff entitled?
The plaintiff has described his age as 62 years when
he gave his evidence before this Court on the
9th Noveniber 1949 and for almost the whole of his
life he lived in the village of Kyawzan in Myaung.mya
district where he eked out his existence plying hi~
sampan al,d doing pelty trade. .Before proceeding to
examine the evide11';e addu.ced by him ir. proof of his
paternity, it is necessary to take into account in :he
first place the admitted facts. which 1V0uid seem (0
furnish a backg'ro(111d to this litigation.
Although Khan Bahadur R R. Khan died in
affluent circumstances, th", evidence given in tbe' case
13 .
194 BURMA L:I.W REPORTS. [1950
H.C. traces the origin of his weallh to a .small retail cloth
1950
business which he ~et up more than hdf it century ago
AZAM KHA~
V.
in the remote vi\1age of Pagandaung lying somewhere
DAW KHIX
A~O OTHERS.
to the east of Kyawzan village in Myai.mgmya township. -'}
Accompanied by another Muslim trader named Maung
U AUXGTHA
(iYAW, J. Gyi, R. R. Khan who \Vas also called Po Sin periodi-
cally visited Daizat, s"ic1 to be a day's journey 2.way
from Pagandaung to sell his cloth. III the lo\ver
Daizat village there then lived the Burmesc family of
U Hla Baw and Daw l-Imwe Bon with whose daughter
Ma Ngwe Bwint, the deceased fell in love and
contracted a marriage uncler Mohamcdan rites. It was
of this marriage that the plaintiff Azam Khan is alleged
to be born sixty two years ago. Admittedly, two
dau~hters were born to the marriage before the family
moved to the more busy trading station of Kyawzan.
Several years later when the plaintiff was about 't.
11 years of age, he was sent to the village of Atodra in
Surat District, In.dia, the home of the decease~ k.'",
R. R. Khan's parents where he was formally converted
into the Muslim faith by having his cirCtlmcisiol\
performed some six months after his arrival. Shortly
after this,' Daw Ngwe Bwint andber daughters were
brought to the same place to take up their permanent
residence. The plaintiff wi)s given his schooling in
the village and was made to learn Gujerati, Urdu and
Arabic languages. Having absorbed this Indian
culture in the home of the deceased's parents, the
plaintiff return cd to Burma to the deceased at Kyawzan
when he was about 17 or IS years of age. ,
'When he was about 19 and while hving with the
deceased, he fell in love wilh a young widow with two
chiLlren named !Vfa Thai Ngwe, a couple of years his
senior and described also as a servant of the deceased.
Against the wighes of the deceased, he contracted a,
marriage withti1is girl allclleft the Muslim hith, The"

 ..
1950J BURMA LAW REPORTS. 195

mother Ma Ngwe Bwint was temporarily sent for from H.C.

2.9~O
India in order, perhaps, to persuade the plaintiff to
give up his Burmese wife and to return with her to AZA>lv~{H'N
/.
_ India. Parentalcounsel .
proving of no avail, plaintiff DAWOTHERS.
A~I)
J{H'N
and the deceased parted company and thereafter he -=-
- tOJ'k up IlIS
. resle
. I<tnce 1I1
. tlle 1louse 0 fl' t . I
lIS paren S-lll- aw
U AU"G THA
GYAW,J.
and took to the trade of plying a sampan for a living.
It was in this condition that deceased one day
found the plaintiff -and app;;rently sympathising with
him for the hardshi p caused by his previous neglect,
offered to make an advance of a sum of Rs. 300 to the
plaintiff to buy paddy and supply the same at the
deceased's rice mill with a small margin of profit for
his use. This gesture evidently ,net with a willing
response on the part of the plaintiff, but before long,
the conduct of the plaintiff in the manner in whic1' he
.} spent the advance paid out to him led to the prosecu-
tion of the plaintiff in- the criminal Court at lvloulmein-
gyun for an offence of criminal breach of trust. He
,\\, '
',vas convicted and sentenced to imprisonment for a
term of one year, a rather harsh sentence judged by
present slandards considering the admitted youth of
the accused person and the fact that it was his first
offence.
A few years after his release from prison the
plaintiff at the age of 23, was sent to visit his molher
in India whence he returned after a stay of a few
months. Then according to the defendants, the
deceased, in about 1915, brought a suit in the District
Court of Myaungmya for a declaration that the plaintiff,
then known as Maung Ngwe Ya (il) Barna Azam, was
not his real son but was a son of his wife born of her-
marriage with her previous husband named- Maljrlg
Po Suo It is alleged that in this suit the plaintiff had
filed a written admission with the result that a consent
- decree in terms prayed fOl in the suit' was pa.ssed

. -
 ..
"
19.6 BURMA LAW REPORTS. 11950
H.C. without costs. Thereafter no incidents of any
1950 .
~ Importance appear to have taken place between the
,\zi,./!.'N plaintiff and his alleged father, the deceased
nAW KIll.N
ANI> O'fHXR:-:.
R. R. Khan, except that on a number of occasions .
.
1-
. ...",.... when he was appealed to for monetary help, the .
U AU'G J H' .J
OVAIY;). uecease dId Ja ma d e ungruuglllg
;, . pay ments 0 f petty
. sums according to the 'defendants but fairly substantial
sums according to tbe plaintiff.
The deceased R. R. Khan died in January 1948 and
as usual a Rangoon Burmese daily called '.Thamadi,'
an extract from which is in evidence as Exhibit (A),
treated the matter as worthy of its news column. This
publication is said to have found its way to the
plaintiff's village :ond on coming .to know the fact of
the deceased's death, the plaintiff duly arrived in'
Rangoon and placed himself under the guidance of hi.s
friend Ko Po Aye, a clerk employed in the legal firm \..
of Surridge and Beecheno. The usual lawyer'.s
notices were exchanged and the present suit was filed ,
injomUl pauperis. ., ~ ~ ,
7.

In proof of his paternity the plaintiff has adduced

the evidence of two old ladies aged 74 and 75 respec-
tively belonging to lower Daizat, the village where the
deceased H. R Khan is alleged to have contracted his
mar"riage with Daw Ngwe Bwin!. This village is no
longer in existence as owing to the erosion of the river,
the villagers had moved to the Daizat North village
lying on the opposite bank. This village is now in
charge of U Kyar Nyun who is married to Ma Ngwe
Thin described as a cousin of the plaintiff. When the
plaintiff was faced with the necessity of ?Ioducing
evidence to support his claim made in the suit, it was
but natural that his cousin sister and her husband
should interest themselves in the matter of obtaining
the necessary testimony. According to the plaintiff
himself, his cO\lsin l11flCI<;: a search fQr old Daizilt"

<!if
..
i 9S0] BURMA LAW PEPORTS. 197
villagers of about the same age as his mother H;C.
1950
Daw Ngwe Bwint and as a result she found these two
AlA.:'!! l{HAN
witnesses Daw Sein and Daw Sein Bwint. The V.
plaintiff is now 62 years of age and if, as the witnesses DAW KHlH'
A!\D oTHERS.
said, he \V,lS born ;1 year and a half or two, after his
U AUNG THA
mother's marriage with the deceased R. R Kban, no GYAW.J.
less tban 63 or 64 years have elapsed since the incident
recalled to the memory of tbese witness, lc.-ok place in
their village. Both the witnesses have spoken with
remarkable clarity and consistency about the business
activities of the deceased R. R Khan, of his periodical
. visits paid to lower Daizat village to sell his cloth, of
his falling in love with Daw Ngwe Bwint, of one
Ma Sbwe Thwin ading as go-between, of the elopement,
of the 'usual restoration of the bride to her parents
ending with the celebration of the formal wedding in
JC the presence of necess:iry and elderly witnesses.
The usual recital from the Korall made by the
Moulvi and repeakd by the bride also finds its place
~,.
in the accounts of the incident given by these
witnesses. The parents of both these witnesses were
said to have been present on the occasion and one
nam.e, not mentioned by Daw Sein, has been added by
Daw Sein Bwint to the list of the guests invited to the
wedding. According to Daw 8ein, the bride-groom's
party was fed that day by the bride's. people, an
incident not mentioned by Daw Scin Bwinl. If it
really took place, it was rather unusual for the Muslim
bride-groom and his four or five friends including the
Moulvi to regale themselves with food and drink in the
house of an unbeliever. Daw Sein Bwint further
recalls the fact that when the plaintiff was brought into
this world it was bel' aunt Ma Tu Za who assisted ,.s
midwife.
Now, it is said that these two witnesses and a few
others including one Daw SlJwe Thin who bad been
 ..
198 Bl.H<.MA LAW REPORTS. [1950

H.C. summoned but had returned to her village owing to

1950
sudden illness, were present on tile occasion at the
AZA{'KH~N
". invitation of the bride's parents, because of the fact
D..Aw.,KHIN that they were growing ~pinsters very ncar the age of
A~I) O:r~.ER~.
the plaintiff's mother D.1w Ngwe Bwint :.vhom they
f
u Ati~G-;rH .
.l,
GYAW, J.. described as sevente~n or eighteen years of ag~ a(
that time.
As was noticed in the case of Rhwaja Ahmed
[{lIall v. Mt. Hamlllzi Klwl'lam and others (1) where
a similar claim was made, the plaintiff is admittedly
placed at a disadvantage in having to prove the
happening of an incide.nt which took place 63 or
6,4 years ago in his remote village of lower Daizat
which had ceased to exist [or a long number of years
owing to the erosion of the river. If his mother's
muriage with the deceased R. R Khan was witnessed
by the village elders, most of them must have died by
now and it is not in the least surprising that Daw Sein
'"
and Daw Sein Bwint by reason of thf';ir old age, have
j ;-
been produced to speak of the one important fact ~;n J~
.'

which the plaintiff's whole claim is based.

[The court discussed the evidence in detail and
proceeded.]
"Apart ft'om these consid"erations some documents
Exhihits I, VI and VII have been produced from the
proper custody of witncss i\falim to show that the
plaintiff was prosecuted for criminal breach of trust by
his alleged father before the 1st Additional Magistrate,
.Moulmcingyl1n, in Criminal Regular Trial No. 81 of
1913 and that the plainlitJ when examincd as an
accused person, had made the damaging' admission
that his name was Maung Ngwe Ya (I/.) Azarn and that
h;s father's name was l\1aung Po Su. Exhibit I is said
to be a copy of the plaintiff's statement made in the said

(1) {1(21) A.LH., Oll(lh, p. tHo

'".
 1950] BURMA LAW REPORTS, 199

criminal Court. There is no question that an admis- H.C.

1950
sion of this character is admissible in evidence in Ihis
case. A copy cf deposition of the complainant Rahim AZA"/'l.\N
Khan (a) Maune: Po Sin son of Rasool Khan made in
<.J
D.\\\' KHIN
AXD OTHERS.
the said proceedings has also been filed in the case 'as -, .
EX h I'b't
I VI , I n tl'
liS (IeposHlOn
" tlle p I'
am t'ff
1 h as b een U GYA\\',
AU>G J. fHA

described as the witness's step-son.' Such a statement

relating to the existence of relationship by marriage
between the deponent and the present plaintiff is
clearly admissible in evidence under section 32 (5)
of the Evidence Act, A copy of the judgment of
the criminal Court, Exhibit VII, l;as also been
produced in evidence in support of the defence. As
to the admissibilily of this document in evidence the
provision of section 43 of the Evidence Act is
clearly a bar as under the said section, judgments,
orders, or decrees, are irrelevant unless the exilence
4 of such judgment, order or decree is a fact in issue
or is relevant under some other provision of this Act.
k, "'~-. o The plaintiff has admitted that he was prosecuted by
his alleged father and was convicted and sentenced to
a year's imprisonment and in view of this admission,
Exhibit VII, a copy of the judgment in the criminal
case cannot be taken into consideration in this case.
Jl1uhall1di Begum v. Durga Prasad and another \ 1)
and Pedrla Vellkalapatlii v. Gonagunla Balappa al1d
others (2) contain authorities in support of this view,
As to the admissibility of the document Exhibit I,
it has been urged that thi, part of the accllsed's
statement was not made on oath and that not being
bound to tell the truth the statement contained therein
cannot be accepted as an admission made against the
interests of the accused. There is no authority for
this view and the plaintiff himself has admitted rather
guardedly that what he stated in the criminal Court as
(I) 40 I.e. 452. 121 A.I.R 11933) Mad. 429.
200 BURMA LAW REPORTS. [1950

H.C. set out in Exhibil I is true except that he had not

1950
given his name and his father's name in the manner
AZAU KHAN
set out therein. There is no explan:~tion why lbe
".
D:\W KHlN
A:,l) oTHEI(S.
whole statement should riot be accepted as having been
made by tbe plaintiff before the criminal Court. A :~
UAUXGTH\
GYA\V, J. statement by an accused person in the course of his
examination under sect.ion 342 of the Criminal
Procedure Code is not in the nature of a deposition and
tbe authority cited on the plaintiff's behalf tbat
descriptions .given in headings of depositions do not
form part of the witness's evidence and are of no
probative value is of no rekvance whatsoever.
As regards tbe copy of the deposition of the deceased
H. R Khan (a) U Po Sin made in Exhibit VI, the
only objection to its admissibiJity is the faet tbat the
copy made by wilness Maung Ba 'rhein does not bear
the seql of the Court. In view of Ivlaung Ba Thein';;
evidence tbat he had himsp.1f made the copy from tbe
relevant proceedings, tbis technical objection is of little
"
consequence, Ba Thein explains that the Judicial >-

Record Keeper whose sigu;ttnre he now identifies, did

not use a seal in those days. The Hecord Keeper of
the District Court w~s the Autborized Officer who
could deliver certified copies and had custody of the
publicdoc1111lCilts for the 'pmpose of section 76 of the
Evidence Act and this is prescribed in paragraph 983
of the Lower Burma Courts Manual.
Exbibits X and XI are applications in original
pres~nted by Gulam Mohamed iVIalim in the District
Court of Myaungmya for copies of the abovenamed
documenls. 'Ibis application was returned to , him
wilh an endorsement that the proceedings in question
had been lost or destroyed. Under section 65 (e) and
(e) of the Evidence Act, the defendants are therefore
entitled to adduce secondary evidence of the contents of
tbe said documents in the IUanner they have now done in

..
 19~OJ BURMA LAW REPORTS. 201
this case and the objection that these copies do not bear H.C.
1>50
the seal of the Court and cannot be considered as
AZ,\M KilAN
c.ertified copies uf. public documents as provided in V.
DAw I{HlN
section 76 of the Evidence Act is accordingly of no A~f) OTHERS.

validity. [Se.e L. Sri R'I/n Ilnd others v. Mohallled

U ;\uRGTHA
Abdnl Rahim [(hall and another (l). See'-also Sri (;y.nv; J.
'R'lIIl allil a/Tiers. V. MttTIaIllIlW,: Abdul Rahilll [{hm'l
alld others (2) where the document admitted was a
Sanad, the keeper of which was not authori7.ed to make
use of a seal]. Moreover where the original public
records have been lost or dcstroyed, the law does not
require a copy of the documetlt sought to be admitted
to bc duly certified as is required under sestion 65 (e)
and (f) of the Evidencc Act. In such cases the general
rule of evidence given in clause (c) of the said section
tint secondary evidence inay be given when the original
/0
has been destroyed or lost is applicable. [See
\6 K. O. [{alandan v. V. P. K/ll/hill/ili Kid<lv/I alld others (3).
See also ill the Maller ofCulllsiolt behvee/l" Ava" mill
\ " Breuhildll" (4)and C. P. NaraizzSingh v. 13. P. Nnraiu
~r Siug!1 (5)]. Since Ba Thein, the Copyist himself has
'I appeared and sworn to the genuineness of the copies
and the signatures appearin.s thereon, the presumption
asked to be drawn under section 90 of the Evidence
Act need not be taken into account. Nevertheless,
unless the contrary is shown there is a presumption
that the ",ds of a Court have been regularly carried out
[See BJjlloth <I/ld Illlo/ller v. Sri 8lzai!.waH awl ofhers
(6)] and it c,lt1not but be conceded that the copies now
filed by the defendants are genuine and correct.
The statement contained in the documents Exhibits
I and VI, the one an admIssion made by the plaintiff
himself and the other, a 'fact sw JrI1 to by the deceased

II) A.LR. (1938) Ondl', 69. (4) (188')1 5. C.I. 568.

(21 172. I.C. 882. (5) 5 p"t. 777.
(3) 6 'M.d. 80. (6) A.I.K 11926,' All. 691.
 .'
202 BURMA LAW REPORTS. [1950
H.C. are admittedly of serious consequence to the plaintiff's
l~;O
cause in this suit. They appear 10 fully contradict his
AZAH KHAN
v. present claim and as statements made at a time when
DAW l{HIN
AND OTHERS.
the present dispute was not even dreamed of, the .,
U AUNG THA
grl"atest weight must be attached to them. The truth I
GYAW, J. of the admission made by the plaintiff and the statement
made by the deceased is fully consistent with the long
course of their mutual conduct and would seem to
explain ".way the state uf neglect in which the plaintiff
was left for these many years before the death of the
deceased. The deceased's anxiety shown on the
occasion 'of the plaintiff's marriage to a widow of
another faith is not inconsistent with the concern
shown by a step-father who has for the sake of wife

living in India, given his best attention to the
spiritual and material welfare of his step-son. The will
left by the deceased, Exhibit IX, the proper execution
of which is deposed to by the plaintiff's witness '\'l
U Po Sin, makes no mention of the plaintiH as being
in any way entitled to inherit in the deceased t \' I
"

estate.
This being the effect of the evidence given in
the case in respect of the first isslle relating to the
paternity of the plaintiff, .the answer to the said issue
must be in the negative.
Although the l1nding arrived at in the l1rst issue
is sufficient to defeat the plaintiff's claim, certain legal
defences have also been raised in the suit on
behalf of both the parties and will require to be dealt
with to comple(ely dispose of the suit. Roughly about
a year after the plaintiff's release from prison, after his
conviction for the offence of criminal breach of trust,
R. R. Khan (a) U Po Sin appears to have brought the
Civil Suit, Civil Regular No. 19 of 1915 in the District
Court of Myaungmya evidently under section 42 of the
Specific Relief Act for a declaration that the plaintiff '.
 1950] BURMA LAW REPORTS. 2(}3

then described as Maung Hla (a) Maung NglVe Ya (a) H.c.

1950
Barna Al,am, was not his son but was the son of his wife
AZ,,\M KlIAN
Daw Ngwe BlVint and her previous .husband V.
DAW KHIN
Maung Po Suo The plaintiff's mother Daw Ngwe Bwint AND OTHERS.
(a) Halima Bibi and her two daughters Miriam Khartoon U AU~G TnA
and Bibi Khartoon then living in I ndia, were cited GYAW, J.
as pro f01'nw defendants in the said suit. The
plaintifi is said to have filed a written admission to
the plaint and a decree in the suit was passed in
terms set out in the judgment, a copy of which is
filed in the case as Exhibit II. Besides the copy of
the judgment, copies of the plaint, Exhibi,t III, and
written statement, Exhibit IV, have also been filed
as evi.dence of this litigation b'Otween the parties,
There is 'no quesbon that these documents are
ordinarily admissible in evidence lluder section 6S
B (c) of the Evidence Act. Iv10reover, the copy of. the
judgment in the Civil Suit, Exhibit II, is also
admissible in evidence in view of the contention of
i, the defend;111t that the issue now raised between the
puties IHd already been concluded by the decision
of c')mp~tent Court of hw in a previous suit. [See
Maroti LaxlIlall Koshli ami others Y. ] aganl1atllOll.
'Lachrnan:ia; Glldei'J,1l all.! alloth.'r (I)J. A certified
copy of the entries made in Civil l~egister No. I in
respect of the said Civil Suit NQ, 19 of 1915, is also
file' 1 in the case as Exhibit V. On the strength of this
body of documentary evidence it is claimed on behalf
of the defendants that the present suit brought by the
plaintiff is barred by the' principle of res juditata.
This plea of the defendants is countered by the
allegation that the said suit, Civil Regular No. 19 of 1915
of the District Court of Myaungmya, was a fraudulent
arid collusive proceeding and was of no legal force or
~ect and further that the District Court of Myaungmya
(Jj A.I.R. Ii Y391 Nag. 72.
204 BURMA LAWREPORTS. [1950
H.C. was incompetent to either entertain the suit or pass' a
1950
decree thereon.
A'Z-'''/H'' As regards the plea that the decree oblained in the
DAW. Ki,!N Civil Suit No. 19 of 1915 of the District Court of
AND .Q.THJ.:;~S. I . , 1
: -,-, Myaurigmya was a fraudli/ent and collnsive: one, Ira
U GYAW.
AUXG THAJ. fac t or 'ClfCl.UDS t ance Ilas b een b it
roug 1 OU t '111 tl le
evidence in direct snpport of the same. The plaintiff
denies all knowledge of this jndicial proceeding in the
District Court of lI1yaungmya bnt according to
1I1r. H. C. Banerji, an Advocate of this Court, who
practised with good repute in i he District COllrf of
Myaungmya for 40 years, the deceased R. R Khan did
bring a suit of this nature in the said COlirt and that a
man said to be the defendant in the suit did file a
written admission through his lawyer Mr. P. N. Ghosh.
In view of 1I1r. Banerji's cvidence it is hardly
worth while to contend that any fraud was practised ,-,
I'

upon the Court and that the deceased R. R. Khan

w<ts guilty of abetting impersonation by bringing
forward a stranger to filc thc written admission "
to the cJ<tim made by him in the said suit. It
might be that there was a temporary reronciliation
'between R. R. Khan and the plaIntiff and that the
latter was persuadedtvatteijd" the Court at
Myaungmya to admit his claim in the suit, for,' the
plaintiff admits th",t when he was 23 years of age, he
was sent by the deceased to India to se'e his mother.
If the lawyer IvI r. P. N. Ghosh was in large practice at
the time, his appearance on behalf of the defendant
was evidence of the bona fide nature of the 'said
proceedings before the Court. Mere conjectnre or
suspicion at this distance of time based oli the
appearance of some stray facts or circumstances in
the judicial proceedings inconsistent with the plaintiff's
claim cannot support the plea of fraud or collusion
set up on the plaintiff's belnlf. .\
 1950J BURMA LAW REPORTS. 205

The third issue -raised in the suit will accordingly H.C.

1950
be answered in the negativ.e.
Az,ur KHAN
The defendants have pleaded the pI'incipIe of V.
DAW KHIN
res judicata in bar of tile plaintiff's present suit by A~J) O'l'HEHS.

reason' of the fact that in the previous judicial

U .I\UNG TH.~
proceedin g in suit No. 19 of 1915 of the District GYAW, } .

Court of Myaungmya, 'the question whether he was
the son or step-son of R R Khan had been finally
.raised an~ determined. The ql1estion ~s to what
has to be considered res judicata is dealL with by
section] 1 of the Civil Procedure Code where are
given many examples of circumstances in which this
rule of estoppal applies. In J(alipada De and others
v.. De~ijapadil Das and others (1) it was pointed out
that the application of this rule by the Court in India
should be influenced by no technical consideration but
(;. .
by matter of substance \\ithin the limits allowed by
hnv. In the former suit the plaintiff figured as a
~ defendant against whom his alleged father claimed a
~, -. decree for declaration that he was merely a step-son.
Re had been represe!,ting to others that he was the
deceased's. son and had acted ag',inst the interests of
. the deceased, and the particulars set out in the
~ deceased's plaint filed in Civil I<egular No. 19 of 1915,
gave the reason why he foune! it necessary to bring a
suit of that nature against the prosent plaintiff. The
written statement allegee! to have been filed by the
defendant through his lawyer Mr. P. N. Ghosh admitted
his status of a step-son alleged agaimt him and the
decree .which followed declared this admitted status.
In the present suit the plaintiff h~s to prove the
disputed status that he is a son of the deceased, a
maller which was substantially in issue between him ane!
the deceased in the previous litigation, ane! since this
matter in issue has been decided against him in the
(I) (1930) ,.A. 57. ~~~-
206 BURMA LAW REPORTS. [1950

H.C. previous proceeding, the principle of res judicata

1950 embodied in section 11 of the Civil Procedure Code
AZAMKHAN will clearly estop him now from making such an
DAW KHlN inconsistent claim.

"UOTH"R'. Now, it has been contended on the plaintiff's behalf

u ~~:"~SlA that the District Court of 1\1 yaungrnya was not legally
competent to enterlain the previous suit and that a
negative decree of the nature set out in Exhibit II will
not-create an estoppel against the present p~'lintiff and
the case of. Daw POll v. Ma Hnin May (1) has been
relied upon as an authority for this view. In the said
case, the plaintiff Daw Pon brought a suit against the
defendan t under section 42 of the Specific Relief Act
for a declaration tbat the defendant was not the
Keittima daughter of her and her late husband
U Chit Lun and it was held that the plaintiff in .the'
case was seeking a declaration to establish a negative
~
case and that accordingly she had no right of suit >
under' section 42 of the Specific Relief Act and that no ~
decree could be granted in her favour. It was'" ~
conseq lIently held that the question of the defendant's
status remained undecided. The case of Malmzlld Shah
v. Fir Shah (2) i" also relied upon as supporting the
, same view point. In that suit a 'C1aim was made for a
, declaration that the plaintiff was the legitimate son of
the defendant and it was held that as the plaintiff had
no present interest in the property of his father, the
suit was not maintainable under section 42 of the
Specific Eelief Act. The same view of the law
was' again taken in the case of Mazmg Aung Thein
v. MazlIIg Ea Maullg (3) where it w,as .held
that a suit under section 42 of the Specific
Relief Act for a declaration, not with respect to an
existing right, but with respect to a spes successionis did
m A,I.H. (1941) Ran. 220. (21 A.I.R. 11936) Lah, 858,
13) (1940) Ran. 54, '\
;..
q
k 1950J BURMA LAW REPORTS. 207

not lie. There, a Burman Buddhist who had no H.C.

1950
subsisting intew,t in the property of the parents in
AZAM KHAN
their life time, sought a declaration that a certain Z'.
DAW KHlN
:' individual was not the adoptive son of his pare,nts. It AND OTHERS.
was held that this suit was not maintainable.
U AUNG THA
, On the authority of thes,e cases,it has been GY... w, J.
~ contended that the District Court of Myaungmya lacked
t
1;
inherent jurisdiction to entertain the suit brought
k
,~
before it by the deceased R. R. Khan for the relief
sough,! under section 42 of the Specific Relief Act and
a great deal has been said as to what is meant by the
I
term 'j urisdiction' wh ich a Court exercise~ in
~ entertaining and deciding a dispute between the parties.
I
I The referring judgment of Rampini alld Mookerjee JJ.
~
Ij and the Full Bench decision in SlIkl, Lat Sheik v.
I Tara Chand Ta (1) set out the nature of the
~~ jurisdiction which a Court exercises in respect of the
It
, , cause brought before it.

'i
. ., Jurisdiction may he clellnec1 to be the power of a Court
t,
"
to he:1r and determine a cause, to acljucliclle or exercise any
judicia! power in relation to it. Such jurisdiction naturally
divides itself under three bread heads, namely, (1) with reference
to the subject-malter, (2) the parties, and (3) the particular
question which calls for decision. A Court cannol adjudicate
upon a subject-matter which cloes not fall within its province as
defined or limited by law j this jurisdiction nuy be regarded to
be essential for jurisdiction over the subject-matter is a condition
precedent to the acquisition of authority over Ihe parties; and if
a Court has no jurisdiction over the subject.matter of the
controversy, consent of the parties cannot cOI~fer such jurisdiction
and a judgment made without jurisdidion in such a case is
absolutely n~l1 and vo~d. 1.- * ". As regards jurisdiction h
relation to a plrticular question which a COllrt assumes
jurisdiction to decide, it can P:lSS judgment only upon a matter
which has been submitted to its determination and which under
the Statutej:it has authority to decide."

(1/ 33 Cal. 68,

 208 BURMA lAW REPORTS. [1950
H.C. But, where the Court possesses inherent jurisdiction
195u
over the subject-matter and merely aSS~lmes or :exercises
AZA}I KHAN
V. that jurisdiction in an irregular or illegalmamier, the
O.\w KHIN
A;.l'O OTHEI~S.
judgm~nt rendered cannot be held to be a nullity ~
U lWNG THA
[See Aslmfoslz Sikdar v. Behar! Lal [(jrfal1is (I)].
GYA\\", J. The same view is expressed in H. N. Roy v. R. C.
Barua Sal1Jla 12).
Now, the que~tions dealt with in all. these cases
relied upon by the plaintiff are clearly distinguishable
from thost met with in Civil Hegular Suit No: 19 of
1915 of the District Court of Myaungmya. There,
/
evidently the deceased R. R. Khan was suing for a
,}!
declaration regarding the status of the present plaintiff
as his step-son: It was not certainly a negative decree
which the plaintiff in that suit was seeking.. Suits
relating to a declaration in respect of status would 'I
clear.ly lie under section 42 of the Specific Relief Act
against any person who is interested in denying the
legal character of the person suing for the relief. The..
step-son, by his conduct was interested in denying the".
c1ece;csed's status of a step-father and \vhen his title to
such legal character was assailed, th" suit brought for
a declaration in the manner shown in Exhibit III,
would cfe;irly seei'!1 to be maintainable. That sui ts in
respect 01 status were usually brought in the Courts
is evident from the iostructions given in the Ccurts
M,lI1ual in respect of the classification of civil records
given in paragraph 921. of the Lower Burma Courts
Manual. This paragl'aph prescribes the division of
civil judicial proceedings into four classes of , \vhich
suits in respect of succession to office or to establish or
set aside an adoption or otherwise to establish the
status of an individual are to be deemed as falling in
Class I along with suits in cases affecting immoveable

III !.L 1', 35 <;:,,1, 6), !2) (i9211 1,L.\l. 4$ Cal, 133,
 \./ . lJ.i9r"
1950J BURMA LAW REPORTS. 209

property including suits :'for foreclosure, redemption, , H.C.

1950
etc.
AZAM I{HAN
The kind of suit brought in respect of status met v.
with in Civil Suit No: 19 of 1915 olthe District Court DA'" KHIN
AND oTHIms.
of Myaungmya is not dissimilar in character 10 the
U Amw THA
relief claimed by the plaintiff in the Lase of B. S. Vaktuba .GYAW. J.
v. T. A. Raisiughj! l11/d others (1), where a suit was
brought for a declaration that a certain defendant was
nbt a son and that he was' not born of the plaintiff:s
wift>. At page 683 of the Report, occurs this passage:
n It appe 1r to tiS that having ,reganl to the really seriolls
natnre of the question with which the "plaintiff was faced as SOon
as the assertion was made that a son, nof admittt.d by him, had
been born to his wife, his crntenti.on as to his right under section
42 of the Specific' Relief Act is perfectly reasonahle anel we holel
that this suit is a suit which falls within - fhe purview of

.,,
:i
section 42. 11
In Chinnasami Mudalierand anuther v. A. Mudaliar
(2) the setting up of an adoption is held to be an

"

infringement of the plaintiff's right3 SO as to entitle

p
,
him to obtain a declaration under the provisions of tlie
Specific Relief Act. There IS therefore no question
that in entertaining the suit brought by the deceas~d
R. R. Kha,n in resped of a declaration,of his status as the
step-father of the present plaintiff, the District Court of
Myaungmya w~s acting within its compe'tence and Ihe
defence now brought forward atlacking the said. suit
cannot be considered to have any validity.
One further point raised on behalf of the plaintiff
in answer to the plea of res judicata is that the present
plaintiff ancl the present defendants are now all
claiming through the former plaintiff R. R. Khan itii'd
for that reason the plea of res judicata sholIlu"hot
prevaiL The case of Syed Ashgill' Reza Khan v:Sjed
Mohamed Me/uti iiossein [{han alld others (3) ancl the
(1) (19101 34 Bom.676. (2) 29. Mad. 48.
13) ,0 LA. 71.
H
210 BURMA LAW REPORTS. [1950

H.C. case of il1t1ppal1ar and others v. Vijayathammat (1)

1950
have been cited as authorities for this view. This
AZAM KHA~
V. contention is, however, not strictly v,tlid or relevant
DAW KHIN
AND OTHER;;.
owing to the wrong assumption that the present
U AUNG THA
plaintiff is seeking a claim in the present suit under
Gwv, J. fhe title of the party who figured as the plaintiff in the
previous suit. The que~tion which wa&. substantially
in issue in the previous case was whether the present
plaintiff was the step-son of the; deceased R. R. Khan
the plaintiff in the previous suit. And the same
question is substantially in issue in the present. suit
before this Court and the contention raised on
the plaintiff's behalf that he is now claiming a
title derived from the former plaintiff R. R. Khan
is clearly inadmissible. The defendants' plea of
res judicata i11ust accordingly prevail.
The next question of law raised on behalf of the
3rd defendant is that by reason of the plaintiff's apostacy
he has lost his right of inheritance even if he succeeds
in proving that he is a son of the deceased R. R. Khan
This plea is clearly of no avail in view of the existence
of the Caste Disabilities Removal Act (1850). This
act is considered to have abrogated a rule of
Mohamedan law by' which a non-Muslim is excluded
from succession to a Muslim (See Rlipa and others v.
Sc,rder Mirza and others (2). See also the case of
. C. V.N.T. Chidall1baram Chef/yar v. Bfa Nyein ivJay
am! others' (3). The issue raised on the point is
answered in the negative.
In the result the plaintiff's suit will stand Clismissed
with costs. He is liable to pay to Goverqmentthe
amount of collrt fee which but for the permission to
sue in JOrilla pallperis, he would be req'lired to pay on
his plainL
---'-_..."i.-.- - ' - - - - -'--
(tl 6 Mad 43.
. 12) A.I.R (1920) Lah. 27p.
(3) 6 nan.. 243.
.~ -- r
 1950J BURMA LAW REPORTS. Zll

APPELLATE CIVIL.
Befort U Trw Byfl, Cltiej JII:.tice. a1ld U Siltl Mallng, J.

TAWGWAN LYE (ApPELLANT) ftC.

1950
~
v. Mar. 16.
MA THAN YIN AND SIX OTHERS {RESPONDENTS).;;

Orda41, Rule 22, COLic a/Civil PYiJadllre-f)ccision in Im.our oj ~ Party-

'Whether cross-objectio1Js l1cccssdry-SPtcijic Relh,! Act, s. 42_Bare
declllrdtion-WltctJ party tutU/cd to plIr/iliofJ-Mainlaifldbilify.

Where a suit had been dismissed by the trial Court on merits, but the
trbl Court at the same time h~ld that the suit for br..re declaration that
plaintiff was an oraslI SOil, without asking (or partition, was siJstainable
<lgainst the c1efcndanfs-
Heltl: That notwithstanding the fact that no cross-objections had been
fileJ unler Order 41, Rule 22, ';.}1e of Civil Procedure the respondents could
support the judgment in their favonr upor. an i!'isue decided a~ainst them. It
was not necessary to file cross-ohjections in the circulUstances of thp.case, as
~
the defend:lOts had no right of apPcll against a judgment in their favour.
Abitwsllc!t.l1Jdra Ghosh v. NarallllJ"i Metllfl", (l930J LL.R. 57 Cal. 28Q ;
Tallsuklt Rai v. Gop.ll J.\fIl1:tOll, (1929) l.L R. 8 Pat. 617; Mid/lapllr Zan/iudar
COmpl/l1Y Limited v. Nares" Chafl{{rll Roy, (1921) I.L.R. 48 C:<.1. 460 IP.C. \
referred to.
d. Casperse v Kishorj Lal Roy ::w.1 oU/crs, (1896) I.L.R. 23 Cal. 922 at 929,
distinguished.
Hdd also: That the pro vis ) to s. 42, Specific Relief Ad, pruhibits the
comt from granting a decree for bare declaration, where the plaintiff, being
able t<fask furthc, relkf, omit:3 to do :,;(,. In tile present case, the plaintiff
could and should have asked for partition; as he had persisted even in appeal
that the snit was proper! y filed he co,lld not be allowed til amend the plaint at
that stage of appea1.
Suryallarajiatla1JHtrt, audmlOllterv. TammntZ1la and anotller, (1902) LL.R.
25 Mad. 504 at 506; PumllS aJ/a others v. T. AmwlIl and others, A.I.R (937)
Ran. 427 at 428, referred to and followed.
Natesa Ayy.lr v. Mallg~llllt!JaJllml//.A.I.H. {l933l :'orad, 503; V,dallayaga
MlIda1i3r v: l'edam11lal, (904) I.L.R. i7 1fac1. 501, di"tinguished.
Purp0:3e for wtlich letters are issue.:l and the object for which an Adminis-
tration sui.~ is filed cannol be said to be the same.
Matmg Yt: Gyall v. !Ita H"I; llId three others, (1900-02) 1 L.B.H. 155
all57, referred to.
"

Civil ist Appeal No. 75 of 1918 agail).stde~ree of Orig.inal" Side, High

Court, Rangoon in Civil Regular Snit No. 20 of 1948, dated the 27th Aug-list
194H,
212 BURMA LAW REI'or~rS. 11950
H.C. I~ymv Din for the appellant.
1950

TAN GWAX
LYE G. N .. Rannerji for the respondents.
V.
l'IJATHAN
YIN A:\1)
SIX.o'r.. EI{S.
U TUN Bvu, C.].---:"The plaintifk,ppellant Tan
Gwan Lye instituted a suit, which is known as Civil
Regular No. 20 of 1948 of the Original Side, against
the defendants-respondents Ma Than Yin, 1Ia Saw Hla,
Ma Tin, Ma Thein Shin, Ma Kyin Mae, Ma Kyin
Nyunand Ma Kyin U for declaration that he
was an orasa son of the deceased Tan Sh u Yon
through one Ma Kalama, who was said to be the
'first wife of the deceased, and that he was entitled,
as an oraSll son, to one-fourth share in the estate of
Tan Shu Yon, without adding in his plaint a prayer for
partition or possession of his share. Ma Than Yin is a
daughter of Tan Shu Yon through his wife Ma Ngwe ')
:Hlaing who predeceased her husband, and she denied
in her written statement that Tan Gwan Lye was a
'legitimate son of Tan Shu Yon who appeared to have
had five other c,hildren through his other wives; and
one of the children was said to be a posthumolls child,
Ma Thein Shin, Ma Kyin Mae, Ma Kyin Nyun and
Ma Ky!.tlcU were wives of Tan Shu y'on,and they also
denied that Tan Gwan ,Lye was a legitimate son of
Tan Shu' Yon who died in Rangoon on or about
.24th December 1946. Ma Saw Hla al'd Ma Tin were
Tan Shu Yon's wives also.
o Tan Shu Yon's father was a Chinaman, and his

mother was a Bl'fl11ese lady named Daw .Thein. It

'appears that Daw Thein's husband predeceased her
and that she died some years before Tan Sh'lI Yon.
Besides Tan Shu Yon, they also had two other
children named Daw Kyin Tee and Tan Shu Swan,
hoth of whom are alive. Tan Sh 1I Yon was a Sino-
Burmese Buddhist, and after his demise his daughter
 1950J BURMA LAW REPORTS. 2'13
Ma Than Yin applied for letters of administration to H.C..
19.:0
his estate in Civil Miscellaneous No. 83 of 1947 of the
TAN GWAl\"
Original Side. Ma Tin, one of the wives oi Tan Shu LYE
V.
Von, also applied for letters of administration to the MA THAN
estate o[T~m Shu Yon in Civil Miscellaneous No. 496 YIN' ANI.<
SJX oTH1::HS.
of 1947. It might be mentioned here that Ma Than
U TUN Byu,
Yin was, at first, appointed administrator pendente lite c.).
to the estate of Tan Shu Yon. Subsequently her
appoin tment as administrator pendente lite was
cancelled, and the Official Receiver was appointed
Receiver to the estate of the deceased Tan Shu Yon.
Tan Shu Yon was an amorous man, and he died
leaving several wives surviving 111m. It is not disputed
in this case that Ma Ngwe Hlaing, Ma Saw Hla,
Ma Tin, Ma Thein Shin, Ma Kyin Mae, Ma
q Kyin NYl1n and Ma Kyin U were all wives of
the deceased Tan Shu Yon. It appears that
Ma Kyin Mae and Ma Kyin Nyun are sisters
and that Ma Kyin U is their niece. One Ma Yi,
who lived in Rangoon, was also said to be a' wife of
Tan Shu Yon, and she is said to be dead. The learned
Judge before whom the C.be was heard held in a
separate order, dated 9th July 1948; that the suit was
. maintainable in the form in which it was instituted
He also held subsequently, after all the evidence had
been recorded, that Tan Gwan Lye was not a legitimate
son of Tan Shu Yon and, as such, was not entitled to
any share in the estate of Tan Shn Yon.
The first question which falls to be considered in
this appeal is whether the defendantrespondents
could be allowed, in view of the provisions of Rule '12
of Order 41 of the Code of Civil Procedure, to raise
the preliminary legal issue, which they raised bu the
Original Side, when they have not filed any cross-
objection to the decree; and the answer must, in our
opinion, be in the affirmative. The last paragraph of
Z14 BURMA LA'NREPORTS. [1950
a.c: the headnote in the case of Abinashchandra Ghosh v.
1950
N arahari Methar (L) reads as follows:
TA~ GWA~
LYE
V.
.. A respondent can, under Order 41, Rule 22 of the Civil
MA THAN Procedure Code, 19q8, support the decree at the hearing 'of the
YIN A;,:n
SiX QTUEHS. appeal- by attacking the findings of tile original Court on issues
decided against him, althougl'l he did not file a cross objection,
U TUN Byl',
C.]. the decree q~ing in his favour. 1I

The headnote in the case of Tausukh Rai v. Gopal

Malzton (2) also reads as follows:
(lWhere a suit" was dismissed ag1inst a defendant, but the
trill COllrt had come to a certain f1nding adverse to the defendant
the s~it havillg been dismissed in spite of that fincli!1g .
.Held : That. the defcGdant had no right of appeal against
that."

The desision of the Privy Council in the case of ~

Mi<//I<lpUr Zalllindari Company Limited v. Nllresh

Clwlld;a Roy (3) was also ret erred to in the above
Patna case, where the Judicial Committee observed as
follows:
II The widow has not appealed against the decree, nor could

she because it is in her fwoLlr, but she has appealed against the
fi nc1!ng that the .~I:QJhers w.ere. _joint. hl estate. It may be
supposed that hel~ advisers were apprehensive lest the finding
should be hereafter helel conclusive against her, but this could
not be so, inasmuch as the decree was not based upon it, but W;l.S
made in spite of it."

It is thus clear that it is open to a party to a suit to

support the decre': at the heanng of the appeal Dn the
point that had been decided again~t that party without
filing any cross-objection, where the decree was
entirely init's favour and where that party had no right
of appeal against such decision, as in the case now
unde~ nppeal.

II) (1930,57 Cal. p.289. 12) 1t929) 8 Pat. p 617.

t3) (1921) I.LX 4" Cal. p. 460 (P.C.).
 1950J BURMA LAW REPORTS. 215

Rule 22 (1) of Order 41 of the Code of Civil a.c:'

1950'
Procedure reql.ires a cross-objection to be filed only TAN GWAN
by a party who had a right to appeal against the decree, LYE
v.'
but who had failed to do so. There does not appear :\'rA. THAN
to be anything in the decree passed in the case now SIXYINOTHl!:RS.
AND

under appeal, . asainst

-
which any of the defendant- U Tu:-.: ByU, ,
respondents could have appealed as the decree was, c.].
entirelyin their favour and as the decisiQn on the
preliminary issue \vas merely to pave the way for
the Court to proceed with the trial of the suit:,
The decision on the preliminary issue does not,ancl'
cannot, affect any right, claim or interest of any oi the
defendant-respondents in the estate of the deceased
Tan Shu Yon. The ca,e of A. Caspersz v. Kislzori
Lal Roy and others (1), \vhich was cited on behalf of
the plaintiff-appellant, is not inconsistent witl> th!'l
cases that have been referred to above, and Lord
Hobhouse, at page 929, ob,erved :
II Defendant 4, being invited heret avails himself of the

invitation to g.t the decree vnried in his favollr. He must,

however, fall under the usual rule th,lt the respondents cannet be
helrd e'\.cept to s~lp;>ort the c1~Cl\~e. and can alter it by me,nns of
a cross-appeal."

The defendant-respondents Ma Than Yin and,

others have no desire to alter or vary the decree
passed on the Original Side, which was entirely in
their favour, and what they purport to do, in raising
the preliminary objection here, is to support the decree,
also on the gro'.ll1d that had been decided .against ,
them.
. The next question, which arises, is whether the
plaintiff-appellant's suit for a bare declaration can,in'
view of the proviso to section 42 (1) of the Spf\clfic
Relief Act, be entertained in the circumstances
obtaining in the present case.
(1) 11896) 23 Cal. p. 922 at 929.
i:6 i3uk1vIA tAW. T{EPokts. [1950
H.C. , In SufyanaraYalwlIlurti and another v.
1950
Tal'll/nanna 'llJul anotller (1) it was observed as
TA~ GWA:>:
LYE follows:
V.
MA THAN " The proviso to section 42, Specific Relief Act, prohibits the
YI~ A:--D
Court from granting a declaration'like that asked for itl this suit
SIX OTHnI~S;
, where the plaintiff bein~ abl~ to seek furtller relief than a mere
U TUN Byu.
C.J. declaration of tWe omits "to do so.' Here it W:1S open to the
pl<lintiff to have sued for partition of his share in the joint family
property, if it was joint family property, as alleged by plaintiff.
That was a. furthe:' relief of a very substantial char.1ctel", and
even
if the Ianel were in p::J3;:;ession of tenants enWled to continl1c
in occupation it would be no bar to a partition cf the property
among the members of the famB};, the tenant's right '~f cccupa-
tion, if :lnY, not being affected by sueli partition."

Tlie above obs~rvation applies, in our opinion, with

equal force to the case now under appeal. The plaint
in the present case shows that Tan Gwan Lye, even if .,
he is a legitimate son of \he deceased Tan Shu Yon,
would have been entitled to only a portion of the
estate of Tan Shu Yon as th'ere are other heirs, who J

are also entitled to share in the estate of Tan Shu

Yon. This is accordingly a case where Tan Gwan Lye
could have also asked for partition of his share, and he
could therefore be said to be entitled to claim a further
reli~f th~n a inere declaration. He decided, however,
to proceed w'ith the case without claiming a further
relief; \vhich he was in the circumstances of this case
entitled to do, and, in doing so, brought himself
within the prohibition contemplated in the prqviso to
secti'on 42 of the Specific Relief Act.
In Pumus and otliers v. T. AlJIlIlat aud others (2)
Baguley J., observed:
u \Ve aJ.!le~ tha.t a snit for a bare declaration ought not be
fiLed in the circlln~ ....tl1ces of the present case. 1 the plaintiffs
are correct in what they assert in tllch' plaint, the position was
(1) (1902) 25 ~Iad. p. 5J-J at 5Q,), (2) A.LR. (l937J l~an. p. 427 <.Il 428.
 1950J I3Uf{MA LAW REPORTS. 217

that they were joint owners 0 the house and house~site in H.C.
19'-0
question with the firm. They were in possession, but were not
entitled to outright ownership, and it is clear that the matter in TA){ GWAN
controversy between the parties t;annot be s~ttlec1 finally until the
joh;.~ property is partitioned between the parties, * * ~ and' MA 'fIlAN
LYE
..
YnrA~D
110 Conrt should gt"tlilt a cled nation which is merely a part SIX'ITHERS.
! 5 ::ttlement of the dhpute in question, and is olJfained soleI) to
U TUN ByU,
give the pady getting it a tactical advantage in f~ture litigation." C.I.
We respectfully agree with theabo\'e observation,
which appears to LIS to apply also to the case now
under appeal, because, even if Tan Gwan Lye h,ld
succeeded in obtaining a declaration in his favour, it is
obvious that he must also subsequently institu1e a suit
for partition or possession. of his sh".re in the estate of
the deceased Tan Shu Yon, and what his share would
exactly be will have to be determined in another suit.
Admittedly, no suit has yet been filed for the
administration of the estate of Tan ~hu Yon.
The case of Nalcsa Ayyar v. ManJ!,alatlwllI/Ilal (1)
.')lust of course be read in the light of the special
circumstances existing in that case. Certain money
was realised, in that case, after the decree had been
passed; and the money was br<>ught into Court for the
. purpose "f realising the decree. It was held there that
the. custody of the Court was in reality on behaH
of the decree-holder only, and for no other owner. In
the case now under consideration the Official Receiver
conld not strictly be said to be holding the estate of
Tan Shu Yon for distribution among the heirs of
Tan Shn Yon in the absence of 'a suit for tbe
administmtion of the estate of Tan Shu Yon or
for partition of the estate, and particularly
when only application for letters of administration
had been filed in Court. The real purpose
of granting letters of administration is, it seems
--..._---_._-- +---- - - - - - - - - - - - - - - - - - ..- - - - ---- ----
(l) A.l.K (, (33) i\J ad. p. 503.
218 BURMA LAW REPORTS. [1950

H.C" to us, to bestow a representative character to the

1950
applicant in respect of the estate left by a deceased
TA':S G\VA:-l
LYE
person; and in hearing the application for the grant of
v
r-,rA THAN
letters of administration the Court should not be
YIN AND required to t:nter into the l1)ore complicated question
SIX OTHERs,
of title or to determine the shares of each of [he heirs,
U TUN BYU,
C.).
as those are matters which ought to be decided in a
regular suit. The object of an administration suit 'is
not quite the same as the purpose for which a letler
of administration is granted as the real object of an
administration suit is to have the estate of the deceased
aclminisiered under a decree of the Court. Thus the
purpose for which letters are issued and the, object for
which an administration suit is. filed cannot be said to
be the same. .ln MauJlg Yc GyaH v. Ma Hmi and
three qthers (1) Fox J. as he then was, observed:

1\ The question of what the estate consisted of anel '''-1hether
the property which the applicant alleged to be the estate did
in facl belong to the decc:lsecl at the time of her death, anel the..
fad that the property was in the o,bjector's possession were nor
maHer.::: which should have been gone into in a proceeding the
object of which was to determine \vhether the applicant had the
first claim to be clothed with the right to represent the
cleceagec1. l1

The case of Vedal1Q)'aga Mudnliar v. Vedammal (2)

was a case which was relied upon on behalf of the
plaintiff-appellant to indicate that he could properly
file his suit in the form which he die! for a bare
declaration only. That case will have to be' read in
the special circumstances which existed there; and
that was a case where nothing more was required to be
done for the purpose of securing to the plaintiff all the
rights that he possessed in the property left by the
deceased minor; whereas in the case now under
appeal it is necessary for the plaintiff to claim partition
(11 (1909-19021 1 L.B.R .. p. 155 at t:7. (2) (1904) 27 ;,Iari. p. 59!.
,
 1950J BURMA LAW REPORTS. 219
H,C.
or for possession of his share in the estate left by his 1950
deceased father eefore bis share in tbe estate can be TAN' GWA.:-l'
made effective to him. There are admittedly a LYE
V.
number of claimants with diverse interest in the MA THAN
YIN AND
estate left by Tan 5b:11 , Yon, besides' the - plaintiff- SIX OTHERS.
appellant. U TUN ByU,
It is in any case clear in the case now under appeal q.
that tbe plaintiff-appellant could have asked for a further
relief, tbat is for partition, and tbat he omitted to do so.
For the reasons that have been already set out the
preliminary issue must clearl,y be answered against tbe
plaintiff-appellant; and, if the preliminary issue had
been answered against the plaintiff-appellant, it is
obvious that he could not have proceeded with the
trial of his snit witham at least amending his plaint.
We, bowever, do n'ot consiqer .that we ought to aliow
him to amend ids plaint at the present stage, in vi'ew of
the fact that he had persisted, even in the appeal, in
contending thaI he could properly file the plaint in the
form which he did. It will not however be necessary
for us to decide on the second issue because the
appeal will have to be dismissed in view of the decision
which we have arrived at on the preliminary issue.
The appeal is dismissed with costs.
U SAN MAUNG, J.-l agree.
2]0 BURMA l.AW REPORTS. [1950

APPELLATE CIVIL.
Before U Ttw Byu, Clue} lttsilce, and U San .l1l1llllg, J.

H.C. U MAUNG GALE (ApPELLANT)

1%0

- !fItlY. 16.
v.
V.V.K.RV.S. VELAYUTHAN CHETTIAR
\RESPONDENT).'"
Liabilities (War-Time /ldjllo;fm':ttl) Act, 1945, ~S. 3 1l1ld 5-Limilaliolt Act,
Schctl~lle I, Arl1clc 181-Execll!ioll--Mc(/llillg of.

"(here a decrce~holder obtained a decree for mOney on 12th JulyllJ~6 ;lOd

appiicdJor execution on 'th~ lith July 1919 without obtaining leave to execute,
but on 5th Augnst 1949 he applied for leave under s. 3 of the' Liabilities
(\Var~Timp. Adj lshnenf) Act, 1947, and the a:',llicalioll was granted 'by' the
High Court.
Held .. That Article 181, First Scllednlc, Limitation Act, does nnt apply to
;]n application for leave under 5. 3 of the Liabilities (WarRTilllc Adjllsflll~nt)
Ad. There is nothin~ in the said s~clion to indicate ",vhen the period of

lidlilation for an appJicatio:l is to commence, and Ilowher~ else in the Act has
any sllch period beell fixed. S. 3 must be read strictly as it C'm.:roaches on the
ordinary ri~ht of a person to execute' a decree or ordt:r. Execution meant'
cJITying out the i:Jdgment or order of a court into effed and mtl~t be so rea'd
in '5. 3. The decree cannot be said to ha....e been made effective unless
something has been done to make it so. Order 21, Hulc Ii, sulHules U}, (~)
~nd ~4J, als l indic:tle the meaning i., the sa 1C sense. It is therefore sufficient
if the: leave of the c');]rt under s. 3 is filed in lhe execution proceedings bef)rc
tlle-exechting Conrt tMsses an order' allowing executioll. -
An application for leave to execute and an applic;'l.tion to execute arc diffcrt;1l1
3pplications and qm;:"tion to be decided in tht'se applk:alions aTC diff~rt:ni.
An <lpplicaHon fo~ execution might be rejected for formal or technical
difficulties. In an application fOf leave to execute. s. 5 of the Liabilities
(\Vai' Time Adjuslment) Act, 1945, des-:ribes the maHers to be considered.
It i,> IloL nCCCss;"lry to com-:ider in ~l1ch applicatioll whether lhe execution
application is barred by limitation. This l1111st be considered in ~l1e cxecntion
proceedings ilst:1f.

