BURMA LAW REPORTS.
CHIEF COURT
.1963
Containing <:ases determined by th:e Chief
Court of the Union of Burma.
t~d~x prep~red by-U MYINT S~E, M.A. {Bar.-at-Law), Editcr.r.
U AUNG THAN TUN, M.A., B.L., Reporter.
:Pubiished under the authority of the Revolutionary Government of
:e Unio~ . of ':Uurma by the Superintendent, Central Press, Burma,
Rangaon.
[All rights reservc.i.]
o c '"I c ~ or,:;Q
011 ~:~(.]):>:0 9 ~2 ~ G~I(D()')'::> e:~lc;3: 11
c ~ 9 c
. Jll g(J.)?:OG94>2~ e:~OO?CI B.Sc., r.c.s. (Retd.).
Q OC'
?II e:oo?O'):Of: t B.A., B.L.
MEMBERS OF J:HE LAW RH0RTING COUNCIL
DURING THE YEAR 1963
CHAIRMAN
Chief Justice Thado Maha Tb.ray Sithu, Maha Thirf:'
Thudhamma U Bo GYr, B.A., B.k., LL.D. (~an .).
MEMBERS
Justice Maha Thray Sithu U SAN MAUNG, B.Sc .
I.C.S. (Retired),.
Justice DR. MAUNG MAUNG, B.A., B.L., LL.D. (Utrecht),
S.J.D. (Yale), Bar.-at-Law.
c
Thiri Pyanchi, Sithu U BA SEIN, B.Sc., B.L., Attorney
General.
MR. K. R. VENKATRAM, B.A., B.L., Bar.-at-Law, Advocate.
U BA HAN, M.A., LL.D., Bar.-at-Law, Advocate.
U PAING! B.Sc., I.C.S. (Retired), Bar.-at-Law, Advocate.
U MYINT SOE, M.A., Bar.-at-Law (Editor).
(.
U AUNG THAN TUN, M.A., B.L., Advocate (Reporter).
~
U THET PE, Registrar, Chief Court (Secretary).
LAW OFFICERS OF THE UNION OF BURMA!.DURING
. .
THE YEAR' 1963
Attorney-General
u BA SEIN, B.Sc., B.L., Advocate.
Legal Remembrancer
U KYAW THAUNG, Bar.-at-Law.
Assistant Attorney-General
U CHIT, B.A., B.L., Advocate.
Government Advocates
U HLA MAUNG, Advocate.
U BA KYAW, B.A., B.~., Advocaf~.
U ToE MAUNG, B.A., B.L., Advocate.
U BA KYINE, B.Sc., B.L., Advocate.
U BA PE, B.A., B.L., Advocate.
U BA PE, B.Sc., B.L., Advocat~.
U MrN HAN, B.A., B.L., Advocate.
U HLA THIN, B.A., B.L., Advocate.
U BA THIN, Bar.-at-Law.
U TIN MAUNG, B.A., B.L., Advocate.
U TuN LwiN, B.A., B.L., Advocate.
U TuN NYO, B.A., B.l1., Advocate.
U KHIN MAUNG, Advocate.
M~.t. S. K. GHOSH, B.A., B.L., Advocate.
U MYo KHIN, M.A., Bar.-at-Law.
DAW MYA THAN Nu, B.A., B.L.! Advocate.
U HNIT, B.A., B.L., Advocate.
U KHrN SErN, B.A., B.L., Advocate.
U MYA SHEIN, B.A., B.L., Advocate.
U BA THAN, B.A., B.L., Advocate.
2
Assistant Government Advocates
u M '.<o HTUN LYNN1 M.CoM .. LL.B., Bar.-at-Law.
U Wit-' PE, B.A., ~.L., ~~voqte .
U :ziN, Advocate.
U KYAW GAUNG, B.A., B.L., Advocate.
Legal Draftsmen
T) LUN PE, B.A.:., B.L.
DAW AYE KYI, B.A., B.L.
u SEIN WIN HLING, B.A., B.L.
Assistant Legal Draftsmen
U HLA THAUNG, B.Sc., B.L.
u SAN SHIN, B.A., B.L.
Legal Research Officer
U THEIN HAN, B.A., )?,L.
'L aw Ofticer to the States
.
U TIN OHN, B.A. (Hans.), B.L., LL.B., Bar.-at-Law.
LIST OF CASES F.EPORTED
CHIEF COURT
PAGE
Abdul Gaffer and five others v. Abdul Rahim and two
others 1
Ahmed Yacoob Maipsa v. Gulam Hussain Esoof Mamsa
and one 147
Amani Ammal and one v. Chit Sein and one 6
Commissioner of Income-tax, Burma v. Messrs. E. C.
Madha Brothers 321
Daw Hfl'>On Soo v. Daw Mi Mi Gyi and one 383
- .- Khin Khin Sein v. Dr. Y. C. Gulati ...