N. K. Blzattacharyya for the appellant.

G. Joseph for the respondent.

.,. eil-il i\fisc. Application No. 129 of 1949 against the decree of the :High
Court On the Original Side in Ci\'il l\Jisc. No. ll)S of 194-9, da'cd tI,e
11th No\'ember 1949.
 1950J BURMA LAW REPORTS. 221
B.C.
UTUN Byu, C.J.-The respondent V.V.K.R.V.S. 1950
Velayllthan CheWar obtained, on 12th July 1946, a U i\IAUNG
decree for Rs. 99( for arrears of house' ,rent, against GALE

tlie appellant U Maung Gale in Civil Regular Suit V.V.K.ILV.S.

VELAYUTH,\~
No. 293 of 1946, of the Rangoon City Civil Court. On CHETTI.-\.R.
11th July 1\141), the respondent applied in Civil
'Execution Case No. 384 of 1949 for the execution of
the said 'decree, without obtaining the leave of the
COl;rt under secti'on 3 of the Liabilities (War-Time
Adjustment) Act, 1945. On 5th August 1949 he
applied fur leave to execute the decree which he
obt,tined in Civil Regular Suit No. 293 of 1946, as
required' under the provisions of section 3 of the
Liabilities (War-Time Adjustment) Act, 1945, and his
'applic::ltion for leave to execute the decree was granted
in Civil Miscellaneous No. 195 of 1949 of the Original
Side.
The question is, can the respondent Chettiar apply
for leave to execute the decree he had obtained after
the expiration of three years, where he has already
applied for the execution of that decree in a separate
proceeding within three years as required in Article
182 ofthe First Schedule to the Limitation Act. It has
not been disputed tllat the application for the execution
of the decree, which the respondent Chettiar filed in
Civil Execution Case No. 384 of 1949 was made within
three years of the date of the decree. It might be
mentioned that no period of limitation has been
prescribed under the Liabilities (vVar-Time Adjustment)
Act, 1945, for an ,application for leave to execute a
decree. It has been urged on behalf of the appellant
U lVlaung Gale, who is the judgment-debtor in Civil
Regular Suit No. 293 of 1948, ,that the, provisions of
Article 181 of the First Schedule to the Limitation Act
apply to an application for leave (0 execute a decree
made under section 3 of the Liabilities (War-Time
222 BURMA LAW REPORTS. [1950
H.C. Adjustment) Act, 1945, on the ground that Article 181
1950
is an Article which ought to be applied generally
U 1\I.\UNG
GALE to all proceedings and applications for which no period
. ~I.
V.V.K R.V.S of limitation has been prescribed, either in the
VEL.-\YUTHA~
CUETTr..\'R.
Limitation Act or in any other law. Weare unable, so
far as the present case is concerned, to see any real
UTUN HyU,
C.l. force in tbis' contenti6nj and the observation which
the learned Judge on the Original Side made appears
to us to be apposite,which reads as follows: .

It If what 1\lr. Ell1ttacharryya says be true, then the limitation

period for applicatipns tmder section 3 of the Liabilities (War~Time

Adjustment) Act for permission to execute the decree and the time
limit within which action should be taken to execute the decree
are identical so far al:> the lowel" Courts are concerned. But in
the case of decrees of the High Courl, the limitation period for
purposes of execution is twelve years, vide Article 183 of the
Limitation Act. Applying the arguments of Mr. Bhattacharryya,
it would appear that even though Article 183 allows a clecree~
bolder t ,,-e: V'e years within which to decide on execution Or
othenvise. yet in view of section 3 of th.e Liabilities (War-Time
Adjustment) Act', read with Article 181, this period is reduce(r~'to
three years as the decree-holder must necessarily apply for
permission to 'execute the c1eCl'ee before the expiry of three renrs.
Obviously the pedod of limitation mentioned in Article 183
cannot. possibly be curhi~eet or ,rec1!;ic.ed by Art}.cl~ Hn ."

Moreover, there is nothing in section 3 of the

Liabilities (War-Time Adjustment) Act, 1945 J to indicate
when the period of limitati,'n for the purpose 'of an
application under section 3 is to commence. It is
likely, in cerlain cases at least, that the' judgment-
debtors would not. be in a position', ow,ing to war
circumstances, to pay anything towards the. decrees at
the time they were paosed j and 'the . necessity for
applying for'1eave will not arise ttntil the judgment-
debtbris in.a position' to pay, at !east,something
t.owards the de.cree. "\'
 1950] BURMA LAW REPORTS. 223

The relevant pJftion of section 3 of the Liabilities H.C.

19~O
(War-Time Adjustment) Act, 1945, reads:
U"l\JAUNG
GALE
"3. Save as provided by this Act, no person shall b~ entitled v.
ex(:ept with the leave of the Court, execute or otherwise enforce V.V.K.R.V.S.
VI::LAYUTHAN
any decree or Dreier of any Court (whether made before or after CIIETTJAR.
the commencement of this Act) for the payment or recovery of
U TUN BYu)
money: . c.].
Proz,idc:d that, nothing in this section shall apply to-
* * :; . ,; . 11

Section 3 thus leaves the question of limitation

untotH.;hed, and nowhere in the Act has any period of
limitation been placed on an application for leave to
execute a decree. It has, however, been contended
that section 3, in effect, prohibits an application for
execution of decree being filed in any Court without
first oqtaining the leave of the Court, and that, where
, the application for the leave of the Court is made more
than three years after the decree was passed as in the
case no~' under appeal, the application for execution
o:;;hould be considered to have been time-barred, although
an application for execl1tion had been filed within three
,years. Section 3 will have to be read strictly in tbat
it encroaches on' tbe ordinary right of a person to
e~ecl1te or enforce a decree or' order for payment of
money, which a CO,urt has passed in his favour.
It has been said that" execution, f.t'ecutio signifieth
in law the obtaining of actual possession of anything
acql1ired by judgment of law or by a fine executory
levied whether it be by the sheriff or by the entry of the
party." :',1) In fVharfon's Law Lexicon, "execution"
has been said to ,mean" the last state of a suit whereby
possession is obtained of anything recovered by a
judgment." .
Thus the expression "execute" conveys the idea of
'carrying out the judgment or a final order of a COllrt
tIl Co. Li~t. 154d.
224 BURMA LAW REPORTS. [1950

H.C. into effect; and it appears to us that the word

1950
"execuk" in section 3 of the Liabilities (War-Time
u ~AAL~::G Adjustment) Act, 19-15, ou~ht to be r,ead in that sense.
v.v,~:i<.v.s. If it is read in that sense, it is difficult to conceive how
VELWU.-rHAN the decree can be said to have been made effective at
CHETTIAH. ~
_ all unless something has .been done WhICh had the
u j~.J:lYv. effect of making the de~Tee effective, at least parti<\lly.
It is obvious that the decree cannot be considered. to
- have been made effective, at last, until the executing
Court' passes an order which will enable the decree-
holder to recover something towards his decree.
The wordings of sub-rules (t), (2) and (4) of Rule
17 of Order XXI of the Code of Civil Pr0cedure also
i11l1ic<\te th<\t the d~cree ought not to be considered to
have been executed until the executing Court passes an
ordllr allowing the decree to be execu ted. It is
therefore only reasonablc to conclude that it will be
sufficient for the purpose of the executing Court, if the
leave of the Court contemplated in section 3 of the
Liabilities \War-Time Adjustment) Act, 1945, is fileif,
in tbe cx~cution procecding" before the executing Court
passes any order allowing the decree to be executed.
An application lor the leave of the Court to execute a
decfee"l1lidersectiOlr' 3"01 the Liabilities (War-Time
Acljustmc'nt) Act, 19+5, and an application, for execution
appear to us to be clearly distinct applications, and that
the qucstions which fall to be decided in these two
applications are different. It is clear that when an
application for the execution of a decree i filed in
Court it does not necessarily follow that the Court will
allow execution to be made. It is possible that the
applic:\tion for execution might be rejected because of
some formal or kchnical defects in the application or
that the Court might require the application for execu-
tion It, be amended before it hears such application and
orders execution to be made.
 1950J BURMA LAW REPORTS. 225

The matter which is to be considered in an application H.C.

1950
for leave to execute a decree under section 3 of the
U 1'I1AVNG
Liabilities (War-Time Adjustment) Act, 1945, has been GALE
set out in section,S, which reads: v.
V.V.ICN..V.S.
VEL"<\YUTH.\~
q 5. If, on an application for sllch leave as fs required under CUE.'l'TIAR,
section 3 or section 4 for the exercise of any of the right and u
Tu~BYU,
remedies mentioned in those sections, the Court is of opinion tha t C.).
the person liable to satisfy the decree 'or, ordelo is unable
immediately to do so by reaso;l of war circnmstances, the Conrt
1TI1y refnse leave f('lf the exercise of thaf right or remedy or ~ive;
leave th~r..::foc st1hjcc~ to such terms, restrictions and conditions
as the Court thinks fit."

It is clear therefore that it 'is not necessary in an;

application for leave to execute a decree .to cons!.der
whether the execution application, which. will be
proceeded with after the leave is obtained, is barred
t
by limitation of time or not. The question of limitation
pf time should ordinarily be j'aised in the.' execntion
proceeding unless it was obvious on tbe face of tbe'
,record or the admission of the, parties tliat' ,th'd
'application for executiol) in the executing Courthitd
been barred by limitation of time. This is not 'such a
case, and we do not therefore propose to express any
opinion on the question of limitation, but will )eave
tbis question to be dealth with, if necessary, in the
executing Court. 'i' . : \
The appeal is dismissed with costs, and Advocate's
fee three gold mohurs. .
U SAN MAUNG, J.-1 agree.

. ,:
"
.,
.'

15
226 BURMA LAW REPORTS. [1950

APPELLATE CIVIL.
Bf/ore U 11/11 BYII, ellie.1 ]usUce, al1d U Stln MatItlB. J.
H.C.
1950 U TUN MYINE AND ONE (ApPLICANTS)
/fIgI'. 28.
, v.
KO AYE MAUNG (RESPONDENT).'x,
Code afCivil Proced1lrc, S, 110, jJarag1'apIJ 2-S. .1 (e), Uniolt Judiciary Act,
1948-Valllt of subj"I1)Zatfer of the aNed-Mortgage decree-Vaille
oj debt or of proPerty give" tiS security.
For the purvoses of grar:ting a certificate under s. 5 Ie) of the Dilion
Judiciary Act, as under s. 110 (2) of the Code of Civil Procedure, the
judgment must involve directly or indirectly some question respteting the
property, the value of which i'i not less than Rs. 10,000.
In a suit on a mortgage, the Mortgagee cannot obtain more than the
amollnt claimed under the decree, which, in this cl~e, was le~s than Rs. 10,000.
It is Ild the val tiC of tbe property tllat is the test.
M. E. MooUa & SOilS, Lid. v. Ecoll Shah, Sway, (1926) 4 Han., 92 at p. 94;
,
De Silva v. De Silva, (190~) 6 Bombay Law Reporter 403 at p. 406;
N. C. Gnlliarn v 1.M..'ll. MUfllgapta Chel/y, 1.1(34) 12 Ran. 355 at
pp. 363 and 364 ; Mrs. COl/simla M. Writer v. A. M. Khan, Civil },Iisc.
Application No. 26 of 1949 of the High Court referred to and followed.
Nadir !lllssail. and others v: .M/!Ilic;pal Bva"d, Agra, (1937) All. 405 at
p. 410; [shwari Prasad Si1lgh ami others v. Sir Ka11leshivar Singh Btl}u:dur
ami others, (1941) A.I.I-~. Pat. p 283, disHn~uishe{!.

RIa- TlInPrzrfor-thl;applicants.

Sa Nyunt for the respondent.

U TUN Byu, C.J.-The plaintiffs-applicants

U Tun Myine and Ma Than obtained, on 3rd May 1949,
a preliminary m::>rtgage decree for a sum of Rs. 1,890
against the respondent Ko Aye Maung, who, was the
1st defendant in Civil Regular Suit No. 936 of 1948
of the City Civil Court, Rangoon, but their claim as
Civil Misc. Application No. 1 of 1950 {or Leave to appeal to the
Supreme Court of the Union of Burma ag"ainst the Judgment and Decree
in Civil First Appeal No. 32 of 1949, d)ted the 23rd November 1949.
 1950] BURMA LAW REPORTS. 227

against Ma Aye Khin, wife ot Ko Aye Maung, and H.C.

1950
I\'1aung Han, who were the 2nd and 3rd defendants
in the 'said suit, was dismissed., Ko Aye Maung UMYINE TUN

appealed against the decree whieh was passed against ANDONE

V.
him in Civil Regular Suit No. 936 of 1948, and he was Ko AYE
MAUNG,
successful in the appeal, which was known as Civil
U . UN Byu,
, First Appeal No. 32 of 1949. C.j.
The plaintiffs-applicants U Tun Myine and Ma Than
!lOW apply under section 5 of the 'Union Judiciary Act,
1948, for a certificate to appeal to the Supreme Court
on the ground that the case is one which falls within
clause (e) of section 5, which is, in effect, the same as
the second paragraph of section 110 of the Code of
Civil Procedure. It has been submitted on behalf of
the plaintiffs-applicants that as the mortgaged property
is worth more than Rs. 10,000 in value, a matter which
is, however, not admitted by the defendant-respond,ent,
a preliminary mortgage decree should be considered
to be a decree which involves seme claim or question
respecting property of over Rs. J 0,000 in value. It
bas been argued thai as a mortgage constitutes an
interest in an immovable property, the prelimimuy
mortgage decree should be consiJered to be a decfte
wl1ich involves the consideration of. a question.
respecting the immovilhle property which, so far as
the present case is concerned, is for )TIore than
Rs. 10,000 in value.
The question which arises is, whether the present
case can be considered to fall within the meaning of
clause (e) of section 5 of the Union Judiciary Act,
1948, and, in our opinion, this question will l,ave to
be answeled in the negative. In M. E. Moolla & Sons,
Lid. v. Leon Shain Sway (l), it was observed, in
connection with the second paragraph of section 110
of the Code of Civil Procedure, which is equivalent to
(I) (1926) 4 RaJi. p. 92 at 94. ,
228 BURMA LAW REPORTS. [1950

H.C. clause (e) of section 5 of the Union Judiciary Act,

1950
1948. as follows. :
U -TUN
i\'lvINE. II We con:;ider that the hw on this 1uestion has been
ANI> ONE
v.:
a(,ctl~atelv l~id down by Sir Lawrence Jenk.ins C]. in the case of
Ko' AYI~ Di Silva' v. Dc Silva (1) 'To entitle the pI dntiff to appeal he
MAUNG.
mUft show that the conditions as to value prescribed by section
U'-TUNB1'""u;' 5'96 ~f the Civil Procedure Code are satisfied, and for this purpose
c.l. the decree is to Be lnoked ar as it affects the interests of the party
\~ho.is prejudiced by it, and who seeks to relieve hini.se1f fnm it
by appeal. I". The principle in that ((ase has been followed b}' a
Bench'of the Patna High Conrt in (1919) 4 Paina Law Journal.
page 415. "

The interpretation of paragrdph 2 of section 110 of

the Code of Civil Procedure was again considered
in N. C. Galliara v. A.M.M. MUl"ugappa Cllelty (2),
arid Page C.J. before whom most of the earlier cases
were canvassed, observed as follows:
". . . . . I am firmly of opinion that a certificate granting 9

le~~e' to appeal to His wlajesty in Council must be refused.

\\lhat loss 01" detriment have the ai-lplicants or any other alleged
cl~editors 6f the respondent suffered by reason of the decree or

onierof the High Court dismissing this petition? The value of
the pelitioning-creditors I debts is not in controversy at this stage
of the proceedingsl and is not the criterion to be applied, nor is
the val~e of the respondents' estate as a whole. The question
tl1<1,t faIls for determination, in my opinion is, have the applicants
be~n: able to satisfy'the Court that they 01' any of them have
stlHerecHoss or detriment of tilt value of Rs. 10,000 by reason
of the decree or order from which they seek to obtain le,,'lve to
appe:tl? In my opinion they have not. "

Thus, it has been held by the High Court of

Jildicature at Rangoon that it is the detrIm,ent or
10ss'tq applicant which is to be considere,d in an
atiplicalion for leave to appeal to th~ Privy Council
u'nd~r the second paragraph ,of section 110 of 'the
Co~e of Civil Procedure.
. (1)' (lI)O~l 6 Bombay'Law Hcportcr. p. 403 :It 406:
(2) (19341 12 Ran. p. 355 at 363,and 3("L
 1950] 13URMA LAW kEPORTS; 229
In P.L.M.C.T.M. KasivisWaflllflzan Clzettyar v. H.C.
1950
P.L. 11.C.T.K. Krisltnappa Chettyar (1) this Hi~h Court
followed. the decision made in the case of N. C. Galliara 11 TUN
J\IYJNl!
v. A.M.M.Mllrllgappa Chet/y (2), where it was observed AXU ONE
'if.
as follows: I~o A y.~
M\UNG.
"Section 5 (e) oilho Union Judiciary Aet;1948, like the second . -.-
U Tij':' BYu-,
plri'~l',lP:l of s~;ti9n 110of the ~o:::le of Civil Procedure requires C.).
that the juclgmc1.t; dect'ee or final order must involve directly
or in:1irectly some claim or question respectill!! property the
value of which is not less tlnn ten thol1:mnc1 rupees; allCl so far 35
the said para~raph is concerned it has been held in N. C. Gal/lara.
v. A.M.M. MUYlIgappa CIzelly (21 that it is the extent to which the
deCl'ee or Ql'del' has operated t9 the prejuc1ic~ of. the applicant
that determir~es whether the 'C1ecree or orc1L..r is subject t6 appeal
or not, an:l whalever may be (he value of the property in respect
of which 1 claim or qn~stioit is involve-l in the appeal] nO a~pe~i'l
lies under sedion 110 unless the value of the loss or detriment
which the applicant has suffered by tlle passing of the decree' or
order, and from \vltich he seeks to be relieved by His ~'iajesty in
Council, is Rs. 10,000 or up\vards. II

A similar view was held in a subsequent case of

Mrs. Constance M. Writer v. A. M. Khan (3).
It has been contended, howel'er, 011 behalf of the
plaintiffs c applicants that the -decision made in N (idir
Husain and- others v. MUllidpal Board, Agro. (4)
lays down the correct law in respect of the
interpretation of the second paragraph of section '110
of the Code of Civil Procedure, and that it ought
to be accepted as giving a correct interpretation to
the second paragraph of section 110 (,f the Code of
Civil Procedure. There it was observed:
.c Looking at the reliefs claimed in the plaint there' is no c,loubt

that the plaintifLwants a clt:cree for sale of the entire modgage~l

property which is owned by the defendants, for the realisatiotl of

(1) Civil :\!is('. Application No. ]0 of 19490: the High COllit

(2) (1934) 12 Han. p. 355 at 363 :lOd 364.
(3) Cidl r-.Jisc. Applicalion No. 26 of 1949 of the IIigh Conr!,
(4) (1937) All., 1" 405 at :to.
230 BURMA LAW REPoRrS. L1950
H.C.
1950 Rs. 7,625. The plaintiff claims that that sum is a charge on the
enlIre mortgaged property and it'is open to the plaintiff to select
U TUN
l\lYINE
any part of the mortgaged property at his option and put it up for
A"U Q;,.;:E sale at auction first, or he lTI1y put pp the whole property for sale,
'v. particularly as the properties consist of house properties alicl it
Ko AYE
l\f..w~G; m1Y be very inconvenient ,to put up fractional shares for sale
U TUN ByU, only. The question in dispute was as to the interpretation of the
C.]. hypothecation bond I namely whether it created a chan~e on. the
entire property for amounts- which had accrued suhsequent to the
date of the document. ,We find it very difficult to hold that the
High Court's decree does not direc Iy or indirectly involve some
claim or question to or respecting property of the value of
Rs. 10,000. "

The above AIlaha1xld case. is, of course, similar, to

the present case, and it was also followed in Ishwari
Prasad Sillgh alld others v. Sir Kamcshwar Singh
BaTzadur and otTzers (1), where it was observed:
( I It t:he
is plain that if plaintiffs do not succeed in this
litigation the property which they have pn;'chased in execution of
t11eil' mortga.~e decree will 'be liable to be sold, and that proper~.y
is worth llmch more than Rs. 10,000. That being so, it .is
difficult to held that the decree which is sought to be appealecl
from does not involve indirectly a question respecting properLy
mere than Rs. 10,000. '1

The facts in the case' of Ishwari Prasad Singh and

others v. Sir Kameshwar Singh Bahadur alld others
\1) are not really quite the same as in the present
case, in that in the Patna case the mortgagee had
alread y purchased the 'property in questiop, and it
could thus be considered, in that case, that the interest
of the mortgagee, who had already purGhased the
property in question, should be considered to extend
'to the full value of the property purchased by him.
In the case at present under consideration the
plaintiffs-applicants, who were the mortgagees, have
not yet purchased the property under mortgage. It\.
II) !I94t) A.I.Il. Pal. p. 288.
 1950] BURMA LAW REPORTS. 231
appears to us that, even if they succeed in the 'present H,C.
195,0
litigation, they cannot obtain more than the amount
UTVN
which they would be entitled to under the mortgage MY1NE
AND ONE
decree, which admiHedly was very much iess tho.n >.
Rs. 10,000. Even if they had been able fa buy over Ko AYE
~.1At;NG.
the property under mortgage, it seell's to us that it
U TUN ByU,
could not strictly be said that they obtained the C.).
property through or by me;tns of the mortgage decree,
in that other persons who had no interest whatever in
the mortgage decree could, if they so desired, have
also purchased the mortgaged property, although
they were not parties to the 'mortgage decree.
The decision in the case of Nadir Husain and
a/hers v. Municipal Board, Agra (1) was discussed
in Sm. Safi Bala Dasi v. Chota N a{!,pur BankiJig
Association Limited and ana/her (2), and ;t was
expressly dissented from: where' it was observed, with
reference to the case of Nadir Husain v. Municipal

Board, Agra (1 l, as follows:

U As the decree directed the sale of property of a greater value

than Rs. 10,000 it was held that tlH~ conditions required by

the second cbuse of s. 110 were satisl1ecl. \Vith very great
respect, I am unable to agree with the reasoning in that case.
In a mortgage snit the pl",Jperty whkh is givel,1 ~lS s~curity [Qr the
loan is not the property in dispute in the suit, nor is a, .decision
that the mortgagee is entitled to recover the money which he
advanced G\le involving either a claim to or' question, resp~~ting
the security. The only property in dispute in a mortga~e snit i~
the loan advanced by the mortgagor to the morlgagee. The mere
let thlt, if this 101.11 is not repaid in the time fixed by the decreet
the mortgaged property wi.ll b' sold does not , in my opinion,
raise any question affectiug the security. 11

'vVe respectfully agree with tbc above observation.

It appears to us to be only proper and ,reasonable 'that
the decree for which leave to appeal to fbe Supreme
III 1l937) All" p. 403 at 410, (i) (361 A,l.H. 119491 Pal., p. 448,
232 BURMA LAWRE:PoRTS. [1950
H.C Court is sought should .be looked d from the effect
1950
which the decree had on the parties seeking to appeal,
U TUN
l\h"IN..E and looking at it in that light, the value of the
..
A.'W ONE

Ko AYE
mortgaged property becomes immaterial for the purpose
of the present application, as .the plaintiffs-applicants,
MAU:-<li.
who were the mRrtgagees;, cannot, even if they succeed
U fUNBvu,
CJ. in this litigation, be said to have any interest or claim
in the mortgaged property in excess of the amount due
undtir the mortgage, at least until they had acquired
.the mortgaged property by purchase at an auction sale
or .otherwise.
H will,we think, be convenient to also reproduce
here the observation of the Privy Council in the case
of An.drew Mac{l.ir:alle and :ano/her v. Francois
Leclaire atld Jean Leclaire (1), which reads:
9
II determining tht:: question of the value of the matter in
III
dispute upon which the :-ight to app~al depends, thei1" Lordships
cOllsider the correct COm"se to adopt is 10 look at the jl1c1Rment as
it affects the intE.rests of the parties who are prejudice.cl by it , and
who seek to relieve themselves from it by an appeal. If their
Iiab~lity upon the judgment is of an amollnt sufficient to entitle
them to appea.l, they cannot be deprived of their right because
the I1utter Ll dispute happens not to lJe of equai VAlue lo both
.par'tics; and, therefore, if the judgment had been in tht'ir favour,
their adversary might possibly have Incl no power to question it
by an appe;ll. fl .

Thus it had been observed by the Privy Council, as

fa, back as .1862, th,lt what ought to be considered
.in ascertainingth", value of the appeal was to examine
the decree and ascertain to what extent it affected
tbe interests of the party who sought to obtai~ leave
to. appeal.
T:1C application fOL a certificate for leave to
appeal to the Supreme Court under clause (e) of

111 11862) 15 P.C.C. 181.

 1950] BURMA LAW ~rrPORTS. 233

section 5 of the Union Judiciary Act, 19'!-8, is H.C.

1950
therefore ctismisJed with .costs, Advocate's fee three
U Tux
gold mohurs. ,\1YINE
A:"'U ONE
v.
o SAN- !VIAUNG, I.-I agree.. Ko ATE
l\IAUKO.

U TUN BYU,
c.).

-9
234 BURMA LAW REPORTS. [1950

APPELLATE CIVIL.
Before U Tun BYII, Chief Jllsticc, alld U. San .i1latwg, J.

H.C.
'1950
.
THE OFFICIAL RECEIVER (ApPELLANT)
v.
API. 3.
lVlANlKRAlvl BALABUX BAJAJ (RESPONDENT)."
Evid~llce Act, s. 35-Admissions cOttlail1ul to a jlUlf!,l/lc1Zt-Admissi vIlify
-Order 41, Rule 23, Code of Civil Procedure-Preliminary pOint.
Held .. A previous judgment containing all admission made by a party
against whom the judment was sought to be llsed is relevant under s. 35 of the
Evidence Act. \Vherc a court acted upon an Drat admission and recorded it
in its jUdgment it COllStitutl"S the only. oHLial record and is admissible as
such admission.
Krisll11asami AyyanJ!ar v. Rajagopala Ayyaugar aud oUlers, 18 Mad. 73;.
Gujj" Lall v, FaUeh Lall, I.L.R. 6 Cal. 171 ; Byatllamma v. AYlIlla, l.L.R.
15 Mad. 19 at 23; PaI'bully Da5Si ..,. Pllma ClwtJder Siugh, I.L.R. 9 Cal. 586;
Tha11la v, KOlldan, I.L.R. 15 i\Iad, 378; V.E.R. Subbaraya Cltdtiar mui otherS

v. Scllamuthll Asan, A.LR. (1933) Mad. 18~, referred to.
Collector of Gorakhpur v. Ram SllIullir M'll mul others, A.l.R (l93-!) p.e. "
157 at 165, followed.
The expression" preliminary p:lint" occurring in Order 41, Rule 23 of tbe
Code of Civil PT0cednre is not confined to ;mdl a legal point only ~s may be
pl-::aded in bar of a suit but comprehcnds the necessity for determining other
points or issllcs.
RaWtlChalldra Joishi v. Hazi Kassim, -16 Mad. 207; Malayatlt Veelil Rmua1t
Nayar awl others v. Krislmall Nambudripad. 45 Mad. 900; M,lia Diu alld
others v. jaJ1llla Das and another, 27 All. 691 ; J.iiegltan Dabe mId allotllGr Y.
Prm;all Singh ami atllers, 30 All. 63 i K"mt'l ami others v. ParlJhlL DI/yal
aud allot her, 39 All. 165 I referred lOt

P. B. Sen for the appe.llant.

]. B. Sanyal for the respondent.

U SAN MAUNG, J.-In the suits out of which these
appeals have arisen the Official Receiver. High Court,
Rangoon, who had been appointed Receiver of the

* Civil First :\ppeals Nos. 59 and 60 of 19W against the decrees of the Chief.
Judge, City Civil Court, Rangoon ir. Civil Re~ular Nos. 40 and 41 of 1949, \
dated the 6th September 1949.
 1950] BURMA LAVv R:E:roRTS. 235
properties in Civil Regular Suit No. 27 01 1941 of the H.C.
1950
High Court, sued Manikram Balabux Bajaj, the only
THE
defendant in the aforesaid suit, for the recovery of OFFICIAL
arrears of rent in respect oj room No.3 on the ground RECEIVEU
V.
floor of house No. 653/659, Merchant Street, Rangoon, MA;.iIKRAM
BALABUX
and two rooms on the second floor of nouse No. 71175 BAJA].

i,n 30th Street, R.,ngoon, on the ground that Manikram U SAN

Ba1:lbux Bajaj W.IS in occupation of these rooms as his 1lAUNG, J.
tenant. He also asked for the ejectment of Manikram
Balabux Bajaj from these' rooms. The defendant
Yllnikra n B:tlabux Bajaj who is the respondent in
these appeals ad.nitted th:!t he was in occupation of
the roo~ns in question but denied Hut he w"s a tenant
of the Official Receiver. He contended that he was in
occupatio;l of th~se r03m; as owner of the houses in
oi which they were situate. The two suits were tried
to,(ether by the learned Chief Judge of the City Civil
C'urt, who fra:n".l 0;1~ set of issues for both. These
issues are as follows:
(1) Is tlie defendant a tenant of the p1aintiff in respect of the
premises described in both the suits?
(2) If so, has he been in defanlt of payment of renls in
res~~ct of the said premises and is he liable to be
ejected from them?
(3) Are the notices dtlly served on the defendant and are
they valid in law?
(4) Is the plaintiff entitled to the balance of rents now sued
for?
(5) To what relief is the plaintiff entitt'ed in both the suits?

Ollly one witness was examined' in the case he being

Mr. S. !vI.' Basu, Bailiff of- the Official Receiver's
Department of the High Court. The rest of the
evidence adduced on behalf of the plaintiff consisted
of correspondence whicl' was said to have passed
between him and the defendant Manikram Balabux
236 BURMA LAW REPORTS. [1950

H.C. Ba]aj in" respect of the premises in suit and in order

1950
dated the 12th February, 1948, passed by U Thein
TlII~
OFFICIAL
Maung, the then Chief justice of the High Court, in
H.ECEIVEH
V.
Civil Regular Suit No. 27 of 1948. No evidence
i\IA~l1mAM whatsoever was led on behalf of the defendant, the
BALAiiox
BAJA!. application" of his agedt C. C. Ram to have him
U SAN examined on commission at Fatehpur in the State oj
iUAUi:\G, J. Jaipur having been dismissed by the learned trial
Judge. The learned Judge however dismissed the
plaintiff's saits on the ground that there was no proof
of the fact that the letters alleged to be written by the
defendant Manikram Balabux Bajaj were in fact
written by him, that the order of the then Chief Justice
in Civil Regular Suit No. 27 of 1941 was inadmissible
for the purpose of proving the admission alleged to
have been made by the defendant and that the only "
witness cited by the plaintiff had no personal knowledge
of tbe fact that the defendant had attornecl to the
plaintiff. Hence these appeals by the plaintiff.
In our opinion the learned trial Judge was wrong in
having rejected the correspondence which ,vas alleged
to have passed between the Official Receiver (plaintiff)
and the defendant Manikram Balabux Bajaj as
inadmissible in evidence. These are the letters which
have been proved by the evidence of Mr. S. M. Basu,
Bailiff of the Official Receiver, as having been sent to
lvlanikram Balabux Bajaj at Fatehpur in Jaipur State
and as having been received from Manikram I}alabllx
Bajaj whose address was given as Fatehpur in ]aipur
State. In the first letter (Exhibit C), dated ~he 9th
May, 1946, the Official Receiver informed Manikram
Balabux Bajaj that since he was in occllpdtion of the
top floor (namely the second floor) of house No. 71175
in 30,th Street, this floor 1V0uld be reserved for him on
his paying rent as from tbe 1st February, 1946, bu"t \
that if no reply was received by the 27th of May, 1946,
 1950J BURMA LAW REPORTS. 237

it would be rented out to others. No letter was sent H.C,

11)50:
by Manikram Balabllx Bajaj in ,reply to this letter so
THe
that the Official Receiver again wrote to lVI. B. Bajaj OFFJCJAL
RECRIVER
on the 31st July, 1946. In that letter (Exhibit E) the V.
Official Receiver referred to his previous letter and MANIKRA!l1
BAI.AIlUX
stated that on the 22nd of May, 1946, a -telegram was BAJAJ.

received from M. B. Bajaj in, code words which COllld U SAN

not be deciphered and that since no fmther intimation A-IAUNG, J.
was received from M. B. Bajaj, the second floor of
house No. 71/75 in 30th Street except two rooms
the'rein and the kitchen on the roof had been leased
out to others and that the two rooms and the kitchen
had been kept in reserve for him. To this letter
(Exhibit E) and to the previous letter (Exhibit C)
Manikram Balabux Bajaj sent a consolidated reply
(Exhibit D). Therein he referred to his previous
telegram in code and explained that the code used was
"~
Bentley's. He also spoke of a letter having been sent
. to the Official Receiver on the 20th August, 1945,
which was returned to him on the 29th August with
the remark" No Service." He asked for the whole of
the second floor of house No. 71/7' in 30th Street to
be reserved for the use' of himself and his family and
requested that the first floor and the ground floor be
leased out to a good Marwari or Gujrati family except
M. Hanumallbax Bajaj (one of the plaintiffs in Civil
Regular Suit No. 27 of 1941). This letter was dated
25th JU[;c, 1946 and was apparently received in the
Official Receiver's Office on the ,16th July, 1946.
Thereafter, according to Mr. S. lVI. Basu, on the 27th
Jannary, 1947, the defendant's man came and showed
th, O:]ielal R~ceivera telegram (Exhibit F) purported
to hwe been sent by one Sawal Ram of Calcutta to
Lihla of Rangoon to the, effect that Balabux had
started for l{angoon and in pursuance thereof two keys
were handed over to the defendant's man. The next
238 BURMA LAW REPORTS. [1950

H.C. day he submitted a report (Exhibit G) to the Official

1950
I{eceiver, which reads:
THE
OFFICIAL
RECEIVER .. Estate M. H. Bajlj v. M. B. Bajaj.
v.
MANIKR,\M
The defendant arrived in Rangoon on 28th]anuary, 1947.
BALABUX One room on the 2nd floor and the room on terrace of
BAJM.
house No. 71/75, 30th Street, Rangoon were rescl'ved for him.
U SAN He has occupied th~se rooms with effect from 28th January, 1947."
MAUNG) J.
On the 22nd April, 19+7, the Official H.eceiver wrot~
the letter (Exhibit H) to M. B. Bajaj at No. 71/75, 30th
Street, Rangoon, that the rent for the two rooms
occupied by him in that house had been fixed at Rs. 30
per mensem and that claim for rent would be made
with effect from the date on which he had occupied
these rooms. To thi5 a reply purported to have been
sent by M. B Bajaj with address at 71/75, 30th Street,
Rangoon, was received. The relevant portion of this
reply (Exhibit J) which is elated 1st May 1947 reads: lP,

" Dear Sir,-I have never pai:l any rent before for the room
~
in my personal occupation of the house No. 71/74.3Oth Street,
Rangoon. However, if the payment of the rent is insisted on
now, am prepared to pay the ustnl rent. l1

In respect of the hOUS2 in Merchant Street there is

a letter purported to have been sent by Manikram
Balabux Bajaj \~ith addres's at No: 71/75 in 30th Street,
Rangoon, to the Official Receiver, Rangoon, on the
12th of April,. 1947. This letter reads as follolVs :
"Dear Sir,-Herewith I am sending Rs. 200 as advance
for the room No.3, house No. 653/659. Merchant Street, Hangoon
rented to me through my dtlnVan Chandradeo Dube.
Please ackn~)\vlec1ge the receipt of it and hand over the key
of the said room to him. The lock an:1 key will be rl!turned to
you. The receipt may be granted in the name of . n

Acccrding to Mr. S. M. Bastl, the money was

received by him as Bailiff on the same date, namely
12th April, 1947, and he gave a rceipt to th.e
,
 1950] BURMA LAW REPORTS. 239
H.C.
defendant. He has not been cross-examined with a 1950
view to establish the fact that the receipt could not THE
have been given to the defendant as the letter and the OFFICIAL
RECEIVER
money were said to have been brought by the v.
1\IANIKRAM
defendant's durwan Chandradeo Dube. Therefore, BAl.AlmX
as the receipt thereof was given by Mr. S. M. Basu BAJA]".

- to the defendant personally, the identity ')f the person U SAN

MAUNG, J.
who sent the letter (Exhibit N) has been established;
otlierwise there was no point in the defendant taking
the receipt for the money sent by some other person
as, for instance, one of his opponents in Civil Regular
Suit No. 27 of 19+!. The letter (Exhibit N) must be
presumed to have been sent by the defendant
Manikram Balabux Bajaj and the signature thereon
that of the defendant.
We have carefully compared the signature on
(Exhibit N) with the signatures on (Exhibit D), Wilich
?it'"
" was purported to have been sent by the defendant
from Fatehpur, and (Exhibit J) which was purported
to have been sent by him from No. 71/75, 30th Street,
l-l.angoon, and we are of the opinion that they are the
signatures of one and the same person. Therefore,
apart from the internal evidence which goes to suggest
that the letters (Exhibits D and J) were sent by the
defendant to the Official Receiver in'the circumstances
recited therein, there is the fact that the signa tures on
these letters are the same as the signature on the letter
(Exhibit N) which has been established by the
evidence of Mr. S. M. Basu to be a letter received from
the defendant himself.
The letters (Exhibit D and J) therefore strongly
support the evidence of Mr. S. M. Basu that the
defendant was the tenant of two rooms in hQuse
No. 71/75 in 30th Street, Rangoon, a fact which was
Ii reported by him to the Official Receiver as early as the
, 30th of January, 1947. '
\
240 BURMA LAW REPORTS. [1950

H.C. As regards room No.3 on the ground floor of house

1950
No. 653/659, Merch1l1t Street, Rangoon, the plaintiff's
THE
OFFicIM. case that the defendant is the tenant of this room is
RECET\,F.R
V.
amply borne out by. the letter (Exhibit N) and the true
MANIK I~A:M copy of the receipt (Exhibit 0), which was issued in
B,\lABUX
BAJAJ. pursuance thereof. It is quite inconceivable that as'
USA?" early as Apd 1947, tlije opponents of the defendant
MAUNG, J. Manikram Balabux Bajaj in Civil Regular Suit No. 27
of 19+1 would, in collusion with some one in fhe
Office of the Official Receiver, Rangoon, have brought
about the existence of a receipt like (Exhibit 0) for the
purpose of foisting a false case upon the defendant that
he was the tenant of l'Oom No.3 in house No. 653/659,
Merch'tnt Street, Rangoon, when he was in fact not.
Now, as regards the order of U Thein Maung C.J.,
dated 12th February, 1948, in Civil Regular Suit No. 27
of 1941, we are of the opinion that the learned trial
Juclge was wrong in having rejected it as inadmissible
in evidence. This order which will be quoted in
extenso runs as follows:
-'.'.
--~

Civil Regular No. 27 of 1941

SARASWATl AND TWO OTIIEHS V. M. B. BAJAJ.
For plaintiff--:-Chahrnvarly.
Fer defendant-A.. N. Bmw.
OR DEI<.
The first two prayers of the defendant must be refused as
(1) it is n0t at all clear th 1t
the second flODt" before the
he W.lS ill oc.;upation of the whole of
war. (2) he admits that he h~s not'paid
j
}'
renls for the two rooms on that Hoor ;tlthough he IllS occupied
them since the 28th )1nl1ary 19-17 as 1 tenant of the Official
Receiver, (3) the 'Otnc:i:tl Receiver has already granted a
lease-though it is frolTI manUl to month only-to Sagarmal \\'110
appears ta have paid rents reguiady since June or July EH6
'I
u-nder circnmstances set out ill paragr3phs 4 and 5 of his Report, -~
j1
,Med the Ilth December 1947, (4) I <\m not s'ltisfied that.
'I
 v~' ~~t,~
1950J BLJRMA LAW REPORTS. 241

Sagnrmallns sublet t:le rooms an 1 (5) Ihel"e is no reason to H,C.

interfe-re with the discretion of the Official Receiver in the matter. 1950
The third prayer also mllst be refused as it is net necessary THE
Or-FICIAL
to fetter the discretion of the Official Receiver as suggested or REef:!. hl~
at -all. It really cloes not matter whether he gets the rents from ~).

lI!ANIKRAM
the occupants of the first Hoor or from Sagarm tl so iong as he gets n ALABUX
them regularly. \\lith reference to the defendant's contenlion BAJA].
that the j"ents for the I1rst floor are too low, the Official l<eceiver USA:":
lJ~tS stated ill his Report that Sagarmal, \vho has applied for !\fAUXG. J-
ex~ension of the lease) is prepared to par rents at enlll11ced rate.
The applicatioil is dismissed. Hon-c\'el'! the Official
Receiver should see that he gets rents which are reasonable
having regard to standard rents uncleI' the Urban Rent Control
Act, 1948, botb for tbe second iloor of House No, 71/75 it: 30tb
Street, _Rangoon, ancl the first Hoor of Honse No. 653/659 ,
IVIerchant Street, R-=tngoon.
(Sci,) THEIN MAU>:G,
Cilief JlIsice.

(I, * * *
Copy of the ab1ve ol-der fOi"warded to the Ot-ficial r?:eceiver
of this Court fa; inform ttiJll with reference to his l'tport, dated
'.11e I1tb December 1947.

(Sci.) MAUXG KHA,

D~Pldy Registrllr,
OripJ/lal Side.

There is no dispute regarding the fact that in that

suit Saraswati artd two others were tbe plaintiffs and
Manikram Balabux Bajaj was the only defendant.
There is also no dispute regarding tbe fact that tbe
Official Receiver of the High Court was in charge of the
properties involved in that suit. From the order
dated 12th February, 1941<, it is clear that whereas the
Official Receiver had rented the whole of the second
floor of house No. 71/75 in 30th Street, Rangoon,
except the two rooms on that Hoor, to one Sagar'11al,
the defendant. M. B. Bajaj was contending that the
whole of the second floor should be given to him as he
16
242 BURMA LAW REPORTS. [1950

H.C. was in occupation thereof before the war and that

1950
therefore the Official Receiver's action in leasing part
THE
OFFICIAL
of [he second floor to Sagarmal was wrong. In making
RECEIVE!~ that contention M. B. Bajaj had to admit inter alia
v.
MANU<HAM that he had not paid rents for the two rooms on the
HALA IU X
BAJAJ, second floor of house No. 71/75 in 30th Street,
U SAN Rangoon, whi"Ch he hatl occupied, since. the 28th
l\l.\UKG, J. January, 1947,:ls a tenant of the Official Receiver, apr!
the then Chief Justice of the High Court after
considering the report of the Official Receiver on the
points raised by the defendant decided that he saw no
reason to interfere with the discretion of the Official
Receiver in the matter. Viewed in that sense the
order although recorded in a suit in which Saraswati
and two others and M. B. Bajaj were the plaintiffs
and the defendant respectively was in fact an order
which decided a dispute between the Official Receiver
and the defendant Manikram Balabux Bajaj. 4:
Now, in the case of [{;-islmasami Ayyal1gar v.
Rajagopala Ayyangar illid others (1) a Bench of the-'
Madras High Court held that a previous judgment
containing an admi~~;')ll made by tll\, predecessor-
in-title of the party against whom the judgment was
sought to be used was relevant under section 35 of the
. Evidence Act. In distinguishing the case under their
consideration from the case of Gujju Lall v. Fattelz
Lall (2) the learned Judges observed at page 77 :
l(As pointed out by this Court in ByathalJlllla v. Ayulla (3),
the sole object for which it was songht to use the former
judgment in G"jj" L"lI v. Fat/cit Lall (2) was to show that in
another suit against another defendant the plaintiff harl obtained
an adjudication in his favour on the same right: and it. was held
that the opinion expressed in the former judgment was not a
reJeV}nt fact within the meaning of the EvicJence Act. The c,se

(1) 18 Mad. 73. (21 I.L.H. 6 Cal. 171.

(JJ i.L.R. 15 I\'Iad. 19 at 23.

"
 j~" ~"'j::,:.;:
v ,.;if'
1950] BURMA LAW REPORTS. 243

is clearly different where the previous judgment is produced nat H.C.

1950
in ordeL" to prove an adjudication between third parties, but in
oreler to prove a staLement made by a predecessor in title of the THE
OFFICIAL
.partyagainst whom the docliment is sought to be l:sed j Cf. RECEIVER
Porbutly Dessi lJ. Purno Chlf/ld~r Si1Jg!l (1) and Tltama v. V.
l\tANIKRAM
KOlldan (2). Such is the case here and we have no doubt that BALABU:X
_ the judgments in question :!re relev1I1t under seeti0I1 3S of the B,llAJ,

Evidence Act. n U SA:-I

MAUNG, J
These observations were approved by their Lordships
of the Privy Council in Collector of Gorakhpur v. Ram
Sunder Mal and others (3) in these words:
.. In KrislwC!sami Ayyangar v. RaJagojala AyyaJlgar (4) a
statement amounting to an admission which was contained in a
judgment was received in evidence uncleI' section 3S as an entry
in a record nude by a public se:vant in the COllfse of his duty.
There is lUllch to be said for this view of section 35. In India
judgments have to be in writing and signed by the Judge ane! the
o ol."iginal jndgments and decrees arc records of the Conrt and
Tetlincd in the record room, til(" parties being supplied \yjth
c:ertil1ed copies only."
See also the case of V.E.R. Subbaraya Cheitiar and
others v. Sellamutlm .4sari (5) wbere it was beld that
where the Court had acted upon an oral admission and
rrecorded it in its judgment which constitutes the only
official record of it, it is admissible in evidence under
,section 35 of the Evidence Act. Therefore, the
.admission made by the defendant in Civil Regular Suit
No. 27 of 1941 that he was the tenant of the Official
Receiver in respect of the two rooms on the second
floor of bouse No. 71/75 in 30th Street, Rangoon, since
the 28th of fanuary, 1947, is admissible in evidence and
it is in strong corroboration of the plaintiff's case in
regard to house No. 71/75 in 30th Street, Rangoon. On
the evidence adduced on behalf of the plaintiff a strong
(I) LL.R. 9 Cal. 586. 131 A.J.I<. (1934 (P.C.) P 157 at 165.
(2) I.L.R. 15 Mad. 378. 14) I:J Mad. 73.
15) AJ.R. 119331 ~Iad. 184.
244 BLJRi\IA LAW REPORTS. [1950'
H.C.
1950 prima facie case has been made out to show that the
TI-IF.: defendant was his tenant in respect of the two rooms.
OFFICIAl.
HECEIVEP.
on the second floor of hou;e No. 71/75 in 30th Street,
V. Rangoon, and room No.3 on the ground floor of house
MA~IKHAM .~
B..\LAB~X No. 653/659, Merchant Street, Rangoon. No attempt
BAIA],
whatsoever was made by the defendant to rebut the
U SAN plaintiff's case. No dohbt the application of his agent
l\IAUNG, J.
C. C. Ram to have him examined on commissjon
at Fatehpur in Jaipur State was unsuccessful.
Nevertheless the defendant's agent, if he was really
minded (0 contest the plaintiff's case, could have
obtained a reasonable adjournment from the Court to
enable the defendant to attend in person in order to be
examined as a witpess in the case. As it is there is no
evidence whatsoever on record to show that the letters
alleged to have been written by him were in fact
forger;es. Furthermore, although the defendant's
agent could have easily obtained witnesses familiar c
with the handwriting of the defendant to come forward
,,
to swear that the signatures on (Exhibits D, J and N)
were not those of the defendant-if they were in fael
not-no attempt whatsoever was made to ch;1racterize
them as forgeries. In fact, the defendant's agent
himself who must have been perfectly familiar with
the defendant's signature had not the courage to enter
the witness box to swear that the signatures on the
exhibit letters did not appear to be those of his principal
Manikram Balabux Bajaj.
For these reasons we hold that the learned Chief
Judge of the City Ci vii Court was wrong in coming to
a finding that the defendant was not the temmt of the
Official Receiver in respect of the two rooms on the
second floor of house No. 71/75 in 30th Street,
Rangoon, and room No.3 on the ground floor of house
No: 653/659, Merchant Street, Rangoon. The answel'
to the first issue must be in the affirmative. Having'
 ,~"

1950J BURMA LAW REPORTS. 245

:answered this issue in the affirmative we consider that H.C.
1950
this case should be remanded to the City Civil Court
THE
under Order XL" Rule 23 of the Civil Procedure Code OFFICIAL
for the trial of the rest of the matter in controversy. Hk,CEIVER
v.
The expression" preliminary point" occurring in this :r\'lANIJ{RA~I
BALABUX
rule is not confined to such legal puints only as may BAJAJ.
, be pleaded in bar of a suit but comprehends all points U SAN
or issues whether of fact or of law, the determination lVIAUNG, J.
ohvhich has precluded the necessity for determining
'Other points or issues which have therefore been left
undetermined. See Ra1ll0-chandra foishi v. Hazi
Kassim (1), Malayath Vee iii Raman Nayar and others
v. Krishnan Nambudripad (2), Ma/a Din and others v.
J a11lna Das and another (3), Meghan Dube and
another v. Pran Singh and others (4) and -"<amla and
.others v. Parb!za Dayal and another (5). Apart
from the fact that the learned trial Judge has not
a discussed the other issues in the case in view of his
.answer to the first issue, the provisions of sub-section
(\) of 8ection 14 of the Urban Rent Control Act, 1948,
makes it desirable that the matter relating to the
ejectment of the defendant should be dealt with by the
learned trial Judge himself.
. For these reasons we would set aside the judgments
and decrees of the City Civil Court, Rangoon, and
direct that the suits be remallClcd to the City Civil
Court under Order XLI, Rule 23 of the Civil
Procedure Code for the trial of issues Nos. 2, 3, 4 and
5. The costs of these appeals must abide the final
result of the suits. Certificates for the refund of Court
fees paid on the memoranda of appeals will be issued
to the plaintiffappellant undel section 13 of the Court
Fees Act.
U TUN Byu, 8.J.-1 agree.
(I) 16 i\:Ia~. 207. (3) 27 All. 691.
(21 45 ?\'lad. 900. (4) 30 All. 63.
IS) 19 All. 165.
246 BURMA LAW REPORTS. [1950

CIVIL REVISION.
Before U Thmmg Sei1l t .].

H.C. MAUNG TUN YIN (ApPLICANT) 1

1950

},far, 22.
v.
MA SEIN LAY (RESPONDENT). *
Code of Civil Procedure, OrdlT XXXIJI, Rules 3 (1) (b),4 and 5-Len'IJe fo ~'lIC
in forma pauperis-No cause 01 ac!iO'1 disclJsed and first IIpplicatio/l
dismisscd-:-JIaintainability of slIbsequent aNlication.
\Vhere an application b sue in forma pauperis was dismissed on the-
ground that it did not disclose any cause of action, a second application
is competent.
Held: That :i. rejection on :m} of t'le arounds mentioned in Hule 3 will
be a rejection under that rule. and not under H.ule 4. The rejection ttndl.T
Rule 4 refers to rejection for th~ reaSD1S set O:lt th~rd.l .u!.i 1:" not meant to-
cover a rejection uncler Rule 3. The mere faet that a notice is issued
before dn application is rejected under l~,lle 3 do:;:.~ n,Jt lU:1.ke the rejection
one under Rule 4. G
Dr. .4, Karilll.<lIld 'lIlo!ltU v. P,lI: tit Laic R,wt 'lad o!!tcr,~. (1939) R.L.IL
263, distinguished.
Jfml1lgSh7.0e Tha a1UtolllCrs v. Ma UKra Z,III, (1932l I.L.R. 10 Rall. 47;; ..
,,

(

referred to.

Ba On for the applicant.

U THAUNG SEIN, J.-This.is an application for

revision of the order of the Assistant Judge of Hcnzada
allowing the respondent Ma Sein Lay to sue the
present applicant Maung Tun Yin ill forma pauperis.
It appe~rs that the respondent Ma Sein Lay had on a
former occasion applied to the same Assistant Judge
for permission to sne as a panper. Unfortnnately for
her the p1?int, as drafted at that time, did no,! disclose
any cause of action and her application was accord-
ingly dismissed. See Civil Miscellaneous Case No. 3
of 1948 of the Assistant Judge, Henzada. This was
Civil Revision No. 20 of 19-1-9 against the order of the Assistant Judge
of Henzada in Civil i\Iisc. No.5 of 1948, dated the 26th January 041).
 l ;)!c)
J
1~;<
1950] BURMA LAW REPORTS. 2't7

followed by a fresh application in Civil Miscellaneous H.C.

1950
Application No.5 of [948 and the learned Assistant
I\L\UXG TeN
Judge allowed the applicatio'l and permitted her to YIN

sue ill furma pauperis. It is this order which is now v.

MA SEIN
sought to be set aside in revision. LAY.