ns
- - Kyin Pu v. U Ohn Khin and one 328'
- - Kyu Kar v. The Union of Burma ... 156
- - Mai Shin v. U Kali and one 420
- -. Mya v. Ko Ma~ng Than ... 654
- - Nyein Khin v. Messrs. Jaffer Bros. Ltd. 371}
-- Pu v. Daw Aye Tin 651
-- Shwe Mya U v. Assistant Controller of Rents,
Insein and U Kyaw Sein : .. 333
- - Than May v. Ko Kyaw Hline and three others .. . .485
- - Thein May v. Mo.hamed Esoof and one 337
- - Thein Shwe v. S. M. Chowdhury ... 151}
- - :Thein Shwe v. S. M. Chowdh~ 666
-.:....:._ Toke Toke v. U Hla Maung and Ma Than Kyi ... 660
Dora Win and three others v. Daw Saw Myint and one 491
Dr. R. S. Grewal v. Messrs. The Paul Pharmacy, Ltd. 370
1.1 LIST OF CASES REPORTED
PACE
Esoof Hashi;,n 'and three oth~rs v. Ali Hashim Mehtar 358
H. A: Samuel v. The Controller of Rents, Rangoon and
one 343
H. N. Sen (H. R. Sen Gupta) v. The Assistant Controller
. . of Rents, Myanaung and .three others 165
In the matter of Chan Tha Zay Co. 499
Jndu Bhai v, The Union of Burma 348
Ismail'Ahmed Madha Waqf v. U Khin Maung and two
others 357
Jagaru v. U Po Nain;~ 342
'Jiwanrarn Rampartap v. The Commissioner of Income-
tax, Burma 168
' K: 'M. Chidhambaram Chettyar v. S.T.P.N. ' Subbia..'ll
' Chettyar agent and attorney of S.T.P. Nachiappa
Chettyar 509
Khair Din v. Absarulla 12
Ko Hla and one v. Daw Aye Khin 669
-
.Maung Gale and one v. Ma On Nyunt and o:1e
- Kyi Shein v. Ko Soe San and Ma Yin. Yin 672
515
- r-e Ta and ten others \t~ Ma Kaung Mai and five
others : 178
'K.rishn<7.n Lal and four others v. Surajmal Bal Chand ... 683
Ma Hazara Khatu v. Maung Tha Aung 351
-- Kyaing v. Ma Ohn Kyi and four others 184
- Nu v. Ko San Aye 689
Si Si an~ another v. Saya Mya and three others ...
' -:- 692
- Tin May v. U Po Min 201 '
Maung Kyin Maung and one v. Ma W~ng Kyi 358
'- '- .- iviaung'Thaung v. U Hla Gyi and Daw Aye Kyi 208
- -- Mya_Than and _another v. U Tun Tin 708
- - _. - Thaung Nyunt qnd one v. Daw Sein Yin a,nd
one 364
Mhada Mohamed Khan v. Maung Maung Gyi (a) Alfred
Maung Gyi and one ... 355
( LisT ot cJ.sE:s REPoRtE:o iii
P.Aci!
Messrs. A. S. Allandeen & Co. Y; The Income-ta-.x
Appdlate Tribunal and one 212
~ Ashok Kumar Nemjee v. The Commissionerof
-
Income-tax,. Burma, Rangoon
.
Kannyalal Siri Kishanlal v. Messrs. Shreeram
17
Chandulal .24'
- - - Norwegian, Africa and Australia Line Ltd. v.
The Commissioner of Income-tax, 5urttta' Rangoon 390
- -- Scindia Steam Navigation Co. Ltd. v. The
Commissioner of Income-tax, Burma, Rrngoon . . . 28
. - - - The Bharat Line Ltd. v. The Income-tax
Appellate Tribunal, Burma and one ... 31
- - - The Burmese Economic Bank Ltd. {People's
Bank No. 10) v. Daw Tin May and one 360
........,_ W. W. Wood, Sons and Partners v. The Com-
missioner of Income-tax, Burma 45
Mohamed Ebrahim Salebhoy v. The Controller of
I~igration 51
Mr. D. H. Cozens v. The Commissioner of Income-tax,
Burma . 326
Mrs. Protima Ghosh v. Bimalendu Gho~h . . . 526
Nagibhal v. Chhaganlal and two others ... 714
P; L. A. Adaikkappa Chettiar v. P. Abu Backer Kaka .. . 719
R. D~ Ram v. Kunja Maistry 404
Rain Nath. Singh v .. . Chandrika Prasad and one,
She-:>!::hankar Prasad and one, Bisnath and one,
U. K: Barua and one, Ram Govind and one, Raghu
Nandan Prasad and one, Ram Kishore Singh and
one 370
-$. N. Zaveri and two others v. The Commissioner, Pegu
Divfsion and .three others . . . 5<',..4
State Commercial Bank v. U Ba Thin 375
S-qmm~'lta Ram Dutta v. P. B. Das and two others 59
. .
Taik Gwa.n Company v. Mr. N. B. Sen Gupta and two
others 723
lV LlS':f OF CASES
~. ' '
RERO~T-ED
M I
PA.QE
Tet Toe Rice and Oil Mills Company v. The Inland
Water Tra"nsport Board 217
Thakin Myo Nyunt v. Thakin Pu 72l!
fhe Bank of Behar Ltd. by its agents, Zeyawaddy Sugar
factory Ltd. v. The Income-tax Appellate Tribunal,
Burma and one ~ 65
- Burma Starch ?r,0ducts Ltd. v. The Income-tax
Appellate Tribunal, Burma and one . . . .. .. 2 34
- Commissioner of Income-tax, Burma v. Messrs.
Pwint Gaurig and Brothers 381
- - Commissioner of Income-tax, Burma v. The
Rangoon Tin Factory 385-
'- Commissioner of Income-tax, Burma, Rangoon v.
Messrs. Cathay Pacific Airways Limited 358:
. t
v. Messrs.
Pwint Gaung and Brothers 416
~ Dagon Shwe-ba-dein Company v. The Court of
Industrial Arbitration, Burma and one 430
- India Waterproofing and Dyeing Works v. The
Commissioner of Income-tax, Burma . . . 75
- - 'Joirit Undivided Hindu Family known as Jagannath
Sagarmal and one v. Babu Mahadeo Prasad
Tibrewalla 'and one 7{}
._:_ Mogul Line Limited v. The Income-tax Appellate
Tribunal, Burma and one . . . 84
...._ Rangoon Electric Tramway & Supply Co., Ltd. v.
The Commissioner of Income-tax, Rangoon 92
.-Union of Burma v. Maung Tun Kyi ... 24+
_. _..._ Union of Burma {~hhaganlal Lavji Kotak) v.
M. V. Gadhia and two others 102:
-~~~~~~ v. U Po Chein 111
v
PAGB
U Hla Kyaw and one v. U Aung Ba and five others . . . 551
- Kya.w v. U Ah ChUJ1 (a) U Ba Yone ... 394
- Kyauk Sein v. The Financial ommissioner, Burma
and three others 3'-)g.