The applicant Maung Tun Yin strenuously contends U THAU1\'G

that a second application to sue as a pauper does not 8El1\', J.

lie and that it should have been dismissed under

Order XXXIIf, Rule4 (5) of the Civil Procedure Code.
11 was further pointed out that thongh the previous
application was rejected as it disclosed no cause of
action as laid down in Rule 3 (1) (b) of Order XXXIII,
notice was in fact issued to the present applicant (who
was the respondeut in the case) to ~how cause against
the application under Rule 4. Under these circum

. stances-so says the advocate for the applicant-the

rejection of the application must be deemed to have
been nnder Rule 4 (4) and in view of sub-Rule (5) no
fresh application should have been entertained. In
<upport of this view reliance is placed on the ruling in
Dr. A. Karim an.i anotlter v. PawJii Laic Ram and
others (1). The headnote of which reads as follows:
,( A. Court after issue of notice and after hearing the case on
the que~tion of pauperism under Order 33, Rule 4 of the Civil
Procedure Code, as amended by the High Court l is not precluded
from considering the questions as tv whether the plaint discloses
a C<1l1se of action or whether the suit is b:lrred by limitation under
Rulf? 3 {b) and (d, provided its conclusions are based solely upon
the materi3.Is in the plaint itself and not upon spme extraneolls
eyiclence. "

I regrpt 1 am unable to accept the reasonings of

the learned Advocate in this respect as all that the
ruling in que3tion lays down is that even if an enquiry
has been held into the pau peri~m or otherwise of the
applicant in a pauper suit fhe Court can still take into
(1) 11939) Ii.L.R 263.
248 BURMA LAW REPORTS. [1950

H.C. consideration the points enumerated in Hule 3 of Order

1950
XXXIII. In other words an application to sue in
M'\U~1NTUN forllla pauperis must be rejected if the plaint discloses
V.
j\L\ SEI~
no cause of action or on any of the grounds mentioned
1.
LAY. in Hule 3 even ~hough an enquiry has been held into
U TH\UXG the pauperism, vide unqer Hule 4. The rejection of an
SEI~, }.
application for the reasons enumerated in Hule 3 will
obviously be a rejection under that Hule and not under
Hule 4. It is clearly laid down in sub-Hule (5) of Hule 4
that where a petition is rejected the applicant sball
be precluded from filing a fresh application to sue as
a pauper on tbe same cause of action. But tbis refers
to a rejection for tbe reasons set out in sub-Rule (4).
This sub-rule me,ltions specifically the reasons for
which an application may be rejected and is not meant
to C0ver the rejection of an application under Rule 3.
The :l1ere fact that a notice is issued to a r~spon
dent before an appiication is dismissed for any of
c
the reasons set out in Rule 3 does not mean that such
a rejection must be deemed to have been under Rule 4..
If Rules 3 and 4 are compared, it will be noticed that
there is no provision in Rule 3 similar to sub-Rule (5)
of Rule 4. To put it in another way, it is no where
laid down in I~ule 3 tbat whe;'e an application is
dismIssed under this rule, the applicant shall be
debarred from filing a fresh application on thc same
cause of action. It would be exceedingly hard for a
pauper plaintiff if he or she were precluded from
filing a fresh application to sue in fonna , pauperis
simply because the olaint as originally drafted was
imperfect in form and did not disclose any cause of
action. Under Order XXXIII a, it existed prior to
its amendment by the High Court of judicature "t
Rangoon in 1932, once an application to sue as a
pauper has been rejected, no fresh application would
lie. But in or about 1932, the whole of this Order',
 "

>3r~\
~,. ( , ...1
~"4

~;~'
1950J BURMA LAW REPORTS. 249
H.C.
was redrafted as a result of the remarks by Page C.J. 1950
in 111 aung Slnve Tha and ollzers v. ilJ a UKra Zan (1). MAUNG TUN
The redrafted Order was more liberal in its attitude YIN
v.
towards a pauper plaintiff. For instance, under Order 1L' SEIN
LAY.
XXXIII as redrafted amendments of pauper petition
U TUAUKG
\;hich were not permitted under the previous Order SEIN,j.
XXXIII, may now be allowed in fit and proper cases.
In p'trticular Rule 3 contains no prohibition similar to
sub-Rule (5) of Rule 4 and hence tbere cannot be any
bar to a fresh application where a former application
has been rejected on tbe grrmnd that the plaint
discloses no cause of action.
The learned As,istant Judge, Henzada, was thus
correct in allowing tbe respon lent M~. Sein Lay to sue
as a pauper. The present application for revision
accordingly fails and is dismissed.

..,

.-----._----_.
(11 11932) I.L.R. 10 Ran. 4iS.
250 BURMA LAW REPORTS. [1950

APPELLATE CIVIL.
Before U TUfJ Byu, ClIie! Justict l!ud [J Scm i.1Ill1tng, J.

H.C. KG HAN TUN AND ONE (ApPELLANTS)

1950
ApI. 27.
v.
U BA HLA (HE~PONDENT). "

Purchase of car by ti!!.reemiOllt (ll/d receIpt .of part co1tsidcrallOl/-117un

property pllsses-lJltentfoll of p.li-lies-Pri1zciples of C(llIstruction of
documents-Delivery of car-lln/allce price llql paid-Award of daJ1la~cs.
Byan agreement dated the 9th April 1949 the Appellants and Respondent
entered into a contract for the purchase of a C<lT for a ~um of
Rs. 14,500 and an advance of Rs. 10,000 was paid. The agreement provided
that un failure to pay the balance sl1m of I~s. 4,500 by the 30th April 1949, the
Sum advanced, i.e., Rs. 10,000 was to be forfeited ancl the car IUllst be
returned. The appellants failed t) pay the balnnce S.nn of 1<s 4,5fO by the
due date. The owner sued for recovery of the car and the claim was decreed
in the Trial Court.
Held: That the question wlletJler the property in the car passed depends 0-
on the inlen'ion of the parties whil.:h hrl" to he gathered from the terms of the
contract, the conduct of the parties, rind the circumstances of the case. The-
S::l.le of Goods Act qualifies the rulc.; hi' w'lich sllch intention is t be
ascertained. It is the ctut~, of the Court to look at the whole agreeil1en~ andj #1
find out what its sllbsbntial effect i<;.
III the Parc!Jim, H91S1 A.C.157 at p. 16l; Ale.wllder KJ1o.': McEnttre flf/(f
lvflll Arthur Macollch)' v. crOssley Brothers, Limited, (1895) A.C. 457 at
pp. 462-<163, referred to and followed .
. It it> no\vhere stated Hi"tbe-:'1greement or the receipt for Rs. 10,000 that the
property in lhe car was nvt to pass llOtil the balance price was paid On the
contrary, the wording of the agreement that 'I the PJlrc!lasers hove this d,;,..
boughl" implies that a sale has been eficcted ;md property has passed.
Reading the agre.::ment as a whole it is clear that there was a complete sale
by which the property in the car had passed to the appellants, and as there is
no provision in the :wreement to terminate the contract and/or to cancel the
sale all the failnreof the appellants tv ray lhe balance price,lthc respondent
is not entitled to get possession of the cal'\
Bltimji N. Dalal v. Tlte Bombay Trust COrp.lralt'o:l, Ltd.,::;(193Q) 54 Born.
Series 381 at p. 396; The Allto SuPply Co. Ltd. v. V. Ragfnozafha Chetly.
(1929) 52 Madras Series p. 829 at pp. 835 3.lld 836 ; Sardar Param Pal Singh v
Sardar Blldlt Singh, A.I.R. 11938) Lah. 62; Abbas bUy. KodfIUSJlO, (1929)
A.I.H. Nag. p. 30 ; considered.

* Civil 1st Appeal No. 50 of 19W against the c1e.:ree of the Chief Judge,
City Civil Court of Rangoon in Civil Reglll3.f No. 456 of 1949, dated t~le
9th September 1949. ,~
 19.50] BURMA LAW REPORTS. 251

Hdd also: That it is a proper case for awarding damages inste<1d of j H:.C.
ordering tile car to be returned. - 19:>0
Strcclma:t v. Dril1kle and others, (1915) AJ.R P.C.94at95; K,imcrv. KoHA1':Tu~r
British Columbia Orchard Lauds, Ltd . (19131 A.C. 319 i Arya PradislIak AND ONE
PraUflidln Sabha v. Cha'ttlllri Rfflll Cha!lfl I11d vlllers, (19241 A.J.R. Lnh. 'V.
713 at 716; Calliallji Harji1'4n v. Narsi TriCllm, (1895) 19 Roo).. 764; Kalliall T] BA HLA.
,Dassv. TI-lt~'i Dass, (189 13 B0111.186; K. H. Skil1llcrv. Rose Skinner m.d
others~ (l92'i) Lah.I32, referred to.
o
Dr. Theill for the appellants
Thei I .l{awig for tho responde',t.
V TUN Byu, C.J.-The case for the plaintiff-
repondent V Ba Hla is that he is the owner of an
Old~mobile car, number RD 404, that on 9th April,
19+9 the defendants-appellants Ko Han Tun and
Ko Km Nyunt agreed to purchase tll'~ Oldsmobile car
from him and paid him Rs. 10,000 as advance, that the
defend'lIlts-appellants agreed to pay the balance sum of

Rs. 4,500 on or before 3:Jth April, 1941) and that, if

they were to nnk" a default in the payment of
Rs. 4,5)0 the defendants-appellants agreed that the
sum of Rs. ,10,0:JO, which tbey had paid as advance,

should be forfeited and that the OldslTIobile car, wbi,ch

Ind beel1 m'1de over to them, sbould be returned to
U Ba Hla. Ko Han Tun an i Ko Kan N YUllt bowever
conlende:l- that there W,lS an outright sale Df the
Oldsmobile car to them for Rs. 14,500, that they paid
Rs. 1O,00J towards tbe said purchase and that there
\Vas onlY:l balance of Rs. 4,500 still p:lyab!e by them.
They pleaded tllat the term of the agreement about the
forfeiture of the sum of R<. 10,000, which had been
paid by them, and for the return of tbe car lo V Ba Hla
on their f<'ilure to pay the sum of Rs. 4,500 on
30~h April, 1949, was in tbe nature of a penalty and
W,tS void and n0t enforceable in law.
The learned Chief Juclge of the City Civil Court of
Rmgoon held that there was no completed sale and
t.bat the term of the agreement for the forfeiture of the
252 BURMA LAW REPORTS. [1950

H.C. sum of Rs. 10,000 and for the relurn of tbe car to
1950
U Ba Hla was not in the nature of a penalty, and
KOH"TU~1
AN~ ~'E' : 1e gave a d ecree for possessIOn. 0 ftl1e Oil
(smo b'l1 e car

u B.~HLA. in favour of U Ba Hla. _

- The qllestion which falls for consideration is '
C.). BYu IV t1e ttler t Ilere l
U TUN las b
cen,'m tlel cIrcumstances
' - 0 f L1ls
l'

case, a completed side, or in otber words has tbe

property in tbe Oldsmobile car passed in the cirl=um-
stances of tbis case to the defendants-appellants,
!.Ordinarily, it might be said that a sale of specific goods,
)which is in a deliverable state, is completed by offer
and acceptance, although it has not been delivered to
the purchaser, or the price has not been paid by tbe
buyer. It is however the intention of the parties,
which has to be ascertained in each case; and what is
the intention of tbe parties will depend on the terms of
the contract, the conduct of the parties and the
circumstances of each case, In tlie ParcliilJl (1),
Lord Parker of vVaddington observed in reference to "
English Sale of Goods Act, 1893, as follows: i
IIIt embodies the principle that the question whether a
C01Lract for the sale of goods docs or cloe~ not pass the general
property in the goods contracted to be sold must in aU ca::;es be
determined by the intention of the parties to the contract. The
Act codifies the rules by which that intention is to be <lscertainec1,
but the inferences based on the rules l1l:1y ahvays be displaced by
the terms of the conlract itself or the surrounding circun1sl;-tl1Ces j

including the conduct of t he parties."

The above observation applies, in' our opJnlon, with

eljual force to the provisions of the Sale of Goods Act
in this COllntry. Lord H erschell in Alexflnder J(l1U,l'
McEJltire ml:i John Arthur Macollchy v. Crossley
Brothers, Lilliited (2) observed:
"The parties cannot, by the insertion of any mere words,
del cat the effect of the transaction as appearing fJ'om the whole
--------------'---=----------l,
(Ij (191S) A.C. 157 at p. 1M. (21 (1895) A.C. 457 at pp. 462.46 1. "\
 1950J l3URMA LAW REPORTS. 253-

of the "igrcem::::nt into which they h;n'e entered. If the \\'orcls in H.C.
1950
one p lrt of it point ill one direction and the words in another
part in another clirec~ion, you mllst look 1t the agJ'cement as a Ko HAN TUN;
A~D ONE
\Yho]= and see \\"hat Hs substantial effect is. But there is PO snch v.
thing. as seems to have been argued bere, as looking at the U 3A HLA.
substance, ap:trt from looking at the language which the parties U TCN Byu
have used. It is only hy a study of the \....hole of the language C.).
that the subst::mc~ can be ascertained. 11

It cannot be disputed in the present case that the

price of the Oldsmobile car had been fixed at
Rs. 14,500, that a sum of l~s. 10,000 was paid towards
the price of the car, and that the ur was delivered,
apparently on the same day, after the sum of
I~s. 10,000 was paid to U Ba Hla for which the latter
gave a receipt, which had been filed as Exhibit 1.
It has been submitted on behalf of the plaintiff-
respondent that the property in the Oldsmobile cillo
cannot, in the circumstances of this case, be said to
have passed to the defendants-appellants until the sum
of ,Rs. 4,500 was paid in view of Exhibit .-\ agreement,
which reads as follows:
'I \Ve the nlldersigned Ko H:l.n Tun and Ko Kan Nyunt of
the Youtb Tr;-tdin,~ C'Jmpany, No. 67, 11th Street, HangoOIl have
this day tbe 9th of April 1949, b"HIght from U B:l. Hl<l, So!e
Prop::ietl1[ of .Messrs. KllYll Company, No. 218, Creek Street,
Hangoon one Oldsmobile C3.r Registered No. HD. 404 for
Rs. 14,500 (Rupees Fl)Uneen thollsan.l five hundred only), ont of
which paying an advance of Rs. lO,OOO {Rupees Ten thousand
onlyl.
The undersigned have aiso agreed to accept the transfer of
all the necessary documents, sale deeds, insurance polic)', etc.,
only on our hnal payment of the remaining Rs. 4,500 (Rupees
Four thousand five hundred only) on or before the 30th April
1949} failing which we shall forfeit out auf advance o( Rs. 10,000.
(Rupees Ten thoustlnc1 only) and return the Oldsmobile Car
Registered No. RD. 40+ to G Bo Hla, Sale Proprietor of
l\I~ssrs. Khyn Company No. 2J8, Creek Street Rangoon."
254 BURMA LAW REPORTS. [1950
H.C. It is clear in this case that Exhibit A agreement does
1950
not stand alone, and that it will be necessary to
Ko HAN TUN
AND O:-l'E consider Exhibit A agreement with Exhibit 1 receipt
V.
U BA HL.'\.
whic11 U Ba Hla made over to the defendants-
V TUN Byu,
appellants when the lattcr paid him the sum of
c.). Rs. 10,000. It is o,11y by the study of Exhibit A
agreement ;s well as' Exhibit 1 receipt that we can
arrive at the real intention of the parties in the prtsent
case. It will accordingly be convenient to reproduce
here the relevant portion of Exhibit 1 receipt, which
reads:
., Received from Ko J{,1l1 Nyunt and Ko Han Tun, No. 69 ,
lIt 11 5treet, Rangoon, the sum of Hupees Ten thousand only on
account of an Olclsl1~'Jbile Car HD. 404 sold f~:r Rs. 14.500. 11
It will be observed that the parties have not
ar:ywhere stated, either in Exhibit A or Exhibit 1, that
the property in the car will not pass to the defendants- "
appellants unless or until the 5112.1 of Rs. 4,500 is paid.
Exhibit 1 receipt, on the other hand, shows that
U Ba Hla, who signed the rcceipt, looked upon lhe
transaction at the time the receipt was signed as in the
nature of a sale to the defendants-appellants and that
the sum of Rs. 10,000 was paid towards the purchase
price of the car. That the parties looked upon - the
transaction which took place when the sum of
Rs. 10,000 was paid to U Ba Hla as a sale is supported
also by the wording of the first paragraph of Exhibit A;
and the relevant portion of which might, for
convcnience, be reproduced here, as fo11o\\15 :
I'We the undersigned Ko Han Tun and Ko Ran Nyunt
. . . have this day . . . . bought
one Oldsmobile car . . . for Rs. 14,500 . ont of
which paying an advance of Rs. lO,OOO.JJ
It will be observed that the words used were" have
this day . bought", which imply that a sal,e
I
has been e f f e c t e d . '
 1950J BURMA LAW REPORTS. 255

In Bliimji N. Dalal v. The Bombay Trust Corpora- H.C.

1950
tion, Ltd. (1), it was observed:
.
}Co HAN TUN
A~1l ONE
H The true effect of an instrnment depends UPQlJ the
intention of the parties as g1thered from its terms, anel in constru- U HA HLA.
ing the terms it is the dnty of the COllrt to re~ard the il1tention U TUN Bru,
rather than the form and to giv~ effect to the whole instrument. C.).
Secondly, where the .lgreement imposes an obligativn lipan the
.. hirer' to buy the chattel mentioned therein from the otber party,
such olAigatioll attaches on the execution of the agreement, ancI
the agreement is really an agreement of salc, notwithstanding the
U$e of words, such as, hire-purchas::: 3greement. lessor <mel lessee,
hiring, rent, tenancy, etc. ThirdlYt such an obligation arises
when it is clell' from the agreement that Ihe party taking the
chattel, called the hirer or lessee, ha3 to pay the full amount of
the consideration mentioned in the agreement, even though the
payment is by instalments, and that ;l.l1lount is sutlicient to cover
the purchase price of the chattel:"

The above observation was made in respect of an

'agreement called a hire-purchase agreement; 2.nd the
hst sentence in that observation applies, in our opinion,
appropriately to the circumstances existing in the case
now under appeal, where the defendants-appellants
'could be said to have agreed to pay the entire sale price
within three weeks of the first payment made by them.
We ought to say at once that we are n0t able to see
anything in Exhibit A agreement to indicate that it is
necessary that certain condition has first to be
performed before the property in the Oldsmobile car
can pass to the defendants-appellants. The expression
" all the l1ecessary documents, sale deeds, insurance
policy, etc." in the second paragraph of Exhibit A refers,
in Our o\Jlflion, to the documents that had already
'been exeellted, or were in existence when Exhibit A
was execured. ~owhere is it stated in Exhibit A that
unless the documents just referred to had been
-delivered to the defendants-appellants the property
11) (1930154 BOIp. Series 381 at p. 396.
256 BURMA LAW REPORTS. L~95(}

H.C.
1950 In the Oldsmobile car was noi to be considered
Ko HAN TUN
io have passed to the defendants-appellants. It
AND ONE has, however, been urgcd on behal; of U Ba Hla that
V.
U BA HLA. it was the intention of the parties that the property in
U TUN BYu, the' Idsmobile car was not to pass to the defendants-';
c.). appellants until the docum ents mentioned in the second
paragraph -of Exhibit A had been deli\Tred to tLe
defendants-appellants. 'vVe do not, however, see any
substance in this contention, and it would be wrong to
import something into Exhibit A, which the partieE;
have not embodied it there. There is also nothing in
Exhibit A to suggest that the parties ever contemplated
that a new document should be executed before the
property in the Oldsmobile car could be said to pass'
to the defendants-appellants. It is, in fact, not stated
anywhere in Exhibit A that the property in the
Oldsmobile car was not to be considered to have passed
to the defendants-appellants until the entire price of c
the car, or until the balance of Rs.4,500 had been
paid. Exhibit A agreement shows, moreover, that:
there was an obligation on the part of the defend~nts
appeliants to pay the bal'lnce sum of l~s_ 4,500 on or by
30th April 19-19; and In any case, Exhibit A shows that
the defendants-appellants. were not given the option of
returning the car, and claiming back part of the sum of
Rs. 10,000, a condition which we would expect to
appear in Exhibit A if the transaction was merely one
of a conditional sale. If U Ba Hla really intended to
preserve his right of property in the Oldsmobile car.
until the balance price of Rs. 4,500 was p,!id, he could.
have stated it specifically in Exhibit A, t'articulariy in,
view of the contents of Exhibit 1 rec~ipt where it was,
in effect, mentioned that the car had been sold. It is,.
of course, necessary to look at the transaction as a
whole, ancl examining the circumstances of the present
case in that light, it appears to us to be clear that the
'\
 1950] BtJ.t<.MA LAW REPORTS. 257
transaction was , 111 the present case, one of a H.C.
1950
completed sale, and lJr,t merely a conditional sale as
J{(l clAN TUN
has been urged on behalf of U Ba Hla. It might also AN'D 0:-,'1<:

be mentioned that there is also nothing in ExLibit A 1'.

D 11:\ HLA
agreement to prohibit the defendants-;!ppellants from
UTUN By..tJ.
,selling the Oldsmobile car to a third party after they C.).
obtained possession of it from U Ba Hla. The error
whic:h the learned Chief rudge of the City Civil Court
of Rangoon had fallen into is that he omitted to
consider the exhibit receipt altogether, which was
obviously a very important document.
The case of Tile Auto S1Itti)' Co. Lid. v. V. RUg/l1Il111-
Ilia C/:e!ly (1) was referred to on behalf of the plaintiff-
respondent for the purpose of showjl:g that the sum of
Rs. 10,000, which was paid on 9th April, lS'49, could
be considered to be in the natwe of either a first
instalment of the rent for the use or hire of the car,
or a premium lor allo\ving the use of or for hiring the
carl but that was a case where a 11lotor-blls \,"as ll1ade
o.'er to the first deJendant under an agreement, which
" was known as a hire-purchase agreement. There is
nothing, however, in the case now uncler appeal to
even suggest that the transaction, which teok place
on 9th April, 1949, ".as in the nature of a hire-purchase
agreement. At pages H3~H36 of the report it was
observed as follows :

II The first question to' be considered is} \\"hat is the exact

legal n~ttlre of the agl'eement between the p:l.rties. It is neces:::ary
to distinguish be(\\,een (I) contracts 10 IJtly and PlY by illstaimenls,
and' '(2) contracts to lJire, the hirer ha\'in~ an opti0n to I"eturn
goods, with a provision that on payment of cerbin numher of
in:5tal lllents the artic-le sliould helon,!.!" absolutel\" to the hirer. In
a cantt'act of 6ale 'for,. ~ price payable h~' in:;;talmenls, the
oSi_purch aser has no opticn of termin lting the contract :-:.nd retun.ing
the chattel, \\'herea~l;:in a contract 'of hire-pnrch:tse, the hirer has

/l) 0929} 52 Mad. Sel is). 8/:9 at pp. 835 and 836.
'. ,
17
258 BURMA LAW REPORTS. [1950

H.C. such an option. In the case of a hire~purchasc contract, the

1950 hirer has got an option to purchase, whicf-. he may exercise or
Ko HA~ TUN not, according to his sweet will and ple:l.sure ; but in t he case of a
ANn ONE contract of sale, the PUt"Ch3Ser has become the owner of the
v.
U B-\HLA. chattel, but the price is by :l.greement plyable by instalments."

U Tux Byu,
C.). No pfovisio'} has been made in Exhibit A agreement to
allow the defendants-appellant an option to. terminate
the contract to purchase the Oldsmobile car. "Ve are
tlnable to see anything in Exhibit A, which will suggest
that the sum of Rs. 10,000, which was paid to U Ba Hla
on 9th April, lY49, was paid in the form of earnest
money for the purpose of carrying out the transaction
to completion. An attempt has been made to suggest
that the word "advance" in Exhibit A is sufficiently
wiele to include earnest money. We do not think that
there is any substance in this suggestion in view of
what appears in Exhibit 1, where it is mentioned tbat
the sum of Rs. 10,000 was paid as part-payment of the
car, which was sold for Rs. 14,500. ): Q

The case of Sardar Paralll Pal Singh v. Sardar Budl!

:>in,i5h (1) will, of course, have to be read in the
special circumstances of that case, which are entirely
different from the circumstances obtaining in the case
now under appeal. There, the cont.ract of lease was
for three years, at the rate of Rs. 5,000 per annum, and
initial payment was Rs. 1,000 only, which was
considered, in the circumstances of that case, to have
been made merely as a guarantee for the d\le payment
of the two subsequent larger payments of Rs. 2,000 on
certain appointed dates. ,
In Abas Ali v. Kodhusao (2) the agreement was for
a sale of a house for Rs. 4,500, and a sum of Rs. 500
w~s paid as earnest money; whereas in the ease ali.
preseut under appeal there is no mention anywhere,
--~- !'~r
(l) A.l.R. 119381 Lah. 62.
 1950] BURMA LAW REPORTS. 259
H.C.
either in Exhibit A or Exhibit 1, that the StUll of 1950
Rs. 10,000 was paid as earnest money. . l{o HAN TUN
In the Privy Council case of Steedman v. [Hinkle ANO ONE
V
.[It/d others (1) it was observed as follows: UBA HLA.

II The Supreme Court helel that t:w case W(l'3 governed by U TUN Byu l
C.].
{he decision of this Board in Kill1ur v. British Columbia Orchard
Lalll:s, Limited (2) in \vhich it was held, on a somewhat similar
agreement, that the stipulation that payments already made of
instalments might, on forfeiture, be retained\ \Vas really a stipula-
tion for penalty, and shonld be relieved against."

Thus the provision in Exhibit A agreement 111 the

present case, whereby the sum of Rs. 10,000, which
had been paid towards the price of the car, was to be
considered as forfeited on default of the payment of
the balance price of Rs. 4,500 within certain specified
dates, which was less than one month after the sum of
Rs. 10,000 was paid, could be considered to be in the
nature of a penalty.
It has been admitted during the arguments that the
defendants-appellants failcJ to pay the Slim of
Rs. 4,500 to U Ba Hla as agretd upon by them under the
agreement, Exhibit A. U Ba Hla could accordingly be
said to have a right to sue for the recovery of the
Oldsmobile car, No. RD 40+. In Arya Pradlshak
Pratillidhe Sa bit a v. Chaudhri Ram Chand and others (3)
Shadi Lal, C.}., observed:
I' Indeed, it has been often held that the plaintiff is not
obliged in a suit for specific performance to pay specifically for
damages, and that the Court has always a discreti0I11ry power to
award damages in a suit for specilic performance anll ought to
exercise that discretion when it is of the opinion that damages
should be given vide lUlu aliI. CalliatJji HarjiVGIZ v. Nars; TrioJ.m
(4) and Kallian Dass v. Tliisi Dass (5)."

(1) 11915) A.I.R. P.C. 94 at 95. 13) (19241 A.1.R. Lah. 713 at 716.
121 11913) A.C.319. 141 ,1895) 19 Dom. 764.
15) (lR99) 23 Dom. 786
260 BURMA !-AW REPORTS. [195()

H.C. It will also be convenient to reproduce here the

1950
headnote in the case of K. H. Skinner v. Rose Skinner
1{o HAN' TUN
AND ONE and others (1), which reads:
V.
U BA HLA. II In a suit [01" sptcific performance plaintiff is not bonnel to

U TUN ByU,
pay specillcalJy for damtlges either in addition or in substitution.
C.). as he has.1 chcice of remedies to apply for and the Court has
discretion to allow damages if it finds lhat damages will 'be the
apprQpriate remec1y.>l

This appears to us to be a proper case where we

ought to award damages instead of ordering the
Oldsmobile car to be returned to the plaintiff-
respondent as that might lead to further unnecessary
litigation between 'he partie,. \Ve accordingly set aside
the jl1dgment and decree passed in Civil Regular
No. 456 of 1949 of the Hangoon City Civil Court and
order the defendants-appellants to pay a sum of
Hs. 4,500, with interest to be calculated at the rate of
1-0} per cent per mensem from IJth April, 1949, to
7th June, 1949 being the date on which the car was takf.n
out of the possession of the defendantsappellants. vVe

also order that the defendants-appellants will pay all tbe
costs of garage of the car after it was taken away from
them on Tth June; 19+9 including such other incidental
.charges as the trial Court might consider to be
reasonable. The d~fendal1ts-appelbnts will be at
liberty to apply to the trial Court for the redelivery of
the Oldsmobile car HO 40+ after the aforesaid
payments have been made. If those paymej1ts are not
made by the defendants-appellants within fifteen days
of the receipt of the record of Civil RegulapNo. 456 of
19+9 in the City Civil Court of Hangoon, the plaintiff-
respondent will be entitled to apply to tile trial Court
for the poss~ssion of the Oldsmobile car RO .404 on
payments of the cost of garage and other inciden tal
------------'--'--------'--'---,
(I) (1925). L,)h. 132.
 1950J BURMA LAW REPORTS. 261
H,C.
,charges which the trial Court might consider to be 1950
reasonable. The appeal is allowed in the sense
Ko HAN TUN
indicated above. Each party will bear its own costs, ANll ONE
V,
both in this Court as well as in the trial Court. U BAHLA.
U TUN BYu~
lJ SAN MAUNG, J.-I agree. c.},

262 BURMA LAW REPORTS. [1950

ORIGINAL CIVIL.
Before U A1I1:{!. 1'110 Gyaw, J.

H.C.
1950 C. Ivl. BROTHERS (PLAINTIFF)

Api. 19. v.
A. KUNJA.L,AN AND,TWO OTHERS \DEFENDANTS),*

Trade mark. meaning oj-lll'vcutcd l1(11/1e or word-Whe1l ll!{:a[ right fer

(,nLsivc use of trllde~.t1l<lrit tlcquired-Limit~ of SlIch righl-Colou-rable
imitation by dcf{~lIdall{-Pl1ssiJlgfor-llljrillgclIlcnt of right-Remedy.
Plaintiff was a manufacturer of beeclies, their goods bore rtctangular
labels in violet colour containing the words" :'I'lQULANA BEEDY" with.
the capital1etter" i'l'1 "enclosed in it ring between the words "Monlana and
Beedy:' Their goods had been sold in the market for the last 15 or 16 yea,s
and they had declared this trade mark to be theirs in 1944 and 1946 \vbkh
referred to a previo~ls declaration in 1934. The first and second defendant
left plaintiff's service and recently ioined the 3rd defendant in manufaclming:
and selling bee dies bearing labels of idcnlical colour and size and called
" fi'loulavi Beedy", the capital letter "M" heing enclosed in a ring exactly
like the plaintiff's label. The plaintiff's goods were Sold at Hs. 16 per
thousand and the defendant"s at t<s. 12-8. Upon plaintiff claiming <l' &
permanent injunction and d;l1nages for infringement of their trade mark.
Held: A trarle mark. is a symbol applied or attached to goods offered for
sale in the market so as to distinguish them from similar goods and tu idenI1f~"
them with a particular owner, The trade mark indicates that is the goods k>f
the proprietor of such trade mark and a mark includes a de~i..:;e, brand,
heading, label . . . , or ,lilY combinalion thereaf.
The word" MOlilana " in plaintiffs trade mark is :m invented name ta
distinguish plaintiff's' good5 from other's gOJds. The test of an invented'
\\;ord is thaflf m ~i~nlave been" sub~t;\liHal!y nei,v-arlhf: d:lte of registralioh
and used only to denute his ~oocl" down to tht date of registration. Its
production need not involve any great ingenuity or invenli'JI1 as in ratent one.
Sirllmal v. E'llperlJr, AJ.R. (1932/ Sind 94, referred to.
The Registration of the tra(le name II ;\'Io'-ll:\na Beedy" with the device
mentioned was made with a view to its b~ing used by plainLiffs on beedies of
their manufacture and they have all along intended to use the label from 1934
to dis!in~lIi:!h their goods from tbosc of others. The plaintiffs hhve built up a
fairly large wholesale business and we"c entitled to protection. The fact that
a large number of other Jn1.ker., with other !Jl:lrks WIth the c~ntral circular
devic~ and the alphabet by way of imitation and that no action was taken
against them is irreleva'1t as it '11 tv IflOt be worthwhile to speno money on
every man of straw W:1O vhlates the j)iai'ltiff,;' ri~ht and cannot deprive the
plail1tiffs of their right af suit.

* Civil (~eglliar Suit No, 87 of 1948.

 1950J BURMA LAW REPORTS. 263
MlJoIji Sicca t'-- CO. V. Rdflljelll Ali, A.I H.. (1930) Cal. 678, referred la. H.C.
A right of property may be acquired ill stich a trade mark and it is based on 1950
the proved association in lhe market (Jf the device, name, sign, symbol or C.M.
OUler means in qlle~-:ion with the goods of the plaintiff. The use by defendant
on such .~oods of til(;: trade mark will amount tu a false representation that the ,.
BI{QTHERS

goods arc mam.{act\lred by the plaintiffs. A. KUNJALAN

Al\D TWO
Thomas Bear ~:'SOIl)' (!tufta) , Ltd. v. PraJag Saram and (/llolht:r, A.I.R. olHEJ{S.
(1940) P.C. 86 at 87, i"tchrrcd to and followed.
Mohamed $111 \'. Rajaratfw11I Pilla;, I.L.R. (19331 Mad. 402; William
iVotllersp.lVtl /11ld (Illo:her v. JlJll1l Currie, 5 L.R. (Eng. and Insl: Appeal Case)
50S, referred to.
As t;l{: b~edy put on the market by the deft::ndant \Vas Wl appc.:d round with
a paper label of the same colour as plaintiffs' and the words 1\l0ulavi Btedy'
printed 011 it with circular device containing the capital letter ' i\1 ' in exactly
the same f:tshion as the plaintiffs' amounts to colourable imit<lti011 oj plaintiffs'
trade mark; no general rule can be laid d0Wll as to what is a colourable
imitation and this is a question of iac! to be d~cid~d in each caSe having regard
to the drcllillstancc.
Payton &- Ca' l Ud. v. SlId/ing, L(llJIp.lYii &- Co., L/d. (901) A.C.{P.C.) 308,
followed.
The Court looking <it the exhibits and paying due attention to the evidence
adduced must cOllle to an indel,endent judgment 0n this point and not
sllrrcnder its own independ{'nt judgmcn.t to any witness.
A11g1owAmerican Drug &- Chemicill Co. v. Swns/ik a,l Mill Co., Ltd. 59
Bom. 373 ; R. Johmtol1 e' Co. v. Atclllbald Orr Ewmg & Co {lSS1-82\ 7
A.C.219 ; lfTiIlialll Dill/celt v. Goffredo dllessaudro Cltrclieu and allolller,
A.I.H. (11)31) P.C. 15, refe,Tcd to and applied.
h' is not necessary to giv~ actual preaf of deception; it iG sufficient there is
probabilitj of dtcertioll.
In Ihe cirCUl1'star.ces iii W1lich the defendants entered the trade, the manner
in which they executed the get up of their !!oods and sold them, the} clearly
hlfringed the plaintiffs' right to their trade mark.

Dr. Ba Han for the plaintiff.

]. R. Chowdhury for the defendants.

U .'lUNG THA GYAW, I.-This is a suit for injunc-

tion and damages for alleged infringement of the
plaintiffs' tr~de-mark described as a rectangular label
in violet colour containing the works "!VIoulana
Beedy", wiln the capital letter '!VI' enclosed in a
ring between the words " Moulana " and " Beedy'
under which beedies 01 plaintiffs firm's manufacture
264 BURMA LAW REPORTS. [1"!50

H.C. are sad to have been sold in the local market for the
1950
last 15 or j 6 years. The plaintiffs claim that their
C. M.
BRQTHEl{S goods hearing the said trademark have acquired a
v. big reputation in the market as denoting beedies of
A. KU~LlL\t':
AND TW(; their own manufacture' and that they have acquired
OTHERS
the sole ri)i;ht to use the said trade-mark in the beedy
U AU~G 'Ii-i.i c
GYAW,]. trade.
rt is alleged that the 1st and 2nd defendants, who
left the service of the plaintiffs' firm quite recently
and the 3rd defendant, have manufactured and sold
beedies bearing labels of identical colour and size
and most closely resembling the plaintiffs firm's labels
with only this slight difference that they call their
beedies 'Moula':i' beecl)', while using the English
'2apitalletter 'M' encloses in a ring exactly in the
same way as in the plaintiff firm's labels. Plaintiffs
allege that the defend 'nts' use of these labels on their
beeclies amounts to a gross ancl palpable infringement
of the plaintiff firm's trade-mark and that the defen-
dants' act in selling and passing off beedies with la~els
closely resembling the plaintiff firm's labels, is
calculated to deceive the public and that they have
done so with the dishonest i'ltention of enriching
themselves at the expense of-the plairititis' firm and of
causing gre;lt ,md irreparable damage to their rights
over the said tracie-mark and to their repu!ation and
business.
By their written statement, the defendants while
admitting the pl;lintiffs' use of the labels d(jscribed by
them in the plaint on the beedies manufactured by
them, claim that such use of these labels would not
create any exclusive right to the said mark or labels as
it has become the custom in tlle Beedy trade for
makers to put labels of a colom. desigll and get up
similar to those of the plai ntiffs' on the -beedies
manufactured by them. They further den)' that tl:,e
 1950J BURMA LAW REPORTS. 265

labels of the type used by the plaintiffs have acquired H.C,

1950
any distinctiveness or label reputation in the market
-or that labe;s h,~ve been exclusively identified as the C. M.
BROTHERS
goods of plaintiffs' manufacture and that the use of the V.
A. KUNJALAN
defendants' labels amounted to a gross and palpable A:\'D TWO
OTHERS.
infringement of the plaintiffs' rights and thaI they have
U AUNG THA
passed off their beedies as tho;e of the plaintiffs and GYAW, J.
that their labels are calculated to deceive the smoking
public.
On these pkadings the following issues were fixed
by consent : -
(1) Do the colour, design and get up including
(wording) of the plaintiffs' label as set out in para-
graph 3 of their plaint, constitute a trade-mark?
(2) Has the said trade-mark used by the plaintiffs
on their good; acquired a reputation in the market as
denoting goods of their own manufacture as aBeger! in
paragraph 4 of the plaint and have the plaintiffs
acquired a legal right to theexc1usive use of the said
,trade-mark?
. (3 j Is the defendants' label a colourable imita-
tion of the plaintiffs' trade-mark and as such are the
defencallts' goods likely to be passed off as the goods
of the plaintiff? If so, does the defendants' use of
their label constitute an infringement of the plaintiffs'
firm's rights to their tracie-mark?
(4) To what relief, if any, are the plaintiffs
entitled?
Issue No. I.-What exactly constitutes a trade-mark
has, in the absence of any statutory definition,
been laid down in many a reported decision the
effect of which has been briefly summanzed in
S. Venkates'varan's ' Trade and Merchandize Marks in
India', 1937 Edition, pages 34 and 35. A trade-mark
is a particular mark or symbolused'by a person forthe
J
purpose of denoting the article to which it is affixed,
266 BURMA LAW REPORTS. [1950
H.C.
1950
is sold or manufactured ~y him or by his authority at
a particular place. It must be some visible, concrete
C. M.
BROTHERS device or design affixed to the goods to indicate that
v. they are the manufacture of the person whose property
A. KU1\'JALAN
AND TWO the trad~-mark is. A trade-mark is a distinctive mark
OTIlEHS.
of authenticity through which products 'of a particular
U AU:\'G THA
GYAW. ]. manufacturer may be distinguished from others and as
one's Commersial signature to his goods.
In Kerly 'Kerly On Trade-mark " 6th EditiCln,
at page 24, are definitions of a trade-mark ',)oth at
common law and under the Registration Ads. A
trade-mark is a symbol which is applied or attached
to goods offered for sale in the market, so as to
distinguish them from similar goods, and identify
them with a particular trader or with his successors as
the owners of a particular business, as being made,
worked upon, imported, selected, certified or sold by
him or tbem, or which has been properly registered
under the Acts as the trade-mark of a particular
trader. Vnder the Registralion Act of 1905, a trade
mark is meant 'a mark used or proposed to be used~
upon or in connection with goods' for the purpose of
indicating that they are the goods of the proprietor of
such trade-mark by virtue of manufacture, selection,
certification, dealing with or offering for sale and a
, mark' for the pnrpose of that Act includes 'a device,
brand, heading, label, ticket, name, signature, word,
letter, numeral or any combi nation thereof.'
What is now met with in the present case is a
rectangular label of violet colour containing the words

" Moulana Beedy" with a ring in the centre between
tl'e (wo words inscribed round the capital letter M.
The word' Moulana ' according to Moulvi Hasan Shah
(P.v\!. 6) means' Our Lord' and by itself does not
desc.ibe the kind, quality or origin of the beedies
upon which the name is given. The plaintiff-firm
 1950J BURMA LAW REPORTS. 267

manufactures beedies of one u'1iform quality and SIze H.C.

1950
and to all these beedies they have given the name of
C, M.
'Moulana.' It is thus clearly an invented name or f'ROTHF.HS
word givcn to distinguish their goods from those of the v.
A KliNJALAN
other makers. The tcst of an invented word is that it AND TWO
OTHEW>.
must have been substantiail y new at the date of
U AU;>;G TIL\.
rcgistration j or have been substantially new when first GYAW. J.
'used by the applicant, and ha-Je been ()nlv used to
denote his goods down to the date of registration.
It is not necessary that its prodljction should have
involved any great ingenuity or anything like invention
in the sense in which the term is used in patent law.
[See SirulI1111 v. Emperor (1').J
This word mark does not stand by ilself. It
appears in the label combined with the device of a
circle inscribed round the capital letter M" This
combination in the label, Exhibit E, of the invented
word' Moulana ' to the circular device containing the
capital letter ' M ' has been described by the plaintiffs
as their particular trade-mark used and intended to be
uS,cd by them on the beedies of their own manufacture
an'd a declaration to this effect has twice been made
within the last six years as shown in the documents,
Exhibits A and B. Exhibit A, was registered on the
1st November 1944 during the time of the Japanese
occupation and the second deClaration of ownership,
Exhibit B, was m;;de in February, 1946. Both these
decl;;ration refer to a previous declaration said to h~,ve
been made in the ye,ll" 1934. Thus, apart from the
padicalar design and get up of the labels used by the
plaintiffs on their beedies, their conduct in respect of
their use since 1934, would indicate that the)' had all
along intended to use the label Exhibit E as a particular
trade-mark fo~ distinguishing their goods from those
of the others.
III A.I.R. (1932) Sind. 94.
268 BURMA LAW REPORTS. [1950

H.C. The defendants have contended that labels of the

1950
same colour containing similar designs and devices
BR~;::~RS have been in common use in tile beely trade and
".
A. KU~JALAN
that the mark claimed by the plaintiffs has lost its
AND TWO essentially distinctive character so as. to give the
OTHERS.
plaintiffs any right to thei~ exclusive use of the same
u ~;A~~.YA as their own trade-mark. Evidence nas been given of
the appearance in the ~arket of more than half-a-dozen
different makes of beedies under various trade names
beginning with the English letter M and using the
labels containing the circular device round the capital
letter M. The plaiptiffs who, from the accounts given
by the witnesses, have built up a fairly large wholesale
business in the sale of their beedies both in Rangoon
and Mandalay, h~.ve taken fairly prompt legal action
against certain of these beedy makers with fairly
satisfactory results. A.dmittedly, they arc the first in
the field to use an invented word describing b;;edies
of their make together with a central circular device
cO.1taining the capital letter M and the attempt made
by other beedy makers to present their goods to t~lC
public in the same manner as those of the plaintiffs'
goods, not having been acquiesced in by the latter,
cannot have the effect of reduclI1g their ol\'n trade-
'---il1ark into one 'in 'com:non use in ll1e beedy trade.
Evidence has been given of other reputable manufac-
turers of beedy putting their goods on the market with
labels of the same colour but with different word
marks and distinctive circular devices containing
different letter marks. Such for instancG are Tina
(Exhibit 5), Iqbal (Exhibit4), Nana (Exhibit 2) and
Rani Beedies (Exhibit 6). '
A large number of other makes I,sing words marks
like' Kutty',' Cycle',' Zamini', 'Medina', 'Azad',
, Three Stars " ' Bahadur " according to the plaintiffs'
lvIanager T. C. Mohamed, do not use the central
 1950J BURMA LAW REPORTS. 269
circul<Jr device and the alphabet. It is therofore fairly H.C.
1950
clear that the name and the central circular device
C. ~l.
used by the plaintiffs have not become the common BROTHERS
v.
property of the beedy trade. A. KU"JALAN
It ll1ight be that it host of petty beedy makers had AXD TWO
oTHEHS.
'irhitated the plaintiffs' mark with varyin:~ degrees of
U AUNG THA.
.success in order to share the popularity earned by the GY.-\w.J.
plailltiffs' goods. But as wac pointed ont in il1oolji
Siew & Co.v. ROllljon .'1li (I;, it may not be worthwhile
to spend money on every man of straw who violates
the plaintiffs' right in the market. The mere fact of his
omission to take action against the off~nders in the
earlier cases lVould not in any way deprive the plaintiffs
of their right of suit. It was also pointed out in this
case that although there was no Tr;lde Mark Act in
India, a declaration of the description of a tradem'ark
serves the user ul purpose of being some evidence of
gen:linene,'..; of th~ n11~'k which is the subject 11latter
. , or. it.
.j Accordingly, the fil'St issue must be answered in the

affi rmative.
Issue No. 2.-lt is not serioldy disputed that the
p1 ttntiffs trtve be~n, CJtl1rnr:1tively, in a large way of
busineSS. T. C. ~Ioha!11od, the I1hnager compntes the
daily output at 500,000 beeJi~s and the labour employ.
ed ill lbl1.~o)n an:! VLtn:hla:: at 50J. They advertised
their goods by various moans well known in the trade'.
Theil' agents carried pr..1 minellt posters advertising
their goods in public places} their n10tor-vans went
about th~ towa using IJu:l,speakers and they also
adopted the novel method of dropping advertisement
leaflets from the air. The M~nager has gil'en tile
expenditure on this advertisement account at
Rs, 50,000. S. Rajagopal (P.W. 4), Proprietor of the
\ ..
ill A.l.R. t1930) Cal. 678.
270 J:j U RMA LAW REPORTS. [1 '150

H.C. New National Electric Press who do the printing

1950
work for the plaintiffs has given some idea about
C.M. the growth of the plaintiffs' goodwill during the last
BnoTHEHS
. v. ] 0 years or so. WhereCls before the war:. the plaintiffs
A. J{UN]ALAN
AND TWO were spending Rs. 20g to 300 a year on the printing
O'fHERS.
work, they are now spending Rs.3,000. The sale of the
U AUNG THA plaintiffs' goodo; runs into about 75 lakhs in a month.and
GY,,:,W I J.
last year they paid an income-tax of Es.618. Despite
this discrepancy in the volume of sales and the profits
derived therefrom, the impression which on~ gets from
the evidence given by the witnesses is that the Moulana
beedies are having increasing sales in the local market
and that their qua~ity and popularity are reflected in
the high er price fetched by them. According to the
1st defendant, A. Kunjalam, Moulana beedies cost
Rs. 16 per thousand whereas beedies the defp.ndants
put on the market cost only Rs. 12-8-0 per thousand,

a difference in price of at least 25 per cent.
T. C. Mohamed, the plaintiffs' manager, states that tlie
retail price of lvloulana beedy is higher than that of
other beedies, the difference in price being about
Rs. 2 per thousand beeclies.
Lalubhai Gopalbhai Patel (P.VV. 2) has been in the
beedy trade for 20 years and he agrees that after the
war Moulana beedies have come to the fore-front in
the matter of popularity with the smoking public.
G. Rahman (P .vV. 3) gives his evidence on this point in
the same strain. Mohamed Huniff (P. W. 8) 41so places
Moulana beedies in the Iront rank of popular brands
now in the market. Abdul l<azak (P.W; 9) sold
Moulana bee dies in his shop from 1936 to 1941 until
his business was closed by the Japanese bombing of
Rangoon about the end of that year. This would show
that beedies of the plaintiffs' mark or brand have
been on the market fo!" a fairly long number OP\
years.
 1950] BURMA LAW KEPORTS. 271

A numbel' of witnesses, namely, HundT (P. 'vV. 8) and H.C.

1950
Seedat (P.W. II) have given evidence to say that they
C. M.
knew MOlllana beedies smoked by them as the' BHOTHERS
V.
manufacture of the plain tilTs' .firm and it was to the A.KuNJALAN
plaintiffs that they made their complaints regarding A:s'D TWO
OTHERS.
. their qlnlity and sale in the market. Huniff was asked U AUl\G THA
to promote the slIe of the beedies put on the market GVA)\-:J.
under t.he rival name of I'vIoulavi Beedy. He
declined and made a report of this incident to
the man in charge of the advertising van used by the
plaintiffs' firm. Seedat WilS served with Moulavi
beedies by a stall holder and detecting the difference
in Havour, he found out the decei' and reported to
the manager of the plaintiff firm T. C. Mohamed.
These incidents together with poplllarity and higher
price obtained by the plaintiffs' goods in the market
would ,11 LV t.Jat they have an established reputation
in the beeJy trade and that beedies bearing their mark
r well known in the market as goods of their own
manufacture.
The question then is whether by reason of the facts
set out above the plaintiffs have acquired a legal right
to the exclllslve use of the said trade-mark on their
beedies. That such a right accrues to the plaintiff in
the circulllstances now met with is implicit in the
judgment of the Privy Council in Thomas Belir &
Sons IIndia), Ltd. v. Prayag Narail1 and another (1)
where it is slated:
" It is clear that the right of property that may be acquired
in such a trace mark is based on the proved association in the
market of the device, name, sign, symbol or other means in
question with the goods of the plaintiff, so that the use by the
defendant on such goods of the trlde mark will amount-whether
the defendant intends it or knows it or not-to the false repre~
sentation that the goods are manufactured Or put on the market
by the plaintiff. "
II) A.I.R. 119lC; P.C. 86 at 87.
272 BURMA LAW REPORTS. [195"0
H.C. But it is further pointed out that there can II obviously
1950
be no monopoly in the use of the trat; ~ marIe A
C.M.
HROTHEHS manuf8cturer of cigarettes under an undoubted trade
V.
A. KU:\lALAX'
mark such as an animal, or any other device cannot
ANi) TWO legally object to the use of the identical mark on, say,
01'HEHS.
hats or soap; for the s,mple reason that purchasers of
U AUNGTHA
GYAW, J. any of the latter kinds of goods could not reasonably
suppose, e,'en if they were 'NeJ1 acquainted with -the
mark as used on cigarettes, that its use on hats or soap
denoted that these goods were manu.factured or
marketed by the cigarette manufactLlrer."
In a case where the plaintiff's cigars had acquired
a wide reputation and the smoking public had came to
associate the name or the plaintiff to that particdar
brand with which they first came into the markel to
delDle cig8rs of his own manllfaciurc, il was held that
the plaintiff had acquired the exclusive right to the use
of the said trade-mark. [See ill alia II/cn ESllf v.
..
Rajara/liml/ Pillai (1).J II The name may hecome .
trade denominaticn and as such the property of ,c
partlclll<tf per.:.;on who Arst gives it to a particular
arti"]e o[ nunllfaeture. The employment of the name
b,' :.IlotherpcrsolJ for the purpose of describing an
imitation of that article is an invasion of the right of the
original manufacturer, who is entitled to protection by
injunction." [See Willialll TT'ollier.'!,ool/ (111i1 ano/Ii(/'
v. John Currie (2).J
Thus, the plaintiffs in tbis case having .succeeded
in showing that they have established a reputable beedy
manufacturing business by adopting the, distinctive
mark Moulana Beedy "ith the central circular device
ringed round t.he capital letter lvI, thev must be held to
have acquired a legal right to the exclusive use of the

111 11933) (L.R. Mad. 402. (21 "5 L.R. (Eng. and Irish
A ppeal Cases) 50S:
 . 1950J BURMA LAW REPORTS. 273

said trade-mark and the answer to the second issue IS H.t;.

1950
therefore in the affirmative.
C:M.
Issue No. 3.- The first and second ddendants BROTHERS
7'.
were employees of the plaintiffs before they set up a A.1CUNJALAN
AKD'I\\'O
beedy manufacturing business of their own. When OTH:EJ.1~.

the independence of this country w"s inaugurated

L' AUNG TUA
in January 1948, the beedy rollcrs employed in Gy,\w, ].

the plaintiff-firm asked for a special bonus. The

2nd defendant as President of the Beedy vVorkers'
Association took a leading part ill this agitation with
the result that his services were dispensed with by the
plainfiffs followlIIg a strike of the beedy workers whose
demands he unstlccessfully advocil.ted. The plaintiffs
have given a different account of the manner in
which the 2nd defendant ccased to be their employee.
He was said to have becn seen attempting to rernove
some'Moulana Beedies ' from the factory premises and
'" his dismissal had followed the detection of this
armisconduct. A few months after the two defendants
le't the plaintiffs' employ, they started a small busille,s
of their own and iss ;ed to the market beedies with the
labels r,ow complained of. Exhibit E is a beedy of
th~ir manufacture. It has wrappc,d round it a paper
label n' the same colour as that used by the plaintiffs
on their beedies and has the words' Mouiavi Beedy'
printed on it with;l circular device containing the
capital letter' M ' in exactly the same fashion as iound
in the plaintiffs' labels. The only difference in the get
up is the use of the word 'Moulavi' instead of
, Moulana.' The remaining pictorial representa! ion of
the label device is practically the same as that of the
plaintiffs't"idemark.
In view of this similarity in the label device ana get
up and the previous record of the defendants' business
dealings with the plaintiffs, there is hardly any room
lor doubt that the labels used by the defendants on their
18
274 BURMA LP~W l~EPORTS. [1950
H.C. beedies were colourable imitations of the plaintiffs'
1950
trade-mark. In Payton & Co., Ltd. v. Snelling; Lampard
BR~T~!~RS & Co., Ltd. \1) Lord Macnaghten observed that 'no
A. KU~;ALAN general rule can be laid down as. to what IS a
"D TWO
OTHERS.
colourable
'..
imitation
. .
or not; you must deal with
- each case as 0 It anseS", and have regard to the
U AUNG THA . f '
GYAW,J. circumstances 0 the particular case.'
'.
Apart from this striking similarity which is notice-
able on casual e.xamination of the labels used by the
parties, there is on record a considerable (.b0dy of
evidence tending Lo show that the beedy smokers had
in fact been deceived into thinking that the defendants'
beedies, bearing those labels were in fact Moulana
beedies, the manufacture of the plaintiffs. The.evidence
of Huniff and Seedat has already been referred to.
G. Rahman (P.\oV. 3) bought two annas worth of Moulana
beedies from astore and was served with six Moulavi
beedies. Owing to the presence of the letter !vI inside
the ring and the colour of the label used, the deception)
was not found ont until the witness had tried .two
beedies in snccession <11111 fou nd the flavour disagree-
able and qnite different frum Moulana heedies to which
he was accustomed. He forthwith complained of this
deception to the Inspector of the plaintiffs' firm
Abdul Kader (P.W. 10). Ismail (P.W. 5) also a beedy
smoker, prefers MOlllana beedies to others in the market
and identifies them by the sight of the letter M in the
circular device contained in the labels wrapped round
the beedy. Mohamed Sultan (P.W. 7) a retail dealer in
beedies and cigars, speaks of the possibility o~ smokers
being deceived by seeing the label g2t up of the
defendants' Moulavi beedies into thinkinJ that they
were beedies of the plaintiffs' manufacture. Abdul
lhzak speaks of the manner in which he was deceived
~
(I) 11901) Appeal Cases, P.C. 308.
 @
V~~V>
1950J BURMA LAW RFPORTS. 275

into smoking Moulavl beedy instead of Moulaha beedy H.C.