:..... Ohn Myint v. The Union of Burma 246
- Soe Nyunt and another v. The Collector~f Custom.s
and two others 738
- Tha Din v. The Secretary, Revolutionary Government
of the Union of Burma, Department of Supply and
Co-operation ... 556
- Tharrawaddy Maung Maung Agencies v. The Coni
missioner of Income-tax, Burma 116
:....._ Thein Aung (a) U Tint Lwin, Maung Kyaw and
U Thin Sein v. U Maung Ko 125
- Thein Shwe and one v. U Maung Maung and one ... 40-2
- Thin Hnyar v. Ma Ngwe Saing 250
- Tun Aung v. Court of Industrial Arbitration, Burma
and one . 40.5
-Tun Shein v. U Ba Hmyin ...
.
572
- Tun Yin v. Lacheeyar
.
411
.....:... Ye Myint v. The Central Commercial Bank of Burma
. Ltd. and one ... 254
- Yoke San v. U San Maung ... 580
~nion of Burma v. Maung Khin Myine (Deaf mute) ... 549
- - - - - - v. M.. E. Joseph 391
Vijay iuma:r M. Desai and one v. .The Rent Controller
and one 366
V. N. Nadesa Thevar v. A. V. Muthusami ... 414
Vumtual v. The Financial Commissioner (Commerce)
and two
Yin Lot and three others v. Ma Hla Jiin
:Vl LIS':f OF O.SES REPORTED
PACB
753
756
423
765
584
'n3
782
788
427
792
433
590
598
267
271
438
282
_L.IST OF CASES REP.OR'rEQ vii
PAUl
287
800 .
811
435
276
27'f
796
818
831
611
823
295
614-
447
617
826
828
298
621
4-50
Lisf o~ cAsES REPORTED
PAGI!
625
380
303
631
636
131
....oo .; . . c- c- 0 c;- c c- oc. 'l 0 0 .
!j.)f..l):g))T.>3d )d~:; ~) -{G1~11~:1~. I
~~:>~CC
L
"Oim<!OOUO)
C' <; w
~~: o1 j 1-34
. co c- o. c . 9. c oo c- c- c-
m)d-'))~l:T.>'J{~:;G:.T.>~ iO:J ::x>:>:~:>: C\)G:Y.>T.>~~ :0~':>:00)?
~~:: ( C'l(c=::n:~~:o~G9:) 13 7
3t0
lf.7S
~56
641
14-2
ll3
1006
M4
1009
Q (' 0
01 :?,30)1 G;"))l <X>'JO
Jl
464
LIST OF CASES REPORTED IX
PAOI
1020
1012
468"
845
471
834
1015
316
1023
1027
I'
CHIEF COURT
PAGE
Abdul Baree Chowdhury v. The Commissioner of
Income-tax, 5 I.T.R. 352, followed ... 175
Ghafoor
. .
v. Rahmat Ali and others, A.I.R..
(1930) Oudh 245, referred to 701
- - - Hussein Alibhai v. Mohamed Ibrahim MaiStry,
A.I.R. _(1937} Ran. 526, referred to ... 63
Abdullakjn v. Mawig' Ne Dun' and another, I.L,R. 7
.
Ran. 292, referred
. to
Abdul Qavi Khan and others v. Bholan K.h.an and
379
o 'o C' C' A; \C C'
others,. II Ran~, E 58 9.~ '}~~;;:~ ~;~p:.o:>~ 319
-- Rahim and others v. Syed ~bu Mahomed
Barkai: Ali, f..I.~: (1928), l:'.C_.,_P. 16~ .referred to 685
- - R~bman .v:
D. K. Cassim & Spns, l .L Ran., p.
538 ~ 'l~eit~~-.~(rlt ?o:>2. . . 319
--:-- Razak v. Maurig. A,ung Thein, ~1958) B.L.R. 237
tH.C.), referred to . - ' ,, . . 8..
Abdurahim v:. Halimabai, ~1.915) L.R. 43 I.A. .35, 41.
referred to 107
. .. .
Ahamadali Fakrud<;lin Bohr~ anc;l others v. Mulla. Fid~li
Sultanali Bohri, A.I.R. Ir938) Nag. .l~2, referred
to nd distinguiShed 459
Ahamut v:. Kalu, 9 Bur. L.T. 55, referre~ to ..... 57
Ahmed Rahnian and 'four others v. A.L.A.R. Olettiar
Finn, I.L.R: 6 Ran. 285, ref:rred to .... .. 8.
Ajudhia P~asad and ano~her v. Chandan L<d and
another, ~.I.R: {~937} All.~ 'p . 61.0, f'o~l<?"':ed 261
xii LIST OF CASES CITED
PAGE
: .A.KR.P LA. Chettyar Finr v. Commiss~oner of Income- .
5
....~ax, I.T.C. 187, referred to . . 176
'' The Commissioner of
Income-tax; Burma, 5 I.T.C. 182, referred to 175-176
Alexander Brault t-. Indrakrishna Kaul, I.L.R. LX Cal.
918,. referred .,.,to
. 657
.Anto . v. Reoti Kaur and others, (1937) All., 195,
followed:. . 261
A.ltM.N.A. .Chettyar Firm v. R.M.V.S. Chettyar and
others, (1938) R.L.R. 250, referred to 531
Arumugan; Chetti v. Raja Jagaveera Rama Venkates-
, wara Ett;:tppa, I.L.R. 28 Mad., p. 444~ referred to 319
.Assam Railways and Trading Co., Ltd. v. Commissioner
. _,of Inland Revenue, (1934) 2 I.T.R. 467.. distjn-
guished .. . 67-72.
Aswini Kumar Pramanik Petitioner v. Dominion of
lp.dia, through the Cer.tifi,ca,te Officer, A ..I.R. tr9~)
Cal., p. 751, referied to ... .., 638'
Attorney-General v. 11t~:(Earl of Selborne, (r9o2) r. K.B.
338 at p; 396, referred to_. 378'
Aunglandaw Ko
Khin Sein and four .others U Maung v.
,, Gale~ CiVil ReVision N:o. 89
/r:f)6r. of this Court,
referred to: and followed ... 370
Ayanulla ~-Q~ Hanulla v. U Par Sein and two others,_
: '. (1960) B.L;R. 256 (H.C.}, referred to and foiiow~ 379
Babu Raiil ri~s v.. U Maung Gyi and four others,
(I959) BLR. I79 rs.C.), referred to ... 183:
Bachulal ~- Miliabal, .Civil Revlsldn No. .ir. of late
High co'4it,i~ter~d to .. ~ ~: .l. 416.
. -Ba~iri Pra~~d v." Naga;mal a.nd qthers! A.LR. Bai. d9s9)
Hi.rakore; I:L.R. 32 Born., .P io3, i:efez?:ed to . ... 6()5:
sa~galor~ Wooir~n, Cot.t on and t-..fiiis co~; . Ltd. v. :
Silk
. 'Conunissipner of Jncome-taxL Madras, ~1950). x.8 :
I.Ti. 4z3~ ref~rreei to . .. ... . .... .4~
: ~ ~ ~ +
; 'Barne~ v. BarriliS, 11947) 2 All. E.R. 326, referred to ... . 540.
LIST OF CASES CITED xiii
PAGB
Baroni v. The Secretary of State for India in Council,
(1929) I.L.R. 8 Ran. 215, referred t<t ... 563
Bastar Transport and Trading Co. v. Court of Wards,
Nastar and another, A.I.R. (1955) Nag. 78,
referred to 681
B. Cowasji aP.d others v. Nath Singh Oi't Company Ltd.,
XIII B.L.T:, p. 51, referred to ~ 507
Beauchamp v. Winn, 6, ibid. 233 7_78
Bhagchand Degadusa v. The Secretary of State, A.l.R.
1927) P.C. 176, referred to 325
. *
.Bhoop Singh v. Tarif Singh, A.I.R. \1952) All. 392,
referred to and distinguished 497
Bhulan Singh and otl}ers v. Ganendra Kumar Koy
Chowdhury, A.I.R. {1950) Cal., p. 74, followed ... 168
Bingham v. Bingham, I. Yes, 126 779
Bishen Sarup v. Abdul Samad, A.l.R. (1931) All.
649, referred to 856
Bishma Lal. v. The Union of Burma, l1959) B.L.).t 3
(H.C.), referred to -~=- 349
. Bishwa Nath Rai v. K~shi Nath Rai, (1948) .BJ,.R. 449;
referred to . 513
Boyini Kanganna v. Pedini Ramlingam Subudhi, A.I.R.
~1948) Pat. II7, referred to 331
Boyse v~ Rossborough, (1856-57) 6 HL.C. 2 at p. 48,
followed . 358
Braje~dra Kishore Roy Chowdhury v . . Hindustan Co-
operative Insurance Society Liniited, I.L.R. 44 Cal.
978, referred to 379 .
B, S. Mo~amed_ Eusoof v. B.akridi and another, t1952)
B.L.R. 248 (S._G.), ref~rreq to and followed 346
~utler v. Fai!clough, (19i7) y.L.R. 175 (Can.) 778
C. Ah Fong and one v. Ephraim .Solomon and o~he.rs, .
(1948) B.L.R .. 3~5., (H.C.), referredto. 717
Calcutta Electric -Supply Corporation Limited v. Com-
missioner of Income-tax; West _Bengal; (1951) .19
I.T.R. 4o6, dissen~e~i. from ... . 100
xiv LIST OF CASES CITED
PAGE.
CI:iandri v. Daji Bhau, 24 Born. 504, referred to 718
Chan Eu Ghee v. Mrs. Iris i-..1aung Sein and tvvo c~.hcrs,
. ~.-r953) Bl..R., p. 294 (H.C.), 'referred to 193-195
- .- Low Chwan v. Commissioner of Income-tax, 7
Ran. 28r,: referred to ' : 325
'-'-------'--- v. The Commissioner of Income-tax,
I.L.R. 7 .Ran, ~I (F.B.), referred to ... 214
Chotal al Devcband v. Commissioner of Income-tax,
. . . Bombay. .City (II) rr958) 34 I.T.R. 351, referred to ' 237
0
Ghhotelal Gobardhan Das v. Commissioner of Income-
tax, U.P. (1953) XXIII, I.T.R. 272, referred to and
followed. 383 '
('
...;..,............_ _ _ _ _ _ _ v. Commissioner of Income-
..: ;tax, U ~ and V.P. .(1953) 23, I.T.R . 272, referred
to and followed ... 364
Chian Siam Line by their Local Agents Chip Hwat v.
..Nay Yi ,yiC' Store, (1954) B.L.R. 270 d5t.. ']~~$:~
-..U. ~c
~:n~e ... ... ... . . ... ... 479
Chidambaranatha Thambiran and another v? P. S. Nal-
lasiva Mudaliar an~ others, A.I.R. lr918) Mad.