1950
to which he w'.s accustomed:
C, M.
The extremc likelihood 'of the defendants' eoods BROTHERS
;"bearing the mark in dispute being passcd off as the goods v.
1\. KUNJALMl.
, 'of the plaintiffs is'further shown in the manner in which A"'"D TWo
OTHlms
their beedies have been packed into bundlcsof 25 and -
U AUNG'l'HA
packets of SOD. The' 'colour design and get up of these GYAW,J.
bigge, t<tbels also-closely resemble those IVrappersused
by the plaintiffs on their packets and bundles as "hown
in Exhibits C and D.
The effect' of this evidence on the point combineJ
with the result of an actual comparison of the (IVa labels
in dispute would cle~rly justify the findilllo; that
the defendants' label is a colourable imitation of
the plaintiffs trade-mark, and tha~ the defendants' goods
bearing the labds complained of are likely to be passed
off as the goods of the plaintiffs. In this connection
the dictum of Lord .Macn;lghten in Payton's case (l)
may well be quoted:
e. (tI'he Jl1c1ge. looking' at the' exhibits before him anci also
;paying due attention to the evidence adduced, must not
surrender his O\V11 independent judgment to any witness."

The same view was adopted in Anglo-American J)rug&

,Chemical Co. v. Swastik Oil Mill Co., Ltd. (2) where the
Head-Note reads:
1I in . passing 0: I actions it is not necess:lry to give proof
of a~ttlal il1stance~ of deception, as ' the very life of a trade-made
-depen:ls upon the promptitude with which it is indicated. '
Evidence of actual instances' may be useful to the Court, but the
'Court has to eX~l'cise its.own judgment as to the pl'obabiHty of
,deception. "

The question then, is to consider whether th~

,defendants' use of theiLlabel constituted an infringe-
ment of the plaintiffs firm's rights to their trade-mark.
(1) (19011 Appeal Cases P.C. 368. {21 59 Born. 373.
276 BURMA LAW REPORTS. [1950

H.C. It is a well-known principle of law that no man is

1950
entitled to sel! his goods as the goods of :>.nother person
C. M.
BROTHERS
and no trader has the righ.t to use that trade-mark
V
6.. l{UNJALAN
so neally resembling that of another trader as to be "
AND T\VO calculated to mislead incautious purchasers. [See '
OTHERS.
R. Jolmston & Co. v. Archibald Orr Ewing & CO. (1).J
U"AUNG THA
GVAW, J. The Pri'Vy Council has again in William Di1lleclt v_
Goffredo Allessamiro Clzretien a11d a11oi/,er (2) affi.rmed
the same prind,lle in these words:
H If the use by the defendants of their firm name does in fact

necessarily result in their goods being. taken for the goods of the
plaintiffs, the continued use by the defendants of that firm name
. would bec'Jme fraudulent."

The defendants have sought to show and failed in

their attempt that the plaintiffs' trade-mark had not
acquired a distinctive character to distinguish beedies.
bearing the said marks as goods of their own <:'
manufacture. They have also pleaded ,that in the
plaintiffs' trade-mark the English word Moulalna.
heginning with the letter M and the central circnlar ~
device enclosing the capital letter /vI has become so
widely llsed in the beedy trade that the plaintiffs.
.. have- lost- the exclusive right to the use of the said
trade-mark.
Exhibit P, a certified copy of the evidence of the
1st defenda'lt Kunjalan given in the connected criminal
C;tse would rather show that almost all the beeclies
bearing the letter M started after the def"ndant had:
left Moulana Beedy Company. The defenclants,_
according to them, were in the beedy trade for only a.
. few months and their outtum of trade compared to
that of the plaintiff was petty. Neverrheless, in the-
circumstances in which they entered into the trade,.
tI) 7 A.C. (1881-32),219. (2) (1931) A.LIt Journal and
Privy Council, 15.
 \./-'_~}f~
'f~/
1950] BURMA LAW REPORTS. 277
the manner in which they executed the get-up of the H.C.
1950
goods made ai1d sold by them clearly constituted an
C. M.
infringement of the plaintiffs' firm's right to their BROTHERS
trade-mark. The third issue is accordingly answered in v.
A. I{UNJALAN
the affirmative. AND TWO
OTHERS.
Accordingly, there will be a decree for the plaintiffs
U AUNG THA
\\ith costs for an injunction restraining the defendants GYAW,].
jointlv and severally, by themselves or by their agents
or servants, or any other person acting with the consent
or under the direction of the defendants, from selling
or offering for sale or manufacturing or keeping or
distributing for sale beedies to which are affixed labels
any wise resembling the plaintiffs Company's label or
labels and directing further that the defendants and all
and each of them do dehver up to the plaintiffs all
labels, blocks, instruments or other equipment of
whatever nature or kind employed or used by the
defendants for the purpose of manufacture of such
labels and that the Official Referee of this Court do take
acc(?uots of the defendants' sale of beedies bearing
the labels complained of and do submit his report in
due course.
278 BURMA LAW REPORTS. [19,50

CRIMINAL REVISION.
BeJorc [j 0'1 PC, J.

H.C. THE UNION OF BURMA (ApPLICANT)

1950
Apl. 21.
v.
U CHIT SWE (RESPONDENT).*

W,thdrawal of prosewtioll-NlJ rC1S0ns gIVen-Public policy hflw far a sa!t
guide--S. 494, Crimillal Procedure Code-Order of Magistrnte wllefllc1
judicial.
Where a magistrate grante:t permi:5sion under s. 494 (b), Criminal
Procedure Code to withdraw a charge on tile gr.1und of public policy and. no
9ther rf';tsons were given.
Held Ott r<.vision: That the magistrate had f:lih:d to cKcrcise bis judicial
discretion and his failure to do so by not recording reasons is a sufficient
ground for interference in revision. Reasons must alw.<ys be giycn by a
magistrate to justify such orders. .
In re Sadayllll. (1903) 5 Mad. L.T. 216; GIIJli BlIagat v. Nararn Siu.rZh,
11 Pat. 70S:; Laksll1lJi N.Jrain TTerma and anollur Y. l'tfo1Jamed Hallifl A.I.R.
32 Lah. 368; Rafamlta Kavnsji Mt'd1Jora v. J<cki Reltralll<1SlIa Pardi-leala (lnd
O!llcrs, I.L.I~. (1945) Bom. 141; Ol/ttatJ'iIYll Covil/drao v. EmPtlor, (1938)
25 A.l.R. N;tg. 76; Kapil Ensi ViS1(,'all.,dll'lllt v. BlJ/;dW Mtldan singh) allli
('!hers, A.tHo (351 11948) Mad. 422; not follo\ved.
Abdul Ganiv. Abdul Kader, 1 Ran. 756, followed.
E11Ipcrnr \'. 1IIi14/1111a1 fl(JIf!l1smal dnd alto/her, A.I.R. (30) 1943 Sind 161 ;
Rajani Kan/a Sllfilta v. Idris Thakur, (1921) 48 Cal. 1105 ; Umeslt CllUl/der Roy
v.Safisll Chllndra Royia11d others, 22 Cal. W.N. 69; fagat Clwlldm Roy v
. ... Ka{l1iiuddiSnrtlal', (1)22) 26 c".\\7.N. 880; lti~;g v.- Ea Khi~J alld others, A.I.R.
(i940)' I~an. 189; Sher Silsglt v. Jifwdranil!t ,Setl, A.I.R. (11}3I) Cal. 607.
referred to.
The High Court lIlust aiways be ill a position to sa~' wllether a di:;cretion
vested in the cO'lrt has been properly exercised. Permission to withdraw a
pro~eclltion cannot be given as a nutter of coarse nor C.lO it be unreasonably
wilhheld.
t
It is of c,:wside",lble public imlurtance tint nolhi,lg is dO:lC in a cAurt
which would give ris~ to suspiciolls about illL:rference in the course of
justice.
DevelldraJ(IJ/llarRo)'v. Syed }'al' BlIkltt Cltaudll1lry and oUlers. A.I.R
(1939) Cal. 220 at 224, rcfern:d to and followed.

'II Criminal RcvisinnSo. 17A of 1950 being review of the order of the
2nd Additional Magistrate, Rangoon, dated the 28th Februar?-, 1950 passed in
Criminal Regular Trial No. 88 of 1948. ~.,
 vwt w

1950] BURMA LAW REPORTS. 279

My" Thein (Government Advocate) for the H.C

1950
applicant.
THE U~1ON
OF BURMA
Tun f for the respondent. , ,I,
D CHIT
~h\R.
U ON PE, J.-This revision has been opened in
exercise of the powers of the revision of this Co~rt to
examine the propriety of t;le order of the Second
Additional Magistrate of Rangoon allowing the with-
drawal of prosecution under section 494 of the
Criminal Procedure Code by the Government Advocate
in Criminal Reg'llar Trial No. 88 of 1948. Notices
were duly issued to the respondent and the Attorney-
General. The order of the Magistrate in question
reads:
u 28/2/50. Called. (J Mya Thein, Government Advocate
for Attorney-General, present.
Accused Chit Swe on bail present.
His pleader present.
U Ivlya Thein, Oil behalf of the AUorney-Gene-ral, asks for
permission to withdraw the charge against the accused on grclmcl
, of J'l.bJic policy.
Under seetirn 494 (bJ. Criminal Procedure Code permission
to withdraw the charge is granted.
Accused acquitted.
True.
(ScI.) HLA MAUNG,
2m/. Addil1011al il-laf/,islrate (s.p.).n

From the order it will be Seen that the Magistrate

had given no reason for permitting the withdrawal so
that there is no material before the Court now to
enable we to judge whether the Magistrate had passed
a proper arc! right order. The only reason given by
the learned Government Advocate was the ground on
"public policy "-a phrase which seems to give very
little scope to the trying Magistrate to give such
280 BURMA LAW REPORTS. [1950

H.C. reasons as he should ordinarily have done even if he is

1950
so minded to do. I can only as~ume that in this case
THE UNION
OF BURMA the Magistrate must have found it jifficdt to give
".
U CHIT
reasons for consenting to the withdrawal. Nevertheless,
SWE. he cannot take cover under the special circumstance \.
U ON PE) J. as when faced, as in this case, with the ground on
" public policy:' and pas~ an order without recording
his reasons. vVithput hesitation, I must say that in the
present case the Magistrate has failed to exercise hfs
judicial discretion' and his failure to do so by not
recording reasons, when consenting to the withdrawal,
is a sufficient ground for the High Court to interfere
and quash the orders of withdrawal and acquittal and
direct retrial of the case. That is to say, reasol's must
always be given by" Magistrate to justify an order
permitting the withdrawal of prosecution, as such an
order is a judicial order: I have been referred to
certain r ndian cases by the learned Government
Advocate and U Tun I for the respondent in support
of the view that the High Court could nct set aside an
order allowing the withdrawal of the charge under l
section 494 of the Criminal Procedure Corle even
though the Magistrate records no reason for the actIOn
he takes and the Public Prosecutor offers no reason
.- for the \vilhdra\vaJ:'These cases are In re Sadll)'an
. (1), Gulli Bhaga! v. Namil~ Singh (2), Lakshmi Narain
Verma and ai/other v. Mohamed Hani! (3), Ralallsha
]{ava~ii Medhora v. E.eki Behramasha Pardiz~'ala and
olhers (4), Dattatraya Goz'indrao v. Emperor (5), alld
Kapa Kasi Viswanadham v. Bondilt Madan Si1'tgh alUt
a/hers (6). l
However, a different view has been taken, amongst
others, by the late Rangoon High Cord and the
(I) 11908) 5 Mad. L.T. 2'6. (4) 1.L.R. (1945) Born. 141.
(2) 11 Pat. 708. 1.5) (1938) 23 .U.R. Nag. 76.
(31 .U.R. 32 Lah. 363. (6) A.l.R. (35) (1948, ,tad. '422.
\
 " #t,;
\#" ;

1950J Bl'RMA LAW REPORTS. 281

H.C.
Calcutta High ':(lUrt. Please see Abdul Gani v. Abdul 1950
Kader (1), Emperol' v. Mila1l1nal Hardas1llal mId THE UNION
anolher (:::), Rajan! Kaula Sl,aha v. Idrls Thakur (3), OF BURMA
V.
Umesh Chunder Roy v. Salish Chundra Roy and others U CUlT
SWE.
(4) and fagal Cluindra Roy v. KaliJ/luddi Sardar (5).
The law on the subject has been expounded in U 0, PE.J.
A bdul Galt! v. Abdul Kada (0. h that case the
view held in Umesh Clllmder Roy v. Salish Chu/Jdr:1
Roy an.l others (4), namely, "whl<n a Court acting
under section 494 of the Code gives its consent to a
withdrawal from a prosecution it should record its
reasons in order that this Court may be in a pm;ition
to say w'lether the discretio:1 vested in the Court has
been pro?erly exercised," has been accepted with
approv;l!. This view was followed in another Rangoon
case, viz., The King v. Sa KhiH alUl olhers (6) from the
judgment of which the following may aptly be
quoted:
c
"The Magistrate 1ll11st not surrender his :ll1thrrity under
-section 4':1+ to the District 1lagistrate, but must act judicially <incl
come to his 0\\'11 independent conclusion . I'

The view held by this late High Court is also in

accord with that held by the Calcutta High Court in
Sher Singh v. filmdranafh Sen (7) wherein it has been
held" that a Ma"i ;tratt: may give consent to withdraw
under section 494 of the Criminal Procedure Code if
he fin 1s that there are gcJod reasons for doing so and
- that con<;ent is not to be given as a matter of course
neither is it to b~ unreasonably withheld."
It is :lardly necessary for me to say that I am III
respectful a '?;reement with the 'liew taken by this late
(1) 1 Ran. 756. (4) 22 Cal. \V.N. 69.
[2) A.I.R. (30) (194}) Sind 161. IS) (1922) 26 C.W');. 880.
(3) ([921148 Cal. 1105. [6) A.I.R. [19';0) Ron. 189.
;71.U.H. [19311 Col. 607.
282 BURMA LAW REPORTS: [1950

H.C, High .Court which held that" in according consent the

1950
Court is acting in judicial (and not in ministerial)
THE UNION
OF BURMA capacity and that it ought to give and i'ecord its
v. reasons." This view, in my opinion, is well founded
U CHIT
SWE. inasmuch as it is the only way which \yill enable the
U 0, PE, J. High Court to judge whether the Magistrate has
exercised his discretion rjghtly or not. If the High
Court has got the power to revise the consent the
Magistrate has given, which uncl.oubtedly the Higl1
Court possesses, it is only natural that there must he
placed before the High Court materials to enable it to
interfere whenever necessary. In the present case, it
is clear that the consent of the trying Magistrate for
the withdrawal had not been properly given and it
follows that the orders of withdrawal and acquittal
have to be quashed.
It will be necessary before parting with this case tc>
say something more on the reason given in this case
for withdrawal, namely, the ground on " public policy."
This word, though brimful of meanings, might have
been quite meaningless to the Magistrate with the I
1.5
result that he might find himself at his wit's end to
give reason for his consent, even if he had understood
section 49+ (b) of the Criminal Procedure Code in its
- . . ....p't:oper andrig1Jt sense." -'rhisi~qwhere suspicion would
arise th"t interference with the course of justice had
taken place, It is of considerable public importance
that nothing is done which would give rise to such
suspicion. This is one ground-I consider a very
important ground-why action taken under sec'lion 494
of the. Criminal Procedure Code should always be
accompanied with reasons in the application for
withdrawal as well as in the o'1:d"r granting permission
for w;thdrawal. I cannot do better than quote the
remarks of Derbyshire, C.J., of the Calcutta High
Court in cautioning against action .that would give rise
 "'T&
y~~
;iW. "
1950] BURMA LAW REPORTS. 283

to suspicion in lJevelldra KUlJIar Roy v. Sayed I'ar Baldi! H.C.

1950
Chaudhury and others (1):
THE 'UNION
OF BURMA
" There remains another matter to be dealt with. It has V.
been alleged that some of the accused in this case are related to U CHIT
SWE.
one of the ministers and although opportunity has been given to
deny this, it is not denied. A suspicion arises very strongly U ON FE.).
that there was an unusual and, as faj: as 1 ~an sec, unwarrantable
interference with the course of justice and the suspicion is that
it was made beE~l1Se some of the accused were related to one of
the minister3 . . . The \vho1e affair is unsavoury.
There is one other matter upon which it is my duty to say
something: it is the action of the GO\rernment in calling for the
records of the case from the rVlagistrate \Vh ilst it was still
proceeding, ~nd retaining them fol' SIX months. It is obvious, if
thaL can be done and is done, the due course of justice is
interfered with. There is no provision in the criminal law by
which such interference can be ffi1cle. It \Vas quite illegal and
utterly improper. The Magistrate found himself fAced, I can
see, with a demand such as he had not met before and he sent
the papers to the. District Magistrate and in course of events they
found their \Vay to the G.)vernment. That ou~ht not to have
been done and ought never to be done again."

With these words he held that the consent given was

not properly given and guashed the order of with-
drawal and discharge. Those are cogent remarks,
observance of which in the interest of administration
of justi ~e cannot be over-emphasized.
It is urged before me by the learned counsel for
the respondent that, in view of the lapse of ti me (the
trial began on the 22nd March, 1948) and in view of
the small value of the articles involved in the case
which I am told is about Hs. 60, 110 further action
m:1Y be taken against the respondent. I am told that
the res,Jondent has incurred considerable expense in
trying to clear up the charge against him a'1c1, in hi$
words he has been more t11an sufficiently punished.
(1) A.I.R. (1939JCaI. 220 at 2H.
284 BURlVIA LAW REPORTS. [1950

H.C. I dci not therefore propose to order retrial of this case.

1950
Let these papers be sent back to the Magistrate with.
THE UNION
OF BUHMA
these remarks.
V.
U CUlT
SWE.

U ON PE J ] .

\
 ,r.
1950J BURMA LAW REPORTS. 28~

CIVIL REVISION.

AH YAR (ApPLICANT) H.C.

1950
v. Api. 21.
U KALA (RESPONDE:-IT).*
Vrl1tw Rt,;llt Control Ad, ". 19-Decisiotz llnd'r-By Ass;slml( District Couri
-P.:rsLlna de,;i~n;tta-Whtthcr n;y,isjOtJ lies.
Where the AS3ishnt Rent Controller of Bassein fi)CJ.l standard rent under
s. 19 of the U:b..l,1l Rent Control Act which was ,et aside by the First Assi:;tant
Judge, B.lssein ani the said order was soug-ilt to be revised under s. 115 of
th~ Code of Civil Procedure. <~
HeJel: That the A'isistant Juj~e is a pers'ma dJstell Jltr ana did not act as
a court an::l the High Court nas n) power of intervention in rc\'ision.
H. A. Azie v. Kj(volJoy, I.L.R. 4 Han. 305 ; Tlte MU1licipal Corporation of
Rangoon Y. JI. A. SIUlk"r, (19!5J I,L.R. 3. R<ln. 560 at 576. applied and
followed

.. N. C. Sen for the applicant.

K. R. Vmkatram for the respondent.

U 0:< PE, J.-This is an application to revIse the

order or the First Assistant Judge, Bassein, dated the
20th Jl1ly 19+9, setling aside the order of the Assistant
Controller of Rent, Bassein, who has fixed the standard
rent of a piece of land belonging to the respondent
under section 19 of the Urban Rent Control Act. A
preliminary objection Ius been taken before me that
this revision does not lie on the ground that the
Assista nt Judge who passed the order in exercising the
powers under the Urban Rent Control Act did so as a
persona designata and not as a Court and that therefore
the High Court has no power of interference in revision .
.. Civil Revision No. 58 of 1949 ag:linst the order of the 1st Assistant
Judge's Court of Bassein in Civil Re.:!ular Snit No. 2 of 1949, dated
20th July 1949.
 BURMA LAW REPORTS. [1950
H.C. In support of this view the case of H. A.. Aziz v.
1950
Kilvoboy (1) \\'hich is a similar case where :m apulica-
AH YAR
V tion was made to the Rent Gontroller for issue of a
U KALA.
certificate to fix the standard rent, has been cited.
U.ON PE,], The judgment which was by a Fllll Bench quoted the
,following reasoning pursued. in a previous Rangoor.
case, T~e Municipal Corporalion 0/ Rangoon v.
M. A. Shalwr (2) "'When, byan Act of the Legislature,
a new authority is constituted for the purpose of
determining questions concerning rights which are
themselves the creations of the Act, and "a Judge or
Presiding Officer of a Court, as distinct from the Court
itself, is directed to perform. the functions of the newly
created authority, then ie must be presumed, unless
the contrary is expressly enacted or necessarily implied,
tbat tbe intention of the Legislature, was that tbe
Judge or Presiding Officer should perform tbose
functions as a persona designata and not as a Court,"
and the present case is one where similar arguments
will hold good. It has been contended by the learned I
counsel for the applicant that tbe Assistant Judge did
not strictly confine himself to tbe question of rent, in
passing his order and that therefore those autborities
wOl1ld not apply. I do n'ot see eye to eye \ilith him in
this contention, for the Assistant Judge has not, as
urged, embarked upon a consideration of totally
irrelevant evidence, for, what is called irrekvant
evidence, appears to be quite malerial for the disposal
of the application. If by irrelevant evidence, it is
meant that the order of the Assistant Judge to the
effect that Ah Yar was not a tenant should not nave
been made, the observation is clearly unwarran ted for
that order was a necessary finding on the first iSsue in
the case framed before the lower Court, viz., " Whether
the Assistant Rent Controller has acted without
(1) I.L.R: 4 R.ll. 305. (2) (1925) 3 R.ll. 560 .t 576.
 1950J BURMA LAW REPORTS. 287,

H.C.
jurisdiction." For the disposal of this case it is not 1950
necessary for n,e to go into the question wbetber the
First Assistant Judge had exercised the jurisdiction
not vested in bim )y,law in entertaining the reference
AH
..
VAR

U KALA.

from the order of the Assistant Controller of Rent. l: ON PE, J.

The ground urged before him was tbat the Assistant
Controller of Rent acted without jurisdiction. It may,
hlJ\vever, be said that it would'be entirely wro-:Jg if the
learned Assistant Judge were to avoid discussing lhe
issue. If - it is necessary to consider whether the
matter under reference is one where tbe rules laid
-down in tile two Rangoon cases referred to would
apply one need only refer to the certificate issued by
the Assistant Controller of Rent and what has been set
down in paragraph 4 of the grounds in this application,
particularly tilis passage: "For tbat the applicant is a
tenant of the respondent as held by the Assistant
Controller of Rent." Tbe application made to the
Assistant Controller of Hent was made by one who
'assumed the role of a tenant and this Court must treat
the application as one made on that footing, It is not
necessary to say more on this aspect of the case nor
will it be ad vlsable to discuss other grounds set out in
the memorandum of tbis application in view of tbe
order that is now to be pClssed. The preliminary
objection, in my view, is well founded and this appli-
-cation lULlst he dismissed with costs, Advocate's fee
three gold mohurs,

"
288 BURMA LAW REPORTS. (1950

ORIGINAL CIVIL.
Before U San Mml1l!! flmi U Eo GyJ, fl.

H.C.
KO AYE AND ONE (PLAlNTIFF~)
1950
hint 2.

RA,SUL
v.
BIBI AND THREE OTHERS (DEFENDANTS).*,
.
StldaMs! molher_Marrying J1/oJrameilan and chal/giup rdi.f!jon-SJlccrss;oft ..
/0 (stilfe_Unconverted Buddhist daughter-Wghh of-Burma Laws
Act (XIIl 0/1893) s. 13-"Parties "-Jlel1f1in~ oj-llltcrpretalw1t of
Stt/tlltes-Interpretation cOllfiictiug with accttled trineitIes fo /If:
t/Voided.
Where ~ Blldr1hist mother married a i\lohamt"dan, :lfler conversion to the
lattc:r faith, ;md died and her unconverted Buddhist daugbh'r c1aims:a. sh<lrc in .
I:er estate.
Held: That the claim is governed by Mohamcdan Law under which a
nonnltislim cannot bp. au heir and her :luit lUust fail. The personal law of the
decea~ed governs succession to the c$tate.

C.Tt.N.C.T. ('!fed:tmbaraw Chelly"r \.],fa Nydn Me alia others, 6 Ran. 243;

Bah'lIlIt Raa and oUlers v. Bltji Raa and a/hers, 47 LA. 213 ; Milllr Sen
SllIgh v J.1/lIqbul HaslIIl Kftllu /llld rth"s, 57 I.A. 313, referred toand applied.
The: law applicable to such a case is to be found jll s. 13 (1) of the Burma \ I
Laws Ad. S. 13 (3) of the samtt Act is not applicable. The word" partks ..
in s 13 (a) {b} (;;) does not mean parties to the suit b,lt has reference la the
inceplloil of tl,c right involved in the action.
BII"~'1,'an Bnkhslt Sing" v. Drigbijai Singh alld olhers, 6 Luck-. 487;
r;obilla Day,~l v. ll1aya~ullllh, 7 All. 77.5 (F.B) :. K/IOO Baing Sdll alld
tJl1'ce others v. Klloo PC11/g Hoe and three others, Bur. L.] Vol. I, 56 ~
Joiw Jil:all C!I!Zlltlra Datta v. Abim.,... / Cit'lIlllm Seu, (1939) 2 CaL 12,
approved.
\Vhere two interpretations are possible, the one nost in accord with
jllilice, convenience, reason and 1egal principles, shonlq. be applied, as it is
masl improbable that the legislature \votlld oyerthrow fundamenlal principles.
MlI.\wcll 011 Iltlerprd"titln, refen ed to.

P. K. HaSH for the plaintiffs.

]. B. S,-l11yal for the defendants.

U SAN MAUNG, J.-In Civil I'{egular Suit No. 85

of 1948 of this Court a preliminary issue was raised as
Civil Regular No. 85 of i948
 .\1 ~&,-,
1950J BURMA LAW REPORTS. 289

to whether a Burmese Buddhist daughter can rnake a H.C.

1950
daim to the eJtate of her mother who died as a
Ko AYE AND
lvIohamedan after her conversion to that faith on her ONE
V.
marriage with her Mohamedan husband. As tlie RASUL BIBI
.question involved was import-nt the learned Judge on AND THREE
OTHERS.
the Original Side tU Anng Tha Gyaw J.) made a
U SAN
.report to the learned Chief Justice that the question MAUNG, ].
sh;mld be heard and decided by a Bench of two or
more Judges of this Court, vide Rule 4 of the Original
Side Hules of Procedure. The report is dated the 6th
of February, 1950, and the order of the learned Chief
Justice thereon is to the elIed that the suit should be
heard by a Bench consisting of myself and U Bo Gyi J.
Accordingly this Bench has seizin of the whole suit
which falls to he determined according t"l the answer
to the preliminary issue raised therein.
As the facts of the case have been fully set out in the
Teport of U Aung Tha Gyaw J.. it is not necessary for
'us to repeat them here. In the case of C. V.N.C.T. Che-
.dal1lbarapl Cheltyal' v. Ma Nyein li1 e and others (1),
where a Hindu wife of a Mohamedan deceased claimed
to be interested in the estate left behind by her
deceased h\Jsband, Heald J., observed (at page 252) :

"By the Burma Laws Act (Act XIII of 1898) it is provided

"that in deciding questions regarding succession, inheritance,
"marriage or cas~e or any religious usage or institution the
Buddhist, Mohamedln or Hindu law shall be applied, as the case
,may"be, where the parties (JI'e Buddhists, ~1ohamedans or Hindus,
.and that in cases other than those so provided for, the decision
'shall be according to justice, equity and good conscience.
o In this case the parties are on the one side a Hindu and on the
.other" side 1foh:'.lmec1ans a.nd possibly Buddhists, and there seems
to be a conflict between the Hindu and the Mohamedan 1. aw .
;:Sut the law which governs inheritance or succession to a person's
.estate is ordinarily the law to which he himself is subject at the

III 6 Ran. 243.

19
290 BURMA LAW REPORTS. [1950.

H.C. time of his death, and in the present case it is admitted that
1950 Arunachellam w:;1s, a l\fohamedan \\"hen he died anclllacl been a
Ko AYE AND IVlohamed.an for ln3.ny years."
ONE
.
RASUL BIBr
It is clear from these observations that the learned
AND THREE Jlldge held that the religion of the parties to the suit is.
OTHERS.
irrelevant in such proceeding~ and !bat it is the'-
U SAM
MAUKG, J. personal law or the propositus that governs inheritance
or 'succession to his estate. In Sa/wanl Ra(l aqd'
olhers v. Baji Rao and olhers (1), in which the question
of succession to the estate of a Hindu was involved'.
Lord Dunedin in delivering the judgment of their'
Lordships of the Privy Council observed that it was
settled that the law of succession is in any given case'
to be determined acording to the personal law of the
,
"

individual whose succession is in question. This.

decision was reaffirmed in the case of Milar Sell Singh v..
Maqbul Hasan Khan and olliers (2), where their
Lordships pointed out (at page 317) that once 3
person has changed his religion and changed his.
personal law, that law will govern the rights of)
succession of his children and that although it may
work hardly to some extent upon expectant heirs,.
especially if they are the unconverted children of the
ancestor who has in fact changed his religion, there is.
no' more hardship in their case than in a'll' other case
where the ancestor has changed the law of succession,.
as, for instance, by acquiring a different dom.icile.
See also Bhagwan Bakhsh Singh v. Drigbijai Singh
and olhers (3), where a Bench of the Chief .court of
Oudh followed the ruling in the case of Milar Sen
Singh v. Maqb1l1 Hasan Khall and others (2):
It has been strenuollsly contended b:' Mr. Basll,.
Advocate for tbe plaintiffs Ko Aye and Ma Pwa Sein
that upon a proper interpretation of section i3 of the'
IlJ 47 l.A. 213. [2) 57 I.A. 313.
(3) 6 Luck. p.487.
 v~ ~
~~<

1950J BURMA LAW REPORTS. 291

Burma Laws Act (Act XI II of 1898) this suit falls to H.C.

1950
be delermined as provided for in sub-section (3) of
Ko AYE AN])
that section. Now, section 13 of the Burma Laws Act oNE
V.
is in these terms: RASUL BIBI
AND THREE
OTHERS.
"13. (1) Where in any suit or other proceecling in Burma it
is necessary for the Court to clecide any qllestion regarding U SAN
sllccession;inhe~'itance, marriage or caste, or any religious Esage
MAtTNG. J.
or institution:- .
(a) the Buddhist law iIi cases where the partks are
Buddhists,
(b) the lVIohamec1an law in cases whert the parties are
Mohamedans, and
(c) the Hindu law in cases where the parties are Hindus,
shall form the rule of decision, except in so far as such law has
by enactmellt been .altered Or abolished, or is opposed to any
custom having the force of law,
* * *
(3) In cases not provided 01 by sub-section (1), Or by any
:pther enactment for the time being in force, the' decision shall be
"according to ju::.tice J equity and good conscience. I!

However, in OLlr opinion the provisions of sub-

section (1) of section 13 are applicable to this case
and not those of suh-section (3) as contended by the
learned Ad-,ocate for the plaintiffs. The word
"parties" occurring in cJauses (a), (b) and (c) of
sub-section (1) should not, in our opinion, be inter-
preted to mean parties to the suit or proceedings but
with rekrence to the inception of the right involved in
the action. In this connection we can do no better
than adopt the reasonings of Mahmood J., in
Gobilld Ilayal v. Inaya/ullah (1) with reference to the
intepretation of the word "parties" occurrif'.g'in
section 24 of the Bengal Civil Courts Act (Aet VI of
111 7 All. 775 (F.Il.1.
292 BURMA LAW ~EPORTS. [1950 .

H.C. 1871), which is in similar terms to section 13 of the

1950
Burma Laws Act. The learned Judge cbserved :
ICo AYE AND
c~"ONK
, ~'. II Befoi'e leaving section 24, I wish to refer to the word
"{ ' ..,~ '11.
RASUL BIBI parties I, which occurs in it. And upon this point much of what
I

AND THREE
OTHERS.
I have already said as to the provisions of the old Regulatiel1s
applies also to t~ie interpretation of this sectio!). I do not
USAN
MAUNG, J.
understand the word to mean the parties to an action, but it must
b:e interpreted with reference to the inccRtion of the right
involved in the action. Any other interpretation would render
the section impracticable, if not meaningless. Who are necessary
parties to att actiolJ is a matter governed by the rules of procedure,
and in a country like India, where personal laws prevail. it is not
all uncommon occurrence that everyone of the persons arrayed
as parties to the suit belongs to a different race and religion. In
such a case, it would be impossible to administer any particular
law if the word I pCJ1'tt"es' in the section meant t parlies lo the suil',
This is obviously the only interpretation which can apply to the
administration of Muhammadan Law of inheritance tlnd succes-
sion by our Courts. I ndeed, Cases are readily conceivable in which
none of the parties to the suil are IVIuhammadans, but in which
their right, having been derived by transfer or otherwise from.
Muhammadans, the Muhammadan Law would be the sole rule l
of decision, because the inception of the rights to be adjudicated
upon took place under that law. This can be best iIlustrated by
supposing the case of a !vIuhaml11adan whe dies leaving a widow,
_a sqIh ~!1s1__.a .(;:1f~1JgJ1t~_r) e;:tpl;l__ oJ1.eQf wpo.m conveys his or her
share, by gift or sale in the estate ofthe deceased, to a Hindu,
a Christian, and a Parsi, l."espedive!y. It is to my mind obvious
that in a suit between these various transferees, involving the
ascertainment of the extent of the r.ight of each person, the
fifuhammadan Law would, under the former part of section 24
of the Bengal Civil Courts Act, be the only possible $uide for
decision, and that law would apply in its strictest force, nohvith-
standing the circumstance that none of the parties to the suit
belonged to the IvIuhammadan persuasion."

If the word" parties" occurring in claus,-,s (a), "(b),

and (c) of sub-section -(1) of section 13 of the Burma 0
Laws Act be interpreted to me<\n parties to an action,
this interpretation would lead to absurd consequences.
 ", ffii
1950} BURMA LAW REPORTS. 293

For instance, if a Mohamedan dies leaving a son and H.C.

J950
a daughter who are both Mohamedans, the daughter
~
wI10 fi nLs h erseIf pace
I d 'w a very unfavoura bl e l{o AYEONE
AND

position according to Mohamcdan Law of Snccession llAsu~'B!BJ

can claim that she is a Buddhist and thus invoke sub-- AND THREE
OTHERS.
section (3) of section 13 of the Burma Laws Act to
U SAN
have the question of inheritan-:e decided according to MAlJi\G. J.
justice, equity and good conscience. Again, if a
Burmese Buddhist dies leaving two children both of
whom. have become converts to Mohamedanism it
would seem that inheritance to the estate of the
Burmese Buddhist propositus would have to be
governed by Mohamedan Law.
Therefore of the two possible interpretations which
can be put upon the word "parties" occurring in
sub-section (1) of section 13 of the Burma Laws Act,
one would not only be in conflict with all the accepted
legal principles but would also lead to absurd conse-
quences j " in determining either the general object of
the Legislatu~e. or the meaning of its language in any
particular passage, it is obvious that the intention
)vhich appears to be most in accord with convenience,
reason, justice, and legal principles, should, in all cases
of doubtful significance, be presumed to be the true
one."-Maxwell on Interpretation of Statutes, 9th
Edition, page 198. Furthermore, one of the fuuda-
mental principles being that the personal law of the
propositus governs the question of inheritance to his
estate, "it is in the last degree improbable that the
Legislature would overthrow fundamental principles,
infringe rights, or depart from the general system of
o law, without expressing its intention with irresistible
clearness." Maxwell on Interpretation of Statutes,
9th Edition, page 86.
Our views regarding section 13 (1) of the Burma
Laws Act find further support in the judgment of
294 BURMA LAW REPORTS. [1')50.

H.C. Duckworth J., in Khoo Haing Sailt alld three others v.

1950
[{fIOO Peing Ho, and three others (1) where the
Ko AYE AND
ONE
!e;,rned Judge held that in the case of th" estate of
V. a Burm%e Buddhist the mere fact that. an heir or
RASUL BIBr
AND THRhE heirs is not exactly (,f the same religion is immaterial
OTHERs.
and that therefore the Burmese Buddhist Law applies
l! Soo\N even though t':1e parties' on one side are not Burmese
MAUNG, J.
Buddhists. The same ratio decidendi governs the
case of Jolm]ibal1 Chal1dra Datta v. Abil1ash Chl1l1d/:a
Sm (2) where a Bench of the Calcutta High Court in
interpreting the provisions. of section 37 of the Civil
Courts Act (Act XII of 1887), which "re in similar
terms to section 13 of the Burma Laws ACL, came to
the conclusion that on the death of a Mohamedan
his property would devolve in accordance with the
Mohamedan Law and that the religion of the parties to
an action is irrelevant. Under Hanafi texts a non-
Muslim does not mherit froma Muslim. See page 829,
Tyabji's Mol1amedan Law, 3rd Edition.
For these reasons lye would answer the preliminarY}
issue in the sense that a Bllrmese Buddhist daughter
can make no claim to the estate of her mother wl:o
died aE a Mohamedan after her conversion to that faith
on' her marriage with her ;V10hamedan husband.

U Bo GYI, J.-l agree.

11) B.L.). Vol. I, p. 56. I,) (1939) 2 Cal. p. 12. 'l

 l>' 4",
~ ..
19501 BURMA LAW REPORTS. 295

APPELLATE CIVIL.
HefMe U Thal/lIg SCill, J.

U BA THA (ApPELLANT) H.C,

1950
v.
]ut:e 13.
BASANTA KUMAR DP.S (RESPONDt:NT).*
.B/'rma Courts A(t, 1945-5. S-Suif filed before SUb01dil1ote jlldge- Decided by
assisll11tt judg, -/111 isrlictioll-Co:lc 0) Ci~,tl Procedure, !;is. 21 (Jlld 99.
Heid: Tbat under :>.5 uf the Courts Act, 1945 there are three grades
of civil court.!!, the District Court. 1J1C Court of the A:5sistant Judg'e and the
S'bnrdinaie luclge. The jurisdiction conferrt:d ull tht: Jlld~es is personal.
Thert: is a departure from the old s):~tem, when an assistant judge or
'subordinate judge could exercise territorial jurisdiction and preside o\'cr
morc thilll one court and the jllri~dictjon was in the courts. The decision by
an assistant judge" sitting as First Subordinat.... Judge I, in a suit instituted
'be( ore the latter jud~e is without jurisdiction and not merdy an irregularity
which can bt: cured under s. 99 of the Code of Civil Procedure, nor
,is it an objection to the place of suing under s. 21 of the Code of Civil
Procedure.

Hla TUlI Pru for the appellant.

Choullg Po for the respondent.

V THAUNG SEIN, ].-This appeal can be disposed

of easily on apoint of law. I have ilidicated to the
learned advocate for the appellant that so far as the
faets are concerned, in view of the concurrent findings
by the lower Courts, it would be futile to agitate the
matter once again. The point of law involved is
whether the learned First Assistant Judge, Akyab
(U Tha Noe) who tried the suit and finally decided it
while .. sitting as First Subordinate Judge" had any
jurisdiction to handle the case.
The suit out of which this appe"l has arisen was
filed in the Court of the First Subordinate Judge,
.. Civil 2nd Appeal No.6 oi 195u against the decree of the Distri ....t Court
of Akyab in Civil Appe:tl No.8 of 1949, dated 13th January 1950 arising out
of the decree of the 1st Subordinate Judge's Court of Akyab in Civil Suit
No.3 of 1949, dated 15th Angust 1949.
296 BURMA LAW REPORTS. [1950
H.C. Akyab, on the 10th June, 1949. It was a simple suit
1950
for the recovery of a sum of Rs. 890 due for labour
U BA THA
v. supplied in the construction of a portivn of the Civil
BASANTA
KUMAR DAS. Hospital at Akyab. For some unknown reason, there
was apparently no Subordinate Judge to preside over ,
U THAUNG
SEIN, J. the Court at the time and :the First Assistant Judge,.
Akyab (U Tha.Noe) tool. over the case while "sitting C!I
as First Subordinate Judge". I am at a loss to
.uncferstand why the learned First Assistant Judge took
upon himself the duty of presiding over the First
....
Q
Suqordinate Judge's Court. It should be remembered. -.~

that under section 5 of the Courts Act of 1945 there'

are at present only three grades of Civil Courts, viz.,.
the District Court, the Court of the Assistant Judge'
and the Court of the Subordinate Judge and the
extent of their respective pecuniary jurisdictions are set
out i'1 section 11 of that Ad. So far as Subordinate
and Assistant Judges are concerned the jurisdiction
conferred upon them is personal to the respective
officers. This system is, of course, a departure from.
the system in force in the prewar period when the civil)
jurisdiction was territorial and conferred on the cour's.
Under that system, an Assistant Judge or a Subordi-
nate Judge could preside over more than' one court and
.exercise thejurisdictionolthecouit over which he
happened to be presiding at the time. For instance,
it was not unusual for an Assistant Judge to sit as
Judge of a Township Court'and also as Judge of a
Subdivisional Court. Under section 7 of the thell
Courts Act of 1922, the jurisdiction '0 hear and
.
determine civil suits was clearly conferred on .the
respective courts and not personally on the officers
presiding over those courts.
I would repeat once again that at presem the civil
jmisdiction exercised by Assistant and Subordinate
Judges are personal to the officers concerned. That
 1". ~"'"
1950J BURMA LAW REPORTS. 297

being so, I Call1'0t understand how an Assistant Judge H.C.

1950
could possibly" sit as a Subordinate Judge" or to try
U BA THA
a suit instituted before a Subordinate Judge. No doubt v.
an Msistant Judge has jurisdiction to try any suit of a K~;:~~~~s.
value extending up to Rs. 10,000 provided of course tbis U TU.\UNG
suit is instituted in his court. For instance, suits not SI!IN, J.

exceeding Rs. 1,000 in value should ordinarily be filed

before a Subordinate Judge. But nevertheless if they
are filed before an Assistant Judge, they could be
disposed of by the latter officer. An Assistant Judge
could also try any such snits if tbey are transferred
to his COUl t by the District Judge under section 24 of
the Civil Procedure Code.
In the case under consideration there is nothing on
the record to suggest that the suit was ever instituter!
before the First Assistant Judge, Akyab, nor was it
t~ansferred to this court by the Districi Judge, Akyab.
To all appearances, the learried Assistant Judge merely
styled himself as " Stlbordinate Judge" for the purpose
of trying the suit in question and disposed of it.
Obviously, an Assistant Judge cannot limit the
jurisdiction conferred on him by section n of the
Courts Act, 1945, by simply changing his nomenclature
. .10 thal of a .Subordinate Judge, nor is he competent to
go to the assistance of a Snbordinate Judge during the
latter's absence to dispose of cases unless authorized to
do so by tbe District Judge under section 24 of tile
Civil Procedure Code. In my opinion; U Tha Noe,
the First tl..ssislant Judge, Akyab, had thus no
jurisdiction to handle the suit in question.
The learned advocate for the respondent does not
seriously dispute that the First Assistant Judge, Akyab,
(U Tha Noe) had no jurisdiction to handle the suit.
But he refers to section 21 of the Civil Procedure
Code and contends that it is now too late for the
appellant to object to "the place of s11ing ". I have
298 BURMA LAW REPORTS. [1950

H.C. also been asked to take into consideration section 99

1950
of the Civil Procedure Code and to hold that as tbere
u B~TlIA has been no' failure of justice, the decrees of t;le lower
BASANTA Courts sh:lt11d be allowed to stand. All that I need
KUMAR DAS.
say in respect of the latter part of the contention by
U THAUNG
SEIN, J. the learned advocate for the respondent is that section
99 of tbe Civil Procedure "Code only cures defects and
irregularities which do not affect "the merits of the
case or the jurisdiction of tbe court ". Where there i~
a defect In jurisdit tion as in the present case, this is a
material irregularity which is not Cl rable by section 99
of the Civil Procedure Code.
With re,.:ard to tbe contention that the applicant
cannot now be permitted to object to "the place of
;uing ", it may be noted tbat this suit was instituted
at the right place, viz. Akyab. In addition, it was
filed in the proper court, 7JlZ. Court of the First
Subordinate Judge, Akyab. The objection is to the
Judge who dealt with the case. In other words, it is
contended "that the First Assistant Judge (0 Tha Noe) ) I
had no jurisdiction to try the suit in question.
I have already expressed the view that the Filst
Assistant Judge, Akyab, had no jurisdiction to try
the suit under consideration. I need bardly say that
it is a fundamental rule that a judgment of a court
without jurisdiction is a nullity and hence the judgment
by the First Assistant Judge, Akyab, was null and void.
That being so, the learned District Judge, Akyab, also
had no jurisdiction to deal with it on appeal. ,
This appeal is accordingly allowed and the
judgments and decrees of both tbe lower Courts are
hereby set aside. The suit was, in fact, imtituted in
a competent court but unfortunately was disposed of
by a Judge who had no jurisdiction to cleal with it.
The proceedings will, therefore, be remanded to the
Court of tbe First Subordinate Judge, Akyab, to be
 1950J BURMA LAW REPORTS. 299

dealt with by the Subordinate Judge himself according H.C.

1950
to law. The costs of this appeal shall be part of the
U B,\ THA
costs of '.he suit. V.
BASANTA
KUMAR DA8.

U THAt'NG
SEIN, J.

'.
300 ,BURMA LAW REPORTS. [1950 ,

APPELLATE CRIMINAL

Before U On Pe, J.

"
H.C. GYO KAR (ApPELLANT)
1950
Ma)' 1-3. . v.
THE UNION OF BURMA (RESPONDENT).'"
High Treasoll Act_S. 3 (1).-011/15 of Proof-Purpose and illlCllt of accuscd-
Public nature as agaiust private-Firing 011 Police P<lrt)' to escaPe.

Held: It is the duty of the prosecution to make out the case charged
against the aCCllsed. "Waging War" is del1ned in s. 2 of the High
Treason Act OIud the decision in A/fIlg lila aud otllers v. [{ing Emperor,
(9 l~an. 40'1) dealing with 31' offence under s: 121, Penal Code lays down
the principles to be followed in stIch a case. The intenticlh of the accused
must be to attain an object of a general or public nature by iorce or violence.
R. v. Gord01l, (1781) 21 State Trials 486 at 644/45 ; R. v. Hardie, (1820)
J State Trials (N.S.) 765 ; referred to,

When t11C accused fired on a Police Party with intent tt] escape, it Caonot
be said they were achieving any object of a general or public nature and a
conviction for High l'rea~an is not sustainable but only (Jne under s. 333,) l,
Pcnzl Code read with s. 511.

Kyaw ThclUl1g for the appellant.

ChoOJl FOUl1g for the respondent.

U ON PE, J.-The appellant has been convicted

under section 3 (1) of the High Treason Act and
sentenced to death by the First Special Judge, Sagaing'
in his Criminal Regular Trial No. 20 of 1948. fIe now
appeals.
The undisputed facts are these: The PolIce Party "

and U.M.P. all numbering about twenty-four men

* Criminal Appeal No. 43 of 1950 being appeal from the order of 1st Special
Judge of Sagaing, dated 16th January 1950 passed in Criminal Regular Trial
No. 20 of 1948.
\
1950J BURMA LAW REPORTS. 301

underS.I.P. UCho (P.W. 1} went out on 7th December H.C.

1950
1948 for operation from Tada-u Police Station to
Htaukshagon Village where they arrived at about 3 p.m. GyOv.KAR
They surrounded the village from three sides on the THE UNION
OF BURrolA.
"ast, north and south. No inhabitants were found.
U ON PE, J.
\Vhen they got into the village some shots were fired
from the western side of the village when they retu,rned
t3e fire.The_~artyfired and advanced to the entr'ance
of the western side of the village. According to
H.C. Maung San Hmon (P.W. 2), he saw from that
point three men firing at them, three or four others
.running away towards the north and later two men
fall to the ground. When the two men fell the
rest ran away. The party next found the appellant
lying with a gun shot wound on One of his thighs and
.another man who was dead. About three 0;' four
cubits away from the two men, two Japanese rifles
'were found on the ground as well as 20 rounds of
Japanese rifle cartridges.
, The appellant availed him sell of the opportunity to
,give evidence on his own behalf. He says that on the
day of the occurrence one Ko Paw Ei, Ko Kyan and
he were attending cattle together, that about 11 a.m.
four men armed with rifles threatened him to come
along with them and that while his two companions
escaped he had to go with them to Htaukshagon
'Village where he was ordered to remain a short distance
.on the west of the village. After some time he heard
ihe firi::tg of guns and while running away from the
.place where he was kept, he received about four or
fi ve gurl shot wounds and fell to the ground. It may
be regarde'd as unfortunate that the two witnesses cited
'by him were not available as they were in insl'rgent
:infested areas.
In this case it is the duty of the prosecution to
make out the case as againstthe accused. Section 2 of
302 BURMA LAW REPORTS. [1950

H.C. the High Treason ,\.ct, 1948 defines the offence

1950
punishable unGer the Act as follows:
GyO KAR
v. II 2. Whoever wages war against the Union or any
THE UNIoN
OF BURMA. Constituent Unit thereof, or assists any State or person or incites
or conspire2 with any person within or without the Union to
U ON PE, J.
wage war against the Union or any Constituent Unit thereof, or
attempts or othenfise prepares by force of arms 01' other violent "
meam to overthrow the 0r~ans of the Union or of its Constituent
Units established by the Constitntion, or t<.!kes part or is.
concerned in or incites or conspires with any person within or
without the Union to make or to take part or be concerned in allY
such attempt shall be gnilty of the (ffence of Hil(h Treason."

For the exposition of law on this point we may rely

on Aung Bfa and others v. King Emperor (1) which
.llthough it deals with an offence under section 121 of
the Penal Code, now repealed, l.iys down principles
that should be followed in a case under the High
Treason Act. There it is held that when a multitude
rises and assembles to attain by force and violence any
attempt of a general public nature it amounts to levying i 1.
war against the King and that it is not the number or
the force but the purpose and intention that constitute
the offence and distinguish it from riot or any other
rising for a private purpose. The observations by
Mansfield C.J., and Lord President Hope were quoted
with approval in the said casco
Mansfield C.]. in R. v. Gordon (2) observed:
" . . The question always is, whether the intent is-, by
iorce and violence, to attain an object of a general ami public
nature. by any instruments, or by clint of their numbers.
Whoever incites, advises, encourages or is :-tny way aiding to
such a multitude so assembled with such intent, thOLgh he cloes
not personally' appear among them, or with his own' hands
commi.l. any violence whatsoever, yet he is equally a princip:l1
\vith those who act, and guilty of high treason." (t.
(1) 9 Ran. p. 40-L (2) (1781) 2t ~~tate Trials 486 at pp. 644-M;l. .,
 1950J BURMA LAW REPORTS?~ 303

Lord President Hope in R. v. Hardie (1) observed: H.C.

1950
"'fo prove such levying C? war it is the purpose and GYO KAR
intention, the object which they have in view, ,\h~ch crngregates V.
THE UNION
and assembles them toge.ther, which gives them the impulse in OF BURMA.
their arming and in their rising; it is that which constitutes
UONPE.j.
treason, and clis\inguishts the crime from Ihat of riot, or any
other rising for any privlte purpose that can t-~ imagined ;"

From the above authorities, it will be clear that in

order to constitute an offence under the High Treason
Act, 1948, the purpose and intention must be of general
public nature as contradistinct from a private one.
Therefore in a case under ,the High Treason Act, 1948,
it is for the prosecution to show that the ohject of those
who rise and assemble to attain :he same by force and
violence is of a general public nature as distinguished
from a merely private one.
On analysing the evidence of the case now under
appeal, we find that there is no evidence on record to
show that when those men fired at the Police Parly it
was with any intenlion to achieve the object as contem-
plated under the Act. In fact, it appears, they were
trying to effect their escape. which they did. The
charge under section 3 (1) of the High Treason Act is
clearly not sustainabk and is altered to one under
section 333, Penal Code read with section 511 of the
Penal Code which is warranled by the circumstances
in which he was found with gun shot injuries on him
and Japanese rifles and cartridges not far from him.
Accorrlingly the death sentence is set aside and he
win now be sentenced to two years' rigorous
imprisunment.

(I) (1820) 1 State Tdals (N.S.I at p. 765.

304 BURMA LAW REPORTS. [1950

APPELL1;\.TE CIVIL.
Eefore U Tun Byll, Chicf h/5ticc and [. On Pc, J.

H.C. CHOW YEE (a:) AH FOON (ApPELLANT)

1950
v.
.May 23.
IrAN AH KONG AND ONE (RESPONDENTS).*
TCI/a.ftt-If includes legal T~preselltative-Urball Rt1Jt Conll'oJ AcI, s. 2 (gl-
Code of Ch:fl Procedure, s. 2-Dcatlt of tcnallt-If tenauc-y le~miJtated
Tr.ansfer of Properly Acl, s. 111.
Held: That'legal. reprc"3cntatives of a deceased tenant continl1i~g in
occupation of leased premises are not trespassers. Under s. 2 (g), Urban Rent
Control Act, 1948, the de6.nition of tenal~t includes a legal repre~entaUve.
A perStm who intermeddle::> with the estale of the deceased is also a legal
representative under s. 2, Code of Civil Procedure.
On the death o[ a le3s:':~, the lease is not terminated uorler s. 111, Transfer
of Property Act and tl1:.: ::;cope o( the said section cannol be enlarged beyond
the terms of the section. The En~lish Law under which tenancy terminates
on the neath of a tenant, is (Hffert::ut from the law of Burma.
Messrs. Barue!t v. Mrs. E. Fowle a1ld olle,. (l925) I.L.R. 3 Ran. 46 at 47
referred to.
)
W. T. Shall for the appellant.

The judgment of the Court was delivered by

U TUN BYu, C.J.-The plaintiff-appellant instituted

a suit for recovery of possession of a two-storeyed
timber building known as No. 27, Kanaungto Creek,
Seikkyi and also for possession of 4 dry docks whi~h
are sitnated on the foreshore in front of the hou~e, and
for recovery of mesne profits in respect of th~ said
house and dry docks. The record shows that the said
house No. 27, Kanaungto Creek, was first leaLed out to
the husband of one Moon Shin and that after his
deafb, Moon Shin became the tenant of the said house.
* Civil1st Appeal N0. 27 of 1950 against the decree of the 2nd Judge, City
Civil Court, Rangoon in Civil Regular Suit No. 2306 of 1947, dated the
28th March 1950.
1950] BURMA LAW REPORTS. 305

:rv: oon Shin dieci on the 26rh January 1947 ; and t:le H.C.
1950
~econd defendant-respondent Ah Yon is her daughter,
while the first rlefendanl-respondent K,m Ah Kong is CHOW YEE
(a) AH FOON
her son-in-law. The plaintiff-appellant based his suit, v.
KAN Au
which is known as Civil Regular No. 2306 of 1947 of !{ONG AND
ONE.
the City Civil Court of Rangoon, on the supposition
that the defendant-respondents were trespassers. U TUN ByU
C.).
From what has been stated already, it is clear that the
defendant-respondents cannot really be designated as
"' trespassers" in respect of the house and the dry
docks, particularly in view of the definition of the
expression " tenant" as given in clause (g) of section 2
of the Urban Control Act, 1948, which reads as
follows;
II (g) I Tenant' means any person by whom p1' on whose
.account rent is plyable for any premises, and includes a legal
representative as defined in the Code of Civil Procedu...e 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."

In the case 01 Messrs. Barnett v. Mrs. E. Fowle

.and one (1), it was observed as follows:
Cl It is clear from the Indian Succession Act (section 179),
;tb<lt the persons, who in law \vould represent the estate of the
-.deceased defendant, would be either his executors Or his
-admini5trators. The respondents are neither j and since it is
oalso not alleged th,at they have intermeddled with his estate anel
:so rHade themselves responsible as executors de sotl tort, the suit
\will npt l~e against them."

The above observation suggests clearly that a suit

willlie against the person who intermeddles with the
.estate of the deceased person which forms the suhject

20
-
matter of the suit, and this, we may say with respect,
11) (1925) I.L.R 3 Ran. p. 46 at p. 47.
306 BURMA LAW REPORTS. [195Q< .

H.C. is correct in view of the definition of the expression.

1950
" legal representative", as defined in section 2 of the
I;)~~ :OEO~~ Code of Civil Procedure.
P. The s'.1it was filed against the defendant-respondents,.
KAN AH
KONG ANU
. .
apparently because they were 10 possessron of the
,
I
ONE. house and the docks which form part of the estate of
U TUN.BYu, the deceased Moon Shin and were therefore inter-
C.).
meddling with the estate of the deceased Moon Shin,.
so far as the house and the docks are concerned.. ln
any case, it appears to us, that Ah Yon, who is a.
daughter of Moon Shin, appears to be a person who
comes within the definition of the word" tenant" as,
defined in the Urban Rent Control Act, 1948, and the
provisions of the Urban Rent Control Act will
accordingly apply in connection with the premises at:
No. 27, Kanaungto Creek as well as the docks lying on
the foreshore in front of that house. The case which,
the plaintiff-appellant has filed against the defendant--
respondents in Civil Regular No. 2306 of 1947 appears.
clearly to have been misconceived. . )
It has been contended strenuously before us that
the tenancy which Moon Shin. mother of Ah Yon, held
should be deemed to have been terminated on the'
.death of Moon Shin, and we were referred to a passage-
appearing in the vVoodfall's Law of Landlord and
Tenant wherein it was mentioned that a tenancy might.
be considered to have been terminated on the death
of the lessee, that was of course in reference to what
the English law is. So far as Burma is concerned: we
must look to the provisions of section 11 i of the
Transfer of Property I\ct in order to find out when a
lease of immoveable property can be said to determine,_
or to other provisions of law, which might have the'
effecL of modifying the provisions of section 111 of the
Transfer of Property Act. . It hss not been pointed out
to us that ther,) is any provision of law existing at the; _~
 1950J BURMA LAW REPORTS. 307
present, which will indicate that a lease of an immove- H.C.
1950
able properly in Burma must also be considered to have
CHOW YEE
been terrr,inated on the death of the lessee, and in the (a)Ag FOON
absence of any such provision, we are unable to enlarge v.
KAN AH
the scope of section 111 of the Transfer of Property KmW AND
QNE.
Act. There is accordingly no substance in this
UTm, BYU.
contention. C.].
We, tberefore, see no reason to admit this appeal
and it is bereby summarily dismissed.

o
308 BURMA LAW REPORTS. [1950

APPELLATE CIVIL.
Before U rtm B)'tI, Chief Justice, and U Ott Pe. J.

RC. S. I. ABOW ATH AND FIVE OTHER~ (ApPELLANTS) .,

1950
May 24.
v.
,
.T. 'H. KHAN (RESPONDENT)."'

Urban Rellt COl/trol A<:t,1946-Ss. 5,11,16,17, 18 ai/d 19-5talldard lent

fi.Ted-lVhdltcr effective from date oj Act or order.
Held: There is nothing in the Urban Hent Control Act to indicate that rent
in respect of ~ny premises after the commencement of the Act should~ in
a11l cases, be reckoned to be at the rate fixed by the Rent Controller.
A contract of lease, agreed upon bet\veen the parties, should be considered
to be binding and subsisting until it is modified by agreement or by operation
of law. There is no provision in the 1946 Act to support the contention that
the contractual right shall be deemed to have been modified with effect from
the date the Act C<lme into force, where an order fixing standard rent is
passed. This would be giving a retrospective effect'" to the order, for which
clear ~rovis;ons would be required in the Act, expressly or by implication.

A. I. Modan for the appellants.

M. E. Dawoodjee for the respondent.

The judgment of the Court was delivered by

U TUNByu, C.J.-The appellants, who are trustees
of E. M. Abowath ';Vaqf, -leased out', in August, 1945,
a portion of the frontage of the land at No. 120-122,
25th Street, Rangoon to the respondent T. H. Khan at
a monthly rent of Rs. 100 per month. It a.ppears that
T. H. Khan paid the rent prior to the 1st January, .1946
and that he was in arrear in the payment of :he rents
for the period subsequent to 31st December, 1945.
On 5th February, 1949 the appellants instituced a suit
for the ejectment of the respondent, which was known
as Civil Regular No. 132 of 1949 of the Rangoon City
* Civil tlHsc. Appeal No.1 o[ 1950 against the order of the 2nd Judge.
City Civil Court, Rangoon in Civil Execution No. 265 of 1949.


1950J BUR:MA LAW REPORTS. 309

Civil Court, and they obtained a decree in their favour. H.C.

1950
The appellants next applied for the execution of the
S.I.
decree which they obtained against T. H. Kh~n, which ABOWATH
was known as Civil Execution No. 265 of '1949. The AI"D FIVE
OTHERS
respondent also fried an application under section 14 V.
T. H. KHAN.
of the Orban Rent Control Act, 1948 for the rescission
l! TUN Byu,
of the order of ejectment passed against him in Civil C.).
Regular No. 132 of 1949, and the concluding portion
~.. of the order which the learned Second Judge of the
Rangoon City Civil Court passed in respect of that
application was as follows:
" From the a!.Jove facts the result will be that the defendant
must pay up all arrears of rent from :st January, 1946 to 26th
December, 1947 at the rate of Rs. 100 per month and from 27th
December, 1947 up to the end of October, 1919 he must pay at
the rate of Rs. 200 per month. Over and above this the
defendant must pay the cost:; of the Suit and also the costs of the
execution application. If aU these arrears of rent are paid up
. within a week from lhe date of this order computed as mentioned
above. I shall rescind the decree for ejectment passed against .
him.
Tl

It might be mentioned that there is no dispute in

this appeal as to the. amount of the rent which was
payable by the respondent to the appellants in respect
of the period which fell between 1st January, 1946 and
ith October, 1946, that is, in respect of the rents due
for the period prior to th e enactment of the Urban
Rent Control Act, 1946. The point which is in dispute
~

in this appeal is what is the renl payable for the period

from 81l> October, 1946 to the 26th December, 1947,
Co that is, in respect of the rents for the period starting
with the commencement of the Urban Rent Control
Act, 1946 up to the date on which the certificate
of the Rent Controller was issued. The contention
advanced on behalf of the appellan~s is that the
certificate of the Rent Controller fixing the standard


310 BURMA LAW REPORTS. L1950 .

H.C. rent should be considered to be effective from the date

1950
on which the TJrban Rent Control Act, 1946 came iEto
s. I.
force, that is, from the 8th October, 1946, . and that it
Ano\V:ATH
AND Fivp: would trIen follow that the rent payable fJr the peJ:iod
OTHEI~S )
v. c()mmencing from 8th October, 1946 would have to
T. H. KHAN.
be considered to be at the rate of Rs. 200 per month,
u T~"j. Byu, as fixed by the Rent Controller.
'I'he provisions of sections 5,11, 16,17, 18 and !9
of the Urban Rent Control Act, 1946 have been
referred to on behalf of the appellants, but we are
unable to find anything in the pro';isions of those
sections which will really indicate that the rent which
the respondent is to pay for the period commencing
from 8th October, 1946 to 26th December, 1947 should
be deemed to be at the higher rate, which was fixed
by the Rent Controller on the 27th December, 1947.
We are unable to appreciate, how the fact that an
increased rent, over and above the standard rent, has
been made irrecoverable, or that any sum paid over
and above the standard rent is recoverable, can be said I
to indicate that the tenant is bound to pay the rent at
a rate higher than the contractual rate, which had been
agreed upon between the parties, in respect of the
period prior to the date on which the standard rent
was fixed by the Rent Controller. There can be no
doubt that the provisions of the Urban Rent Control
Act, read as a whole, show that the Act \\'1S enacted
more for the purpose of safe-guarding the interes,t of
the tenants than that of the landlords. We lJ1L1st.
therefore insist on having something more definite
than the vague inferences to be drawn from certain
provisions of the Urban l~ent Control Act" before we
are asked to come to the conclusion that the contrac-
tual rate, as agreed upon between the parties, should
be deemed to have been altered with effect from the
date on whic;} the Urban Rent Control Act, 1946 .\
 1950J BURMA LAW REPORTS. 311

came into force, to the higher rate fixed by the Rent H.C.
'950
Controller as ['.lat would, in effect, be giving a retro-
S. I.
specti ve effect to the operatjon of the standard rent ABO\VATH
fixed by the Controller, for which a clear provision will .AND F1VII:
OTHERS
be required, whether expressly or by implication. v.
T. H. KHAN
Provisions have been m'lde in the Urban Rent Control
Act to make the demand for -any rent m excess of the U TUN c.).
Bro.

'Etandard rent irrecoverable, but there is obviously

nothing in the Urban Rent Control Act to indicate that
the rent which is payable in respect of any premises_
after the commencement of the Urban Rent Control Act
should in all cases be reckoned to be at the rate fixed
by the Rent ContrC'1ler. The reason why the provisions
of section 16 of the Urban Rent Control Act, 1946 were
enacted appears to be clear in view of the prohibitive
provisions of section 5.
It seems to us that a contract of lease which has
been agreed upon between the parties should be
considered to be binding or subsisting, until it has
been modified by agreement between the parties or by
an operation of law. INe are unable to understand
how the original contract of lease made between the
parties wuld be said to have been altered or modified
in this case until the Controller of Rent had issued
the certificate fixing the standard rent. Ii appears to
us that until the Controller of Rent issues a certificate
fixing the standard rent nothing could be said to have
bep.n done or to have occurred by which it might be
said tl'at the original contract of lease which the
parties have agreed upon had been altered, so Jar as
the rate at which the rent i~ to be paid is concerned.
It will be wrong on our part t6 give effect to the
contention which has been urged on behalf of the
app~llants unless there is clear provision in the urban
Rent COl1trol Act, 1946 to indicate that the contractual
rent, which the parties have agreed upon should be
312 BURMA LAW REPORTS. [195()

H.C. deemed to have been modified, in a case like the one

1950
under consideration with effect from the dab ot the
S. I.
ABOWATH commenc~ment of the Urban' Rent Control Act. The
AND FiVE
OTHERS
findings of the learned Second Judge, Rangoon City
V. Civil Court are therefore correct, and the appeal is.
T. H. KHAN.
-' dismissed with, costs. Advocate's fees three gold
UTUN BYU,
C.J. mohprs.

1950J BU~MA LAW REPORTS. 31.>

'APPELLATE CIVIL.
Before U Tun BYll, Cine! It,stice, a1/d U 011 Pc, J.

AHMED SOOLEMAN DADABHOY (ApPELLANT) H.C

1950
v. lune 2:.
MESSRS. P. M. MOHAMED HAMID SONS
(RESPONDENTS).*
Pronfrssory llote-$iglUJfure as agent 110t in documenf-Negotiable instruments
Act, 1881. 55. 26, 27. 28-JVltefher e.1'eclltiou all b::/wll of undisclosed
prncipal clJuhl be pro,'lJcd.
. \.Vhere two promissory not~:; in favour of appellant were signed by
P. P. Thevar and there was nothing on the instruments to suggest that
P. P. Thevar acted as a!.!ent for anybody.
Held: That the name of the perSOll to be charged uP')n' a negotiable
instrument should be clearly stated in the instrument so that the responsibility
15 made plain and can be instantly rec.ognized.
. $adasllkJ'l/lki D<ls v. Sir Kistlan Pershad. (1919) I.L.R. 44 Cal. 663 at
66~-669, followed.
Ramgopal Gllo~e v. Dhirwclra Naill Sen and others, (1927) I.L.R. 54 Cal.
.
(
380 at 387~388, referred lo.

C. A. Soorma for the appellant.

The judgment of the Court was delivered by

U TUN Byu, C.J.-The appellant Ahmed Sooleman

Dadabboy filed a suit, known as Civil Regular No. 631
of 1948 of the Rangoon City Civil Court, for the
recovery of a sum of Rs. 7,000, being the amount
alkged to be due on two promissory notes, one being
for the ;um of Rs. 5,000, and the other for the sum of
Rs. 2,000, wbicb bad been marked as Exhibits A and B.
The respO'nd"nt firm Messrs. P. M. Mohamed
Hamid Sons was the 1st defendant, while one
P. Perias'Namy Thevar was made the 2nd defendant.
~. It ought.o be stated at once that both the promissory
* CiVIl 1st Appeal No. 67 of 1949 against decree oftbe Chief JUd~e of the
City ~i\'il Court of Rangoon, in Civil Regular Suit No. 631 of 1948, dated
. the 20th September 1949.


.314 BURMA LAW REPORTS . [1950

H.C, notes were executed by P. P. Thevar only. It was,
1950
however, alleGed by the plaintiff-?ppellant that
_4HUED
SOOLE>IAN
P " P TI1evar was a recognized agent of the respondent
D,\DABHOY
v.
Messrs. P. M. Mohamed Hamid Sons and that
\
MESSRS, P.
p, ~I. M O H A - .
P. Thevar obtained those loans. for the purpose of
MED HAMID the busmess of the meat staBs, whIch he was carrying
SONS
., on f or and on. b'ehalf of the
respondent fi rm.
11 T'i:;"jBYU, P. P. Thevar, who is not a party in this appeal,
admitted the execution of the said two promissory
notes; and he alleged that he took those loans for and
on behalf of the respondent firm alldlhat the money
so obtained by him was used in the business which he
carried on for Messrs. P. M. Mohamed Hamid Sons.
The respondent firo, however, denied inter alia
That P. P. Tl1lwar was at any ttme an agent of the
respondent firm or that he was at any time authorized
by any person belonging to the respondent firm to act
as an agent of the respondent firm. The learned Chief
Judge, Rangoon City Civil Court, dismissed the suit of
the plaintiff-appellant as against the respondent firm)
with costs on the 20th September. 1949.
r. M. Mohamed Hamid, in whose bame the meat
staBs in 'Soortee Bara Bazaar were leased before th e
'N'ar witb Japan broke out evacuated, with bis two
'sons Mustafa and Mohamed 'Eusobf; to India in
February, 1942 j and he died in India about a year
after his (lrrival there. According to bis two sons
Mohamed Eusoof and Mustafa, who gave evidence, in
this case, .1:'. P. Thevar was only a servant (If their
father P. M. Mohamed Hamid and that his duty was
to take out the goats for grazing near abi:lUt the
slaughter house. vVe are unable to see anything on
the record to indicate why their evidence ought not,
in thIS respect, to be accepted. There w,s also no
evidence to suggest that P. P. Thevar at any time,
prior to the Japanese occupation, of Burma in 1942, I
 1950J BURMA LAW REPORTS. 315

assisted P. M. Mohamed HamId at his meat stalls in H.C.

1950
the Soortee Bara Bazaar. The evidence shows that
AmIED
P. P. T:levar came into possession of the meat stalls, SOOLEMAN
which had been leased ont to P. M. Moham2d Hamid DADABHOY
v.
before the War broke ont with Japan, only in May, MESS~S.
P. 1II. i'll-oHA-
19+2, when the latter and his sons were already in .MEn HAMID
SONS.
India. A. M. Sadek, who was Secreta:-y to the Soortee
Bara Bazaar CDmpany from lvlarcb or April, 19+2, to U TUN BYU,
C.J.
June 1948, explained in his evidence how P. P. Thevar
ca"le to occupy the meat stalls after the British
evacuation of Burma, and what he said was as
follows:
q The 2nd defendant Clme into p1ssessbn of these stalls in
May 1942 and paid the rent himself. By rent I mean rent of the
stalls paid to the bazaar company. I did not kno\\" the 1st
defendant before the ]aplnese occupation of Rangoon. I was
110t then the Secretary of the bazaar company. This is ~lO\\" we
permitted the 2nd defendant to occupy the stalls standing in the
name of P. "M. Mel. Hami l. He came ~1llc1 told me that thes6:
stalls belongecl to his nnster P. Iv1. :Md. Hamiel and that
Md. Hamiel had evacuated to India where he died and that h~
might he permitted to occupy the said stal!s. I made enquiries
as 10 the truth of his statement and after that enquiry I gave him
these stalls. I g1ve these stalls to him because from my euquirr
I fcnnd that he was a servant of P. M. 1.1(1. Hamid and not
because he W<l~ his aRent." '

vVe do not see any reason why the evidence of

A: i\J. Sadek ought not be accepted, and thus, it is
clear that P. P. Thevar did not inform A. l\i. Sadek
that he was an agent of 1:'. 11'1. Mohamed Hamiel or
that he had been authorized by the latter, or by any of
his sor:s, to carry un his business at the Soortee Bara
o Bazaar wnile he was in India. It appears to us that
on .the evidence of A. M. Sadek alone, it could rightly
be held'that P. P. Thevar was never appoinled or
authorized to act as an agent of P. M. Mohamed
Hamid or of the respondent film, because if
316 BURMA LAW REPOR~S. [1950
H.C. P. P. Thevar had been authorized by P. M. Mohamed
19,0
Hamid, or by any of his sons, to carryon their ~usiness
AHMED
SOOLEMAN at the SoC'rtee Bara Bazaar, one would have expected
D.4.DABHoY
V.
P. P. Thevar to have informed A. M. Sadek about it.
MESSRS.
P. M. l'l-IOHA
The evidence of T. S. Md. Yacoob Sahih, a witness for
MP'P HAl>lID the plaintiff-app:3llant, is also interesting, and he stated
SO~S.
at page 65 of the record as follows:
U TUN Byu,
C.J. " I had business dealings with the 1st defendanI. During.
the Japanese occupation of Burma he and I worked togethet- in.
partnership in butcher's business.' When P. M. Md. Hamid left.
for India, I saw the 1st defendant taking over his stalls and
working them. I first met Mustafa after the War either about
the end of 1946 or during: the beginning of 1947. I first met
M.d. Eusoo about 3 months after I met Mustafa. The two
brothers after their arrival in Burma in 1946 or 47 started doing:
t loongy! business.' About a year afterwards they got back the
mutton stalls from the 1st defendant. The two brothers applied
to the Secretary of the bazaar to return to them their stalls, anc1
tbey got them back only about a y~ar afterwards."
!
In cross-examination on the reverse of page 65, this
~vitness also stated as follows:

(( I was a partner vvith the 1st defendant for about 6 months.

in this business; and--15 stalls which belon14eel al Oile time to
1-1(1." Hamiel were included in OUf partnership business. These
6 months were during the Japanese period. After the British
reoccupation h~ and I started the partnership again and solc1
mutton in the same stalls. \Ne were partners this time only for
about 4 or 5 months. This second partnership was c1issoh~cr.
about the end of 1945. The 1st defendant thereupon >carried.
on t he business a!one."

Thus, the evidence of T. S. Md. Yacoob also suggests

that P. P. Thevar was running the meat stalls in the
Soorte" Bara Bazaar after the British evact:ation of
Burma in 1942 for himself, and on his own account,.
and not for the benefit of P. M. Mohamed Hamid or
his sons. He certainly conducted the busines, in a
 1950J BURMA LAW REPORTS. 317

way, which an agent wouki not have done. There is H.C.

1950
no evidence to explain why he entered into a partner-
AHMED
ship with T. S. Md. Yacoob Sahib at all, if he SOOLEltfAN
was working the meat stalls merely as an agent of DADABHOY v,
P. M. Mohamed Hamid and his sons. It could, )'fES$I~S.
P. M. :\10HA-
therefore, be said th,lt there is sufficient evidence on MED HAMID
SONS.
the record on which It might properly be found that
P. P. Thevar was or must have been running the meat U TUN C.),
ByV,

.,talls in the Soartee Bara Bazaar on his own account,

:and not on behalf of P. M. Mohamed Hamid or any of
his sons. Moreover, there is no evidence to show what
.assets or property belonging to P. M. Mohamed Hamid
or his sons P. P. Thevar took over when the latter
fe-opened the meat stalls at the Soortee Bara Bazaar
in 1942. 'vVe also cannot find a:lY evidence to indicate
that P. P. Thevar kept P. M. Mohamed Hamid or any
,of his sons informed about the state or progress of the
busin ess he was alleged to have been running on their
behalf since 1942. There was also no evidence to
show that P. P. Thevar was at any time actually
,running the meat stalls under the direction of any of
the sonb of P. M. Mohamed Hamid, although three of
them arrived back in Burma in 1946, which was long
before the present litigation arose.
Lord Buckmasterin the case of Sadasuk Janki Das
v. Sir Kishan Pershad (1), observed as follows:
II It is of the utmost importance that the name of a person

or: firm to be charged upon a negotiable document should be

-cL::arly stated On the face or on the back of the document,
so that the responsibility is made plain and can be instantly
recognised as the document passes from hand to hand.
* *
It is not sufficient that the principal's name shonIe! be
<l' in some way' di~closed ; it must be disc10eed in suc1:I a way
. :J
(1) 119191 l.L.R 44 Cal. Serie p. 663 at pp. 568 and 669.
318 BURMA LAW REPORTS. [1950
H.C. that on any fair interpretation of the instrument his name is the
1950
real name of the person liable npon the bills.
AH~IED
Their Lordships' attelllioll was directed to ;;ectiors 26, 27
SOOLF.,\fAN
DADARHOY and 23 of the :-1egotiable Instruments Act of 1881, and the telms
V.
of these sections were contrasted with the corresponding provi-
MSSRS.
P. M. :i\lOHA sions of the English Statute. It is unnecessary in this connection
MED HAMID to decide whether their effect is identiGaI. It is suf6cient to
SO:'\S.,
say thf\t these sec{icns contai'n lJothing inconsistent with the
U TUN Byu; princiFles already enunciated, and nothing to support the
cEntentioll , which is contrary to all established rules, that in an
C.).

action on a bill of exchange or promissory note against a person

whose name properly appears . . s party to the inslrument, it is
open either by way of claim Or defence to show that the
signatory was in reality acting for an undisclosed princip1.I."

'vVe respectfully agree with the observation quoted

aDove. The above quotation was also cited with
approval in the case of Ra11lgopal Ghose v. Dhirendl'a
Nath SeJI and others (1), at pages 387 and 3R8. 'vVe
have already observed that the promissory notes,
Exhibits A and B, were executed by P. P. Thevar only,.
and in fact, there is nothing on the promissory notes
to even suggest that P. P. Thevar probably signed
them as an agent of P. M. Mohamed Hamid cr any of
his sons. This appeal could have, for this reason
alone, been dismissed.
In view of the observations which have been made
above, it is really not necessary for us to decide-
whether there was any ratification of the two promis-
sory notes by either P. M. Mohamed Hamid or any ~f
his sons. However, as this point has been <j.rgued
before us, we feclthat we should state at once that our'
answer on this point is in the negative even if we were
to assume that there was such 1l firm as P. M. Mohamed
Hamid Sons before the War with Japan broke out.
We ought to mentiun here that there is ne proper
evidence in this case to prove that P. M. Mohamed
(1) (1927) i.L.R. 54 Cal. Series, p. 380 at pp. 387-3l:l8.
1950J BURMA LAW REPORTS. 319'

Hamid was running the meat stalls in the Soortee H.C.

1950
Bara Bazaar in partnership with his sons. It is
AHUEO
nothing '.Jnusual to find his sons or some of his sons SOOLE~fAN

assisting P. M Mohamed Hamid at the meat stalls he DADAH"OY

V.
set up in the Soortee Bara Bazaar. Exhibit i\: has, in MESSRS.
P. M. MORA-
our opinion, no probative value as it was not signed MEn HAMID
Soxs.
by any of the partners of P. 111. Mohanlf,d Hamid Sons.
Exhibit L also does not help the plaintiff-appeIJant, U TUN Byu,
C.].
and moreover, P. P. Thevar, who signed it, had not
been examined 3S a witness in t~is case. Exhibit 0
and Exhibit P letters, dated the 2nd November, 1946
and 15th November, 1945, which were said to have
been, sent to P. P. Thevar and signed by Aboo Backer
and Mohamed Eusoof respectively, have not been
ad'mitted to be genuine documents, and, in fact, i:
has been alleged that they were false documents.
No evidence has been produced to prove that the
signature or handwriting on Exhibit 0 was that of
Aboo Backer, or that the signature or handwriting on
Exhibit P was that of Mohamed Eusoof. No expert
had been ~xamined in this matter, nor was any person,
who was familiar with the signature or handwriting
of :Aboo Backer or Mohamed Eusoof, examined on
behalf of the plaintiff-appellant.
There is, therefore, no merit in this appeal and it is
dismissed.
320 BURMA LAW REPORTS. [1950

APPELLATE CIVIL
Before U TIm Byu, Chief Justice, atld U Sail MlIu1Jg, J.

H.C. THE OFFICIAL RECEIVER, RANGOON

1950 )
(ApPELLANT)
JUlIe- 19.
. v.
M. M. MULLA (RESPONDENT).*
COl/tract Ac/, s. 70-COllditiOIl:f of Liabzlily_H La:Wjll11y'''-Meallillg of-
" Person enjoys the benefit "-Official Receiver-If sitch Persoll-Position of.
Held: S. 70 of the Contract Act requires three conditions, viz., that a thing
must be done lawfully, that it must not be done gratuitously and the person
sought to be charged must have enjoyed the benefit. To support a suit under
~his section, there: rou'>! be an obligation, express or implied, to repay.
Ram Tuhul Singh v. Blsewar Lall SalIoa, (1875) 2 LA. 131 at 143, followed.
The terms of the section are wide but lUust be applied with discretion
to do substantial justice in cases where a contradual relationship cannot
be imputed.
SlIc/Lalla G/Losal v. Balaram Mnrdann, (1911) 38 Cal. 1 at 7, referred to.
The word" l<a.wfully " in the section 'is not a surplusage. The question in
each case would be whether the person paying had a lawful interest in making
it. "Lawful" has a wider meaning th;m legal. i
Gopeswar Bm:erjcc v. Brojo SIII/dari DeviJ {19221 49 Cal. 470 at 473 ;
Raja BaikfltJto Dey Bahadtlr v. Uday Chafld Maiti, (190S) 2 C.L.J. 311 ;
PU1l}abhat v. Bhagwalldas, (i929) 53 Born. 309 :lot 313-314; Cltedi Lal v.
Bltagwan Dns{ {( 888) 11 All. 234 ; cittd with arproval.
A receiver -is merely an officer of court, sometimes referred to as the hand
of the court. He acquires no proprietary interest in the property. He is not
tl~e agent or representative of any party to the suit and holds the prcperty
for the benefit of the party ultimately ~ucccssful in the snit. He cannot
therefore be said to be a person who had benefited by the repairs to the
property, belonging to another person.
PaShan v. MatwgGyi, 5 Lower Burma Rulings, 213 at 215; MaIl1Ig V}W
Tw v. P.R.M.P.S.R.M. Cluttyar Firm fI/ld others, (1929) 7 Ran. 47~S at 426 ;
Eastcm Mortgage mId Agem:y Co., Ltd. and T. C. Tweedle v. Muhammad
Fuz/ul Karim and a110t1tCY, (1925) 52' Cal. 914 at 931 ; Ma loa Ttan and
.fJUotlter v. The Colleclor of Rallgoon, (1934) 12 Ran. 437 at 140:; Harthar
Mukerji v. Hartlldra Natlt MlIkerji, (1910) 37 Cal. 754, ref~rred to and
followed.

'II Civil lst Appeal No. <.2 of 1949 against the decree of 2n j Judge, City
Civil Court, Rangoon in CiTii Regular No. fS4 of 1947.

I,

 1950J BURMA LAW REPORTS. 321

P. B. Sen for the appellant. H.C.

1950
C. C. [([zoo for the respondent. THE
OFFICIAL

..
RECEIVER,
U TUN BYu, C.J. -The surviving children of one RANGOON
Mulla Hashim created, after his death, a trust called M. M.
Mulla Hashim Family Endowment Waqr. The l\1ULLA.

Official Receiver, who is the appellant in the present

.appeal, was appointed Receiver by the High Court, in
Civil Regular No. 619 of 1933, to take charge of
the property belonging to Mulla Hashim Family
Endowment vVaqr. The premises at No. 52, Mogul
Street, which belongs to the said Waqf, was in the
charge of the Official Receiver when the war with
Japan broke out at the end of 1941. The office of the
Official Receiver was removed temporarily to India
during the last great war. M. M. Mulla, the respolJdent,
stated that he made an attempt to be in touch with
the Official Receiver after the Japanese occupation
. of Bmma, and he discovered that the office of the
'Official Receiver was not in existence then in Burma.
On or about 23rd June, 1942, M. M. Mulla applied to
. the Muslim Eshtes Enquiry Committee for possessicn
of the premises at No. 52, Mogul Street. It ought to
be ob3erved here that the Musiim Estates Enquiry
Committee was submerged subsequently into the
Absentee j ndian Properties Department, Indian
Independence League, and it was for this reason that
M.M. Mulla applied in October, 1942 to the Absentee
Indian Properties Department for the grant of an
ownership certificate in respect of four properties, one
of which was the property at No. 52, Mogul Street.
On or about 12th June 1943, M. !vI. !vIulla received a
permit, Exhibit 3, allowing him to take charge of the
propertie,. menti0ned in the permit.
We ought to mention here that Mulla Ahmed,
Amina Bi Bi and Ebrahim Ismail were the trustees of
21,
 .
322 BURMA LAW REPORTS. [1950

H.C. lVlulla Hashim Family Endowment Waqf and that one

1950
of the trustees, viz., Mulla Ahmed evacuated to India
THE
OFFICI,U during the Japanese occupation of Burma while the
RECEIVER,
RANC;OON
other two trustees, viz., Amina Bi Bi and Ebrahim
v.
1\1. 1\:1. -
Ismail remained in Burma. Amina Bi Bi, who was a
r';" MULLA. daughter of Mulla Hashjm, died in or about August,
R'lb-' 1942, and Ebrahim Ismail died in 1945. One Seedat,
VI TUN ByU,
C.). a beneficiary in the Mulla Hashim Family Endowment
Waqf and who was one of the plaintiffs in Civil
Regular No. 619 of 1933, was also in Burma during the
Japanese occupation of the country. Mulla Azim, who
is also a beneficiary in the said Waqf, was also in
Burma during the Japanese occupation.
Exhibit 10, datec; the 23rd June, 19+2 and issued
to M. M. Mulla by the Muslim Estates Enquiry
Committee, Japanese Military Administrative Depart-
ment, shows that M. M. lVIulla applied, on 23rd June,
1942, to be allowed to take possession of the premises
at No. 52, Mogul Street, but no certificate was issued
to him by the Muslim Estates Enquiry Comulittee, 1.
apparently because that Committee became submerged
into the Absentee Indian Properties Department before
it decided to issue any certificate to M. M. Mulla.
0i120thOcI6ber, 1942, !vI. IvI. Ivlulla applied for
an ownership certificate from the Absentee Indian
Properties Department in respect of four properties,
including the premises at No. 52, lvIogul Street, and
he was authorised, under Exhibit 3, dated the 12th J Uile,
1943, to take possession of the four houses mel'ltioned
in it. lvI. lvI. Mulla stated that he also obtained
permission, verbally, 'from the Muslim Estates ~nquiry
Committee to do the necessary repairs in respect of the
properties which hr had applied to be allowed to take
possession of. The first repair, which is saio to have
cost Rs. '2,300, to the premises at No. 52, Mogul
Street was completed about the middle of July, 1942,
 1950] BURMA LAW REPORTS. 323

that if', before M. M. Mulla obtained the permit to take H.C.

1950
.possession of t!1 e properties from the Ahsentee Indian
THE
Proper tits Department. The second repair to the OFFICIAL
HECEIVER~
.premises at No. 52, Mogul Street, was carried out in RAl\GOON
June, 1945, and it is said to have cost Rs. 1,400 ; and v.
M. M.
this repair wos made before the Official Receiver MULLA.

.efunctioned in Rangoon. U TUN Byu,

C,J.
Maung TUIl, son of U Hla Oung, stated that" he
:supervised the repairs that were carried out at the
premises at No. 52, Mogul Street, both in 1942 as well
.as in 1945 and that the receipts for the repairs, which
.I
11ad been filed as Exhibits 4 and 5, were signed by him.
He said that he personally supervised the rtpairs that
were carried out at the premices at No. 52, Mogul
.Street, and that the cost of the first repairs was
Rs. 2,300 while the cost of the second repairs was
Rs. 1,400. vVe have not been able to find anything on
the record, which will really suggest that we ought not
to accept th e evidence of Maung Tun in this respect
'The fact that the firm, of which he was a registered
partner, did not keep and maintain proper accol1!1ts
'until 19~7 is not in itseH sufficient to indicate that his
evidence must have been untrue. Mallapa Chettyar, a
witness cited on behalf of M. M. Mulla, also saw the
'repairs bein!, carried out at the premises at No. 52,
Mogul Street, wbile the witness was living there. It is
true that Mulla Azim, a witness called on behalf of the
-Official Receiver, stated that he used to visit the house
.at No.5?, Mogul Street, and that he was not aware of
.any repairs being carried out in that house. His
-evidence appears to be rather vague. He had not
'stated specifically that no repairs could have been
.done, as alleged by Maung Tun, to tIle doors, windows,
.and roof vI the premises aL No. 52, Mogul Street.
.It is also llOt clear whether he actually went into the
:house in question to see .if any repair could have been
324 BURMA LAW REPORTS. l1950"
H.C. carried out at that premises. There was accordingly-
1950
sufficient material on which the learnecl Second Judge,.
THE
OFFICIAL Rangoon City Civil Court, could have iound that the
RECEIVER,
RANGOON
repairs. shown in Exhibits 4 and 5,. had in iact been
V.
M. M.
carri ed au t.
MULLA. It has been contended that M. M. Mulla is entitled'.
U TUN ByU, to recover the' sum of Rs. 3,700 which he paid for-the
C.l. two' repairs carried out at the premises at No. 5.2,.
Mogul Street, in view of the prov isions of section 70 of
the Contract ACl, which reads:
Ie vVhere a person lawfully cloes anything for another person,.

or delivers anything to him, not intending to do so gratuitously,_

and such other person enjoys the benefit thereof, the latter
is bound to make com)ensJtion to the former in respect oft.
or to restore, the thing so done or delivered."

It is thus clear that section 70 of the Contract Act

requires three conditions, namely, that-
l t) it must have been done lawfully;
(2) it must have been done by a person \vho did:J, I,
not intend to do it gratuitously; and '
l3) the person for whom it was done must have
enjoyed the benefit of it.
The Privy Council observeJ:! in the case of RQ1/Z'
Tuhul Singh v. Bises'1tar Lall Sahoo (1) as follows:
". . . it is not in every case in \vbich a man ha3 benefited
by the money of another UBt an obligation to repay that money
arises. The question is not to be cieterminec1 by nice c.onsirlera-
tbns of what may be fair or proper according to the higllest
morality. To support such a suit there must be an obligation ,-
express or implied, to repay."

In the case of Suchand Ghosal v.' Balaram'

M ardal1a (2) it was also observed as follow:; :
I{ Th'e terms of Sf ction 70 are unquestionably. wiele, but ()
applied with discretion they enaule the Courts to do substantial
(1) (IBiS) 21.A. 131 at 143 . (2) (191lJ 38 Cal. Series 1 at 7

 1950] BURMA LAW REPORTS. 325

justice in cases where it would be difficult to impute to the H.C.
1950
persons concerned relations actually created by contract. It is,
however, especia~ly incumbent On linal Com ts of fact to be THE
OFFICIAL
.guarded and circum:>pect in their conclusions and not to RECEIVER,
-countenance acts or payments tInt are really officious." RANGOON
V.
M. M.
It seems to us that we ought always to bear in MULLI'.
mind the observations cited above in construing the U TuN BYU,
provisions of section 70. {)f the Contract Act, and, if C.).
ihat is done, we are not likely to go wrong in attemp'ting
'''' to find out whether the provisions of sectioi1 70 of the
'Contract Act apply in any particular case or not.
It has not been disputed during the arguments that
111. M. Mulla did not purport to carry out tbe repairs in
-question gratuitously. A question arises whether the
repairs can be said to have been done lawfully as
contemplated in section 70 of the Contract Act. It
has been submitted on behalf of M. M. MuIIa tbat the
expression "lawfuliy" in section 70 ought to be given
its widest meaning, so as to include all acts which are
not forbidden by law. We cannot, however, accede to
this suggestIon, because if that was done we would be
shutting our eyes :0 the salutary observations that have
been cited above, from the cases of Ram Tulzz:l Singh
v. Biseswar Lail Salzoo (1) and Suchand Ghosal v:
Bala;:lJm Mardaua (2): - .
In GopeSWJr Bane/jee v. Brojo SUluiari Devi (3),
it was observed:
.C There I find I said as follows: The test as regards
the meaning of the word ( lawfully) was laid clown by my
learned brother Mr. Justice l\fookerjee in the case of Raja
Baikzl1lio Dey Balzndttr v. Uday Chand l11aiti (4). The word
, lawfully I in section 70 of the Contn.ct Act is not merely
a surpllls;l~e. It mtlst be considered in each indivich:l case,
whether the person, who made the paylT'ent, had any interest in
making it . if not, the payment cannot bi: said to have been made
(1) (lSi5) 2 I.A. 131 at 143. (3) (1922) 49 Cal. Serie' 470 at 473.
(2) (19111 38 Cal. Series 1 a17. 14) (1905) ~ C.L.). 311.

326 BURMA LAW REPORTS. [1950'
H.C. llav,r{ully.' Then I proceeded to say I I expect my learned
1950 brother \vo111c1 agree with me, when I say he meant I had any'
THE lawful interest iI. making it'. My learned brother did not
OFFICI.\L
deliver a separate judgment in that case but he smd that he-
RECEIVP.U,
RANGOON entirely ag~eed. It is interesting to note that in the Commentary
O. on the Indian Contract Act by the learned commentator,. )
M. M.
l\IULLA. Sir Frederick Pollock;at page 3"88 14th edit;on), he refers to lhe-
matler as follows:
U TUNByU.
C.). The word? lawfully I hl this section is not mere surplusage.
It must be considered in each individual case ~\'hether the persan,
who made the payment had any lawful interest in making it ;.
if not, the payment cannot be s::dc1 to have been made lawful1y.ll

In Pun} lbhai v. Bhag1~andas (11. it was also

observed:
II The ter"m \ lawful' no doubt has a wider meaning tll'JIl">
the term I legal.' 'Legal' is what is in conformity with the
letter or rules of the law as administered in the Courts; 'lm:vful ,-
is what is in conformity \vith (or frequently not opposed to),
the principle or spirit of the law whether moral or judicial.
In ascertaining whet!le1' an ad is \ lawfully' cloue for another the-
te~t to be applied sboulcl be as was laid clown by Straight
(tnd Mahmood, H., in Clzcdi l,aJ if Bhagwaf1 Das (2) viz., whether- ( t.
the person so acting held such a position to the other as either" .
directly to crelte Ql" by implication reasrnably to justify the-
inference that by the act clone for the other persr 11 he was-
.entitled to look for compensation for it to the person fer wbom it
was done. According-toMahmood, J. (page 244) allY other view
of the law would amount to saj-ing that the effect of section 7Q.
of the Indi,tn Contract Act is to enable a total stranger, withot't
any express or implied request all behalf 'Jf a debtor, to put.
himself into the shoes of the creditor by the simple fact of paying:
the debts due uy such debtor. The section in the opinion of,the-
learned Judge, could not have been inteLc1ec1 to iI1\~lve such
a result. \Vith great respect it seems to me that this is.
the proper test to apply in interpreting tbe term 1Jlawfully l-
in section 70." 0,
M. IvI. Mulla is, on his own admission, not a.
benef.ciary under 1 he Mulla Hashim Family Endow--
ment WagE, nor is he a trustee to the said Wz.gr. He
(II (1929) 53 B m. Series 309 2i 313-314. (2) OSoSI 11 All. 234

1950J BURMA LAW REPORTS. 327

also did not obtain the consent of any of the trustees H.C.
1950
who were still in Burma after the British evacuation in
THE
1942. Neithel' Amina Bi Bi; nor Ebrallim Ismail, was OFfICIAL
RECEIVER,
ever consulted about the repairs which M. M. Mulla RANGQON
carried out. There is also no evidence to show that l'.
M. M.
M. M. Mulla had been asked by <lny of the beneficiaries MULLA.

to take charge of the premises at No. 52, Mogul Street.

It is also clear that none of the trustees had asked him
tv do so. M..M. Mulla could, in the cil'cumsta~ces,
be described as an intermeddler. He was clearly'
under no obligation to make the repairs, nor had he
any interest in the premises at No. 52, Mogul Street.
The Muslilll Estates Enquiry Committee and the
Absentee Indian Properties Department are not
'statutory bodies, and we have not been shown how tbe
Muslim Estates Enquiry Committee or the Absentee
Indian Properties Department could be said h have
power to interfere with the rights of private persons
who were still in Burma at the time of the Japanese
occupation. Thus the repairs which M. M. MuUa
carried out at the premises at No. 52, Mogul Street
cannot, in the circumstances of this case, be considen::d
to have been lawfully carried out for the purpose of
section 70 of the Contract Act.
Another' point which arises is that whether the
Official Receiver can be said to be " person who enjoys
the benefit of the repairs that had been carried out in
the premIses at No. 52, Mogul Street. The answer
must, in our opinion, be in the negative. It will be
necessary, in this connection, to consider what is the
nature of the office which a Receiver holds. In
Po Shan v.' Maung Gyi (1) .. Fox, C.]., observed as
follows:
l( The. status of a Receiver is merely that of an office~' of the
Court. He is sometimes referred to as the I hand of the Court.'
III 5 Lower Burma RlllingR, 213 a' 215.

328 BURMA LAW REPORTS [1950

H.C. He acquires no proprietary rights or intel'est in the property of

1950
which he is appointed Receiver. Having no title to the property
THE he cannot convey Jr assign allY title to it to any other person."
OFFICIAl.
HECEIVJm.
RANGOO~ The ,:bse,vation of Sir Charles Fox was ql10ted
V.
M. 11. with approval in the case of MaulIg OlIn Till v. \
MULLA. P.R.M.P.S.R.M. Clwtyar Finn and athers- (1). Th'O
U TUN HYU, commentary which appeal's in vVoodroffe on Receivers
CI.
was ;I1so cited with approval in that case, which IS "s

follows:

II A receiver has 110 proprietal"y rights or interest v;hatever

Notwithstanding hi:;; <lppointmenl the proprietary nghts in the
estate~ remain in the persons who are by law entitled to the
estate The rfceivel"'s possesion is not prsSeSSi011 b~' :IllY
personal right It iG the r~,)ssession of the Court, and he is totally
Cievoid of any interest in the property," (\Vooch-offe on
Receivers, 3rd edition, page 4.)

l\I ukerji, J., observed, in Ell-stem ill art"age 1I1Id

Agency Co. Ltd. and T. C. Tweedle v. ilJulzal'lliJIad
Fllzlul Karim and anatller (2), a< follows:
,II The nature of the office of a l<eceivBl' is simply this. tliat he

is 1.11 imp'1dhl person appointed by the Court to collect and

receive pending lhe pr(l,ceeclil1g~ the rents, issnes and profits
:of land or. personal_e:'Jtate, or other things in ql,lestion which
it ,does not seem reasonable to the Court that either party should
collect or receive. The object sought by the appointment of
a -r~eceiver is the safeguarding of property for the benefit of those
entitled to it. His possession is on behalf and for the benefit of
all the parties to the suit in \vhich he is appointed, <llFb is
the possession of all tlie said parties according to tht;ir titles.
The property in his hands is in cllstodia legis for the person who
can make a title to it. The title of the real owner is i~l no way
affected either in theory or 011 principle by his appointment. He
collects and receives the rents l issues and profits not upon
his own title but npor tbe title of some persons, parties to
the action,"

(11 (1929) 7 Ran. 4<5 at 426. 12l (925) 52 Cal. Series 914 at 931.
 1950J BURMA LAW REPORTS. 329

The observation of Mukerji, J., was cited with approval H.C.

1950
in the case of li1 a J 00 Teall Imd another v. The
THE
Collector of It011g0011 (1). OFFICIAL
RECKIVEIl,
It was also beld in Harihar Mukerji v. Harendra RJ,NGOQN
V.
Nath Muktrji (2) as follows: M. M.
l\IULLA.

It The Heceiver Ol"clinarily is not the representati\'e or agent U TUN Byu,

-of either party to a suit in the a:lministration of the trust, but the c.j .
.c"ppointment is fm" the benefit of all parties, and he holds
~, the property for fIe ben~tit of those ultimately found to be the
l"ightflll owners."

Thus it is clear that a Receiver is an officer of a

Court, having no title to or interest in the property
..which is placed in his charge, aed that he only holds
the property for the benefit of the person \\"ho wia
ultimately succeed in the litigation pending before the
Court. The Official Receiver could not, therefore, be
said to be a person who had benefited by the repairs
which M. i\L 'v[ulla had carried out at the premi"es at
No. 52, Mogul :)treet, a property which belongs to
',mother person.
The commission which a Receiver obtains ~annot,
in our opinion, be considered to be anything more
{Iian a remuneration to him for the time and trouble
be expended i" takiug charge of the property which
had been placee! by the order of a Court in his
possession. The appeal is therefore allowed with costs
in both Cou rts.
Wp do not consider, in view of the conclusion
'which we have arrived at about, that it is necessary for
us to e.{press any opinion, as to whether the provisions
of section 80 of the Code of Civil Procedure apply
in the circumstances of the pre,en t case, an d, if so,
whether the third \Vritten-staten~ent which contains
(1) (1934) 12 Han. Series 437 at 440. (2) (19] 01 37 Cal. Series 754
330 BTJRMA LAW REPORTS. [1950

H.C.
1950
the counter-claim of the respondent M. M. Mulla ought
to be rejected, or whether any part of the claim of
THE
OFFICIAL M. M. Mulla can be considered to te barred by
RECEIVER,
RA"GOQN
limitation of time. We accordingly reTrain in this
V.
l\I. M.
.case from expressing our opinion on them.
MUJ.LA.

U TUN nyU,
U SAN MAUNG, J.-I agree.
~.
C.).

"
 1950J BURMA LAW REPORTS. 331

CIVIL REVISION.
Before U Oil Pe, J.

H.C.
HABIBUR RAHMAN (ApPLIC~NT) 1950
v. Juue $.
MA AH Mil. (RESPONDENT).*

Registratioll of docl/ment -Formalities_Registration t:Jhen complete-Reg is-

tr'llioll Ad. 55.52 (I) IcJ cmd 61 (2) and 87-Nol1-0,;pyi1tg of doculJ/eut
ill Book 1 if au irregularity and curable.
'V'here a deed of sale was presented for registration and a receipt was
obtained from the l~egistralion office on 24th April 1945 but the document was
ne"er reb"ned to the party and the deed \Vas not copied into Book No.1 under
s. :2 {1i (el of the I~egidration Act.
Held: That the document \Vas not duly registered, as the registration
was not complete. The certificate is that which gives the document the
character of a registl.":red instrument as the Act expressly says that the
certific.tte shaH be sufficient to allow its admissibility in evideno.;e. In i1$
absence, t!1e object of the Registration Act will have been defe:ltcd.
1l1u!J'Jlnmdd Eu"/:: fiud others v. Birj Lal {wd another, I.L.R. All. Vol. t,
p. 465, referred to.
The fad that applicCtl1t was not responsible and could not be penalized for
others'defaults is irrelevant -:J.S the poinl far decision was whether there waS
a valid registered docu~!lent. This does not amount to a defect in procedure
cllrCtble nnder s. ~7. Regi<:;tration Act.
Ala Kim v.S.1. bpahffll\', {lQ461 Ran. 19.2. disotinguished.

Ba Han for the applicant.

P. N. Ghosh for the respondent.

t; ON PE, J.-This is an application to revise the

judgment and decree of the lower Court, declaring that
the plaintiff is entitled to the suit properties. The
main Ground, among others, is that the trial Court had
wrollgly "held that the deed of sale of the suit properties
had not been duly registered in the office of the
Sub-Registrar, Hangoon. The facts, as relatec; by the
* Civil Revision No. 12 of 1950 a,gainst the decree of 4th Judge, City Civil
Court, Hangoon in Civil Hegular No. 617 of 1949, dated the 6th February 1950.
332 BURMA LAW REPORTS. [1950

H.C. applicant leading to the registr"tion of the sale deed in

1950
question, are as follows : -
HABlBUR
RAHMAN The r,urchase of the suit properties fr'lm the
v. responden~ for a sum of Rs. 8,000 iJapanese currency).
MA AH MA.
was by a deed of sale dated the 24th April, 1945. The
DON PE,].
dced was !-,resented by the parties for registration at
the Office of tJ,e Sub, Registrar, T<angoon when the
appli<;ant obtained an acknowledgment receipt from the
Sub-T<egistrar, Rmgoon The receipt is filed in the'
suit and marked as Exhibit A. Owing to circumstances
arising out of the War, the document was never
return cd to the applic,mt nor could it be traccd.
Several issLl es were framed by the lower Court.
For the purpose of disposal of this application, it is.
s:.Jfficient to take up the material issue, namely, whether
the decd of sale presented for registration had been
duly registered. From the evidence of the Registration
Clerk U Aung Khin, It is clear that some of the
formalities had been gone through but the deed had
not been copied in the Book No. 1 which was 1
maintained for the purpose as required under
section 52 (l)(c) of the Hegistration Act. The conse-
-quence of this is that the registration of the document
in question cannot be deemed to be complete, vide
section 61, sub-section 2) of the Registration Act. The
observation made in Muhammad Ewaz and o/he"s v.
Bil) Lal and ana/her (1) may be :lptly quoted to sholV
the import,mce of the certificate mentioned in
sectiun 61 of the Registration Act
II The certili.cate is th It which gives the document the

character of a registered instrument, and the Act expre~'31y S3Y~

that that certificate shall be sufficient to ::Illow ,Jf its admissibility
in evidence,"
In the absence of the certificate, it is obvious that the
object of the Hegistration Act will have been defeated.
U) I.L.R. All. Vol. II p. 465.

 1950J BURMA LAW REPORTS. 333-

It has been strenuously urged before me for the H.C.

1950
applicant that the loss of the document was due to the
Clrcumotances which was not his doing, and that it HABlllUR RAmcAN
would amount to penalizing him for the misdeeds of MAAH v.
MA.
others. ""l.'his is however, another matter and has no
relation to what the Court should decide from the' u ON PE, j.
materials placed before it. It is, nex: contended that
the circumstances in which the document was 103t and
for that account could not be copied into Book No.1
should be treated as constituting a defect in procedure
which should be curable under section 87 of the
I~egislration Act. In support of this contention, the
case of Ma Kha v. S. 1. Ispahany (1) is quoted. That
. is a case in which '" power of attorney was executed
before and authenticated by an officer who held a dual
office of a Magistrate and a Sub-Registrar and who, by
mistake, signed as a Magistrate and not as 'a Sub.
Registrar and, for that mistake, <1uthenticilted document
was questioned. That was undoubtedly a defect in
the procedure which was therefore curable but the
facts in the present case are quite different. I therefore
come to the conclusion that the lower Court is
l]l1!te right in coming to the Ending that the
document in questJon has not been duly registered.
Section 54 of the Transfer of Property Act requires that
the transfer in this case could be made only by
registered instrument. In the absence of a registert'd
instrument, which must be one, as laid down in proviso 1
(0 section 3 of the Transfer of Property Act, that is,
the instrument has been registered and its registration
compl~ted in the manner prescribed in the
Registration Act and the rules made thereunder, it
must be held that the claim to th,:, title to the suit
property based on the deed in qUlOsticn fails.
In the result this application is dismissed with costs.
(l) (1946) Ran. p. 192.
334 BURMA LAW REPORTS. [1950

CRIMINAL REVISION.
Before U San MatlJlg, J.

H.C.
1950
MAUNG TUN YIN (ApPLICANT) ""
.lUllS s'. , ;J.

'IHE UNION OF BURMA (RESPONDENT).*
EssentiaISlIppltcs alld Services Ad (XLVlJ of 1947)-S. 8 (1) a1ul (2) to be
read with s. 517, Crimill'li Proud1,re Code-"Sltall be liable to
confiscation "-Mcanilig-Ordcr of acquittal tinder s. 8 (1)-1) CtW be
varied or ignored by District Maf.;islratc under s. 520, Crimillal
Procedure Code.
Held: The word::; ," shall be liable to conl1"cation" in s. 8 (2) of the
Essential Supplies ~nd Services \ct, 1947 does not mean the same thing ;'IS
U ::hall be confi.-eatt:d." The ciiscretion of the Court with refertnce to disposal
of property conferred by~. 517 of the Criminal Procedure Code, is not in
any w?y fettered by s. 8 (2). \\That is envisaged by $,8 (2) -is that the COUI"
should bear in mind the desirability of confiscating the properly mentioned
in thatsub-seclion. As the accused had been acquitted by the trial COllit
on a charge under this stlb-sectio~, it is not open to the District rVi<igistra-te
pmporting: to ad under 3. 520, Crimin:l.1 Procedure Code to come to a
contrary finding; as there was no appeal against the acquittal and such an
::tpptal did not lie 10 tbat Court. '

Tin Ria for the applicant.

Choon__ F01I11g ( Government Advocate) for the
respondent.
U SAN i\1AUNG, J.-In Criminal Regular Trial
No. 111 of 1949 of the Headquarters II'Iagistrate,
Yenangyaung, four accused, namely Maung Ba Shin,
Maung Htwe Maung, Maung Lu Maw and Maunl( Tun
Yin, were prosecuted for an offence punishable under
sub-section (1) of section 8 of the Essential Supplies
and Services Act, 1947 (Burma Act XLVII of 1947) for
being jointly concerned in the unauthorized possession
-II Criminal Revision ':':0. 3~-R of 1950 being review of the order of District

lIbgistrate of Magwe , dated the 4th of March 1950 passed in Crimina(Revision

No. 12 of 1950.
 1950J BURMA LAW REPORTS. 335

with a view to removal thereof without a permit of H.C.