464, referred to .... 687
Ghimna v. Chunnilal and another, A.I.R. (1957), Rajas-
. than 378, referred to and followed 721
Chinnan and . others v. Ranjithammal, A.I.R. {1931}
Mad. 216, distinguished 341
Chinnaya v. U Kha, I.L.R. 14 Ran. II, referred to ... 512
C. y Balaram ~d another v. Rukmannamma and
others, A:I.R. (~953) Hyderabad, p. 209, re!erred to 416
C. K. Chin v. Hajee Ebrahim Noham~d Seedat, B.L.R:.
(1959.).. (S.C.);. p: 53, referred to. ...c 8.37
'Goqunission~r.of Income-tax v . .A;R..A.N. Chettyar Firm,
2 I.T.C. 477; referred to (77
, ..6ombay v. Currimbhoy
' : . . .Ebrahim &. Sons, Ltd., rr933) I. I.T.R. 34I, referred
~ tp
r .;. 38
LIST OF CASES CITED ~XV
PAGB
Commissioner of Income-tax BomQ.:ty v. . Currimbhoy
Ebrahim & Sons, Ltd., ~1935) "! I.T.R. 395; at ,PP
40D-4or, referred to .. 39
v. Metro
Goldwyn Mayer (India) Ltd., .{1,939} VII I.T.Ro 176,
referr~d. to . 0 0 r 41
- - - - - - - - - - - - - , v. Nationa1
Mutual Life Association of Australasia" ltd., Ir9331
0
I.L.R. 57 Born. 519 at 534, referred to 42
_ _ . . ; . - - - - - - - - - , Bombay Saute, Bombay
v. Ogali Glass Works Ltd., (1954} 25 I.T.R. 529,
referred to : ... ~8-77
- - - - - - - . . . .:- - - , Bombay Presidency v.
The B.ombay Trust Corporation Ltd., I.L.R. 52
Bom. 702, referred to 39 .
- - - - - - - - - - , Bombay v. The Bombay
Trust Corporation Ltd., I.L.R., 54 Bom. 216 .(P.C.),
ref~rred to : ... 40
_:...----- - ..- - - - , Bombay Presidency v.
The Brothers & Co., Ltd., ~.L.R. 3 Ran. 614 at 652,
0
referred to .. . 38-42
, : . . . . _ - - - - - - - - - , Burma v. P.K.N.P.R.
Firm, 4 I.T.C. 340, referred to 177
_ __;,'>- - - - - - - - , central Calcutta v. The
Burma 00 Co., Ltd., .(1949} ~II I.T.R. 348,
distinguished . 6 7-72
- - - - - - - - - - - , v. MacMillan a11d Co.,
r1958) XXXIII I.T.R. !82 at I9I, referred to 325
__;,_ _ _ _ _ _ _ _ _ Madras, v. D. Arokiaswa-
mi o Chettia and Co., (1948).. XVI, Income-tax
Reports, p. 404, referred to 390
- - - - - , - - - - - - - - - , v. K. Srinivasan
and K. Gop'alan, .(1953) 23 I.T.R. 87, expl<Uned ... 23
~- , v. P.V.RoM. Visa!akshi
~ ~1937)' R.L.R. 174, referred tp ... 40
xvi LIST OF CA,SES CITED
PAGK
Cooper v. Phlbbs, (r867) The _Law Reports, Vol. rr. p.
149 and 170 .. ..~ 778
. (
C.T.A.C.T. Nachiappa Chettiar v. Secretary of State
.
and another, .(1933) I, I.T.R. 330, referred to .. .
C.T.V.E. Vyravan CP,ettyar v. ~a Saw Mwe and others,
243
I.L.R. 12 Ran. 47, _followed 261
Daulat Ram v. Haveli Shah and another, A.I.R. (1939)
La.'l. 49, referred io 415
Daw Daw Thi v. U Thein Maung and Co .. Ltd., (1956).
B.L.R. 14 IH.C.), :referred to 6~8
- - Nyunt Nyunt, Daw Than Than and Ma Tin Win
v. The Hon'ble Minister for Finance and Rev.e nue
and 2 others, C. M. Appln. 56 of 1961 rs.C.), re-
ferred to 74l
- - Saw Khin v. Ko Shwe Phar, (I9fl) R.L.R. 90,
referred to 64
- - Daw Thi v. U Thein Maung & Co., Ltd. and one,
(1954) B.L.R. 14 (H.C.}, followed 163
Dayalal and Sons v. Ko Lon and another. I.L.R. 6 Ran.
657, referred >. 578
Debenham v. Sawbridge, Ir'9o1) 2 Ch. at p. 109, re-
ferred to 779
Deena ,,Bandu Gan v. Makim Sardar, LXIII Cal.
763, referred to .407
Diwan Chand v. Commissioner of Income-tax, Punjab,
(1934) II, I.T.R. 382, referred to 325
--'Singh and others v. Emperor, A.IK (1933) .Lah.
S(ir 799
D. N. Banerji v. P. R. Mukherjee and others, A.!.R.
(1953) (S.C.), p. 58, ref.erred to 407
Dwarkadas Khetan & Co., Bombay v. Commissioner of
Income-tax, Bombay, A.I.R .(1956) Bombay 321,
referred to 120-121
~st and West Steam Ship <;o. v. S. K. Ramalingam
c c
Chettiar, A.I.R. (.1960) .{S.C.), p. ~o5s
r <'
0
~2~-r: or
~ '"'l9~o-o..a~~2
,,...
<0'1
/)>
. . .:,. . 480
LIST OF: CASES CITED XVll
PAGll
E. M. Chettyar Firm v. The Commissio;ner of Income-
tax. Burma, (1929-30) Vol. IV;Reports of Income-
tax .cases, . 464, referred to 327
Emperor v. Ahilya Manaji, I.L.R. 47 Born., p . . 74,
referred to . . .. 416
- - - v. Alam, I.L.R. 49 All. 879, referred to 115
E. P. Kumaravel Nadar v. T. P. SJ'lanmuga Nadar and
others, (1946) r M.L.J. 719 (F.B.), referred co 64
Errington v. Errington and another, :(1952) r All. E.R.
149. referred to and followed 523
Eshaq .Lal and another v. Dulla. A.I.R. (1930) All.,
p. ns, referred to 263
. ESiafally Alibhai v .. Abdeali Gulam Hussain, 45 Born.,
. 0 (' (' ('
p. 75 : ~ 9eeir~~~ 325
Etasserl Munootta Mangalath Illath Kesavan Nambudri
and another v. Puthusseri Theva Amma and
others, A.I.R. {1938) Mad. 41, referred to 366
Eusoof Ahmed Serna v. Ismail Ahmed Serna and others,
A.I.R. (r938) Ra~. 322, referred . to ... 357
Evans v. Evans; I, Hag. Con. 35, referrgd to 539
Fateh Muhammed v. Imam-Ud-Din and anqther, A.I.R.