1950
11 drums of crude oil in contravention of the orders of
MAU~G 'fUN
the Deputy Commissioner, Yenangyaung, dated the YI~
v.
23rd :september, 1949. These drums of crude oil THE UNION
were actually found loaded on truck No. RA 254, of of BUR:'.IA.

which l\iJaung Tun Yin was the owner and Maung Lu USA:;!
M.\U:-IG, ].
Maw was the driver and they were the properties of
J.'bung Ba Shin and Maung Htwe l\1aung. The learned
trial Magistrate after hearing the evidence cited by
both parties convicted Maung Ba Shin, Maung Htwe
Maung and ~Iaung Lu Maw of offences puuishable
~lllder section 8 (1) aforesaid and sentenced them to
various terms of imprisonment. Tbe truck' owner
.l\1aung Tun Yin was acquitted 011 the express finding
that he had no prior knowledge of tne fact that his
.truck was being utilized for the transport of illicit crude
oil. The appeal of l\1aung Ba Shin ancl'Maung Htwe
Maung against their convictions and sen tences was
'l1l1successful, while Maung Lu Maw did not appeal.
No appeal was preferred by Government against the
.acquittal of i\Iaung Tun Yin.
Subsequently the learned District Magistrate,
.Magwe, purporting to. act. under section 520 of the
Crir,ninal Procedure Code, read with sub-section (2) of
section 8 of the Essential Supplies and Services
Act, 1Y47, ordered that the truck No. RA 254 which
the learned Magistrate had ordered to be returned to
tlF~ owner Maung Tun Yin Ice confiscated. Hence this
.applica;ion for revision by Maung Tun Yin. Now, sub.
section (2) of section 8 of the Essential Supplies and
:Services Act, 1947, is in these terms:
(\ 8 (2) All things in respect of which an offence punishable
'uoder sub-section (J) has been committed shalI be IiJble to
confiscation by order of the Conrt trying the offence.
The receptacles: p3ckages and cQverinl2;.s of such things} and
:the vessel, vehicle or means of tranport used for the conveyance
336 BURMA LAW REPORTS. [1950

H.C. thereof shrill also be liable to confiscation unless tl:e owner proves
1950
that he had no rea~on to believe that such an offence was being
MAUNG TUN 01" was likely to be committed. "
Yl~
V.
TilE i:.J~lO~ The learned District Magistrate has interpreted the
OF BURMA.
words .. shall be liable to confiscation" occurnng in
USAN this sub-sectionJo mean '~ shall be confiscated " and
MAUt\G; J.
in my opinion -he was wrong in the interpretation
2dopted by him. Section 517 of the Criminal Proce.
dure Code provides inter alia that the Court of inquiry
or trial may make such order as it thinks fit for the
disposal, by destruction, confiscation, etc., of any
property regarding which any offence appears to have
been committed, or which has been used for the
c'")mmissioll of any offence, and the discretion of the
Cour~ in this regard does not appear 10 have been
fetterell in any way by sub-section (2) of section 8 of
the Essential Supplie, and Services Act, 1947. To my
mind what seems to be envisaged by thi" sub-section is
that the Court trying an offence punishable under
sub-section (1) of section 8 should ever bear in mind
the desirability of confiscating the property enumeral"d
in sub-section (2) in preference to the other modes cf
-disposaL enumerated in sub_-section (1) of section 517
of the Criminal Procedure Code.
Hence:: 11 order for the confiscation of property
passed by a Court under sub-section (2) of section 8 of
the Essential Supplies and Services Act, 1947, should
be regarded as one falling within the ambit tlf
section 517 (1) of the Criminal Procedure Coae and
therefore subject to modification, alteration or ann,ulm"nt
by a Court of appeal, confirmation, reference cr revision
acting nnder section 520 cf the Crimina) Procedure
Code. In this connection it is interesting to note that
had lhe words ... shah be liable to confiscation" meant
"shall be confiscated" as interpreted by the "learned
District Magistrate, the order of confiscation wou}d not
 ,"'i
~-
~.
~i~"

1950] BURMA LAW REPORTS. S37

be one under section 517 (1) of the Criminal Procedure H.C,

1950
Code but under the special enactment, namely,
Jl,JAUNG TUN
sub-section (2) of section 8 of the Essential Supplies and YIN
Service.,s Act and accordingly would not be subject to v,
THE UNION
modification, alteration or annulment by a Court acting OF BUliWA.

under .s.ctiog",520 of the Criminal Proc"dme Code. U SAN

Now, as regards the merits'of the case, the learned "hUNG, J.
trial Magistrate having expressly acquitted Malmg,Tun
Yin on the ground that he had no prior knowledge of
the fact that his truck was being used for the purpose
of removing illicit crude oil, it is not open to the
learned District Magistrate purporting to act under
section 520 of the Criminal Procedure Code to come to
a contrary finding because that would be tantamount to
saying that Maung Tun Yin was guilty of th-; offence
punishable under section 8 (1) of the Essenti3i Supplies
and Services Act, 1947, or for abetment of an uffence
punishable under that section. Until and unless the
order of the learned trial Magistrate acquitting
Maung Tun Yin of the offence punishable under
'Section 8 (1) aforesaid is reversed.-and this can only be
done by a Court to which '.n appeal against his
.acqllittallies-the finding that Maung Tun Yin had no
prior knowledge of the fact that his truck was being
used for the removal of illicit crude oil must stand.
In the result the order of the learned District
Magistrate, Magwe, dated the 4th March 1950, passed
in his Criminal Revision Case No. 12 of 1950, is set
aside and the order of the trial Magistrate returning the
truck to Maung Tun Yin restored. There will be no
mder as to the costs of this application.

22
33P BURMA LAW REPORTS.
\
[1950

CRIMINAL REVISION.
Be/ore U Sau' 1.1fawlf, J.

H.C. EBRAHIM A. AZIZ (ApPLICANT)

1950
v.
THE Ui,nON OF BURMA (RESPONDENT).*
Foreign E.'rcltatJge Control Regulation Ac!, 1947-3. 9 (2) aud s. 24 H)-Jewels--
re11lo1Jed!ro/lt baggage before customS examination-Whelke:- allY Clffellcc'
committed-Or lI11emtted Ulldel s. 511, Penal Code.
He/d: No offence is committed under s. 24 (1) read with 3. 9 t21 of the
Foreign Exchange Control Regulation, 1947, where jewels contained in a nn.
are r~moved from ~e baggage before customs examination, as no jewellery
has been taken outlor Burma, withom written permission of (he C6r:troller of,
Exchange. ~Nor can there be a conviction lor attempt under s. 511,.
Penal Code .IS an ;Ittempt cannot be said to have been committed, unless
the full offen....e would have been completed if not interrupted. S. 511,
Penal Code is only applicable to attempts to commit an offence punishable-
under the Penal Code and not one punishable under a Special enactment.

Tun Sein for the applicant.

Choon Foung (Government Advocate) for the-

respondent.
U SAN MAmiG, J.-In Criminal -Regular Trial
No. 291 of 1949 of the Eastern Snbdivisional
Magistrate, Rangoon, the applicant Ebrahim A. Aziz
was sent up for trial under section 24 (1) of the Foreign
Exchange Regulation Act, 1947 (Burma Act No. XLIV
of 1947) on the report in writing of the Chief
Inspector, Preventive Service, Custom House, Rangoon.
According to that report, at about 5 a.m. on, the
15th February 1949 at the time of embarkation of
passengers per B.O.A.C. aircraft bound for Calcutta,
'* Criminal Revision No. 464-B (i 1950 being rev-1ew of the order of Easter~
Subdivh,ional Magistrate of Rang"oon, dated 30th January 1950 passed iIb
Criminal Summary Trial No. :291 of 1949 arising oul of the recommendation.
of the Sess:ons Judge, Hanthawaddy in his Criminal Revision No.8 of 1950.

1950J BUB.l\lALAVl RZPORTS. 339

personal baggage of Mr. Ebrahim A. Aziz, a passenger H.C.

1959
by the above plane, was brought to the Customs
EBRAHIM
Examination Enclosure fOf necessary examipation. A. AZIZ
When this baggage was about to be examined by the V.
THE U~lOX
Customs Officer on duty Mr. Ebrahim A. Aziz was 9F BURMA.

seen by the Baggage Inspector, 'who 'vas present U SAN'

MAU~G, J.
at th~ scene, returning to the Reception Enclosure am!
handing over a tin of talcum powder, which he had
removed from his baggage, to his friend Mr. Haroon,
who came to see him off. The Baggage InspectOr,
U Hla Pe, immediately seized the tin of powder and
on thorough examination of the inside of., the tin
jewellery to the value of Rs. 4,251 were found
concealed in the powder.
On this alleg,dion it is clear that no offenCe
punishable under section 24 (1) read with section 9"(2)
of the Foreing Exchange Regulation Act, 1947, has been
committed by the applicant. Section 9 (2) aforesaid
[l',ns as follows:
I, No person shall, except with the Reneral or special
pel'mission of the Controller or the written permission of a person
authorized in this behalf by the Controller, take 01" send out of
Burma any gold, jewellery or precious stones, or Burma currency
~otesl bank notes or coin or foreign exchange other than ~ foreign
exchange obtained from an authorized dealer. "

The applicant has, in fact, not taken out of Burma any

jewellery. It is even doubtful whether he can be said
to have made an attempt to take these jewellery out of
Burma and, in this connection I am in respectful
agreement with ,the observations of U E Maung J., in
the' case of Rahima Bibi v. C. A. Rahman (1). His
Lordship cbserved :
" An' attempt within the meaning of section 511 of the
Penal Code c&nnot be .~id to have been committed unless the
III Criminal Revision No. 183-8 of 1947 of the late High Court of Judicature
at Rangoon.
 ,
340 BURMA LAW REPORTS. [1950

H.C. full offence would have bee;, completed if not intel'nlpteJ. In

1950 other words, before a person can be convicted und"':.r section 5 11,
EDRAHIlII it is incumbent On the prosecution to establish that the accused
A. AZIZ
v.
person had done everything in his power fOf' the cOI;lplete )
THE-UNION commission of the substantive offe1lce and that it was circum ..
OJ' BURMA. stances beyond' his control which intervened to stop. the
U SA~ consequences"of the act h~om AowinJ,! on to that of a completed
MAUNG, J. offence." "

Even. assuming for the sake 'of argtlm~nt that

the applicant Ebrahim A. Aziz had made an attempt to
take out of Burma the jewellery mentioned above, he
cannot be charged and convicted of an offence punish-
able under section 24 (1), of the Foreign Exchange
Regulation Act, 19~7-, rea I with section 511 of the
Penal Code as the latter section is only applicable to
aaempts to commit an offence punishable by the
Penal Code and not to attempts to commit an offence
punishable under a special enactment. It would seem,
unless the Foreign Exchange Regulation Act, 1947't is
suitably amended, that section 9 (2) thereof would be
a dead letter as it is difficult to envisage anyone
apprehended in Burma, having committed anything
more than an. attempt . -
to take out of Burma gold,
jewellerY, currency notes, etc.
For these reasons, I would accept the recommenda-
tion of the learned Sessions Judge, Hanthawaddy, and
direct that the prosecution of the applicant Ebrahim
A. Aziz under section 24 (1) read with section ) (2) of
the Foreign Exchange Regulation Acf, 19~7, be
quashed.

 V'
1950] BURMA LAW REPORTS. "" 341

CRIMINAL REVISION.
Before U Tltaung Stilt, J.

H.C.
BA THET 00 AND ONE (ApPLICANTS) 1950
July S.

THE UNION OF BURMA (RESPONDENT).*

BunwJ Excise Act-S5. sq (a) alld 46-EIl11allced pmtis!l1nenJ for offwder wit I,
"previous cOlwidiol1-SUl1l1ll0JlS ca~t Or warrant c,lsc-Case hied as
d Sll1Jl/110t,S ca~t ami !u;tS of Rs. 100 and Rs. 60 impostd-Trial-lIlcgal or
irregtllar.
\Vhere applicants, husband and wife, were convicled under 5. 30 (a)
of the Burma Excise Act for being in possession jointly of excisable articles
without a permit, and were sentenced to pay fine!:'; of Rs. 100 and Hog, 60, as
being previous offenders under s. 46 of the Acton a trial as a summons case.
Held that: As the maximum sen1t:ncc liable to be imposed in the case, is
imprisonment for one year or a fine of Rs 2.000, for a subsequtnt C'on\'iction
for the same offellce. the magistrale could not try the case <IS a Sl1.llInc .15
case under the Criminal Procedure CO('e.
Gllya'Prllslld v.'-Emperor. A.I.R. (1932) N:lg~ 111; S"j'll Go!ai v. Emperor,
A.I.R 1193M) Cal. 203, referred to.
Sm.:h a trial is not a mere irregularity clIr:lble nn"Jer s. 537. Ct imina1-
Procedure Code.
,
Mya Thein (Government Advocate) for the
respondent.
U THAUNG SElN, j:-On tile 1st Marcli 1949 an
excise party raided the house of the first respondent
Ba Thet 00 in Thayagon QUarter, Ramree Town, and
there found one and three-quarter quarts of country
spirit hidden in a water bottle. This bottle was
discovered in the actual possession of Ma Saw U
(second respondent), the wife of Ba Thet 00, while
she was trying to secrete it between her legs and was
busy emptying the contents on to tht ground. Both
.. Criminal Revi:;ion No. 7B of 1950 beill& review of the order of
Subdivisional Magistrate of Kyaukpya, dated_ 30th August 1949 in Criminal
Regular'Tri;l! Nc>. 11 of 19..\9.
342 BU~MA LA,W REPORTS.
IH.C. Ba The.t 00 and his wife were c0nsidered to be in
1950
joint possession of the country spirit and they were
'BA 'l'HET 00
AND ONE
accordingly' sent up for trial before the learned
V.
TUE UNION
Subdivisional Magistrate, Kyaukpyu, of offences under
B
OF UI{_~fA. sections 30 (al read with 46 of the Excise -Act.
U 1.'HAUNG Section 46 of the Excise Act was' added to the charge
SEIN. J. under section 30 (a) as both the respondents had
previously ~een convicted of offences under the latter
section and they were thus liable to enhal1ced
punishment.
Now, ordinarily an offence under section 30 la) of
the Excise Act for the possession of excisable articles,
e.g., country spirit, without a licence or permit is
punishable with imprisonment which may extend to
six months or a fine amonnting to Rs. 1,000. Bnt
where an accused has previously been convicted of an
(ffence under this section he. is liable to twice the
punishment which might be imposed OI~ first convic-
tion, vide section 46 of the Ex_cise Act. In other words,
where an offender has a previous conviction under
section 30 (a) he is liable to a maximum imprisonmeilt
of one year or a fine of Rs. 2,000 for a sybsequent
conviction under the same section. The question is
whether an offence under sections 30 (a) read with 46
-of the Excise Act"' shotJld- bed;all with as in
"slimmons-case"" or (C warrant~case"? Section 4" (v)
and (w) of the Criminal Procedure Code define
summons-case and warrant-case as follows:
I' (v) I summons-case t means a C3se relating to an effence
and not being a warl"antcase;. and 3

(w) 'wurr;lntcnse' means a" case relating to an offence

punishable with death, transportation or
, imprisonment
for a term exceeding six months."
The learned trial Magistrate fully realised that the
maximum term of iinprisonment which the n spondents
were liable on (onviction was one year but h'e was
 ~~
~l
1950J BURMA LAW REPOR'rS. 343
b
apparently unable to make up his mind as to whether H.C.
1950
the case should be tried as a summons-case or warrant-
BATHET 00
case and eventually dealt with it as a summons-case. AND ONE
On the evidence led he held that the liquor though v.
THE UNION
found on the wife Ha Saw U was in the joint possession OF BURUA.

of both husband and wife and convicted them of U THAUNG

SEIN, J.
offences under sections, 30 (al read, with 46 of the
Excise Act and sentenced Ba Ther 00 to pay a fine of
Rs. 100 and Ma Saw {J to pay Rs. 60. Dllring the
,. trial the respondents objected to the learned' Magistrate
'dealing with the case' as a "summons-case" and
,~
insisted that it was clearly a Case which should have
been disposed of as a "watrant-case." The learned
Magistrate does not appear to have paid any serious'
attention' to this contention and spent 1)1O~t 'of his
time dIsputing with the Counsel for 'the respondents
as to the adrriissibili ty or otherwise' of certai ll questions
put by the Counsel to the witnesses. The respondents
then went up on revision to the learned Sessions Judge,
Arakan, to have their convictions and senltnces s'et
aside and a re-trial ordered. The application was
allowed and the learned Sessions Judge has submitted
the proceedings to the High Court with the
reco'mmendation that a ie-trial be ordered.
, In the first place, I am in entire agreement with the
learned' Sessions Judge that the learned Magistrate
erred in- following 'the procedure for a summOlls-case
as the maximum punishment awardable on conviction
clearly exceeds six months. There is also direct
auihority in the rulings of Gayaprasad v. Emperor (1)
and Sufal Golai v. Emperor (2) for the view that cases
of a fimilar nature to that of the presenf one should be
dealt with as "warrant-cases." In Gayaprasad v.
Emperor (1) the prosecution was under section 34 (b)
read with section 45 of the Central Pr0vinces Excise
(1) A.I,R. (1932) Nag. 111.
 /!'~"i;;/

344
h.C.
1950
BURMA LAW
. -
~EPORTS. [1950

Act w!1ich corresponds in almost alI details with the

BATHET 00 provisions of sections 30 and 46 of our own Excise
AND ONE Act. It was held that as the maximum term of
v.
THE UNION imprisonment awardable on conviction exceeded six
of BU"'olA. months the procedure for a warrant case should be
U THAUNG foilowed. In Sufal Golai v~ Emperor (1) also the
SEIN J J.
prosecution was under sections 46 and b2 of the Bengal
'Excise Act which is' practically identical to sections 30
and 46 of our own Excise Act. The same view was
expressed as in the previous ruling. In both these
cases the procedure prescribed for summons-cases had'
been followed and it was laid down that this was not a
mere irreguhuity which could be cured under
section 537 of the Criminal Procedure Code, and
re-trials were accordingly ordered. No doubt in the
case under consideration also the wrong procedure has
been fOllowed and ordinarily a re-trial should be
.ordered. But it should be noted that the respondents
w~re convicted as long ago on 30th August 1949 and
ten months or so have elapsed since that date. The
question . is whether any useful purpose would be
served by ordering a re-trial after such a long lapse of
time? The learned Government Advocate has
submitted that in his opinion it would be a mere waste
of time, money-and- expense to both the respondents
and the Government to start the proceedings afresh
and that substantial justice has been done already.
I am in agreement with the view that no useful purpose
would be served by ordering a re-trial in the present
case. If a re-trial is ordered the question whether
the possession by the wife Ma Saw U of the liquor
should be considered as possession by her hu;;b2.nd
Ba Thet 00 would have to be gone into. I do not
propose to go into th;s question of the so-called
II joint possession" of the liquor by the husband and

(I) A.I.l'. (1938J Ca1.205.

1950J BURMA LAW REPORTS. 345

wife as there is n0 inten:ion to interfere with the H.C.

1950
findings of his trial Court. Accordingly I direct that
BA THET 00
the proceedings be returned to the lower Courts with AND ONE
the above remarks. V.
THlI UNION
OF BURMA.

U 'fHAUNG
SEll', J
346 BURMA LAW REPORTS. [1950

APPELLATE CIVIL.
Before U TIHI BYIl, CMt! Justice. aud U .dtme T!la Gyaw. J.

H.C.
1950 C. AH FOUNG (a) CHOW FUNG MEE
blly 18.
(a) CHAW FONG MEE tApPRLLAKT)
v.
K.MOHAMAT KAKA AND TWO OTHERS.
(RESPONDENTS)."

UrbmJ Rent COlltrol Act. 1948--S. 11 (1) (d)-' Bona fide '. reqllired for
erection or re-enxthm of b1dldjng-~Vhlther landlord should als() Uve itt
1Iew /lOJJ:.&.

fIeld: What is required to be proved under 9'. 11 (l) (dJ of the Urban Rent
Control"Act,1948 is that tbe landlord should require the pre t~ises, which
j~ in possession of the tenant, bOlla fide for construction of ~ building thereon
'7"he fact that the landlord fo"k proceedings Qut of ~pite because rent was
r..:duced in Rtnt Control Proceedihgs is only one (Oldar in judging of the
bOlla fides. There is nothin~ in the c:lause to support the suggestion that the
landlord should erect the building for his own use or occupatio!).

Thein for the appellant.

\
R. lagana/han for the respondents Nos. 1 and 2.
The judgment of the Bench was delivered by

U TUN Byu, c,f_The plaintiff-appellant C. Ah

Foung (a) Chow Fung Mee (0) Chaw Fong Mee
instituted, under section 11 (1) (d\ of the Urban Rent
Control Act, 1948, a suit, which in effect was for
ejectment of the defendants-respondents K. M. 'Kaka,
M. Saopi and P. M. MOhamed from and for vacant
possession of a portion of the land which is ,situated
. at
No. 311, Canal Street, on the ground thai' he required
it for constructing a building thereon for his own use.
The issues were answered in favour of the defendants-
'* Civil 1st Appeal No.8 of 1950 against the decree 0\ the Registrar.
CHy Civil Court, Rangoon in Civil Regular Suit No. 760 of 1949.

 1950] BURMA L\W REPORTS. 347

respondents, and t;le suit of the plaintiff-appP.1lant, H.C.

'1950
which was known as Civil Regular No. 760 of 1949 of
C. Au l<'OUl\'G
the, Rangoon City Civil Court, was dismissed with (a) CHOW
FUMG MEE
cost3. . (a). CHAW
The real question which falls for consideration in FONG Mlm
'1'.
this appeal is, whetber C. Ah Foung, the plaintiff- K. l\olollAItlA'l'

appellant, can succeed in the case which he had

KAB:.l AI'D
TWo OTHERS.

instituted against the three resp.)ndents under the UTU:i ByU.

provisions of section 11 (1) (a) of the Urb2n Rept e.j.
Control Act, 194ti, the relevant portion of which reads
as follows:
"11. (1) Notwithstanding anything contained in the Trans-
fer of Property Act or the Contract Act or the
Hangoon City Civil Court Act no order or decree for
th.e recovery of posses"ion of any premises to which
this Act applies or for the ejeelment of a 'enant
therefrom shall be made or given unless-
*' .. & 11-

vf. the premises, i:1 the case of land which was primarpy
used as a ilOuse site and was subsequently let to
a tenant are bOlla fide required by the landlord
for erection or re~erection of a building or
buildings and the landlord executes a bono in
such amount as the Court may deem reasonable
that the premises will be used for erection or
. fe-erection of a building or buildings, that he will
g!ve effect to such purpose ,within a period of One
year from the date of vac3.lion uf the premises
by the tenant, r.einstate the tenant displaced
fr"om the land on completion of erection 0f :-e~
erection of such buildings in case the buildings

~ .
are erected for the purpose of letting;
~

It will thus be observed that what C. Aii Foung is

~

req uired to prove for the purpose of clause (d) of

~ection 11 (1) of the Urban Rent Control Act, 1948', is
that he requires the land, which is in the possession of
the defendants-respondents, bona fide for constructing
a bl1ilding thereon. We migrlt say' at once that the
348 BURMA LAW REPORTS. [1950

H.C. motive which impelled C. Ah roune to file '1 suit against

1950 the defendants-respondents does not, and cannot,
C'I~HC~;~~:G constitute a deciding factor in this matter, although
FUNG MEE it is a circum,tance which the Court ought to take into
~)~~ .
FONG MEE consideration in attempting to find out, on the evidence
K. ~io~Al"''f which is produced before it, whether C. Ah Foung
'f~~K~'fI~:~S, really requires thp. land in question bona fide for
, - . constructing a building therebn.
U 1UN llYU,
e.}. It wI'II be observed
' I
thllt there is nothing in cause (d)
qf section 11 (1) of the Urban Rent Control Act, 1948,
to even suggest that the building which C. Ah Foung
proposes to build must ,also be for his OW11 use or
occupation. The land in question was purchased by
C. Ah Foung in 1947. The date!of his purchase is of
no importance so far as this case is concerned in that it
was a case which was instituted solely under clause (d)
of secticn 11 (1) of the Urban Rent Control Act, 1948.
The evidence shows that the defendants-respondents
at one time paid C. Ah Foung a rental of Rs. 60 per
month for the land they occupied, that the defendants-
respondents afterwards ~pplied to the Controller of
Rents to fix the standard rent of the land in question
and tlIat the Controller of Rents iixed the standard
rent for that land at Rs. 10 per month. It has,
accordingly,been argu'ed on behalf of the- defendants-
respondents that C. Ah Foung did not in reality bona
fide require the land in question for co"structing
a building thereon, but that he instituted his suit against
the defendants-respondents to avenge for the reduction
of the rent which the defendants-respondents pad
obtained through their application to the Controller of
Rents. The fact that the Controller of Rc niS redt\cecl
the rent for the land in quest ion is, of course, a luatter
which the Court ought to consider in connection with
the bona Jides of the plaintiff-appellant for the purpose
of clause (d) of. section 11 (1) of the Urban Rent
1950] I3URMA LAW REPORTS. 349
Control ,Act, 1948. This means that the evidence will H.C.
'1950
have to be scrutinized carefully for the purpose of
considering whether the land in question is required C.AH (tt) CnOW
FOUNG

bona fide by the plaintiff-appellant for constructing a Fut\G MEE

(a) CHAW
building thereon. FONG ~lEE
V.
C. Ah Foung, the plaintiff-appellant, in his evidence K. 1'.fOHAM.o\T
said that he required the land in question for TWO K ..I,.KA AND
OTHY.llS.
constructing a house and that the plan, Exhibit C, wr.s
U Tu~ ByU,
the approved plan of the house he proposed to C J.
constrnct. It was not sugge~ted to him in his cross-
examination that he was not in a position to build a
house as indicated on the plan Exhibit C or lhat he
did not in reality intend to build a house on the land
in question.
U Tun Shwe testifies about the plan Exhbit C as
well as the plan Exhibit G. His evidence 'also shows
that arr<lngements had been made for one U Tin, an
engineer with whom the witness works, to supcn'isc
the constuction of a building on the l;>nd in question.
The evidence of U /fun Shwe could, therefore, be
considered to indicate th;>t C. Ah Foung did bonn fide
intend to construct a house on the land in question.
K. Mohamed Kaka, the first defendant-respondent,
and the two witnesses, who were examined on behalf
Df the defendants-respondents, had not stated anywhere
in their evidence that they did not think that C. Ah
Foung would build a house on the land in question or
that C, Ah Foung was not in a position to build a
house on the land in question. There is accordingly
no evidence to rebut the .statements of C. Ah Foung
that he requires the land in question for constructing a
building on it, and the evic1ence of C. Ah' Foung in
this respect must, accordingly, be accepted. He was
in a way supported by the evidence of U Tun Shwe,
in whose office the plan of the hO.lse which Ah Foung
proposes to build was prepared.
sse BURMA LAW REPORTS. [1950

H.C. Ii has been urged on behalf of the defendants-

1950
respondents tIlat tne evidence shows that Ah Foung
C,(:'HC~~~:G could not have required a new house for him and his
F(U~CG MEE children and grandchildren to live in, but it appears
a} HAW . . -
Fo,G MEE to US to be clear that it is not necessary for the purpose
K. M~;IA>"T.of clause (d) of .;;ection 11.(1) of the Urban Rent
T\~;~~~~s. Control.Act, 1948, that C. Ah Foung or his family
U T;;;;-B'YU. rpust also live in the house which is to be constructed >

. C.J. after its completion before he could succeed in hi~

suit. Clause (d) of section 11 (1) shows clearly that
this is so, for it provides that the old tenant should' be
given the option of renting the premises which is to be
constructed, if it were to be rented out.
1'1 view vf the finding of the Lower Court on the
first, s.;c.md and third issues, from which, we are not
prepar,d to dissent, the judgment and decree of the
Lower Court passed in Civil Regular No. 760 of 1949
of the Rangoon City Civil Court are hereby set aside,
and the plaintiff-appellant C. Ah Foung will be
entitled to a decree for the ejectment of the defendants-
respondents and for 'vacant possession of the land in
question. The defer.dants-respondents ought to be
allowed a reasonable time to remove all materials and
~.. b;i;;;g
thi;gs' that t~the;n i;~~
the land in qtiestion.
A good deal of evidence was led in this case as to
w~ether the building was required for the bona fide
use of the plaintiff-appellant, a point which arose out
of the plaint filed by the plaintiff-appellant and we '
consider, in the circumstances of this case, that dch
party should bear its own costs. .
The plaintiff-appellant will be required to exec'ute
a bond to the satisfaction of the. Court below in the
sum of Rs. 25,000, with one surety, for the erection of
a building as indicated in the plan Exhibit C within a
period of one year from the date the land in question
is vacated by the defendants-respondents and that he
 ,

1950J BURMA LAW REPORTS. 351

-
will, if the defendants-respondents so desire. rent a H.C.
1950
portion of the building, after it has been ere,;ted, which
C. AH FOUNG~
is required by the defend"nts-respondents for their (<1) CH0W
business, if the building is intended to be let out after FUNG MER
(a) CHAW
its completion. . FONG MEE
v.
K. ).fOHAMAT'
1{AKA AHD ..

-
TWO OTHlms.

U TUN
C.).
Byu,..

352 BURMA LAW REPORT.5. [1950

APPELLATE CRIMINAL.
BI/ore U Oil Pt (~Ufl U Salt Maullg, jJ.

H.C.
1950 SA PONT (alias) PAW LU (ApPELLANT)
!tI1U 28. , V.
THE UNIO~ OF BURMA (RESPONDENT)."
Penal ClIde, SS. 34 and)02 (1) (a)-.Vurde' committed by pt:rson undergOiNg

selltence vi lram.. por/(liw'!-Accllsed Sltbjecf t.) fils-Tesf-/{p.Jwh'd,l!,e of
nature of acl-U1Js;Jlwdn'ess oj milld-~W"en a delt:1la,
A person, under~oing a sentence of transportation for life, st::l.bbed a cOllvict
warder to death on the chest with a pointed weapon and claimed that he came
tinder the provision of s. 84 of the Penal Code as he was subject to epileptic
fits of giddine5s and that he was not liable to conviction :=Lnd C:ll\llot be
sentfnced to death under s. 302 /1) (bl, Penal Code.
Held: On appeal, t!u( under 5.84, Penal Code, which is in subst~lllL-e tbe
nme as the law Lticl down in the answers of the Judges to the HOII~c of La ds
in Mcnaghten's case, it is only lJnsoundness of mind w:lich materiallv impairs
the cognith-e f<lculties oi the mind so that the offender is incarable of the
nature of the aet or that he is doing wn:mg, that eX:lllrt~ from criminal
Iiabiiity.
Qllcm-Emprtss v. Kader Nasyer Shall, 1(1886) I.L.R. 23 Cal. G04:
Nga Po TJ:a v. Qtleell~Empress, 0893-1900) Printed Judgments, Lower But1na
249; Mall; Ram v. Tilt Crln~llI, U9271, I.L.R.8 Lah.1l4; (,hllnf!.O-Y j'lfal Ghauil1
La/ v. Empao" A.I.R. (1939) Lah. 355; Mallug Cyi v. Kills-Emperor,
7 L.B.R. 13; Tuu Raw v. Kmg-Empero", 6 L.B.R.IOO IF.B.): Nga Sem Gc.lev.
King~E/lIptror, I.L.R. (1934) 12 Rail. 445, r~f~rn~<,l to.
'~-:::: '"f'liere -was- n"o evidence' {har; tile --co~nttf~~)fa;ri1ties \verC so impaired hi
this'case!and the condnd of the accused subsequent to the Qccurrel\ce':'showed
that he stabbed 'human bein~s in vib,! parts for n':ason~, real or imaginary,
the conviction forjmnrder \Vas correct.

Ba U for the appellant.

Ti1~
Mmmg (Government Advocate) for the
respondent.

The judgment of the Bench was delivered by

U SAN MAUNG, J.-In Criminal Regular Trial No.6

of 1\150 of the Special Judge (U Ba Swe), Bassein, the
... Criminal Ai)peal No. 2t;O of 1950 fro~ the Order of the Special JUdge or...
Bassein, dated 15th June 1950 fl;l.ssed in Special Judge Trial N~. 6 of 1950.
1950] BURMA LAW REPORTS. 353

:appellant Sa Pont (a) Paw Lu was convicted under H.C.

1950
:section B02 (1) fa) of the Penal Code for committing
SA PONT (0)
murde!" while being under a sentence of transportation PAW Lu
'for life an d also under section 324 of the Penal Code THE V.UNIO'N
for voluntarily causing hurt. He was sentenced to OF BURMA.
;aeath for the first offence and was sentenced to one U SA~l
MAUKG,J.
year's rigorous imprisonment for the s~cond offence.
The appellant Sa Pont, who is a Karen Christian,
was sentenced to transportation for life fOl' an offence
.under section 302 of the Penal Code on the 24th of
December 1948 in Criminal Regular Trial ~o. 15 of
1948 of the Special Judge, Bassein. While in jail, he
was given light duties as an infirm person because his
left hand had been cut off at a point about six inches
below the left elbow and also because he had suffered
" big dah cut injury on his head. Ba Zan (P.Vl. 1),
ihe convict warder whom he stabbed severa] times
with a sharp pointed weapon on the day of occurrence
'of this case, was a person under whom he had to work.
The deceased Aung Din, whom the appellant was said
io have slabbed to death, was a person in charge of the
keys of the main gale and as such he used to station
!himself at a spot near the main gate. On the 19th of
April 1950, the day when this case occurred, the
:appellant was put to work to sweep the Hoar of ward
No.5 by Ba Zan who then went to have a bath at ward
No. 5 which was known as the "sleeping ward."
At about 7-30 a.m. when Ba Zan came out of ward
No.5 after having his bath, he met Sa Pont near
the entrance. Not paying any attention to Sa Pont,
Ba Za'1 can'le out of that ward whereupon the appellant
stabbed him several times on the chest with a sharp
pointed weapon. Ba Zan turned to run whereupon
Sa Pont chased him and stabbed him once on the hip.
:Sa Pont then ran towards ward No.7, chased by about
ten or fifteen convicts. He then ca~ne out at ward
23
 354 BURMA LAW REPORTS. [1950

H.C. No.7, and the witnesses who were near Aung Din at
-1950
that time saw h'1m pus h'mg A ung D' h
,m on tee i Wit
lest 'h
SA p~~NUa) his right hand. At that time Aung Din, wbo b"d been
THE l'iNJON seated before the appellant came, was seen to stand up,
OF BURMA. on his approach. After being pushed on the chest,
U SAN Aung Din sat down with his hand pressing the regions
MAU.'G,'j. of his stomach. 0 Thereafte'r he was found lying on the
groul'ld with a stab wound on the left side of his chest.
To Noor Mohamed (P.W. 4), who brought Ba ZaG'
towards the main gate, Aung Din said that he ',ad
been stabbed by Sa Pont with a dah. Meanwhile
Sa Pon t, who ran towards gate No.4, found himself
chased by a few convicts and he accordingly took
refuge in the office of {T Mya Pe (P.W. 12), the Assist-
ant J:1ilor who was then on duty at ward No.4. On
hearil.g the commotion, U Mya Pe caine out of ward
No.4 and saw Sa Pont being chased by three or fOUf
men. He therefore went into .his room and closed the
door to prevent Sa Pont being mo.bbed. Meanwhile
Aung Din, who was taken to the jail hospital in a more
or less unconscious state, died at 7-50 a.m. without
regaining consciousness. He was found to have one
. stab wound 1" by til, penetrating into the chest cavity,
'. .,'" ""oifthe -reft sidecafthe, chest,betweei). the second inter-
costal space tt' away from the sternum. The injury
which was subsequently found to have penetrated the:
right. auricle and the right ventricle of the heart, was,.
In,theopinion of Dr. S. K. Dutta (P.W. 18\, who.
performed the post-mortem examination, nece~sarily
fatal:
::.Thll appeIlant Sa Pont was taken before -U Sap Tint
t)."iW. ll);:Superintendent of Bassein Jail, to whom he-
;tatecLt.hat he :had stabbed Aung Din because the
latter w'ould not allow him to enter the room in which
some: Ka~ens weielmder alrest under section 5,of the-
the. I.Public,.Ord..:r-. Preservation Act. The deceased
 J950] BURMA.. LAW
" '.
REPORTS..
-'. 355
Aung Din was in charge of the keys of the room in H.C.
1950
which these Karens were confined. S", Pont said that
PONT Ca)
he had ~tabbed Ba Zan because the latter had beaten SAPAW Lu
Ilim a few m0nths before on the report of or,e Nga Pu TUE v.FI'ION'
whose cup he was alleged to have taken. As regards OF BURMA.
th~ exhibit blood-stained weapon which was picked up U SAN
MAtNG. J.
by Maung Sein (P.W. 1.4), who had ~ried to grapple
with the appellant Sa Pont while the latter came
mnning towards gate No.4 from the spot where he had
stab:,ed Aung Din, the appellant stated to U San Tint
that it wa3 the weapon which he found inside the elust
bin at the time he went to throw refuse there. The
first information report Exhibit A was lodged by

Ba Zan (P,W. 1\ and after rlue investigation, the
appellant was sent up for trial under sections 30~/324
of the Penal Code on the evidence narrated ,aJove.
His defence was that he did not know what he had
done either to Ba Zan or to Aung Din or what he had
stated to the Superintendent of Jail U San Tint and
(> that he was not in his right s~nses at the time of the
alleged occurrence. That the appellant was the
person who had caused the injuries found on Ba Zan
is clear from the evidence of these witnesses. As,
,regards' the injury' caused'fo Ating' Din, there is th'e'
evidence of Noor Mohamed (P.W. 4) the convict to
whom Aung Din was able to denounce the appellant
as his assailant when Noor Mohamed met AUD!; Din,
Furthermore, from the evidence of San Htike (p .W. 5}
and Thein Aung (P. ViTo 6), who actually saw the appel-
lant pushing Aung Din on the chest with the right
hand, it is r.,anifest that the injury found on Aung Din,
was caused by the appellant. As the appellant had
just stabbed Ba Zan with a sharp pointed weapon held
in his right hand-which \vas the only hand in which
the weapon, could be held-it mu~t be presumed that
the same weapon was in his hand ut the time he
356 'BU~MA LAW REPORTS. L1950
,H.C.
''':950 pushed Aung Din on tbe chest. In fact when Thein
SA PONT (!i)
Aung (P.W. Gl was asked to demonstrate \\"hat he
.PAW Lu meant by saying that he saw Sa Pont pushing Aung Din
V.
THE UXIO~ on the chest, he demonstrated what appeared to be it
OF BUIBLA.
jab with a dafT.
u SA~ Therefore, the appelI~nt Sa Pont must be held to
MAU:Nd, J. ~ d
have caused the eath of Aung Din by stabbing him
willi a ~harp pointed weapon like the exhibit dah. ,
Now, section 300 of the Penal Code emcts that
whoever, in the absence of any circumstance \\"~lich
makes the act one of culpable homicide not an,ounting
to murder, causes dcath by doing an act with the
i'ntention of causing death, or with the intention of
causing bodily injury as in fact is sufficient in the
ordi,mry course of nature to cause death, commits the
o[fenc~ of murder. As none of the circumstances
enumerated in section 2<)9 of the l'enal Code is
present in this case, the only question to be determined
is whether the act which caused the death of Aung Din
was intentional as contradistinct from a merely \'
accidental one. The injury caused was in fact more
than sufficient in the ordinary course of nature to
cause death. _Now, by reference to the plan Exhibit
D, it is clear"that the -appellant Sa'Pont after de-Iib-era-
tely stabbing Ba Zan several times with a sharp
pointed weapon like the exhibit ran towards the main
gate where the deceased Aung Din was usually
stationed. Before reaching near the spot where AU51g
Din was seated, he could apparently have turTled to
the left into the road leading to the pagc,da or to the
right into the road leading to the machine hcm;e. He
did neither but ran to the spot where Aung Din was
and as the latter stood up, jabbed him on the chest
with the same weapoD with which he had stabbed
, Ba Zan. He then ran towards gate No.4 and grappled
with MaungSein \P.\V. 14) who tried to stop him.
 1950] BURMA LAW REPORTS. 357
H.C.
Thence he ran into U. Mya Pe's office where he was 1950
able to oblain refuge. When questivned, he said that SA PONT (a)
he . had stabbed Aung Din because the latter had PAW Lu
V.
refused him access to the room where his fellow- THE UNION
OF BURMA.
Karens were confined. Sometime before he had told
San Htike (P.W. 5) that he was sad because he was U SAN
MAUKG, J.
not allowed to enter the room in which these Karens
were confined for the purpose of saying his prayers.
,<v'hen asked his reason for stabbing Ea Zan, he 'said
that Ba Zan had once beaten him on the report of one
Nga PlI, and althvllgh Ba Zan denied having beaten
Sa Pont, he admitted that he had admonished Sa Pont
for kicking Nga Pu on account of a quarrel about a
water cup. These facts all go to estabiish that the jab
which he gave Aung Din on the chest with a sharp
pointed weapon was, far from being an accidental act,
a deliberate one. Whoever stabs another on the, chest
with a sharp pointed weapon and thus cause an injury
which penetrates the heart must be presumed to intend
() the natural consequences of his act. Therefore, ,the
act of the appellant in causing the death of Aung Din
is prima lacie murder as defined in section 300 of the
Penal Code.
.. : ...0_nbeh1\1f ,oLthe appellant; several witnesses,. like
. Saw Nyein Mau~g (D. W. 1), San Twa (D.W. 2),
Po Tel (D.W. 3) and Soke Ka Myin (D.W. 4), have
come forward to slate that the appellant was subject to
epileptic fits and that he often complained of giddiness.
H:>wevcr, these witnesses stated what was not true by
saying ,hat the appellant was in fae! treated by the jail
doctor for ep;lepsy, a fact which Mr. Day (P.W. 17)
categor;ca;ly denied. Mr. Day stated that all the
injections which he had to give to the prisoners wer
noted in the register and that it was not a fact that he
gave any injection to the appellant for apoplexy.
HoweYer, assuming that the appellant did in fact have
358 BURMA LAW REPORTS. [1950
'H.c. epileptic fits and fits of giddiness, these are insufficient
1950
to bring his case within the ambit of section 84 of the
SA PONT (a)
PAW Lu Penal Cod'O. The appellant's witnesses had to admit
v
THEUNIO~ that all th~t happened to the aprellant when bis fit~
OF BUR~fA. were on w~,s that be was incapacitated for (he time
U SA~ being. Tbis is far from saying that the appellant was
MAUNG. !.
subject to hpmicidal
, .
mania as his learned counsel now
urges the Court to accept.
Now, section. 84 of the Penal Code enacts thaf
nothing is an offence which is done by a person \ho,
at the time of doing it, by reason of unsoundness of
mind, is incapable of knowing the nature of tbe aet, or
tbat he is doing what is eitber wrong or contrary to
law. The scope of this section has been fully
explaind by a Bench of the Calcutta High Court in
Qucen"Empress v. Kader Nasyer Shah (1 \ where it was
held tl:at a person subject to insane impulses, but
whose cognitive faculties appear to be unimpaired, is
not by virtue of section 84 of the Indian Penal Code
exempt from criminal liability. Tbe learned Juc!ges
observed at page 607 of tbe.report :
(I
.
The law on the subject is that laid down in section 84 of
the Indian Penal Code which enacts that (nothing is all offence
which is d<:me by a> person \~'h_b at the time of ~loing it by reason
of llpsoundl.less of mind is incapable of knowing: the nature of the
act, or that he is doin~ what is either wrong or contrary to law,'
This provision of our law, \\'hich is in substance lhe same as that
laid down in the answers of the Judges to the questions put to
theQ.l by the House of Lords in Alcllaghfe1z's caRe shows that ait
is only unsoundness of mind which materially impairs thtt cogni~
tive faculties of the mind that c"n form a gronnd of exemption
from ~criminal responsibility, the nature and the ""X tent of the
unsoundness of mind required being such as WOUIC( nhke tl-e
offender incapable of knowing the nature of the act, or that he
is doing what is wrong or contrary to law. Instances of
unsoul1(1ness of min:d of this descdption \",ould be such as these;

(I) (1,80I.L.R. 23 CaL 604.

 1950] BURMA LAW REPORTS. 359
H.O.
A person strikes another, and in con~eqt1ence of an in~ane 1950
-delusion thinks he is breaking a jar. Here he does not know
P'ONT fa,
the nature of the act. Or he may kill a child under an insane SAPAW Lu
delt1sior~ that he is saving him from sin and sending him to V.
THE UXIO)f
heaven. Here he is incapable of kl1o\.vin~ by reason of insanity OF BURY'A.
that he is doing what is morally \\"ong~ 01' he may under insane
f) SAN
.delusion believe an innocent :nan whom he kills to be tbe man l\.JAUNG, 1.
that was szoing to take his life i ~n which case, by reaSon of his
insane delusion, he is incapable of knowing that he is doing
what is contrary to the law of the land."
This decision of the Calcutta High Court was quoted
with approval by the learned Judicial Commissioner
of Lower Burma in Nga Po Tha v. Queen-Empress (1)
wl1ere he held that the Jndian Penal Code does not
<concede that all insane .impulses are beyond the
power of self-control, but places them u.lder the
restraint of the ordinary criminal law when the insanity
is not so advanced as to render the insane ::>tfender
incapable of knowing the naiure of his act, or that he
is doing what is wrong or contrary to law. A more
o. recent case is that of Mani Ram v. The Cro'wn (2).
There the accused, after killing four persons in rapid
succession with a gandasa, dropped it and began to
Tun away, and subseql1ntly volunteered information
<concerning' the. de.ath of one. of-the decea~e(:l', and it
,vas held by a Bench of the Lahore High Co~rt that a
man may be suffering from s'ome form of insanity in
the sense in which the words would be used by an
alienist but may not be suffering from unsoundness of
mind as defined in section 84 of the Indian Penal
and that the law recognises nothing but incapacity to
realise tb:; nature of the act and presumes that where
a man's mind or his faculties or ratiocination are
sufficiently clear to apprehend what he is doing, he
must always be presumed to intend the cons~quences
(1) (1893-1900) Printed Judgments, L.B. 249.
(2) Un7) I.L.R. 8 Lab. 111.
360 BORMA LAW REPORTS. [1950
. H.C. of the action he takes. This case was followed by
1950
another Bench of the Lahore High Court in Ghungar
SA PONT (a)
PAW Lu Mal GhaniC' Lal v. Empel'or (1) : Cf. Mallng Gyi v-
v. King-Emperor (2); Tun Baw v. King-Emperor (3},
Tl-ll~ UNION
OF BURMA. and Nga Sein Gale v. King-Emperol' (4).
U SAN - Assuming that the appellant Sa Pont was subject Ie>
MAU'G, J. epileptic fits and to fits of .giddiness, the evidence on
record does not at all establish that at the time he
o stabbed Ba Zan and Aung Dip, his cognitive faculties'

were so impaired that 'he did not know the nature.of

his act, namely that he was stabbing human beings
on the vital parts of the body with a sharp pointed
weapon. On the contrary, his conduct subsequent te>
the occurrence clearly shows that he knew that he had:
stabbed tbese two persons for reasons which might be'
either real or imaginary, and the probabilities are that
these reasons were real. For these reasons, we hold
that the action of the appellant does not fall within the
general exception enacted in section 84 of the Penal
Code. It is riot necessary for US to decide whether the .n
assault upon Aung Din was or was not premeditated as.
the appellant must be punished in any event under
section 302 \1) (a) of the Penal Code.
In the result, the convictions and sentences must
be confirmed and the appeal dismissed.

--_._----------------
(11 A.I.R. (1939) Lall. 355. .. (31 6 L.B.R. 100 F.-o.
(21 7 L.B.R. 13. (4) (1934112 Ran. 445.

 1950] BURMA LAW REPORTS. 361

CIVIL REVISION.
Before U ,Allng Tlta Gyaw, J.

TORAB ALLY (ApPLICANT) H.C.

1950
v. Aug.2.
MOHA~IED AYUB AND ON~; \RESPuloWENTS\' "

Aweupnlcnt of P/tl;tll-SlIit sl aled /0 be tmder s, 9, S}t'df.c Relief A cl-AnIelltl~

ment appUcatlOfl after evidc1JCt clvsed--Clltlllge o'lIitfiJlg rejert1lce /0
s. 9-Wlttlher d;!feulli t:QUSCS of act iou-Order 6, RlIle17- Civil Procedure
Code-Pril1c;PIes govemitlg tl11letldmwl. .
Held: The.principles ~overnjng applicatinlls for amendment of plaint are
settled. Leave to amend shol!ld be refused if {Il it is not necessary. (2) the
plaintiff's suit will be whol1y displaced by the proposed amendmt:nt, (3i the
effect is to tal~e away from defendant a leg~IJ r:~ht which has accrned to him
by lapse of time. 14J the amendment would introduce a new and inconsistent
cale, 3t a Jate slage, or (5) the application is nut bOIl/t fide.
U Naitlg ,111(/ others v. Ko Sein, A.I.R.1l938) Ran 125 ; E.K.s. Chdt)~a; F;rm
v. MOllng Mi1l Maung olJtlofhers,A.I.R. (1933) Ran. 247, dislingt1ished~
Ma Sllwe !llyn v. Halwg Mo Ht:a1tl:g, 48 I.A. 214 at 117, followed.
The averments in the present case amounted to no mare lhan a repetitiol~
of the original allegationll and did not prejudice the defendant's defence c F
(I . result in any injustice to him. To deEcribe the allegations in the original
pJaint as under s. 9 of the Specific Relief Ad. without all allegation of
dispossession by defendant otherwise than in due ('OllrSC of law, is a mistdke in
plearliJ:gs due to lack of skill. I t is the duty of .:ourts to decic!~ the rights of
parties and not to punish them for their mi~t?kes ill .the c9ndnet of cases
.CroPPer v. Suntlt, 26 Ch. D. 088-4)-70011t-.-710, follow~d.
The plaintiff's object was 10 recover possession but unly asserted in a form
which the Statute did 1I0t permit.
Charan Dos and others v. Amot KIl(11l /Hul O!hCfS,4i l.A 255 at 262
followed.
Naroill DdS v. Hfl Singh Qlld.otht:.Ts, 40 All. 637, referred loand approved.

TUIl Stin for the applicant.

P. K. Br..:iU for the respondents.

U AUNG THA Gyi\.W, J.-Thi~ matter in reVISIOn

arises out of a suit brought in the Court of the Third
. ~ Civil ~evision No. 21 of 1950 against the decree of the 3rd Judge of City
C1l' 1lCourlJ Rangoon in Civil Regular No. 496 of 1948, dated 12th May 1950.
362 BURMA LAW REPORTS. [1<)50

H.C. Judge, City Civil Court, Rangoon, for recovery of

1950
possession of a room in house No.508/S10, Dalhousie
TORAB ALLY
V.
Street, Rangoon. The plaint 'filed by the rylaintiff-
MOHA1!ED
AYUB
respondent was titled as one brought und.er section 9 qf
AND ONE. the Specific Helief Act. The plaint, however, sets out
U AUXG tilat the pl?intiff as the tenant of one C. M. A. Ismail
"THA GYAW,
j: in respect of the said r00m, is paying a daily rent
of ~s. 48, that on the 16th January 1948 when he left
for India the said premises whe,e handed over to th~
care.and management of one Abdulla, the first defendant
in the suit, that on the plaintiff's return from India on the
12th April 1948 he found the first and the second
defendants on the suit premises carrying on their
business and that on demand being made to give up
peaceful possession of the premises the defendants
promised to do so within two or three days and
even bally failed to give up possession as. promised and
have since been in unlawful occupation of the room.
On these averments the plaintiff respondent claimed
th?t he was entitled to a decree for recovery of ,
pos,ession of the said premises. Then in paragraph 7
of his plaint where valuation for the purposes of juris-
die-cion add Court-fees was set out, the plaintiff stated
that the subject-matter of the suit both for the pnrposes
of jurisdiction and Court-fees was valued at Rs. 3.000
being the proportionate market value of the property
under the Court Fees Act read with section 9 of the
Specific Relief Act.
The second defendant who alone contested the sdit,
admitted that the plaintiff-respondent was the tenant of
the room and that he had left the same in 'he care and
management of the first defendant from whom the
second defendant had, on the 10th March 1948, hired
the s~me on a daily rental of Rs. 5 in order to carry
on his trunk and leather suit case business. Thesecond
defendant further denied that he ever agreed to give
1950] BURMA LAW REPORTS. 363

up possession of the suit premi;es to the plaintiff on the H.C.

1950
1st May 1948. .
TORt\B ALLY
Issues were fixed on these and 0ther pleadings V.
entered by the parties and evidence was taken at MOHAMED
AYUti
length. After the conclusion of the evidence in the AND ONE.

case and while arguments were being adQressed -to the u AUNG
THA GYAW,
Court, the question of the desirability of the amendment ].
of the plaint was raised on the plaintit'f,respondent's
behalf and, on a formal application being made, the
Court after hearing the objections raised on the
applicant's behalf, granted its permission to the
plaintiff-respondent to make the amendment asked
for. This amendment was to the effect that the suit
was for recovery of possession only omitting all
reference to section 9 of the Specific Relief A<:t. The
amendment also embraces such averments as were
found necessary to meet the allegations set up by
the defendant.
It is now contended that the amendment of
the nature proposed in this case cannot be permitted at
such a belated stage of the proceedings and that
the suit avowedly brought under section 9 of the
Specific Relief Act should not be permitted to be
converted into an ordinary suit for recovery of
'possession based on title, causes of action in the two
claims being entirely different calling for alternate and
mutually exclusive remedies.
A suit brought under section 9 of the Specific
helief Act is by the very terms of the section limited in
its scope. In such a suit a, party alleging previous
possession whatever be the nature of the title to
the property, is bound to allege dispossession by
the defendant otherwise than in due course of law
within six months of the bringing of the su;t and
the points for determination in such a suit are whether
the plaintiff,as alleged, was ill possession of the
364 BURMA LAW REPORTS. L1950

H.C. disputed property within the six months, as stated, and

1950
whether the plaintiff had been deprived of such
TORA~. ALLY possessioD by ine defendant otherw.ise than in due
MOHAMED course of law.
AYUB
ANO 0,". Now, the plaint ir: this case sets out from the ve.ry
U AUKG beginning that the plaintiff was in previous possession
) ..
TJlA GY.... W.
of the room deriving title. thereto under the tenancy
held from one Ismail, that during his temporary
absence in India the perso,n left in charge of the-
premi.ses had hought the second defendant on to .the
premises for the purpose of carrying on his trade and'
that this defendant, on the return of the plaintiff from
India, refused to deliver up possession of the premises
to the plaintiff.
It is thus noticed that no allegation has been
made of any act of dispossession of the plaintiff by
the second defendant otherwise than in due course
of law in respect of the lJremises in suit. The
averments made by the plaintiff-respondent impliedly
suggest that the first defendant, who was left ill charge
\
of the premises, had no authority to keep the
second defendant in the premises in suit. The claim of
the plaintiff-respondent would accordingly appear to-
be one purely based on his title to the property and not
on any an of dispossession as would bring his claim
within the scope of section 9 of the Specific Relief Act.
Under Order VI, Rule 17, of the Civil Procedure
Code the Court may at any stage of the proceedings
allow either party to alter or amend his pleadings in
such manner and on such terins as maybe just, ;Ind all
such amendments shall be made as may 'cP. necessary
for the purpose of determining the real l:juestions
in controversy between the parties. Where the
pleadings and the issu.es raised therein are consistent
only with the claim for possession basled on title
and where, instead of :he summary inquiry conteniplated
\
 1950] BURMA LAW REPORTS. 365
under section 9 of the Specific Relief Act, a H.C.
1950
full and detailed investigation has been made into the
ToRAn ALLY
respective nghts of the parties, as was done in this case, v.
the Court would ctrt:tinly be embarrassed in making iI:OIl ....lolF.D
AYun
its decision unless the amendment necessary to the A.\D ONF-,

-plaint is first permitted. The discretion txercised Ll At;NU

TIL\ GYAW,
by the trial Court to meet such a contingency J.
should not be interfered with unless such excorcise
of discretion is not in accord with the well-established
. priuciples. These principles are summarised in lIIulla's
Commentary, 11th Edition, at page 592. Lem'e to
~lll1end should be lefused-

(1) 'Where the amendment is not necessary for

the _purpose of determining the real queJtion 11l
controversy bet\ycen the paJti~s, as where it is-
(i) merely technical, or
(ii) useless and of [10 substance.-
(2) vVllere the plaintiff's suit would be wholly
o displaced by the proposed amendment.
(3) Where the effect of the amendment would
be to take away from the defendant a legal right which
has accrued to hill. by lapse of time.
(4) Where .the - amelidn1ent . wOtjld- introdtice
a totally different, new and inconsistent case,
and the application is made at a late stage of the
proceedings.
(5) Where the application for amendment is not
made in good f:lith.
Th3 :,Iain ground on which the objection to the
amendment in this case has been taken relates to
t]le 'alleged introduction in the proposed amendment of
a totally different, new and inconsistent case coupled
with tte maki"ng of the applicatiof' for such amendment
at a late stage of the proceedings. Reiiance has been
366 BURMA LAW REPORTS. [1950
H.C. placed on the cases of U Naii1g arId others v. Ko Sein,
19.'0
(1) where the claim for redemption of :l usufructuary
TORAB ALLY
V. mortgage was not permitted to be amended to one
MOHAMED
}.;YUD of possess;on based on title, the causes of action in the,
AND ONE.
two' plaints being entirely different and E.K.S. Chetlyar 1
U AUNG Firm v. Maung Min Maull{!. and others (2) where
'faA GYAW;
j. ' the plaintiff leaving the foundation of his case entirely
unchanged sought to amend the plaint by asking for
a different relief. In this latter case the amendment
was allowed for the reason that the fundameatal
character of the suit had not been altered by the
amendment sought for.
These decisions, in effect, followed the principle of
law laid down by their Lordships of the Privy Council
ill M'l Shwe Myav. Maung Mo Hnaul'lg (3) where the
follov'ing dictum occurs : -
II All rules of Court are nothing: but provisions intended to
secure the proper administration of justice, and it is therefore
essential that they should be made to serve and be subordinate
to tllat purpost:, so that full powers of amendment must be \
enjoyed and shonld alway!) be liberally exercised, but none the
less no power has yet been given to en l.ble one distinct -:~use of
action to be substituted for another, nor to change, by means
of amendment, the snbject-matter of {he suit. II

Looking at the filcts 'p'resented in this case, viz" the

original pleadings contai ned in the plaint and the
nature of the amendment sought for, it would appear
that this principle of law on which the objection to the
amendment has been founded cannot have any,direct
applicatiou. Except for the mention of &?ction 9 of the
Specific Relief Act in the title of the suit ."nd, in its
valuation for the purposes of jurisdiction and Court
fees, the pleadinp set out in the plaint, as origiually
filed, were in substance those required to be alleged in
II) A.I.R. (1938) Ran. '25. ' (2) A.I.R. (1933) Rgn. 247.'
(3) 481.A. 214.1 217.
'\-
 195QJ BURMA I.-AW REPORTS. 367

a suit for possession based on title. The averments H.C.

1950
made in the amended plaint are a repetition in different
terms of the same allegations. They do not Ll any w"y TOltABv. ALLY-
place the second defendant at a disadvantage. In il!OHAMJ'D. AYUB
whatever manner the cl,im for possession be presented A~D
O?m.

by the plaintiff, the second defendant has one- only plea U AUNG
to enter in support of his rights, viz., that he entered l'IIA JGYAW ...
into the premises as a tenant of the person who was,left
by the pl<lintiff in charge of the premises. An amend-
ment of the plaint in the manner permitted ta the
plaintiff-respondent cannot therefore prejudice his
defence or result in any injustice to him.
To name the suit as one brought under section 9 of
the Specific Relief Act without makipg any allegations
amounting to dispossession otherwise than III due
course of law is clearly a mistake in pleadings
attributable to a want of skill on the part of the person
who advised the plaintiff and draft;;d l1is plaint, and
"it is a well established principle that the object of
- Courts is to decide the rights of the parties, and not to
punish them for mistakes they make in the conduct of
their <;ascs by deciding otherwise than in accordance
with their rights." [See Cropper v. Smith (1).J That
special circumstances, like those noticed in the present
. case, outweigh' other considerations in' matters of
amendment of pleadings was noticed in the case of
Charan Das and others v. AlI1ir Khan and others (2).
where' dealing with a suit for pre-emption it was said
" that however defective the frame of the suit may be,
the plamtiffs' ohject was to pre-empt the land; their
cause of ac';",n was one and the same whether they
sued for possession or not. If this be so, all that
happened was that the plaintiffs, through some clumsy-
blundering, attempted to assert rights that they'

{II 26 Ch. D. (18841700 at 710.~ \2) 47 1.A.255 at 262.

368 BURMA LAW REPORTS. [1950

, H.C. undoubtedly possessed under the statute 111 a form

1950
which the statute did not permit. "
"TORAB ALLY
V.
As was pointed out in the well-written ord<:r of the
MOHAMED
Ayun
trial Court, the facts of this case are not dis'similar tl)
AND oNE. those 111et with-in' Namill Das v, Hel Singh llnd others
U Au'" (1) where, on a consll'l1ction of the plaint, the suit \vas
"rllA GYAW,
J. held in su bstance to be 'one f '
or possessIOn based on
title, and that the salY'e should have been tried as such,
notwithstanding the reference in the plaint to section '9
of tl,e Specific Relief Act. ~
There does not therefore appear to be any cogent
reason for denying to the plaintiff-respondent in this
case an opportunity to amend his plaint in order to
enable the court to arrive at a decision in conformity
-.vith the substance of the pleadings set np by him.
This application will accordingly be dismissed with
cost; Advocate's fee five gold mohuro.

(1).40 All. 637.

1950J BURMA LA'A- REPORTS. 369

CIVIL REVISION.
Bejorl U rllatlng Sdtt, J.

RC.
SULTAN AHMED (ApPLICANT) 1950
v. July 6.

NASARA JAMAN (RESPONDENT\.*

CORRIGENDUM -
In tbe October number of tbe Reports for 1950
(High Court), at page ii of the Index, under Foreign
Excbange Control I~egulation Act, 19(~-7, for" s. 511,
Criminal Procedure Code", read" s. 511, Penal Code",
and at page iii for "Penal Code, s. 51? and s. ~20 "
please read "Criminal Procedure Code, s. 511 and
s. 520."

N. Bose for the applicant.

Hla Pe for the respondent.

U THAUNG SEIN, J.-The applicant Sultan Ahmed

sued the defendant-respondent Nasara Jaman in the
City Civil Court of Rangoon for ejectment of the latter
:from certain premises known as room No.7 of house
No. 12 in the 52nd Street, Rangoon. This was a suit
under section 17 of the Rangoon City Civil Courts Act
and in ordp; that the applicant sbould succeed in the
-case it was necessary for him to prove that the
-defendant-respondent was in permissive occupation of
.the premises. This view is clearly laid down in the
Civil Hevision No. 16 of 1950 against the order of the Registrar,
'City Civil Court, Rangoon in Criminal Regular No. 877 of 1949, dated the
:-16th March 1950.. . .
24
370 BURMA LAW REPORTS. [1950'

H.C. case of Savari A11l111al v. A. Jagana/han Servai (1)..

1950
Evidence was led by both parties before the City Civil
SULTAN
AHMED
Court aDd the learned Registrar of that Court who
V.
NASARA
dealt with the case was not impressed with th~
J,,"MAN. plaintiff-applicant's story and dismissed the suit. In.
U THAUl\G his judgment h~ has set Gut the evidence led for and
SEIN, J.
agai.nst the parties in the case and has given reasons.
for disbelieving them. I have been asked to hold that
the Endings arrived at by the learned Registrar of" the
City Civil Court are not supported by the evidence'
led. In other words, it has been contended that the
reasons given for disbelieving the plaintiff-applicant's.
witnesses are not sound and that the plaintiff-applicant
:1ad. in fact, proved the permissive nature of the'
occuoation by the defendant-respondent. Accordingly
I have been asked to set aside the decree of the City'
Civil Court and to order the ejectment of the defendant-
respondent.
[t should be remembered that this is not an appeal
against the judgment of the City Civil Court and that
\ o
the present application is one under section 25 of the
Rangoon City Civil Courts Act. No doubt ihis see!ion.
is rather loosely or vaguely worded and is almost
identical in terms to section 2S of the Provincial Small"
Cause Court A.ct (IX of 1887). In Siva Dass Dey v_
Ashabi and one (2) the purport of section 2S of the
Provincial Small Cause Court Ae! was clearly explained
and it was laid down that it is only in exceptional
cases that the High Court will interfere with the
finding of fae! arrived at by the Rangooh' Small Cause
Courts. Those cases are ones in which the tiecision.
of the lower Court is either perverse or altogether
unwalianted by the evidence on record. Applying.
this principle to the present case, I would repeat once
;lgain, that it is not an appeal and as sllch a detailed
(I) (1947) R.L.R. 387. (2) 3 R'n. 471.

 I

V
1950J BURMA LA'V REPORTS. 371

examination of the evidence led is unnecessary. All H.C.

1950
that the learned Registrar of the City Civil Court
SULTA.N
me'lO! tll say was that he disbelieved certain witnesses AHMED
for reasons whicoh he has set up 'and it is not for me to v.
NAsARA
examine those witnesses in tlie light of my own JAMAN.

experience and to decide. whether they should be U THAUNG

3El~. j.
believed or not. I would therefore accept the finding
of the learned Registrar and that being so the phiintiff-
applicant failed to prove the permissive nature of the
occupation by the defendant-respondent. TI1e suit
was thus rightly dismissed and this application for
revision also fails and is dismissed with costs.
Advocate's fee two gold mohurs.

372 BURMA LAW REPORTS. ['1950

SIVIL REVISION.
Before U Tlzallllg Sci", J.

H.C. SULTAN AHMED (ApPLICANT)

1950
Dec. 6.'
u.
NASARA JAMAN (RESPONDENT). *
Ejectment /luder-Ex parte decree for ejectmwt-Set aSIde latcr-
ApPlication for reinstatement by defwdallt-S. 144 01' 5, 151 0/ Code of
Civil Procedure-Order limier s. 144 of the Code-If appeal lies-
Revision-l/lltrfcrence. .
\Vhere the lower court gave a decree for ejectment e:c parle and put
plaintiff in possession fn execution and the decree was later set aside upon
defendant's <}uplication and the court purported to put the defendant back in
pO~:iesskn under s. 144, Code of Civil Procedure.

Htld: That s. 144 of the Code of Civil Procedure applies Qnly when
the decree had been varied or reversed by any appellate or revisional
authority; and the order for restoration was in this case one under the o
inherent power of court unde! s. 151, Code of Civil Procedure and not
under s. 144.
W~_~re substantial justice has been done, the High Court will not interfere
in revision. The error in quoting s. 144, Code of Civil Prrlcedure is only
l c
a technical error.
Valab Vas alld olle v. Jla1tllg Ba Titan and Ji'Muda~ Savcltalld v. Maullg
Ba Thall, 1 Ran. 372, followed.

N.gBose for the applicant.

Hla Pe for the respondent.

U THAUNG SEIN, J.-This application for revision i~

closely connected to Civil Revision No. 16 of 1950. It
appears that the plaintiff-applicant had ..btained an
ex parte decree for the ejectment of the dder.dant-
respondent and took advantage of it and ejected the
latter from the prelmses in dispute. The ex parte
.- .. Civil Revision No. 13 of 1950 against the order of the Registrar, City
Civil court in Civil Misc. No. 450f 1950 1 dated 16th March 1950 aris:ng out
of decree, dated 1pth M"'ICh 1950 of the Registrar of the said Court.
 V&;~ _
~'V
1950J BURMA LA'V" REPORTS. 373

decree was later set aside and the defendant-responcent H.C.

1950
applied to be restored to the premises in question.
SULTAN
The learned Registrar of the City Civil Court dealt AaUED
v.
with t'le application as if it was one under section 144 NA~ARA
of the Civil Procedure Code and kept it pending till JAMAN.
the suit was finally decided. That suit was eventually U THAUNG
dismissed and the learned Registrar ordered that the SEIN J. J

defendant-respondent be restored to the premises in

question under section 144 of the _Civil Procedure
Code. This was undoubtedly wrong as section 144
orily applies where a decree is varied or reversed by an
appellate or revisional Court. In the case before 'the
learned Registrar, that decree had not been varied or
reversed by any appellate or revisional authority. All
that had been done was to set ::lside the :t. parte order
"and the case was heard afresh. However, it wa[ quite
within the competence of the learned Registrar of the
City Civil Court to have ordered restitution under
section 151 of the Civil Procedure Code, that is to say,
in exercise of his inherent powers. The present
application is not one in appeal against the order of
the City Civil Court and it has been laid down in
Valab Das and one v. Mmmg Ea Tlzail and ]iz'alldas
Savclzand v. Mmmg Ea Than (1) that where substantial
justice has been done in the lower Court there should
be no interference with the order of that Court. In my
opinion, the order of the learned Registrar would have
been correct if it had been passed under section 151
of the Civil Procedure Code and not under section 144.
The <'Hor in quoting 'section 14+ was merely technical
and I do n0! therefore propose to interfere with it.
The application for revision accordingly fails and is
dismissed. No costs by way of Advocate's fees will
be allowed.
(I) 1 Ran. 372.
374 BURMA LAVI REPORTS. [1 <;50

CRIMINAL REVISION.
Before U On Pe, J.

H.C. MA SEA BI AND TWO OTHERS (ApPLICANTS)

1950
v.
Mar. 20.
THE UNION OF BURMA (RESP0NDliNTS).*
Crimil1l11 Procpduye-Trial of case as Sll1III/lOIlS case-Procec4ed as IVdrranl
caSe triallafer-Irrcgularlty or iIlegality-raUtlye of justice.
J-1 cIa: \Vhen a criminal case was tried as a summons case at the :;~art
and then" proceeded as a warrant case, the convictie'll is nal illegal. ......The
:Magistrate is bound to apply the procedure laid down {or a warrant case,
when he finds that an offence triable as a warrant case has been committed.
In re K. V. T/ellkllta RamGnicr ami alhen, A.l.R (1938) Mad. 815, followed.
RajaratuQm Pillai v. Emperor, A.I.R. (1936) Mad. 341. not approved.
If a ma,ndatory provision of tll- Cnde of Criminal Procedure is infringed.
it ~loes not follow therefrom n,at there has been a miscarriage of j'1stice.
Nga U Khl1le a1~d others v. Kmg-Empe,.or, 13 Ran. 1, referred to.

Ba Than for the applicants.

Mya Thein (Government Advocate) for the
respondents. \ c
U ON P", J.-This is an application asking this
Court to revise the order of the trial Court, which was
affirmed by the lower Appellate Court, on the grounds
that the trial proceeded as a summons case under
Chapter XX of the Criminal Procedure Code, that
without disposing of the case as such it was suddenly
altered and proceeded as a warrant case and that
therefore the whole proceedings has thereby beel'!
vitiated. In support of this contentiol1 it is a}gued
by the learned counsel for the applicancs that non-
CJmpliance with the mode of trial is not' oIfly an
irregularity but illegality which must necessarily
* CrinJnal Revision No. 47B of 1950, Review ofthe order of 1st Additional
Magistrate of Thaton, dated 9th January 1950 passed in Criminal Regular
Trial No.7 of 1949.
\
 1950] BURMA LAW REPORTS.
vt" 37~

H.C
vitiate the pr0ceedings. :Ie quotes the case 6f 1950
Rajaratnam Pillai v. Emperor (1) where it has been MA SHA BI
held that" Once a Magistrate has taken cognizance of AND TWO
OTHE~S
a summons case, he cannot convict an accused person v.
THn UNION
for anything but an offe~e triable as a summons OF BURMA.
qlse," and the proceedings were sent back to the
Magistrate (0 proceed according to law.
The learned Government Advocate in answeri to
that contention qllotes among others, In re K. ]T.
Venkatll Ramallier flnd a/hers (2) which is a case on
.all Lmrs with tile case under revision. The head~note
there reads as follows:
(\ If a M 19istrate be~ins a trial as a summons case and then
finds that an offence triable only under \varrant case
procedure has been commlttec1, he is bound to apply
warrant case procedure thence forward; he is not in
any way c1isqualilied from proceeding with the tria1."

This is a case which has dissented from Rajarlllna1l1

Pilla! v. Emperor (1) and lays down a correct view of
Jaw in the matter. It might be observed that the
procedure adopted by the Magistrate in the present case
has not really resulted in any miscarriage of justice;
for even if a new trial were ordered the result would
have been the same. It is also in accord with the
general principle laid down that if a mandatory
provision of the Code of Criminal Procedure is
infringed, that does not of itself make it necessary to
hold that the Court must have failed in administering
justice to the accused. [Please see Nga U Khim
and others v. King-Emperor (3).1 It is a case where it
cannol be held thet the Court has, by adopting the
procedure in question, failed in administering juslice
to th,,: applicants. The application must necessarily
fail and is accordingly dismissed. .
(I) A.I.R.11936) M.d. 341. (2) A.I.R. ,1938) Mad.815.
(3) 13 Ran. 1.
 III

376 BURMJ1. LAW REPORTS. [1950)

CRIMINAL REVISION.
Before U T1l1t Byu, Chief Justice, U a,l Pe a7ld U Sail Uau11R. JJ.

H.C. THE UmON OF BURMA (ApPLICANT)

1950.
, AtJg.2I.
v.
U KHIN MAUNG LAT AND ONE (RESPONDENTS)."
Special Crimes (T1'iblll1al) Act. 1947, ,5S. 5 aud 8-Nature of trial before-
Revi3iott o-f order of discharge whether lies [0 the High COllrf-U'IIl'oll
h~diciary Act, 1948, s. 24-S. q39. Criminal Procedure Code-llltc"prc~
talion of.
Respondents were sent up for trial before a Special Tribunal constituted
-under "the Special Crimes (Tribunal) Act, 1947, under 55. 409/109 and
420!120B, Penal Code and discharged. A revision was filed by Government
and objection wa~ raised on hehalf of the Respondents that no revision lay.
Held: Under s. 5 of the Special Crime5 (Tribunal) Act, 1947, cases
coming before the Special Tribunal will have to b<:: tried as warrant cases"
S. 8 of the same Act makes Criminal Procedure Code applif::able fa trials
befo:c the hpecial Tribunal and to all matters which arose out of or connected
\....ith such trials and the section further provides that the Special Tribunal
will be freated as if it were a Comt of Session. The order of discharge in tl1e
present case is clearly a matter which arises out cf a case heard by the
Special Tribunal acting as if it were a court of Sessions flxercising original
...
jurisdiclion. The Special Tribunal fillst be regarded as a court which is
inferior to the High Court. Further under s. 2-1 of the Union Judiciary
Ad, 1948, the High Court ordinarily has revisioM\I power over all courts
subject to its appellate power and the Special Tribunal is one of such courts-
.C
COTJs~quently a revision \V<iS competent.
Held fur/her: That the terms of 5, 439, Crimillal Procelture Code is
co.nprehensive in lan~u~ge and full effect must be given to the terms of the
section. The main idea underlying s. 439 ~s to enable the High Conrt to
rectify cases-of inJu-slice or illegality when the person- affected is unable to
app'eaL . . .
Emperor v. B1SltCIt Das, n910l 8 I.C. 116 at 164-165.
The NdU0I10/ Bank of Il1di'1 Ltd. V. G. V. Kcthondarl1ll1o C!terti and
one, (1913) 14 Cr. L.J. 529 at 535, referred to and applied.

Chan Rloan (Attorney-General) for the applicant.

, '
[{yaw Myil1f,
Paing, 1
~ for the respondents.
Tun Maun!!., an d I
Seitl Tun )
'* Criminal Revision No. 57B of 1950 being review of the ord.er of the
Special Tribunal 1 of Rangoon, dated the 24th April 1950.
\
 1950] BURMA LAW REPORTS. 377

The judgrrent of the Special Bench was delivered by H.C.

. U TUN Byu, C.].-The two respondents U Khin

-
1950
THE UNION
of BURMA

Maun,; L,t and U Tha Din were sent up before the ".
U I<HIN
MAUNG LAT"
Special Tribunal, which was constituted under the AN'D ONE
Special Crimes (Tribunal) Ad, 1947, under sec-
tions 409/109 and sections 420!120B of the Penal Code.
The Special Tribunal after having reco~ded the evidence
and heard the arguments, passed an order whereby
the two respondents were discharged.
It is now sought to revise the said order of dicharge
of the two respondents. A preliminary objection has
been raised on behalf of the respondents that the
application for revision does not lie against an order
. of discharge passed by the Special Tribunal constituted
under the Special Crimes (Tribunal) Act, 1947. T:le
relevant portion of section 5 'of the Special Crimes
... (TribunalJ Act, 1947, reads;

<l S. (I) The Speci;J.! Tribunal may take cognizance of

offences without the accused beiDI-! committerl to it for trial and,
in trying accused rersons, shall follow the procedui-e prescrihed
by the Code for the tryinp; of warrant cases by Magistrates-:
Provided that-
m the Special1'ribunal shall nOE be bound to adjourn
allY trial for any purpose wh:ltsoever unless such
adjournment is, in its opinion, necessary in the
intere~ts of justice;
{ii) the Special Tribunal may refuse to summon any
witness if satisfied that the evidence of such
witness will not be material."

It is thus clear that cases, which come before the

:Special Tribunal, will have to be tried as warrant cases.
It appears to be obvious also that when cases are sent
up before the Special Tribunal. it might have occasion,
now and again, to pass an ordir'of discharge as is often
 l1li

378 BURMA LAW REPORTS. [1950

H.C. done in the cases tried by Magistrate,q. It will be
1950
=
THE UNION
convenient to reproduce section 8, which reads;
OF BUR~rA
v. II 8. Sa\e as otherwise provided in this Act, the provisions
U I{HIN
MAUNG LAT of the Code and of any othe;: law for the time heing iII force
A:>lD oNE.
shall, to sl1eh extent as may be applicable, apply to tri11s before -
U TUN ByU, the TribtllJal constituted under this Act, and to appeals from anel
C.). confirmations of sentences of such T;ibunal, anel all other matters
connected with or arising from SllCh trials, as if the Tribunal was
a Cauf! of Session exercising original jurisdiction:
Provic1ed that-
o (i) the provisions of section 526 of the Code sh111 ;\ot
apply to the proceeding held before the Special
Tribunal j
(ii) no appeal shall lie in any case tried by the Special
Tribunal unless the Special Tribunal passes a
sentence of l~eath or a sentence of !ransportation .
or impriEoTI!Dent exceeding five years."

It will be observed that section 8 makes the Code

of Criminal Procedure applicable to trials before the
Special Tribunal, to the appeals arising from the cases
tried by the Special Tribunal, and to all matters which
arose out of, or are connected with, the trials before
c
the Special Tribunal. We are of opinion that the
present application to revise the order of discharge
passed'- by the Special Tribunal is clearly a matter
which arose out of a Ci\Se which was heard by the
Special Tribunal. Section 8 also indicates that the
Special Tribunal must be regarded as a Court which
is inferior to the High Court.
We cannot agree to the suggestion that the ~'ordS'
" as if the Tribunal was a Court of Session exercising
original jurisdiction" must be read to me'an th'!t the
Special Tribunal is a Court of Session in the sense it is
understood in the Code of Criminal Procedure,
especial;y as cases which come before the Special
Tribunal are tried by it in the same manner as w~rrant
\
 1950] BURMA LAW REPORTS. 379

H.C.
cases are tried by Magistrates, which was not tI,e 1950
procedure prescribed for the trial of cases before a THE UNION
Court of Session under the Code of Crin:inal Procedure. OF BURMA
Moreo\ er, we cannot construe that a hiatus has been U lZ.IIN
created in respect of the procedure, in conne.::tion \\'ith M~~~GON;~T
the Gases that come before the Special Tribunal, unless_ U TllN- BYu,
there is a clear indicatiC'n to that effect. vVe ought c.).
also to reproduce the provi~ions of section 24 of the
Union Judiciary Act, 194~, which read as follows :'

" 24. The High Court shall be a Court of reference and

Revision from the criminal Courts st1bject to its appellate
jurisdiction, and shall have pO\ver to hear and determine all such
cases as may be referred to it by any Judge or other authority in
accordance with law j or to revise all such cases as are subject to
revision under any law."

Thus the High Court ordinarily has re.vi::;ional

power o\'er all Courts which are subject to its appellate
power, and the Special Tribunal is one of the Courts
which are subject to the appellate jurisdiction of the
High Court'-l!ide section 8 of the Special Crimes
(Tribunal) Act, 1947.
lr. Emperor v. Bislte.11 Das 1), it was observed:

II As \"e read section 439 of the Code the melning at that

section is that hl allY c:'\se to which section 435 or section 438 is
applicable, the High COUl"t can, with reference to any particular
order (whether appealable 01" not), exercise all or any of the
powers, which under section 423, an Appellate Court could
exercise if that order happened to be one open to appeal, and
that it was not intended by tto Legishture that the High Court's
powers,of revis:0n' \vere to be limited merely to orders from
which <!j appeal would lie. Obviously, the main idea undedying
section 439 is that the High Court should be in a position to
rectify cases of injustice or illegality in cases when the person
affect~ed is unable to appeal."

(1) (1910) 81.C. 116 at 164-165.

 11IIIIIIII

380 BURMA Lf.W REPORTS. [1950

H.C.
1950 It was also observed in the case of The N ailonal
THE UNIOr\'
Bank 0/ hLdla Ltd. v. G. V. Kothandara11la Chetti and
OF BURMA one (1):
V.
U KHIN
MAUNG LAT II The inference is that the Court may make such alteratlo:1l
A\'n ONE,
as appears fit to it. The fact that the Crim" al Procedure Code
U TUN BYU, does not provide for an appeal against the order of discharge is
C.).
immaterial. The nature of th1: powers that the Court h:'15 in
revision is the same as that which a Court of Appeal has in the
case -of an appeal from any order ag1inst which an appeal is
provided by the code, as in the case coming within sectiors 405
and 406. I do not think that any restriction should be place(l on
the comprehensive ch3.racter of the High Court's powers under
section 439 on the ground that section 437 expressly. confers on
the High Court and the Sessions Court po\\"er to set aside a
discharge made either by a District 1\Jagislrate or by a Magistrate
subordinlte to him. The result of cutting down the ordinary
signii1cation of the lan;.;uage of section 439 would be anomalous;
under section 436 a Sessions Judge and a District Magistrate have
power in ,certnin cases to direct an accused person who has been
discharged to be committed for trial. It is extremely unlikely
that it \ras iiltended that the High Court should not have similar
power where there has been an improper discharge by a District
Magistrate or other inferior IvIagistrate. It cOtlld be held to have
c
such power only by construing section 439 without limiting the
comprehensiveness of its hnt:u::lge. I see nO good reason for not
giving full effect to the terms of section 439."

We respectfully agree that section 439 of the Code

of Criminal Procedure ought to be given a more
comprehensive meaning. vVe must accordingly over-
rule the preliminary objection which has been raised
on behalf of the respondents. .
U Khin Maung Lat, the first ~spondenl, was
during the relevant period of this case tommissioner
of Civil Supplies, while U Tha Din, the "'second
respcndent, was Secretary in th.e Civil Supplies
Department; and. they were appointed to these
(1) {1913} 14:.SrimiJlal Law Jonrnal.529 at 535.

1950J BURMA LAW REPORTS. 381'

positions on Of about the 1st March, 1948. The H,C.

1950
prosecution alleged that the first and ,econd respon-
THE Ur\ION
dents v-ere responsible for the payment of three large of BURMA
v.
Mll1lS of money, totalling in all over 30 lakhs of rupees U !(HiN
belonging to the Government, to Messrs. Zeyawaddy MAUXG AND ONE.
LAT

Sugar Factory Ltd. j that the first payment for

U Tux BY[J,
Rs. 10,22,010 was made on 29th December, 1948, the c.).
second payment for Rs. 11,07,177-8 wa, made on
15th January, 1949, and the third payment [or 10 lakhs
of rupees was made on 22nd February, 1949.. The
third payment of 10 lakhs of rupees was made after
Zeyawaddy had fallen into the hands of Karen rebels,
which was said to have occurred .on or about
31st January, 1949.
It has been contended that U Khin Maung Lat and
U Tha Din can properly, in the circumstances under
which the said three payments of large sums of money
belonging to the Government were paid out to Messrs.
Zeyawaddy Sugar Factory Ltd., particularly in respect
of the last payment of 10 lakhs of rupees which was
said to have been made after Zeyaw~ddy had fallen
into the hands of Karen rebels, be said to have
committed, at least an offence under section 420 read
with section 511 of the Penal Code, or in the alternative
under section 409 read with section 511 of the Penal
Code. It has, on the other hand, been argued on
behalf of the two respondents, who have been repre-
sented separately, that the said three payments made
to Meosrs. Zeyawaddy Sugar Factory Ltd. were in
respect of money which the Civil Supplies Department
was bonnd under their contract or agreement with the
Company to pay to the latter, and that, in any case,
!bo.se three payments were made bona fide under the
impression that the Civil Supplies Department was
liable to pay those sums of mon"y to Messrs. Zeya,
waddy Sugar FacloryLtd., without any fraudulent

382 BURMA LAW REPORTS; [1950
o
H.C. or dishonest intention on the part 'of any of the
1950
respondeRts.
~~EB~~~: It seems to us to be clear that if those thr ~e pay-
u ~{HIN ments were made in respect of money which the Civil
MAUNG LAT Supplies Department was liable under an agreement or

AND DNE. a contract to pay to the. Company at the time they

u T~j.BYU, were paid out, there could have been no dishonest or
fraudulent intention on the part of the respondents, ami
in any case they could, in that circumstanc~, contend
that i'ley acted bona fide. We ought, accordingly, to
consider whether on the evidence on the record any
contract or agreement hod been arrived at to indicate
that those payments were payments which the Civil
Supplies Department was bound or had agreed to
pay to the Company at the tilne the payments were
accorcl ed.
'vVe have been referred, during the argument, to
the various documents that have been filed as exhibits
before the Special Tribunal, and we have also been
referred to the evidence that were recorded by the c
Special Tribunal, and it will be sufficient, so far as the
present appiication for revision is concern~d, to state
"that we do not find anything on the record at the
present to show that there was clearly a concluded
contract or agreement arrived at between the Civil
Supplies Department and the Company under which
the Civil Supplies Department could be said to have
been legally liable, or legally were bound, to pay thC\Se
three sums of money to Messrs. Z!,yawadd}~ Sugar
Factory Ltd., on the dates those three payments were
made. The Exhibit 4 letter dated the 28th De:cember,
1949, shows that when the Company asked for the first
paym~nt, the payment was to be considered as provi-
sional- only and that no binding agreement for the
purchase of sugar fcr 1948-49 had been concluded or
executed. The relevant portion of the letter Exhibit 4, \
 1950] BURMA LAW REPORTS.

H.C.
which was written by Mr. Chhaganjee, the Resident 1950
Director of Messrs. Zeyawaddy Sugar F"clory Ltd., THE UNfON
re;;ds : OF BurmA.

t'"
.-
KHIN
"I am accepting this as a provisional payment pending MAUli:O LAT"
AND ONE.
settlement of the agreement subpittecl to you. I hope before the
16th of the next month, the agreement \\'ill~be finalised and we U TUN Byu,
C.].
\dll be paid regularly."

There is an endorsement on Exhibit 4 letjer by

U Tha Din, the second respondent, and the endorse-
ment was apparently accepted by U Khin Maung Lat,
the first respondent, that the Commissioner of Civil
Supplies, namely U Khin Maung Lat, had agreed to
m;ke a provisional payment as requestea in t':1e
Exhibit 4 letter. We must say that we are unable to
find anything on any of the exhibits that have been so
far filed in Court, or on the evidence that haye been
recorded, to indicate when and in what circumstances
the provisional payment was alleged to have been
agreed to, or between whom that agreement was
arrived at. The Company in their letter Exhibit 1K,
dated the 4th November, 1941;, which was sent to the-
Secretary, Sugar Control Board, suggested that they
should be paid from d?y to day for the sugar tbt was
to be supplied by them for the season 1948-4Y. This
letter was considered by the Sugar Control Board on
16th Decem ber, 1948, when it was decided Unt the
Commissioner of Civil Supplies and the Resident
Director of th<,: Company should discuss as to how the
payments for the sugilr to be supplied for 19'1-8-49 were
to be made and as to what arrangement should be
made for the storage of the sugar to be supplied, and
that the Commissioner of Civil Supplies was to report
to the Sugar Control Board what has been provision-
ally agreed to between the Commissioner of
Civil Supplies and the Resijent Director in those
3M BURMA LAVv REPORTS. [1950

H.C. discussions. As the Commissioner of Civil Supplies
1950
was present at the meeting of the Sugar Control Board,
THE UNION
of BURMA it is only' proper to presume that he had consented.
,> to the adoption of the procedure which was arrived at
U KHlN
;v!.-\UNG LAT at t ha t meeting.
AND ONE.
The letter of Mr. Chhag"njee, dated 23rd December,
1948 ,(Exhibit 5), also shows that no binding agree-
'ment ha:d been arrived at on the date that letter was'
sent in, respect of the supply' of sugar for the sea"9n
1948-49 j and the' last paragraph of that letter reads:
1\ Pending settlement of the agreement at <1n early elate, we

would request yOll, in the meanwhile, to pay us for the 1948-49

stocks accumulated, on presf.atation of our bills, by the end of
this m(.nth. lI

It will elUSbe observe; that it was not alleged in the

letters, Exhibits 4 and 5, sent by the Company on - ,
28th and 23rd December, 1948 respectively, that the
sugar for which payment was being requested provi-
sionally had become property of the Government or of
c
the Civil Supplies Department, or that it had already
been agreed to pay the Company provisionally.
The .Company asked for the .second payment in
their letter, Exhibit 6, dated the 14th January, 1949,
the last paragraph of which reads:
(' Please expedite finalising the agreement which is lying
pending nOw for over a month and a half/'

The words "for sugar produced and 'stocked 'oy us

on your behalf," in the first paragraph orthat letter,
do not by themselves indicate' that the property i'n the
sugar referred to in that letter had passed to the
Govermnent or the Civil Supplies Department, or that
a definite agreement had been arrived at in respect of
the purchase of sugar for the season 1948-49 between
the Civil Supplies Depa:tment and Messrs. Zeyawjlddy
 1950J BURMA LAW REPORTS. 385
"
Sugar Factory Ltd. at the time when the Company H.C,
1950
.asked for the second payment, partiGularly if the
Exhitit 6 letter is read in the light of earlier corres THE U!\ION
OF BURMA
pondence sent by the Company. U Tha Din made an U V. KHIN
endorsement on the Exhibit 6 letter, and which MAUNG LAT
Ar\D ONE.
eHdorsement was apparen,tly approved by U Khin
IVlaung Lat, that it had been agreed upon to p,~y the U TUN C,).
Byu,

amount required by the Company as advances.' .The'

{)bservations which we have m.ade in respect .of the
endorsement made by U Tha Din on the earlier letter
of the Company, Exhibit 4, will apply also to the
endorsement which U Tha Din made in the sub-
sequent Exhibit 6 letter. The second payment to the
Company, which was forthe sum of Rs. 11,::>7,1778,
was made on the 15th January, 1949. It appears, at
least at present, that this second payment, which
p, was made in pursuance of the letter sent by the
Company on the 14th January, 1949, was also made in
contravention of the ban placed by the Ministry of
Finance and Revenue, vide Exhibit K, dated the
'6th January 1949, the material part of which reads:
It Subjel../.-Pl1rchnses by Civil Supplies Department.
The Additional Secreta-FY, :nHnistry of Coml~1erce and
Supply I is iIlformed that no fresh pnrchases ~n a large scale
:exceecling Rs. 50,000 in each else should be undertaken by the
-Civil Supplies Department during January and February 1949 in
the first 1I1stance \'dthout the prior approval of this IvIinistry.
The question of extending the ban beyond February 1949 or not
will depend on circllmstances then prevailing and a further
communication to you On the snbject will be issued in due
course."

Thus, the Civil S'upplies Department was required,

by reason of the ban issued on the 6th Janua! y, 1949
by the Ministry of Finance and Revenue, to obtain
the p.revious sanction bf the F;nance and Revenue
Ministry for all payments in excess of Rs.50,OOO
25
 II

3&6 BURMA LA'vV REPORTS. [1950'

H.C. An explanation is therefore required as to why the

1950
second advance of Rs. 11,07.l77-H was paid out to the-
THE UN:IO~
01<' BURMA Company without first obtaining the prior sanction of,
V.
U KHIN
the Ministry of Finance and Revenue, as desired in
MAtING LAT th~ir Memorandum, Exhibit K. The respondents
AND ONE.
were, however, pot even e'Xamined before they were-
U TUN ByU,
C.]. dischilTged.
Mr. Chhaganjee, in ~lis letter Exhibit 7, dated the-'
31st January, 1949, again asked fresh payment for the
sLIgar that had been stocked in the godowlls at
Zeyawaddy, and the last paragraph of this letter reads:
II Please expedite finalising the ngreement which is lying
pending no\\" for two rnon'ths "

This letter also indicates that no binding agreement

had bEen arrived at, on the date this letter was sent,
in respect of the purchase of sugar for 1948-49, and
this is what the word" finalising" clearly suggests_
lJ Khin Maung Lat made the following endorsement
on the letter Exhibit 7 : - l c
" (]) 'ATe have nO !TIeanS of verifying the stocks at
Zeyawacldy, and thus it is c1ifticllll to finalise the accounts.
(2) Re-i\'Ioving the. sugar from Zeyawaddy-\ve will do
so as soon as the railway is reRtored.
(3) Re~Agreement, please expedite.-"
The endorsement of U Khin Ivlaung Lat, which he
made on the 1st February, 1949, appears to also
ii1dicate that no definite or binding agreement had yet
been arrived at for the purchasc of the sugar for 1911-8-49'
at the time he made the endorsement' OIl Exhibit 7
letter sent by Mr. Chhaganjee. On 2nd February>
1949, U Tha Din made his endors'ement supporting
the request of the Company for further payment, and to
use his own phrase, "The claim seems,to be justified.'"
The note which U Tha Din made on 2nd Feb~uary,
1949 in connec.tion with the Company'sietter
 1

1950] BURMA LAW REPORTS. 3G7

Exhibit 7, also suggests that he must have realized H.C.

1950
that there was some difficulty in removing the sugar
THE UNION
from Zeyawaddy at that time; and paragraph 2 of this OF BURMA

J endorsement rea.ds :
UIGUN
lHAUXG LAT
,t 2. 1n vie.v of the large quantity of sugar stocked, I am AND ONI!:.
not slire whether CS and ACCM should n"t be reqlles1ed to
U Tux Bvu,
investigate the possibility of lifting the sugar by road from c.].
ZeY<lw~~ddy to K:3.nyutkwin, a matter of 22 mile-5, the latter~ being' ,
the present raB head. 1 CCS is agreeable, the two officers
concerned will be requested to probe into this possibility/i

The note, which U Tun Yin, Controller of Civil

Supplies, made on -2nd February, 1949, also suggests
that there was some difficulty at th"t time in bringing
the sugar to Rangoon; and this difficulty was re'llilt>d
in the Civil Su pplics Department before the third
payment was made to the Company. Th~ Chief
AccountOfficer made a note all the 4t11 February,
1949, to the effect that the payment desired could not
be made wilhout the order of the Ministry of Fin:uJce
and Revenue.in vie\''; of the ban, which had been
imposed J)y that Department. U Khin Maung Lat on
the same day made the foliowing note:
'f. Please ask for Finance and Revenue's approval to pay the
amount due (which sh01.11c1 be worked out)."

It will be observed that the first respondent, in

effect, suggested that the amount for which sanction
'vas applied for was legally due to the Company,
and this appears to us to be also a point which
will require explanation. On 14th February, 1949,
U -Kh:in Maung Lat also made a note in connection
with the request for the third payment, the relevant
portion of which reads:
" (2) The present case relates to payment for the sugar
already manufactured. Is it necessary to place it before the
Board. Perhaps, what is necessary is to obtain Finance and

{.
 11II

388 BJ)RMA LAV' REPORTS. [1950

H.C. Revenue's approval to payment of a large su"m (am I right ?)

1950
--- without being able to move the sugar from Zeyawac1dy on
THE UNION account of insurgent activities.
OF BUR~lA
V.
_(3) When is the agl'eemenfgoing to be finalised? ..
l
M~U;~"i':AT This note shows that U Khin Maung Lat also realized
AXD OXE. at the time tbat U.ere was difficulty in removing sugar
U TUN BYu, from Zeyawaddy, owing' to the activities of the
c.). insurgents round about there, and tbat no definite
-agreement had yet been arrived at in' respect of the
purchc.se of sugar for the year 1948-49. 0

. It was on tbe background of these adverse circum-

stances that U Tha Din wrote his note of 16th
February, 1949, and submitted to the Secretary,
Ministry of Finance and Revenue, for the concurrence
of lh?t Ministry to the payment of a sum of 10 lakhs
of rupees to Messrs. Zeyawaddy Sugar Factory Ltd.
This cOllcurrence, it might be mentioned, was obtained
on 21st February, 1949. The note which U Tha Din
wrote reads as follows:
l. C
H The Civil Supplies Department is committed 10 pay a
sum of Rs. 10 lakhs for the cost of SlIgar purchased from the
ZeY3.wadcly Sugar Factory Ltd. Will the rvlinislryof Finance
and Revenue kindly concur? According to the ternls of
__agreern-ent payments arc. to be made regularly on- the 1st and the
i6th of each month, and this Department has not yet made the
payment which fell due on the 1st Fehruary 1949.
This may please be treated as immediate. II

This note seems to us to also require explanation,

as it does not appear, at least at the present, thab any
binding contract had yet been concludid 'it the time
the note was made in respect of the purchase of sugar
for the season 1948-49. Paragraph -} of Exhibit G,
which was prepared, i, is said, by U Tha Din, also
suggests that no binding contract had been concluded
in respect of the purchase of sugar for 1948-49, even
by the 5th July, 10 49.

,
- 1950] BURMA LAW REPORTS. 389

From what had oeen set out above, it will be RC.

1950
observed that it is difficult to say, at least at the
present, that there was an agreemel. t or a binding THE UNION
OF BURMA
contr~,ct or a definite agreement to make the three
U KHIN
payments which were made to Messrs. Zeyawaddy MAUNG LAT
AND ONE.
Sugar Factory Ltd., on 28th December, 1948, 14th
January, 1949 and 22ml February, 1949 respecti\'ely. U TUN c.]. ByU,
This is therefore a matter which the respondents ought
at least to be called upon ~o explain, particularly' when. _
the two subsequent payments were made, apparently
after the ban had been issued by the Ministry of
Finance and Revenue and in view of the fact that the
third payment for Rs. 10 lakhs was made after
Toungoo and Zeyawaddy had fallen into the hands of
Karen rebels. vVe might al5u add that we have not
been able to discover anything in the minutes of the
meetings of the Sugar Control Board which wilJ show
that there was a definite agreement to pay the a'dvances
when demanded by the Company.
It has beeu urged on behalf of the respondents
that the Ministry of Finance and Revenue was not
influenced by any of the statements which U Tha Din
made on the 16th February, 1949, when it gave its
concurrence to the payment of 10 lakhs of rppees to
the Company, and reference was made to the evidence
of U Kyin, who was then Secretary to the Ministry of
Finance and Revenue where he stated as follows:
II It was not what was written on the note of the Civil
Supplies Department <l.sking for the sanction which made me
. coneu: to the payment of that money. I might have made a
note of the fact mentioned ill the notil1~ of the Civil Supplies
Department that they were. committed to make the payment.
The shnction askeeJ for with re~ard to this pa;ticular payment
was only a Ways and Means san..::fion where we were only
concerned to find out our cash position for the day. If it was an
ordinary financial sanction, as distingll'ised fro"m \Vars al1c11vleans
sanctlpn l we would study the case fro in A to Z to find out
390 BURMA LAW REPORTS. [1950
H.C. wh-::ther the proposed expenditure ",\'3S prOIJer or necessary.
1950.
. On mel'e request of the Civil Supplies C( mm:ssioner, I would
THE U"NION concur to the payment if the: cash positi011 permitted 'it and
of BURMA
v. if it was in acc0rc1':nce \vith the Civil Supplies Department
U l{HIN Management and Control Order."
fiIAUNG LAT
Al\D ONE.
We do not think it will be necessary for us at
U TUN BYu,
C.l. present to consider- what the effect of U Kyin's
evidence is, when it is considered with other evidence
that ;ue produced in this case. \Ve might however
observe that the note giving the concurrence of the
lVpnistry of Finance and Revenue was signed 'by
another officer who purported to sign it for the Secre-
tary, Ministry of Finance and Revenue. We have not
been able to trace anything on the record to -indicate
that l' Kyin, as Secreta:-y, had power to give concur-
reace to the payment of 10 lakhs of rupees witbout
first consulting the Hon'ble Minister concerned.
It will be observed {rom what has been stated
above that this is not a case where the two respondents
should have been discharged without, at least,
exanlining them, and it could therefore be said that \ c
tbis is a case where a retrial should be ordered. The
fact that over 70,000 bags of sugar were recovered is
- more a fortuitous circumstance. We might add that
we db {Jot think it proper for us to deal with all the
different features or aspects of this case, "as we do not
desire to say anything which might indirectly have
the effect of" influencing the new Special Tribunal
when the case goes back for retrial. The neW Special
Tribunal should be left to decide this case afresb and
freely. It is for this reason that we nav.", refrained
from enterin,g into discussion whether the materials
on ,the record are sufficient to indicate that there had
been a deception practised by either of the respon-
dents wnether they could be said to have intentionally
induced the Ministry of Finance and Revenue JO do

1950] BURMA LAW REPORTS. 391
something which it would not have done if it would H.C.
1950
not have been deceived, whether the Government had
THE UNION
'Suffered any damage through that inducement, if any OF BURMA
or whether all the necessary ingredients rec]uired have V.
U KHIN
been proved either in connection with section 420 or l\JAUNG L ..l,T
AND ONE.
-section 409 of the Penal Code.
U TUN Byu,
The orde:' of discharge passed by the Special c.).
Tribunal in the Special Trial No.1 of 1950 is hereby
'Set aside, and tbe case against the (wo respolldents
will be retried deizovo. -

 IIIIIIII

<
392 BURMA LAW REPORTS. [1950

APPELLATE CIVIL
Before U T1I11,BYll, Chief ltlS~ice aud U 011 Pc, J.

H.C.
1950 STN YON HTAUNG (ApPELLANT)
21.
U BA NY UN AND ONE (RESPONDENTS).*
S. 231"COllfrllcf Acl-Righls of undisclosed priudplll-S.l1 {11 (fl, Urban
Renl COl/frol A et-" Reasonably aud bona fide "-Mea1/ing of.

'Where the 'appel!ants had faken'a lease (,f onc floAr of a house from'J-the
O',,,,ne-T's son and subsequently the o\vner Jilec1 a suit for ejectment claiming-
that the hou::e was wanted bona fide and reasonably for her occupation.

Held: That the house having been leased on behalf of his illiterate mother
by the SOn he l11!lSt ihave done it on behalf of his mother. Under
s.731 of the Contr<lct '-Act a princip<lJ can claim the benefit of a contract
entered into by the agent in his own name and a suit for ejectment by the
pri.lcipa: was competent.
That the owner hac! resided in the hOtlse prior to war; and the
desire of th,; owner to occupy the same house is bOlla fide, as she desired to
live together with her son and f:Jmily-the son having retired irom
service, such desire cannot be said to be unreasoilable because the owner had
Jived in another hOllse previously. The requinnents of s. 11 (Il (II of the
Urban Rent Control Act have therefore been duly complied with.

T. P. Wan for the appellant.

Hla Pe for the respondents.

The judgment of the Court was delivered by

U TUN Byu, C.J.-The respondents IJaw Thin and

her son U Ba Nyu!) filed a suit, known as Civil
Regular No. 46 of 1949 of the Rangoon City Civil-
Court, to eject the three defendants from the 'first
floor of a two-storeyed building situate at No. 135,
Godwin Road, Rangoon, which they had leaseci out
to the appellant Sin Yon Htaung about one year
.. Civil1s~ Appeal No. 13 of 1950 against the decree of the 3rd Judge,
City Civil Court, Rangoon in Civil Regular No. 45 of 1949, dated 16th January
1950.
(

-
 1950J BURMA LAW REPORTS. 393
I .
before the suie was instituted at a rental of Rs. 80 H.C.
1950
per month. ho Aye and Tan Blyan Wun, the 2nd and
SIN YON
3rd defendants, were said to be person, who had been HTAUNG
allowd by Sin Yon Htaung to occupy the said U BAO.NYUN
premises also. Sin Yon Htaung, the first 'defendant AND ONE.
alone contested the_suit while Ko Aye.and Tan Hlyan U Tu~ BYu.
C.].
W un allowed the case against them to be heard
ex parle. A decree for ejectment was passed against
the defendants, with costs, on the 16th January, 19-50..
The first point, which was raised on behalf 'of
th" appellant, is that as Sin Yon Htaung obiainecl
a lease of the premises from U Ba Nyul1, there was
no privity of contract between Sin Yon Htaung
and Daw Thin and that the latter could not therefore
sue to eject Sin Yon HtauIJg from the premises
in question. It is n'J( disputed in this appeal that
it was Daw Thin who purchased the two stcreyed
building at No. 135, Godwin Road, and she is
" therefore the owner of the premises in question.
U Ba Nyun is her son. He was a Resident Excise
Officer under Government and has retired from
Government service. It is also not disputed in this
case that the premises in question were rented out
to Sin Yon Htaung by U Ba Nyun. It is said that
U Ba Nyu'ri leased it out on behalf of his mother
Daw Thin who was living with him in his house
at' Prome' Koad. In the lawyer's notice, marked
Exhibit A, sent on behalf of Daw Thin and her
SOil U Ba Nyun to the defendants, it was, in effect,
stated that U Ba Nyun leased out the premises on
behalf of his mother Daw Thin. Daw Thin is said
to be illiterate. She is apparently a widow. It is
only natural in the circumstances for her [0 ask
her son to act for her in leasing out the premises.
which she owns. particularly after U Ba Nyun had
retired from Government service. It seems to us
304 BURMA LAW REPORTS. [1950
H.C. t1'3t it is only proper in the circ'Jmstanc.es to conclude
1950
SIN YoN
that U Ba !\' yun in letting the premise.. in question to
HTAU:--G Sin Yon Htaung was doing it for and on behalf
U BA
".'NYUN of his mother. vVe arc also unable to find allYthing
AN-D ONE.
in the evidence which will point to the contrary.'
U TUN
C.).
ByU, It will be conveni~nt to reproduce the relevant
portion of section 231 of the Contract Act,- which
reads-
'1<231. If fll1 agent makes a contract with a person \\'ho~
neither knows, nor has reason to suspect, Ulal he is all agent, his
princip-11 may require the performance (f tIle contract i \1tll
,the other contracting party has, as against the principal, the
same rights as he would have had as against the agent jf
the agent had been principa1."

Thus a principal can claim the bencfit of a contract

whicn has been eutered into by his agent in the
latter'~ own name, and. Daw Thin could therefore
sue the appellant and the persons whom he had
allowed to occupy tjle premises in question for
ejectment i'l accordance with the provisiOIls of the
Urban Rent Control Act, 1948. '.
It will be necessary in regard to the contention
which has been advanced on behalf of the appellant
that Daw Thin did not require the premises in
quesli-on reasonably and bona fide for her occupation
as required under clause tf) of section 11 (1) of
the Urban Rent Control Act to examine the eviden'ce
more closely. Daw Thin in her evidence states-
" Afler the pnrchase of the house in qnestion, U BaNyun
a'nd I had lived in it together. On the ol1'~-break of (he last
\Var, we Jeft the house in charge of some people whom I
know only at sight. ::"Iy son U Ba Nyun klle\v them. During
the pre-wa.r days, about 14 or 1$ persons lived in that house.
We occupied both the upper flai: and the ground floor. During
the ]apallese occupation period when things had settled down in
. Rangoon' we came back ancllived in it. \Ve left it again on the
1950] BURMA LA'0.' REPORTS. 395

eVe of Japanese rdreat. After fe-occupation, \\le c?me backfrvTI1 H.C.