(1921} Lah.. 360, referred to A13
Firm Brij Kishore .Ram Sarup v. Sheo Charan Lal,
A.I.R. (1938) All. 69, referred to 241.
. Foster v. Robinson, .(:1950) 2 All. E.R. '342, referred to
and followed ... 521
. Ganeshmal Bhawarlal v. Kesoram Cotton Mills Ltd.
QC' (' (' . . 0
GDI ~C! g;;r:>91 O~jj ()')(\):">)8)~1 0'J<.>Jmp 00 q
(' c ~ .
9ea.'fg~e-; . 4s9
Ganga Ram Balmokand v. Commissioner of rncome-
tax, Punjab, (1937), 5 I.T.R. 464; referred to 325
.General Commercial Corporation Ltd., In re. (1954) 26
LT.R. 316; referred to ... . 21
XVlll LIST OF CASES CITED
PACB
Ghanshya111das Permanand. v. Commissioner of Income-
tax, C.P. and Berar, (1952) 2r I.T.R., p. 79
referred to 215
. '
G. H. Paul v. T. Thomson, ,(1920), 13 Bur. L. T. 8o,
referred to and followed ... 357
Girdhari Lai and others v. The Cro-w-n, :(1910} Vol. 45
Punja~ Cr. Jts., p. 73 368
Golitk Nath Roy Chowdhury v. Mathura Nath Roy
Chowdhury, l.L.R. (1893) XX Cal. 273, referred to 383
Collins v. Gollins, ~1962) 3 W.L.R. r8o, referred to ... 539
Gopolasami Ayyar v. Subramania Sastri, I.L.R. 35
Mad. 363, ~eferred to 206
Gopater and another v. Abdul Aziz, IX " Ran. 135,
referred to 479
Govardandoss Takersay v. Abdul Rahim, I.L.R. (1942)
Mad. p. 7ss. referred to . . . 16
Goverdhan v. Maruti, A.I.R. (1915) Nagpur 35, refer-
red to and distinguished ... 717
Government of India Act of 1935 and r1~.les made
thereunder ~1959) B.~.R., p. 94 (S.C.), r~ferred to 561
Giaham v. Graham, (1875) 5 R. 1093, 1095, referred to 541
Great Eastern Shipping Co., Ltd. v. The Commissioner
uf Income-tax, Burma, Civil Reference No. r of
1960 (H.C.),. referred to ... 397
Gulam Mohiuddin Narmavala v. Dayabhai Chimanlal,
A.I.R. (1923) Born., 398, referred to and followed 718
Gunda Subbayya v. Commissioner of lncom.e-tax,
Madras, (1939) 7 I.T.R. 2I (F.B.), referred to 215
Halsbury's Law of England at p. 430 of Vo~. 23, 3rd
Edition, referred- to ... o 520 .
Hanumanb~ Agarwalla v. Subdivjsipnal Officer,
Sibsagar and another, A.I.R. (1952) Assam us,
ref~rred to ahd followed ' 547
'Hardandas Paladroy v. Sunder, IV. U.B.R., p. 57, refer-
red to 664 '
LIST OF CASES CITED XIX
PAOB
Harinder Singh v. Anant Ram and others, A.I.R. Iz93~)
Lahore,. 6, referred to and distinguished 3 41
Hasan Ali v. Secretary, Ministry of Immigration and
one, (1959) B.L.R. ~S.C .} 187. referred to 57
Hira Mills case; (1946) 14 I.T.R. 417, referred to ~2.
Hunt v. Clarke, ~1889) 37 W.R. 72_4 at p. ;-25, referred
~ n6
'
Indar Dass v. State, C.L.J. (1952), p. 280, followed .. . 284
In re L. (Infants) (1962) I Weekly Law Reports 886 ... 292
Ismail Ariff v. Mahmed Ghous, I.L.R. 20 Cal. 834
(P.C.), referred to 712
Jacob v. Subramonia Iyer, A.I.R. {1960) Kerela 212,
referred to 83 6
] afar Husain Khan v:
Mohammad Taqi Khan and
. others, A.I.R. (1933) Oudh, p. 517, referred and
followed 152
Jagat Ki.shore Pd. Narain Singh v. Parmeshusar Singh
and others, A.I.R. (1951) Patna 348, referred to
and followed' .. . 383
Jagendra Nath Singh v. Hira Sahu and others, -~1948)
I.L.R. All. p. 62 _(F.B.), referred to . . . 8
Jamieson v. Jamieson, (1952) A.C. 525, referred to ... 538
JallLta Lal v. Ram Bilad and another, A.I.R. _
(1950)
Ajmer, 17, referred to 667
Jeevan Lall~ and others v. Metai Box Company of
India Ltd.; (1952) Vol. II, L.L.J.., p. 869, referred to 336
Jelhmal Sada Sukh v. Commissioner of Income-tax,
United Pl'ovinces, (1953) 23 I.L.R. 443, distinguished 19_;_23
Jones v.. Clifford, 3 Ch. D. 779 ... 779
Jugal Kishore v. G.I.P. Ry. Co~pany and another,
c- C':~l~ ~t~!?:t~o:>2:?
1 p. 22-24 'i1~~af
_ . A.I.R. (19,23) AI.,
' r r,: ~ 479
Kadir- Bacha Saheb, I.L.R. 24 Mad., p. 639, referred ~ 665
KaJyan. Mal and another v. Kishan Chand, I.L.R. 41 All.,
p. 643, referred to 206
XX LIST OF CASES CITED
PAGE
.I<anhaya Lalsardha Ram v. Baldeo Das and others,
I.L.R. r4 Lah. 656, referrec to 368
Kaniram Maipami v. PM:amanai~da Tewari, A.I.R.
(I94G) Cal. 528, dissented from 15
T\.aQ.tilal Gorhandas Shah v. The 'Assistant Collector of
Custom (1951), B.L~R. 244' (S.C.), referred to 743
Kashiram Bhajan La! v. Commissioner of IncomNax.
U.::'., (r962), XLV, 'r.T.R., p. I, referred to 390
Kassim Hassan v. Hazra Begum, A.I.R. (1920) Cal. Boo,
referred to 7 05
Katheppa Raddi v. Sheshappa and another, 22 Born.,
893, .referred to 718
K. E. Musthan v. Babu Mohendra Nath Sfngh, r
Rangoon. p. soo, referred to 349
Keshardeo Chamria v. Radha Kissen Chamria and
others, A.I.R. (1953) Supreme Court, 23, referred to 10
Kesheo v. Vithal and others, A.I.R. .(r925) Nag. 427,
referred to . . . 358
Klialifa M. S. A. Ganny and others v. Mohamed EBrahim
and another, 9 Ran., p. 4:;9, referred to and distin-
guished lSl
Khater Mistri v. Sadruddi Khan, I.L.R. (1907) XXXIV
Cai: 922, referred to 416
Khatubai v. Mahomed Haji Abu, (1922) (L.R.) so, I.A.
ro8 at II2, referred to 107
King Emperor v. Ma Tin Saw and one, .6 Ran. 39,
referre<i ~o 105
.- - v ..King. A.I.R. ~1925) All. 327, referred to 541
Ko tan Bah v. Prepulla Chandra Palaka and three, Civil
Misc. Appln. r8 (r962), referred ~o and followed 404
._:._ U Mar and one v. Ma Sayv Myaip.g, (195o) B .L.~. 8o
(H.C.), r~f~rred to. 183
K. 'Raushan Din and others v. H. Mohamed .Sharif and
o~hers, A:I.R. (r936) Lahore 8z at p .. 88, referr~ to 701
., . LIST OF CA~ES CITED XXl
PAOB
Ktiishna Prasad Lal Singha Deo v. .'Baruboni Coal Con-
. cern Ltd., (1938), I Calcutta, p. I, referred to ... 358
~-'--- Prasad Lal Singha Deo v.. Baraboni Coal Con-
cern., Ltd., I.L.R. (1938) r Cal., (P.C.), referred to
and approved
Kundan Lal v. Deep Chand, A.I.R. 33 All. 756, refer,re:d
to ::( .. , 713
Kunj Bihari v. Keshavlal Hiralal, (1904) I.L.R. 28 Born.,
p. 567, referred to .. . 15,1
Kunju Meethyan and another v. Kunjan Marackar and
. others, A.I.R. (I954) Trav-Cochin, p. 5I, referred to
and follow:ed ' 153 .
Kunwar Rajendra Bahadur Singh v. Rai Rajeshwar Bali
and others,. A.I.R. (I937) P.C. 276, referred to 364:
. Kyi .Chung York v. The Controller of Immigration,
.
Bumia, '( I951) B.L.R. .(S.C.) 197, followed
Kyin Sein (a). M aung Shwe Mya v. The Finance Minister
55
and two otMrs, (1959) B.L.R. 196 (S.C.), referred to 745 .
LaGhho Bibi v. Gopai Narain and ofuer~, I.L.R. 23 All.
472, referred to .... 358
Lich~an Singh v. Natha Singh through Harnam Singh
. and others, A.I.R. (1940) Lah. 401, followed 181
Laddo Begam v. Jamal-ud-din, I.L.R.. 42 All., p. 45
referred ~o .. . .. .. 206
L. Jioke Sein v. The Controller of Rents for the City of
Rango!)n and one, (1949) B.L.R., p. 160 :(s.c.1,
referred to 639
LaJ Bihari Lall and another v. Bani Madhaya Khatri
and others, AJ.R. (r949) Pat. 293 (F.B.), referred to 366
Lalji Tewari v. l.'he King Emperor, I.L.R. 4 Pat. 609
F.B., referred to ,., ... 62
Laii Singh v. The Minister of. Finance and Revenue and
three others, .(19S8) B.L.R. 195 !S.C.), referred' to
and followed .. 420
XXJl LIST OF CASES CITED
PJ.Gl!
l..c.l Mahomed .v. K<lllanus, .;.L.R. (1885) II Cal. sr9,
referred to -and distingui:;hed 576
Lansdovrne v.La.:LSdo"h'lle, Mose. 364. dt. 2 J& W 205 779
Law-of Income-tax in India by V. S. Sundaram, 8th Ed.,
" p. I<?II, referred to ... 72
- o f \VJ'ongful Dismissals, 2nd Edition {I9S9), p. 39
.
referred' t o
Le Hu v. Ah Yin, .(1897.-):9o.r) Vol. II, Upper Burma
570
Rulings 1Civil 451), referred ~o 416
Lilhmich,and Sirinivas v. The Financial Commissioner
(' ~(' L, C'Q (' 0 0 ('
and one Oejj ~7()1 r:Jy~')tj~0')C<l1;~~'): ID') ?J ~-'92
(' ('
at=::x>~ . ~ 453
Lim Chin So v. Lim Geoksoo, 11956) B.L.R., p. 248
(H.C.), referred to and followed 199
Lokman V: Haiku, A.I.R. (1934) Nag. 236, referred to 63
Ma Ba We v. Mi Sa U and others,, II. L.B.R. 174 (EB.),
referred ~o and followed 653
Macl<nell v. Macknell 540
Madan Gopal and others v. Shewal Dass, A.I.K. (1943)
Lah~re, p. 884 844
Ma E Hm.yin and wee v. Ma1,1ng Ba Maung, I.L.R.
2 Ran. 123, referred to ... 496
- Gala.r. .and one v. MaE Myaand others, 8 Ran. 27,
followed 252
Maganlar Pranjuvan Mehta v. Mrs. Champakunvar
Rati~al Mehta . an<i others, .(1952) B.L.R'.. '192 1H.C.),
refel'ted to . .'; 368
. Malradeo-'Singh v. Ha;. BukSh Dube, A.I.R. (z 9 28), Oudh
131, referred to . . .