1950
Tantabin, Insein )istriet, and Jived in it. We lived in it for t\,'o
years. , Then, my chughter-in.law Ma Khin Aye, the wife of U Ba SIN YON
HTAUNG
Nylln, bought a house on tbe Prome Road. Th~n, \Ce all shifted v.
to the Prome Haad house as we felt noisy in house U BA NYUN
AND ONE.
No. 135, Godwin Road. After we lef!, my son U Ba Nyun let
out the suit flat to one Chin~m1n with my consent. As I U TUN BYti,
C.].
am iIliterate I asked my son U Bn Nyun to do all the
needful things in connection with the fen :ing 2nd collecting
of the rents of the !lollse in question."

Her witness Ko San ll'laung also deposed to as

follows:
II I had seen them living together in that house before
the last \-Var and also during the Japanese occupation period.
I had also seen them. Ii ving in that houf;e together for about
two years. They occupied both {he ~round floor, and the
upper Aat. They shifted to the house on the Prome RO:ld,
.a fter\\'ards."

Tbus Ko San J\'1:lung's evidence also shows that

Daw Thin and her son U Ba Nyun used to Jive
together in Rangoon and that they had previollsly
occupied the whole of the bouse at No. 135, God\\'in
Road, for their occupation. Ivla Khin Aye, a
daughter-in-law of Daw Thin, also stated as follows:
_ II Daw Thin bought the house No. 135, Godwin Road,
about ten years ago. She bough~ it for her residence. Daw Thin
ahrays live,s with us. After the purchase we lived in it for
about 6 months. At that time my husband was on leave.
On the expiry of the leave my husband was posted to Pyapon.
So, we \vent to Pyapon. ';Vhen we went to Pyapon , Daw Thin
lived :0 the house in qup.stion. She mostly spent her time
in Rangoon. She visited us occasionally at Pyaron. After
Rangoon had been occupied by the japanese Forces \ve
came to live in R.1ngoon. \Ve C3me from Pyapon. 'Ve
stayed in that house throughout the Japanese occupation
period. But, we used to stay at Kamayut and Thamaing
when the air raids became intensive. We occupied both
the ground Aoor and the npper flat of the house in questicn.
IIIIIl11l1r:/

396 BURMA LAW REPORTS. [1950
H.C. After re-occupation, we lived in that house for about
1950
h,'o years. Da\\' Thin lived with us. Gur two or three
SIN YON
HTAUNG servants also lived with us. Then, we shifted to the house
on tile Prome road."
.
V
U BA NYUN
AND ONE.
.
Ma Saw Khin, a witness for the plaintiff-respondents
U TUN ByU,
C.).
also stated' as follows:
"I know the 3uit premises. I had been to that bui1ding~
Befo1"~ the out-bi'cak of the last war, the 2nd plaintiff Daw Thin
liveJ in that house while her son, the first plaintiff used to
come and live with her and left it. Tile 2nd plaintiff 5>;1W
c'hin occupied both the flnts (floors). Bolb the plaintiffs
"occupied the two floors of the house during the J1,panese
occupation period. As far as I know about 15 persons lived
together in that hOllse.
About One year after re-occupation, they shifted to the
house on the Prome Hoad. 1f

The evidence of the witnesses referred to above

shows clearly that Daw Thin and her son U Ba Nyun
had previously occupied the entire house at No. j 35,
Godwin Road,. for their residence, both "efore the
last Great War as well as after the British reoccupation
of Burma. It cannot in the circumstances be said
that Daw Thi~ did not require the entire house
bOllafide for her occupation. Daw Thin is a widow
and her son U Ba Nyun has been suffering from
paralysis for the last 4 or 5 years, and it is only natural
in the circumstances, particularly after her son had
retired from Government service, that she should
desire to live together with her son U Ba Nyu~
and his family ,
The next point which requires consideration is
whether the desire of Daw Thin to occupy the entire
house can be said to be reasonable. It has been urged
on behalf of the appellant that. Daw Thin could
conveniently have gone and lived with U Ba Nyun and
his family on the ground floor of the building at 1~0. 135,

lIB

1950) BURMA LA\1 REPORTS. 307

Godwin Road. The ground floor, it is said, measures H.C.

1950
25 feet by 50 feet, which is smaller than th~ house in -
SIN YON
Prome Road, which is said to measure 35 feet by 50 HTAUNG
feet. It is said that there are also servants' quarters {; BA\/YGN
in the house at Prome Road. We cannot accordingly ""D ONE.
accept the sugge~tioll that because Daw Thin was u TUN B YO,
c.)
able to live with her son U Ba Nyun in Prome Road
she could also conveni enlly live with him on' the
ground floor of the house at No. 135, Godwin Road,
as it is clearly a smaller place than the house at
Prome Road. According to Ko San Maung, a witness
for the plaintiff-respondents, about 10 or 11 persons
are living on the ground floor of the house at
No. 135, Godwin Road, and his evidence agref>s with
the statement of Mal1ng Hla lvlaung, a witness for
the defendant-appellant, who saw abou t 10 gersons
P living on the ground floor of the howe in Godwin Road.
It is also clear from the evidence of Ma Saw Khin
that Daw Tbin is now living with her grandson
;:) somewhere in Kokkine Road and that her two nieces
who are the children of U Ba Nyull also live with
Daw Thill when tbeir school is closed. The' eldest
daughter of U Ba Nyun is said to be about 15
years of age. We do not think it can in this case
be said that the premises in question were not
required reasonably for occupation by Daw Thin
and her son U Ba Nyun and his family in view of
the fact that there would be about J 3 persons living
there, includins of COClrse Daw Thin and her two
nieces, and especiallj' when her son U Ba Nyun
is a sick man suffering from paralysis. It is obviolls
tllat we cannot expect Daw Thin and U Ba Nyun
to live in the way that the poorer people live, and
particularly when her son U Ba Nyun is practically
a sick man. The evidence sbows that Dr. U Tin
had been attending on U Ba Nyun occasionally.

3~8 BURMA LA\Jv' REPORTS. [1950
H.C. It seems to us to be only natural. that Daw Thin,
1950
SIN YON
a widow, she-uid like to live together with \ler son
HTAU~G after his retirement from Government s~rvice,
V.
U B..." NYUN particularly when' he suffers from paralysis, and in'
AND ONE.
her case her desire in this respect cannot be said
U TUN BYU, to be unreasonable in view of the fact that she had
c.).
also previously lived with her son and his family
. at the house in Godwin Road before it was rented out
to the appellant. vVe might add that the leanJ,ed
l'hird Judge of the Rangoon City Civil Court is
also correct in striking off the name of U Ba Nyun
from the proceeding as he was obviously an unneces-
sary party to the present litigation, and .that was made
quite clear at the time the Exhibit A, lawyer's notice,
dated 1(jth September 1948, was sent to the
defeno2nts. vVe do not see how any of the defend-
ants can be said to have been prejudiced by the
addition of U Ba Nyun's name as a plaintiff in
Civil Regular Suit Nc. 46 of 194'1.
For the reasons stated above the appeal IS
dismis~ed with costs.

,
 1950} BURMA LAW REPORTS. 39\)

APPELLATE CRIMINA~.

Be!?rc U Tlt1l Byu, Chief Justice aml U On Pe, J.

MOGYO (al BA THAW (a) MAUNG THAW H.l:.

1950.
(ApPLIQANT)
A Fig. 12~

THE UNION OF BURMA (RESPONDENT).*

U'liO/l Judiciar}' Act, s. S-Grimmal Casc-Sp.:cialleClt'e.
Held; 'Where no question of the validity of <lny Jaw havin~ regard tu the
provisions of the Constitution as set out in the Union JUdiciary Act, 1948,
s .5 (a}, is im'olved. no leave for appeal to lh~ Supreme Court can be granted.

Th'e judgment of the Court was delivered by

U TUN Byu, C.J.-This is an application presented
by the applicant Mogyo (a) Ba Thaw (a) Maung Thaw
praying for the grant of a certificate to appeal to the
Supreme Court against tbe judgment, dated the 6th July,
1950, passed in Criminal Appeal No. 243 of 1950 of this
COllrt confirming the sentence of c'eath passed upon
him. by the First Special Judge, Sag8-ing in his Criminal
Regular Trial No.3 of \950. .
The application is apparently made under seelior., 5
of the Union JudiciaryAel, 1\148, the relevant portion
of IVhi ch reads:
II Save wnere (In appeal lies to the High Court itself t1nder
the provisions of seclion 20, an appeal shall lie to the Supreme
Court from the judgment, decree, or tinal order of the High
CtJurt (whether passed before or after the commencement of the
Constitution) in an:, civiL crimin21, or other case, if'the High
Court certifies-
(ap that the case involves a qu,;stion as to the1validity of
any law having regard to the provisions of the
Constitution."

It is clear to us that the applicant's case is one in

which no question as to the validity of any law having
,;
It Criminal Mise. Application No. 1] of .1950.
400 BURMA LAN REPORTS. [1950

H.C. regard to the provisions of the Constitution within the

1950 meaning of c1a:lse (a) of section 5 of the Act is inv.olved.
MOGYO (a) On this ground alone the application must fa'!. We
BA THAW (al
MAUNGTHAW however, Snd it necessary to make our observation as
v.
THE UNION
regardc the contention urged in this application that
of BURMA. this Court has failed to consider the evidence adduced
U TUN Byu, by the defence ;n support of the alibi set up. It is true
C.).
thabwe did not specifically mention in our judgment
that the defence evidence did not establish the case
sought to be proved, but the evidence for the defgnce
was however discussed at the hearing of the appeal
before us. It appeared to LIS then that the lower Court
was correct in its finding that the defence failed to
rebut the prosecution case. 'vVe were also unable to
accept the evidence adduced by the defence as helping
to prove his innocence.
In the circumstances of the case, we must refuse to
grant the certificate applied for. The application is
accordingly dismissed.
\,

\
1950] BURMA LAW REPORTS. 4()1

APPELLATE CIVIL
Before U all p~, atld U San Mating, JJ.

ABDUL BARI (ApPELLA-NT) H.C.

1950;
v.
Jilly 28.
S. M. ABOWATH (RESPONDENT).*
Notice under s. 106, Trallsfer of ProprrlY Act aud s.lI (1) (nJ, UrbaJl
Rent Control Act, 1948-Se1l1 by registered post-Wi'ou{/. adcress-No
presunzPt ion of service.

fIeld: The despatch of a notice under s. 106, Tran~fer of Property Act

and s. 11 (1) raj, Urban Rent Control Act, 1948 by registered post to a
person at a wrong address \\ iII nol raise any presumption of service. The
burden of p'oof is on the party asserting to show that inspite .... f a wrong
address being given on the notice, it was in fact delivered to the delendant.
The "ervice of notices undt::r the above sections is a condition precedent to the
filing of all ejectment suit.

H. Subramal1ialll for the appellant.

A. 1. Modan ior the respondent.

The judgment of the Bench was delivered by

U SA!\ MAUNG, J.-In Civil Regular Suit No. 192 of

1949 of the City Civil Court, Rangoon, the plain (iff-
respondent S. M. Abowath sued the defendant-appellant
Abdul Ban for his ejectment (rom house No. 488,
Prome Hoad, Rangoon, which was alleged to have been
rented from him at a rental of ](s. 30 per month.
The ;>laintiff alleged that rent was lawfully due from
the defendant and that due notices under section 106
of the Transfer of Property Act and under clause (a)
of subsection (1) of section 11 of the Urban Rent
Control Act, 1948, had been sent to the defendant by
* Civil 1st Appeal No. 12 of 1950 against. the decree of th~ 4th Judge,
City Civil Court of Rangoon in Civil Regula:.- No. 192 of 1949, dated Ute
30th January 1950.
~6
 -
402 BURMA LAW REPORTS [1950

H.C. registered post. The defendant-appellan-t in his written

1'.50
statement contended illfer alia that the house was
ABDUL BARI
V. built by hird upon the land hired from the plaintiff at
S. M. a ren(al of Rs. 10 per month only and that the notice
AUOWATH,
alleged (0 have been sent to him was not valid in law.
U SA~
MAUZ;W, ]. He also denied having received any such notice as
alleged by the pl?intiff. Ollly two issues were framed
by the learnec(trial judge, and these are -
.1 1. \Vhetber the defendant hired. from the plaintiff -:as
alleged in paragraph 1 of the plaint or ,18 alleged in
paragl-;tph ] of the written statement: and
2. \Vhether the llo~ice is ,~ali(l. "

And after evidence had been led by both parties issue

NC'. I was answered in the sense that the plaintiff had
let out to the defendant the house and its site but not
the hlnC: adjoining it. The second issue was also
answered in favour of the plaintiif who was accordingly
aiven a decree for. the ejectment of the defendant from
,'>
(he l:ouse in suit. Hence this appeal by the defendant
Ahdul Bari.
In this appeal one of the contentions raised by tl,e
learned Advocate for the appellant is that the learned
trialJud'ge was wrong in coming to the conclusion (hat
the notices required by section 106 of the Transfer of
t'roperty Ad and by section 11 (1) (a) of the Urban
Hent Control Act, 194'8, had been served upon the
defendant. In our opinion this contention m llst be
allowed (0 prevail. In his evidence (he defen,dant'
Abdul Bari denied ever having received (he notice which
was alleged (0 have been sent (0 him by registered post
and there is no evidence on record to show that the
signature of the addressee on the postal acknowledgment
Exhibit B is tInt of the defendant. Whereas the
defenda]",t was in occup'ltion of the. house known as
No. 48<)B, Prome Road, the notice which was ~lleged

..
 19501 BURMA LAW REPORTS 403

to have been sent to him was addressed to him at ~9~O

No. .488, Prome
'
Road. The despatch of a notice by A -B
'SOUL ARI
registet~d post to a person at a wrong "address will not .
) raise any presumption of its service eitller under AB~\~TH.
section 106 of the Transfer of Property Act or under U SAN
section 11(1) (a) of the Urban Rent Control Act, 1948. MAU'G,).
If the plaintiff wishes to contend that III spite of the
hct that a wrong address had been given on the notice
which was sent by registered post it was in fact
delivered to the defendant, the burden of proof is upon"
him to establish this fact. This the plaintiff has
entirely failed to do in'the case now under apFeal. As
the termination of the lease by due notice under section
106 of the Tran;fer of Property Act and the denland for
aJrears of rent by notice under section 11 ,I) (a) of the
Urban l~ent Control Act, 1948, ani conditions precdent
, to the filing of a suit for the ejectment of a tenant, the
pllintifi's suit must fail.
In the result the appeal succeeds, the judgment and
decree in the suit under appeal are set aside and the
plaintiff's suit is dismissed with CUStS, Advucate's fees
three gold mohurs.
 III

404 BURMA LAW REPORTS. [19S()i

APPELLATE CIVIL.
Before U Ou. Pe Qud U San Matl11-g, JJ.

H.C. S. TA BARUA (ApPELLANT)

1950
lilly. as. v.
S. ivI. ABOWATH \RESPONDJ<:N1V'
Urba1l Reltt COl/trol Ac.t, 1948, s. 11 (I) m:d Tt"QlIsfer of Property Act, ~.106~
C<tll$olidafc 110ftce tltJder_Not,ce not strictly acctuote_Effecl_" Rmt
lawfully tille "-Meaul1g o!-Te1wIll building-Title to btlildt"ug after
tenancy termiuated.
'fhe App.ellant was the tenant of tile house No. 489C, prome Road".
belonging to the Respondent. In the notice served on the tenant to determine
~he tenan..;y, the n"umber of the hOllse was given as 489 and not 489C and the
receipt of the notice was admitted. It was contended th:lt notice was invalid
owing to mention of the wrong numbt:r.

Held: The notice was goud and effective in law. The test of sufficiency
of notice, is what it would mean to the ten:mt conversant with all the facts and'
("ircumstances and not what they \Youlu mean to a stranger. <7.
Hartltar BawI-j, v. Ramsllaslti Roy, (1919) J.L.R. 46 Cal. 458 P.C ....
folbwed.
There is no definition of I rent lawfully due' mentioned in s. 11 (l) In).
Urban I{ent Control Act, 1948. S. 2 (il of that Act defines standard rent as the
re~ fi~edbY -Reni ~Col1trol1er and in other cases, as defined in s. 2 IfJ [Ii) ;
where no st.mclard rent is fix'ed but there j.; a contr:lclual rent, such rent must
be deemed to be the nmt lawfully dl:e.
\Vherc a previous tenant erected a building awl his tenancy <.:e<i.sed, he
could not remove the bnilding and the landlord had the right to lease out
the land and the house standing thereon.
Gobilldaprnslld Sltahn. v. Chamsl/cela ~ascc, (1935). LL.R. 60 C~1. lOn,
referred to.

H. Subramaniam for the appellant.

Alme Min (2) for A. I. Modan for the respondent.

* Civil 1st Ap(lcal No. 10 uf 1950 against the decree of the Cit7 Civil
Court of Rangoon in Ch II Regular Suit No 191 of 1949. \.

 J950J BURMA LAW REPORTS. 405

The jl.lclgn:ent of the Bench was delivered by H.C.

1950

S. L. BARuA
U SAN MAUNG, J.-In Civil Regular Suit No. 191 V.
'Of 1949 of the City Ciyil Court, Rangoon, the S. M.
ABOWATH.
:plaintiffj'(}spondent S. lvI. Abowath sued th<> defendant
j
'appdlant S. L. Barua for his ejectment fmm the
nou;le and site in suit on the ground that the defendant
was his tenant who had failed to pay the rent lawfully
due alter due notices had been served as requin:d by
section j 06 of the Transfer of Property Act and
clause (a) of section 11 (1) of the Urban Rent Control
Act, 1948. The defendant, in his written statement,'
denied that the house in suit belonged to the plaintiff
and cnntended that the house known as No. 489 C,
Prome Road, which he was :Jccupying, was built by
him on the site which was hired from the plaintiff at a
rental o[ T<s. 17 per month. He also contended that the
, notice;; served upon him by the plaintiff were invalid
and Ul;lt in any event a standard rent not having been
fixed :'Y the Controller of Rents, a suit for his ejectment
under ;cetion 11 (1\ (al of the Urban Rent COfItrol
Act did not lie. On the pleadings, the learned Fourth
Judge of the City Civil Court, who tried the sl:it,
'framed two issues, namely, (1) whether the defendant
hired from the plaintiff as alleged in paragraph 1 of
the plaint or as alleged in paragraph 1 of the written
statement~ and (2) whether the notice is valid. After
. evidence had been led by both parties to the suit, the
learned Judge answered issue No.1 in the sense that
the (lefendant was the plaintiff's tenant in respect of
the how;c and the ground on which it stood but not
the coilliguous portion of land. He also answered the
second issue in favour of the plaintiff and gave a
decree for the ejectment of the defendant from the
house which he was occupying. Hence this appeal by
the defendant S. L. Barna.
j
406 BURMA LJ.W REPORTS. [1950

H.C. In this appeal much stress has l)een laid by the

1950
learned advocate for the appellant upon the language
S. L. BARUA
V.
in which. Exhibit A is couched. It is a letter written
S. M. by S. L. Barua to S. M. Abowath in these wOlds: .
ABOWATH

U SAN ~: Dem: Sirs,

MAUNG, J.
I hereby agree to occupy the premises known
as flat No. 489 in !louse No. : . Prome Road Street on the
fol1o\vin~ terms :-
I. The rent is to be Rs. 17 (Rupees 'Seventeen) per
rnensem commencing from the . ,::1.::y of
194
* * *

The learned advocate contends that No. 489 mentioned

in Exh;bit A refers to a site in Prome Road 011 which
there stand four houses and that since the house which
the defendant is now occupying is No. 489 C, this
letter must be deemed to be referring to the. site only
and not to the house. Furthermore, he contends that
since the defendant is paying the Municipal tax in
respect of the house in dispute, the defendant's
statement that he is the owner of the house must be
accepted as correct. However, it is clear from the
. M.ullicipal tax receipt ExhibiU),.Jiled in the proceed-
ings, that the house has been assessed in the name of
A.. S. Abbas, a former tenant of S. M. Abowath, and
Abbas himself has come forward to say that he was a
tenant of the plaintiff continuously for about fifteen
years prior to the war in respect of the land on whidl
the house in dispute now stands, thar the hou~e was
the one actually built by him and that when after the
war he came back to Rangoon he found the defendant
:Jccupying the very S:lme house which he had built.
Abbas'f statement, therefore, is strong corroboration of
the plaintiff's story that he had let out to the defendant
at a rental of Rs. 17 per month not only the land but

 .,

1950J BURMA LAW REPORTS. 407

also the hou;e which was built thereon. Notwith- H.C.

1950
standing the fact that the defendant had tried to
S. L. B,uWA
adduce. some evidence to the contrary, the learned v.
S. M.
Judge's finding on the first issue must be confirmed. ABOWATH.
As regards' the second issue, it must be noted here . . U SAN
. that notices required under section 106 ot the Transfer !'IJAU},"G. }.
of Property Act and unde~ clause (a' of sub-section (l)
. of section 11 of the Urban Rent Control Acto 1948,
have been consolida'ted into a single notice dated th'e
23rd August 1948, which is in the follow;ng teems :-.
II'Te,
Mr. S. L. B:l1"na,
Tenant.
No. 48\), Prome Koad, l{angocn.

Dear Sir,
\Ve hereby call upon 1'011 :

1. To quit, vacate :wd give up peaceful possession of

the ahove house on tbe expiry of the tenancy month of September
19';8 and
2. To pay all arrears of rent lawfully due by you for
the period 1st July 1947 up-ta-dale in respect of tile aforesaiJ
bouse lortlnvith.
If yOll fail to comply with the :1bove demands within a
fortnight froril today, leg;'ll proceedings \\'i~l be instituted against
you without. any fnrther reference and at your sole risks and
account 2S to all costs."

In regard to this, it is contended firstly that since the

defendant S. L. Barna is a tenant of house No. 489C,
Prome Road, the notice in which the address is merely
shown as No 489, Prome Road, is invalid because of
theinaccuracy. However, the receipt of this notice is
admitted, and as laid down hy their Lordships of the
Privy Council in Hari/llIrBalloji v. Rarnslzaslzi Roy (1),
the principles laid dawn by the English authorities are
(11 (19191 I.l ..R. 46 Cal. 458.
408 BURMA LAW REPORTS. [1950
H.C. eq:.lally applicable to cases arising in India. They
1950
establish that notices to quit, though not strictly
S. L. BARUA
accurate or conEistent in the statements embodied in
S. M.
ABOWATH. .them, may still be good and effective in law' ani the .
U SAN
test of their sufficieacy is not what they would mean to
MAUNG\ J. a strangcr ignorant of all tbe facts and circumstan~es
touching the holding they purport to relate, but what
they would mean to tenants presumably conversant
with 'tll those facts and circumstances. As out of the'
four houses situated on No. 489, Prome RO<J,d,
S. L. Barna is occupying only one, namely, No. 489C,
it is clear that S. L. Baru't knew fully well that the
notice was meant to be in respect of the suit house.
The next contention raised by the learned advocate
for the appellant is that although clauses (1) and (2) of
th0 notice Exhibit B may comply with the provisiocs of
law, tpe last paragraph thereof must be deemed so to
'.,
have restricted their terms as to make them no longer
conformable with the requirements of section 106 of
the Transfer of Property Act and section 11 (1) (al of
the Urban Rent Control Act, 194~. However, in our
opinion, the words "If you fail to comply with the
abuve demands within a fortnight from today, legal
proceedings will be instituted against you without any
further referel1ce anCl at your sol.e risks and account as
to all costs", occnrring in Exhibit B, are mere idle
threats which the plaintiff could not, and in fact did
not, carry out although, according to clause (1 l, the
tenancy was to be terminated at the end of the month,
of September 1948, the suit' lor. ejecCment wa not
filed till the month of March 1949. For these reasons,
we concur in the finding arrived at by the learned' trial
Judge on the validity of the notice Exhibit B.
A much more difficult point which the learned trial
Judge does not seem to have taken into consideration
now arises for our determination, and that IS, wh"ther

 1950) BURMA LAW REPORTS. 409

the contractua, rent may be said to be rent lawfully Re.

1950
due from th e knant to the landlord when no standard
S. L. BAlmA
rent ,has yet been fixed by the Concroll"r of Rents. v.
S. M.
Now,+.here is no definition in the Urban Rent Control AnOWATH.
Act, 1948, of the term +C rent lawfully due" occurring USAN
in clause ta) of sub-section 11 of the Act. However, MAUNG, J.
clause \fl, section 2 of the Act defines standard rent
as follows:
H
.
Z. In this Act unless thet'e is anything repugnant in the
su'b:ect or context-
*
(f) 'standard rent' in relation to any premises means-
(1) in the c"ses specified in section 19 of the rent fixed
by the Controller. subject to any order of the Chief Judge of the
City Civil Court of Rango:m in respect of the City of Rr..ngoon or
to any order of the Judge prescribed under sedion 22, in respect
of any other urban ~lrea j
(II) jn all other cases-
(A) the rent at which the premises were let on the
first day of September 1939 ; , '
(B) where the premises wefe not let on the first clay of
September 1939, the rent at which they were let
before that date;
(C) where the premises were first let after the first d?-y
of September 1939 and hefore the first day of
January 19~1 the rent at which they were first let;
*z * * * "
From this definition, it is clear where no standard rent
has been fixed by the Controller of Rents under
sectic,n 19 of ':he Urb,.n Rent Control Act, 1948, the
standard rent in cases enumerated under clause (II) of
the definition must be the rent set out therein.
Now, section 5 (Il of the Urban Rent Control Act,
1948, provides that subject to the provisions of the Act.
where the rent of any premises has been increased
prior to the date on which the Ad came into force or
)
410 BURlVIA LAW REPORTS. [1950

H.C. is increased during the continuance ilf the Act above

1950
the standard rent, the amount by which such increased
S. L. BARUA
U. t, rent exceeds the standard rent shall, notwithsianding
S. M. any agreement to the contrary, be irrecoverable,
AUOWATH. \ ..
Therefore, where tlfe standard rent has bee'n fixed by
U SAN
MAUNG, J. the Controller of Rents under section 19 of the :Jrban
Rent Control P ct or is fixed by la\\I uncleI' clause (II)
of t,he definition of "standa,c! rent" occurring in
section 2 (f), any rent in excess of the stand'arc! renl is
a rent whic;1 is not lawfully due. In the absence of
any slandard rent having been fixed under section 19
of the Urban Rent Concrol Act or under clduse ,II) of
the definition, the contractual rent must be deemed to
be the lawful rent, as it cannot be said to exceed the
" sta.lelard rent" which iF non-existent. In this
connection we agree with the observations A a Bench
of thi, Court in S. I. Abowath and others v.
T. H. [(han (1) where the learned Judges said:
" It seems to us tint a contract of lease, which has been <
agreed llp011 between the parties, should be considered to be
binding or subsisting, until it P.<lS heen modified hy a~reement
bdween the p<lrties or by oreration of b\\'. \Ve are unable to
u,nc1erstanc1 how the original contract d lease made bet\\'eetl the
parties could be said to have been altered or modified in this case
until the Controller of Rent had issl1ecl the certificate fixing the
.the stlnclard rent. It appe1rs to us that untJI the Controller of
Rent issues a cerlil1cate fixing the standard rent nothing could be
s:1ic1 to have been done or to have occurred by which it might be
said that the r!'iginal contract of le~se which the parties ha~e
agreed upon had been altered l so faeas the rat<; at which :he rent
is to be paid is concerred." .,.

'V' e would, however, like to oDserve that the

con tractual rent may be varied not only by the fixation
of the ,tandard rent by the Rent Controller under
section 19 of the Urban Rent Control Act but also by
III Civil Mi~c. A....peal No.1 of 1950 of the High Court, Ranoon .

 1950J BURMA LAW REPORTS. 411

tbe fi!X ttion d tbe standard rent by clause (II) of the H.C.
1950
definition relating thereto.
Applying tbe above test, we find tb"t ill the present s. L. v.B.\RUA.
case tbe contractual rent of Rs. 17 per month payable ABOWATH. S. !II.

by S. L. Barua to S. M. A bowatb in respect 'of the

l." SAN
sltit"premises is a rent Eiwfu!ly dee as no standard rent MAU:\G. J.
bas been fixed by tbe Ccntroller under section 19 of
the !~ent Control Act or by clause III) of the defipition.
Before the lV"r Abbas \vas a tenant of the plaintiff only-
it, respect of the site and not of the bOlloe; therefore,
tbe rent which was payable by Abbas to S. M. Abowath
can afford no crilerion in regard to fixation of standard
renl.
It has been contended on behalf of the appellant
that S. M. Abowath could not have rented tne bO'.Ise
built by Abbas as it did 110t belong to him. However,
it is clear lhat the tenancy of Abbas had terminated
in view of the Monthly Leases. Termination Act, 1946,
and, as held by a Bench of the Calculla High Court
in Gobindaprasad Shaha v. Charusheda DaseiJ (1),
Abbas had no further right to remove tbe building
whicb be had built upon Abowath's land. Abowath
tberefore had a right to lease out to S. L. Barua not
only tbe land but also tbe house standing thereon:
In the result, the appeal fails andrl1Ust be dismissed
\\'ith costs. Advocate's fees three gold mohurs.

III (19331 r.1..R.o 60 Cal. p.l042.

412 BURMA LAW REPORTS. [1950

CIVIL REVISION.
Before U AU1/g Tha Gyaw, J.

H.C.
1950
BABU BINDRAJ (ApPLICANT)
Aug.I. v.
RA~ BAqADUR PATHAK AND ONE
(RESPONDENTS).*
S. lIS, Code of C;,',l Proccd'ire-interference 1Vlfh wler/ow/ory orden-. itJ
y(visiofJ.

Hdd: The High Court will interfere in re vision with interlocutory orders
from which nt. appeal lies if irreparable damage would be caused by refusal
to interfere.
Jupiter General IIlSlIrdllce Company, Limited v. Abdul Aziz, 1 Ran. 231,
referred to and followed.
It is a material irregularity to decide a case in the absence of a necessary
party.
Ull/ed ~al v. Cflal!d ,Mal, 53 LA. 271; Lalrl Alma Ram v. Lilla 8em
Prasad a/ld others, 621.A. 257 or 57 All. 678, referred to
If the order of the Lower Court amounts to a decision dismissing a
necessary party from the suit and driving him to a separate litigation such
Qrder I..an bi:: revised under s. 115 of the Code of Civil Procedure. It is
desirable that where there are common qllestioD!:i of law or fact to decide, the
san:~ court in order to avoid possible conflict of decisions in separate suits
-sho'lld decide those CJuestiOl:s in one suit.
C. S. Govilldaraja Mutlaliar v. Ah:gflPta l/lowbirm1t'alld others, A.J.R.
{1926) Mad-. 911, referred to and applied.

Sein TU.n for the applicant.

fja On for the respondents.

U AUNG THA GYAW, J.-This is an application in'

revision brought against the order of rhe First 'Sub-
ordinate Judge, Henzada, passed in his Civil Regular
Suit No. 44 of 1949, where, exercising his disdetion
under Order 1, Rule 10 of the Civil Procedure Code,
... Civil Revision No. 17 of 1950 aRainst the order of the 1st Subordinate
Judge of Henzada in Civil Regular No. 44 of 1949, dated the 7th February
1950.

,I
 ........

1950] BURMA LAW REPORTS.

the responderit's name was struck off as being an H.C.

19~O
unnecessary and improper party to the .cui!.
Tl-e suit brought before the Court of the Subordi- SINDR.AJ
BABU.

nate Judge was, for recovery of three_cows or Rs. 300 V.

RAJ
as their value from the two defendants Hamed Ram BAHADUR'
PATHAJC
Samujh Sukul and Raj Bahadur Pathak. As against AND oNE.
the 1Et defendant it was alleged that he had in his U AUNGTH&
possession two of the three cows belonging to the' GY~\V. J.
plaintiff-applicant :which this defendant h?d sold to the
applicant under a sale deed containing a condition that
the cows were to be retained in the defendant's
possession on behalf of the plaintiff-applicant until
such time as the original price paid by the plaintiff-
applicant had been fully repaid.
As against the 2nd defendant, it is alleged that of
the three cows which the 1st defendant originaily
d
retained in his possession one had been bought by this
defendant with full notice and knowledge of the
condition under which the cows in question were held
by the 1st defend aut.
To these claims the 1st defendant in the suit
admitted all the averments made by the plaintiff- "
. applicant in his plaint and confessed judgment. The
2nd defendant on the other band, while admitting the,
taking of one cow from the possession of the
1st defendant in satisfaction of a decree obtained .-
against the latter, pleaded that he had no knowledge
0f the condition under which the cow in question was
held uy the 1st ::Iefendaut. The 2nd defendant further
pleaded that the suit was bad for miSjoinder of parties.
and c~uses of action.
The rreliminary issue arising out of this latter plea
urged by the Znd defendant was heard by the learned
Subordinate Judge and the order now sought to be
revised was passed striking out. the 2nd defendant as
an unnecessary and improper party to the suit.

 -
414 BURMA LAW REPORTS. r1950
H.C. It is now urged on the applicant's behalf that the
1950
order of the lean'ed Subordinate Judge was wrong and
BABU
BlNDRAJ :hat it amountecl to an exercise of jurisdiction witb
v.
RAJ material irregularity, an allegation on which tbe
BAHADUR
PATHAK
responde.:1t has Joined issue.
AND O~E. There is no doubt "-r:bat the High Court will
l1J AUKG THA interfere in revision with' interlocutory orders from
GYA,W, J.
which no appeal lies if irreparable damage would be
caused by r~fusal of the High Court to interfere i,lt
tbat stage." [See ]upiteJ General Insurance Company,
Limited v. Abdul Aziz (1).]. One consequence of the
order striking off the respondent from the suit would
be to drive the plaintiff-applicant to a separate suit
whicb would in effect mean additional expensc to him
and oubstantial delay in the realization of tbe relief to
which ht. w'ollld be entitled should he succeed in
proving his claim.
" It is a material irregularity to decide a case in the
absence of a necessary party or to summarily dismiss
\
an application of a person to be brought on the record
as a party." [Se"l Umed Mal v. Chand Mal \2) cgzd
Laid Afma Ram ,'. Lala Bent Prasad alld offICI'S (3).J
The order of the learned Subordinate Judge in this
,case in effect' amoLmts' to a .decision dismissing an
alleged necessary party from the suit. Consequently
such an order will appear to be subject to revision
under section 115 of the Code.
Coming to the question as to whether the respondent,
1S in fact a necessary party to the suit el' whether his
being impleaded as a party defendant in the suit would
infringe the provisions of Order 1, Rule :, it is
necessary to consider the basis of the plaintiff-
applicant's claim made in the suit. The pleadings
dearly set out that such a basis lies in the title te the
OJ 1 l~an. 231. (2) 53 1,A. p. 271.
P} 62 LA. p. 257 or ~7 All. p. 678. \

I
 1950J BURMA LAv\' REPORTS. 415

cows derived under the sale deed executed in his H.C.

1950
favour by the 1st defendant. Of the four cows thus
BAHU
bought by the plaintiff-applicant from the 1st defendant ElNDRA)
~lI1d Jelt in the' latter's care, one according to the ".
HAJ
\
.~
plaintiff-applic;mt, was sold by the 1st defendant tOlhe !3AHAUUH
PATH lK
2nd defendallt who bought the same with alleged ANb ON'It,

notice of the piainti ';'-applicant's litle thereto, If the U AUN<Y THA

1st defendant, as aileged by the plaintiff, did, not GYAW,].

possess any title to the cows left in his keepi:lg, he

c'::lU:d not p<lSS a better title to the 2nd defendant in,
the cow sold to him and if lhe plaintiff-applicant can
prove his title to the property, he would be entitled to
call upon the 2nd defendant to account for the property
passed on to him:
Thus, in the unity of tille to the property allegeu
in the plaint to be in the possession of the two
ddendants lies the justification of the claim made
against them in the same suit. If a separate suit ;I'ere
to be brought against the 2nd defendant, the p\aintiff-
applicant would similarly have to prove his title to 'the
property to which he was makiug a claim. "It is
desirable where there are common questions of law CT
fact to decide, that they should be decided in ol;e suit
rather than in many to avoid possible 'conflict of
decisions." [See C. S. Govinduraja l11udaliar v.
Alagappa 'Thambirnll nud others (1 }.J The facts in
that case are not dissimilar, being alienations made by
a party with a defective title. The principle there
explained would appear to apply to the facts of this
case. 'Where claims against different parties may
involve common questions of fact bearing sufficient
im,'ortance in proportion to the rest of the action, it is
desirable that the whole of the matter should be
disposed of at the same time. This being the case,

(11 A.LR. (1926) Mad. p. 91l.

 .>i

416 BURMA LAW REPORTS. [1950

H.C. this application must be sustained and fhe ord,yr of the

1950
Lower Court ,et aside with a direction that the
BADU
BINDRAJ . bearing of the suit be proceeded with against bo~h the
v. defendants in the ouit ; costs three gold mohurs.
RM
B"HADUR
PATH.\K
AND ONE.

U AUNGTHA
GYAW, J.
1950] BURMA LAW REPORTS. 417

ORIGINAL CIVIL.
Before U Bo Gyi, 'J.

MESSRS. SENG HWAT & CO. (PLAIN~'IFF) H.C.

1950
v.
THE UNITED CHEMICAL WOImS
(DEFENDANTS)."

Sale of goods-Coll/Tael for II May" sltipme-1i/ of 400 dr!l1us-60 o[Jercd-,

Divisibility of COlltract-Wltiteoil-Colltract 'f-'oid because of likelihood
of being mcd jor adJlltem./ion-Appropriatioll out of larger tjualltil'Y-:"
. Refund Of advallce.
Held: "\Vllere goods are sold by description, the description amounted to
a warranty or a condition that th~ good:; are of the kind described. Before a
bl1ye~ can be compelled to take any thing in fulfilment, H must be 5110\\'0 th3t
the goods arc those bar(!ained for; oUlerwise the buyer is not bound to talce
it. The condition:Is to the time of shipment of goods;is vital and i.e: of the
esscpcc of the Contract.
Edmund Bowes v. Charlc:s Shand, 0876.77) 2 A.C. 455 ; J. Aro1t & Co. ,v
ComjJtoir Wegimonl, (19211 3 K.B. 435; James Finlay Ii: Co., Lid. v:
,V. V. K,oik Hoo Toug Ha1Jdel Maaf::,chappij, (1929\ 1 K.B. 40, referred to and
followed. "
, Where' a contract provirled for supply for 400 drums of white oil, by May
si1~plp-ent.;;the buyer i~not bound to accc}1t any lesser quantity, unless th~e
contract provide:;; for t;le.samc.
In Rettltr v. Sala, L.R. (l878-79}.!V C.P.D. 239, followed.
. I!1 the absence of material from \~hicl; it could be inferred that the oil was
wanted for adnlteration purposes the' contract is' not void on this ground
A .c;pntract for s~ale of unascertained goods is not complete. sale until the
goods are appropriat!=d with the assent express or, implied. of the purchaver.
'.. . ,!Jadis~/u; Ani/ill U1}dSoda Fabrik v.HickSC)fl': 11906J A.C. 4i9, referreq to.'
SubjeCt to special provi~ions of the contract, payments on account of
purchase price are rec:overable- if the con-sideratiori Cor which thdt price is
b~i.ng: pilip wholly faUs. .
:fibro::a Stolka_tl-k.c)'jnQ v..:F.lzirp{~irn Lilwson CQmbQ'8argqttr, Ltd., (l~~.3)
A.C.32 ; .,?itlri !-al and others v. Min,a Mal r:alkisht111 Das, (1lJ26) LL.R. 50
AIt' 52, referred to. .,

;O",.B.'1 Han for the plaintiff.

...'R.l(~
,~ .. ' '
Roy f9~ the .delendants
'.. . " .,. " .
* ~ivi1 Regular Snit No. 84 of 1949.
27
418 BURMA -LA IV .REPORTS. [1950
H.C. U Bo GVI, J.-This suit and Civil Regular No. 98
11)50
of 1949 of this Court were, by'consent, heard together.
ME~SRS.
SENG HWA.... During the j.Jendency of the proceedings, the latter
& CO.
V. suit was dismissed as being instituted without a proper.
THE UNITED
CHElIIGAL
authority.
WORKS. It is common ground that the plainliffs
Messrs. Seng H'vat & Corr'pany of the one part and the
Uni~ed Chemical .Works by their Proprietor
Mr. Noor Mohamed of the other part entered into"
an. agl'eemellt as per .Exhibit A, .dated the 30th April,
1949,' whereby the plaintiffs agreed to' buy; and' the
defendants agreec!-to' sell 400 drums of technical white
oil.to be shipped from London during May, 1949. The
terms of the contract areas hereunder-

" Received Rs. 20,000 for the. advance 400 drums white oil
from Lo"dol1 lbs. 373. Nett shipment dU1'i~g .May at Rs. 220 per
drum e.tgoc1owl\ the balance of the'amount will be p<-'lid on arrival
of the steamer. Delivery charges free. "

The plaintiffs' case is that the time and place of \.

shipment .wereof the esser.ce oHhe contract and that
the defendants failed to. ship the goods at the
stipulated time and that when the goods arrived the
defendants failed to deliver them. The reason why
the defendants have failed to deliver' the goods was
that on the 1st July, 1949, before the arrival of Jhegoods
in Rangoon, Government imposed a ban on technical
white oil on the ground that the oil had beel\
used by some unscrupulous fraders ftr adulteration
purposes. The defendants contend that no time was
fixed 'for delivery of the goods and that it w<fs the
plaintiffs who commit~ed a breach of the contract in
failing to procure the necessary permit from the
Government to remove the goods from the possession
of the Customs :\uthvrj[ies, They have also. pl(ladec!

 ,
. -~ ....
BURMA tA\V REPORTS.
H.C.
"that the consIderation or the object' of- the contract 1950
became unlawful and void." They therefore claim MESSRS.
that'the ph'lintiffs hav0 forfeited the ad\%lCe paid under SE~G
, &
HWAT
CO.
the contract; V.
THE UNITED
Cl-n:uICAT.
The following, issues have been fixed : - VV(lRKS.

H 1. Was there a breach of U;e contract vi sale? If SO, who U ~o GVl, J.

were responsible for the breach' ?
Z. Did lhe plainliffs want lhe oil for the purposes of adul-
teralion ~s alleged in"paragraph 4 of thb writte!! stale
,~. ment '? If so, what 'would be the legal effect? C

3. Did th" consideration at the object of the contract

become'unlawful and void as'slated in paragraph 6 of
the written statement ?
(NOTE .-:\tr. Roy st<ttes that,he meant to ilS"C
I was' when te used the
the word "became' in paragraph 6 of the written stakment.)

4. Have the plaintiffs forfeited thetlclvancc ? ,

5. To what l-eIief, if any, are the plaintiffs entil1ed ? J1
\.

j '-
The parties are agreed that all the terms of, the
contract have been embodied' in the agreement
Exhibit A: AGcordin'g to this docL'ment, the400 drUMS
of' white oil must be shipped from London during
May, 1949. It appears from the evidence of
Mr. Noor Mohamed that at or about the time of the
contract in question, he placed orders for 5,000 drums
of technical white oiL, Against these orders, 60
drums of white oil were shipped by the S.S.
" Ptcme, "'I!id,~ Exhibit 17 and 750 drums of white oil
consisting of two consignments were shipped by the
M.V. ," Herefordshire," vide Exhibits 5:3 and' 54.
Mr. Noor Mohamed states that tbe dates mentioned' in
the bills.of-ladingExhibits 47, SJ and 54 are' correct.
The Exhibit 47 is dated the 21st May 1949, and the
ExhIbits 53 and 54 are dated the 20th June, 1149. It is
." . 'clear"therefore.
. that the two consignm-ents of 250 drums
 "

420 BURMA LAW REPORTS. [1950

H.t;:. and 500 drums of white oil by the M.V. "Herefprdshire"

1950
were shIpped in June, 1949, whereas according to the
MEssRs:
SENG H"WAT
terms .
of the c0ntract as per Exhibit A, the 400 drums of
& Co. white oil must be shi pped in May of the year. 1,1 thes.e
THE tNITED circumstances, the law seems to be well settled. In
c~~~~~~~ Edtnund Bowes v. Charles Shand (1) two contracts
-0 B'cdiYJ, J.
were made in London .Jor the sale of 300 tons
of rice, each contract being for 300 tons of
rice,' to be shipped at_ Madras, or
coast, during
the months of March' and/or April, 1874, per
Rajah of Cochin. All the rice except some 'I- tons.
was put on board in February: and the remaining 4 tons
were loaded in March. The buyers refused to accept
the rice when tendered on the ground that it had not
been sl:ipped during the months stipulated. It was
held by the House of Lords that the defendants were
justific(\ in refusing to accept the ,rice. Lord Black-
burn observed that if an article sold was described, the
description amounted to a warranty or a condition
preceden t that it should be an article of the kind
described and on page 480 of the report his Lordship,
apparently, in answer to the contention that equally
good rice might have been shipped from a place in the
neighbourhood of Madras,' in the month of Xebruary,
and by another boat, said :
". . But the parties have chosen, for reasons best .,kno\\'n
to themselves, to say: We bargain to take rice, shipped in this
particular region, at that particular time, 011 boarel that particular)
ship, and before the Defendants can ue cqmpelled te take
anything in fuliilment of that contract') it must b~'"'"shewn not merely
that it is equally good. but that it is the same article as they' have
bargained for, otherwise they are not bound to take it.
That being so, the question which arises in this case is,
whether the rice here tendered was shipped within the period
stipulated for or not. . . . . JI

(I) (1'76-771 2 A.C. 455.

 "

HlSO] BURMA LAW REPORTS. 421

This decision has been followed in J. Aron H.C.
1950
& Company v. Camp/oil' We{;illJont (1) and in
James Finlayand Company Ltd. v. N; V. Kwik Hoo, SE~~SS~~~AT
Tong Handel Maatschappij (2) in the lett",r of. which & co.
case Scruttop, L.J., said.. :

THE UNITED
CHEMICAL
. .' \VORKS.
It .".. Since the decision -in Bowes Y. Shand (3) it has been
U Bo GYI, J.
well settled that on a sale of goods a condition as to the tim,e
of shipment is vital and is of the essence of the contract.-.
Accordingly, if' a person has contracted. to sell a September
'shipment, it ~s ll.seless for him to tender an October shipment an"d
say that the difference is very little. . -,,

With regard to the 60 drums shipped by the S.S.

" Prome" in May, 1949, the, plainitffs are not bound
to accept them even if they can be delivered; for the
contract between the parties was for sale of 400 drums
of white oil and there is nothing in the term5c of the
. contract to show that it is divisible. In Reulei' v. Sala
l' (4) where the contract was for sale of 25' tons, more or
less, Penang pepper and the sellers could deliver cOnly
20, tons, it was held that the contract was entire, and
that therefore the buyers were not bound to accept the
20 tons, but were entitled 10 insist upon the delivery
of 25 lon's according to the contract. For allthe above
reasons, I hold that'the defendants in failing to have
the en tin; 400 tons of white oil shipped in May, 1949,
committed a breach of tIle contract, and I answer the
first issue accordingly.
. ,The second and third issues may be disposed of short-
ly. Mr. Noor Mohamed admits that technical white oil
can be used for industrial purposes and that he did not
know' for what puqJose the plaintiffs wanted the oil
and had no reason ta think that the oil was wanted for
improper use. Lim "Lai Hwat, Manager of the plaintiffs,
(1) (Ino 3 K.B.435, (3) (1876) 11 A,C. 455.
l (2)' UY29) 1 K.B.400. (4) ,t187879) 4 ComlllO Pleas Division, 239,
---r,
, , r "
\11II
.,I

BURMA LA\\. REPORTS. [1950

i~~ states tbat tbe order was placed for tecbiHcal while oil
M"SSRS. for purpose of resale to tbe -plaintiffs' customers.
SElia HWATThere is no material on the record from which a ltgiti"
& 0': mate inference may be drawn that the plaintiffs \~anted'
(
T~;;y:';;~~~D the oil for adulteration purposes. I acccrdingly hc;>Id >.~

WoRKS. that the contract was not void on tbe ground alleged by I
U Bo GYI.]. tbe defendants 'and ans\ver these issues against
them., J

Ai; regards the fourth issue, Mr. Noor Mohamd
3
states that the 60 drums as per bill-of-lading, Exhibit 47
arrived in Rangoon -five or six days after' the ban
had been imposed on tecbnical white oil by Government
I
on the 1st July, 1949, and that the remaining 750 drums
of oil as per bills-of-lading; Exbibits 53 and 54 arrived
t
in Railgooll on the 7th July, 1949. He admits that on
,the lstJl1ly, 1949, tbe Commissioner of Civil Supplies /
notified tbat under the Civil Supplies- Management ,and
Control Order, technical white oil was an essential for
tbe purpose of taking' suitable action in the public
interest in regard to its procurement, distribution, or \
i
. -)..'

price. He also admits that on the same day, the

Se~retary to the Ministry of Commerce and Supply
issued Press Communique No. 20 of 1949 notifying
Ulat technical wbite oil was not covered by Open
General Licence and that importers of tht: oil were
required to apply for Import Licence and further that
cOr:'signments already shipped on or before the
1st July, 1949, need not be covered by an Import Licence"
but would be cleared only under writler:; permits to be
issued by tbeDepnty Director of Industries for industrial
purposes. This evidence is in accordance ~ith _
the Exhibits 0 and P. ~,
It is clear from the above that the 810 drums of
technical white oil ,arrived in Rangoon alter the
,Government's order relative thereto had been
promulgated.. It ',vas urged on behalf of the defend~ants
,

,
 19-50] BURMA LA'N REPORTS. 423

that it was the. Plaintiffs' duty to procure the necessary H.C.

1950
permit froniGovernment for removal of the white
i\lESSRS.
oil.which,is now stored in the ware-house of the Port SENG HWAT
I. Comnlissioners,Rangoon. Sixty drums of the oil had & v~o,

I, been consigned to the, United Chemical "Vorks and the THE

remaining 750 drums tcr A. Habeeb & Co. belonging WORKS.
UNITW
CHEMICAL

to Mr. Noor 1v10hamed'sfather. When I observed U :S~l, J.

during t(le arguments that the question whq was
'responsible for the procurement' of the Government",
pe;mit would seem to depend upon1he q\lestiop
whether the property in the goods had passed or
not, the learned Advocate for the defendants contended
that the property in the goods had passed to the
plaintiffs. This plea has not been taken in the written
statement, and it is plain on' the materials at present
available that the question cannot be decided unless
evidenc/l has, been adduced. Moreover, there i" nothing
to show that on the date of the coritract as per Exhibit A
the drums of white oil contracted for were in
existence at all. On Mr. Noor Mohamed's own admis-
sion, he placed orders for some 5,000 drums of white
oil at or abouUhe material time; and there is nothi:Jg
to show that at any material time any drums of oil
have been appropriated to the ,contract .in suit. In
Badische Anilin Und Soda Fabrik y. Hickson (1) Lord
Lorebl1T!1 observed:
" A contract to sell unascertained goods is not a
complete sale, but a promise to sell. There -must he added to it
some let which somplete~ the sale, such as delivery or the
appropriation of specific goods to the contract by the assent.
express or implied, of both buyer and seller. Such appropriation
will CDTlVert the executory 'l1:~reement into a complete sale. "

This principle is embodied in section 23 of th" sale of

Goods, Act.

, H) (1906) A.C.419.
 II1II
IIIII.~,>
;~.~-;., -~
. fl..&>_---

~
l
424 BURMA LAW REPORTS. [1950
i~
~5'ii
MESSRS. .
In the course of the trial, the defend'lPts attempted
to show, though they have not pleaded it, that the'
SENG HWAT Plaintiffs undel took to procure the necessary permit

& .co. from Government. Lim Lai Hwat for the Plai:ntiffs
\
,
~
~

,
I
T~~E~~~:~D denies having given any such undertaking: On "ihe
WORKS. other hand, there is nothing to show besid~s
.,
u Eo GVJ, J. Mr. Noor Mohame:l's evidence that any such undertaking
was eyer given. Further more, Mr. Noor Mohamed
admits having received from the Deputy Director
of Indl]stri~s a letter similar to Exhibit T, and this lett'h
on the face of it shows that it was. sent by the Deputy
Director of Industries in reply to the letter which had
been sent to him by the addressee. The letter
asked for information r~gardini (he present stock
of tec~1nical white oil in hand and the purpose for
which the oil would be used and other matters to
enable ti.e Director. to. t'ike necessary action. It seems'
therefore that Mr. Noor Mohamed knew that it was his
duty to take action to clear the goods.
On the strength,of a sentence in the notice Exhibit D
sent by the Plaintiffs to the defendants, which sentence
n1P.S, " My clients are however ready and willing to
perform their part of the contract, " it is contended'
that the plaintiffs have entered into a new contract Ivitl{
the defendants. But novation of the contract has not
been pleaded in the written statement and the sentence
:n question must be read with and subject to the
last paragraph of the .notice in which the plaintiffs.
called upon the defendants (0 refundc;the adv::nce'
Rs.20,000. .
Even apart from the doctrine of frustration wbic.h .
may not be applicable in this suit, inasmuch as the
contract has been. held to have been broken by thi:':'
defendants before the ban was imposed by Governme'nt;
it seems that the Plaintiffs are entitled to the refund
of the advance. In ,1"ibrosa Spolka ARcyjna v.


1950J BURMA LAW REPORTS. 425

H.C.'
Fairbairn Lmf'son Combo Bargour Ltd. (1) Lord Roshe 1950
said at page 7!i- MESSRS.
SENG HWAT
., It is. I think a well settled rule of Eng1is:~ la\\' that, subject & CO.
V.
alway. to special provisions in a contract, payments on account of THE UNITED
a purchase price are recoverable if the consideration for which CHRMICAL
''{ORKS.
th<Jt price is being paid wholly fails: . . 'J

U BoGYI, ].
This rule of law was followed i~l Piari Lal and
';:". others v. Mina Mal Balldslzan Das (2): Here ilJ this"
1.\' case, no mention is made in the terms of the agreement
Exhibit A that the advance ,hall be forieited,., nor js
any mention made therein that the plaintiffs would be
responsible for the production of the necessary permit
from Government to have the gOOc.s cleared. In point
of fact, such a contingency was never contemplated by
tbe parties at the date of the contract. I hold, the:'e-
fore, that the plaintiffs have not forfeited the advance
but on the contrary that they are entitled to the refund
of the advance Hs. 20,000.
There will, therefore, be a decree for Hs, 20,000 in
favour of the plaintiffs as against the defendants 'with
! cosh;.

,
.'

HI (1943) A.C. 32. (Z) (1926) I.L.r:., 50 AlI.SZ.

'I G.U.B.C.P.O._No. 16, H.C.R., 10.7-53-1,740-11.