. .. .. 263
. }'lahamand~~ Shas~a P,rakas~'!~ ~amity Li~ted, Banares,
I.L.R. Vol.' XXX'lX, AIL p. :334 referred to ... . 507
... Maharaj~dhlrafa of 'oarbhanga ~. C~mmissioner of
Income-tax, (1930), 9 Pat. z4o, referred to 325
Mahomed MUssa v. Aghore Kumar Ganguli, I.L.R; 42-
Cal.' 8or (P.C.)~ refel"!'-ed to 577
...
XXlll
PAOB
Mailathi ~ v. S~bbaraya Mudaliar,. {.L.R. 24 Mad. ~
6so~ referred 'to . . .: ~ 107
M;i Kyaw and another v. Daw Kye U, A.I.R. _(1935)
Ran. 355, .referred to and dissented from 486
- Lay and one v. T~n Shwe, X L.B.R. IO, referred to
and followed 652
M. A. M?istry v. Abdul Aziz Rahman, P::tn 47t,
referred to 413
Ma Mary v. Ma Hla Win, I.L.R. 2 Ran., p. 555, followed 206
- Me Gale v. Ma Sa Yi, 4 L.B.R., (1907-o8); p. 172,
referred to 195
- Mi and another v. Kallander Ammal, I.L.R. V Ran.
18 .(P.C.), referred to 700
Management of Tocklai Experimental Station, Cinna-
mara v. State of Assam ~nd others, A.I.R. (1960)
Assam 132 at p . .137;, referred to 407
Manbahal Rai and others . v. Ram Ghulam Pandey,
A.I.l.t .. ~(1927), All. 633, di~il1guished ... 341
Manibhai S. Patel ,.v. Commissioner of Income-tax,
Bombay North, (1953) XXIII, I.T.R. p. 27, referred
to and followed
_3 25
Ma Pi v._Kjng-Emperqr, 2 L.B.R, p. 136, referred to ... 244
- Pu v. Daw Aye Mya and others, (1948) B.L.R., p. 19,
refurred to 199
- Pwa Zon and ~o v. Ma Pan I and one, I.L.R. 5
Ran. 154; referred to 681.;:713
- Pyu 'V. K. C. Mitra, I.L.R. VI Ran. 586, referred to 346
- Saw v. Maung S4we Gan and one, XI L.B.R. 415,
referred to ' . 681-713
- Sein Ton and two otliers v. Ma Son, VIII L.B.R.
501 (F.B.), referred to 496
- Than Yin v. Tan Ke~t Khang Ia) . Tan Keit Sein,
.(1951) B.L.R. 161 (H.C) F.B., referred to 62
... ..
- Thein . Khin v . .Ma U Byu, I.L.R. 6 Ran., p. 571,
referred to . ... ... 415
,.
xi:i
PACB
Mathura Singh v. BhaV?ani Sirigh and others, I.L.R.
~I AU. 248 :(F.B.), referred to 366
Ma "fi:-1 U v. U Shwe Kyu and four others, (r958}. B.LK
"!28 {S.C.~, referred to 364
Mauladin Ay'Ub Firm v. Commissioner of Income-tax,
Born. South, (1959) XXXV, I.T.R. 449, referred
to ~nd follow'!d 383
Maung Aung Thin and one v. Bisnath Singh and 6Iie,
(r958) B.L.R. 314 .(H.C.), referred to and distin-
guished 331
- Ba Pe and another v. Maung Shwe Ba.:, 6 Ran.,
p. 520, referred to 195
~-- Ba Thwin v. Maung Po Hti,. I.L.R. 'v.r Ran. 510,
referred to ... 496
- - Mya Than and another v. U Tun Tin, C. u. A
44/62 Chief Court, referred to 681
- - Naw v. Ma Shwe Hmut and one, 8 L.B.R. i27
{F.B.t referred to 712
- - - Nyi Maung ana others v. T~ Mandalay
Municipal Committee, J2 Ran., p. 335, followed 15(
- - San Myin v. ' King-Emperor, I.L.R. 7 Ran. 771,
referred to 74!
....;.:___ Shwe Phoo arid eight others v. Maung Tun
Shin and three others, I.L.R. 5 Ran. 644, referrel
to and followed 33:
- - Thein Zan and one v. The Union of Burma,
{195:6) B.L.R. 303 tH.C.), followed -21:
- - Tu v. Ma Chi~, 4 Ran., p. 62, referred ~o 25:
_. - -Tun Zan v. Maung Tun Zan Gyi and another;
A.l.R. (1933) Ran; 317, followed 25:
Ma Yi by her Guardian ad_!item Thet .P-on v. Ma Gale,
VI L.)3.R. 167, referred to
- Ywet v. Ma Me and one, 5 L.B.R . .(1909-IO), p. u8,
referred to 19
Mazhar HUssain cmd 'Sara
others v. Rao Bahadur Adiva
Singh, A.I.R. {1948}. {P.C.) 42, referred to 70"
LIST OF CAS::S CITED XXV
PAGB
M. Chowdhury v. Indian Airlin~s C:orporation, A.I.R.
(1962) Cal., p. 554, referred to 220
M.C.T. Chidambaram Chettyar v. y.L.S. Chockalingam
Chettyar and five, (1955) B.L.R. rr6 (H.C.), referred
ro ~6
Md. Fazihzzaman v. Anwar Husain, A.I.R. (1932)
Allahabad, 314, referred to ~-.: .:.: 341
Messrs. A. S. Alladeen and Company v. The Income-
tax Appellate Tribunal, Burma and one, ~ivil Misc.
Appln. No. 22 of 1961, referred to . . . 326
--Rowe & Co. v. The Secretary of State for India,
XI Lower Burll\a Rules 299 at p. 306, referred to 370
- The Bharat Line Ltd. v. The Income-tax
Appellate Tribunal, Rangoon and another, C. M.
Application No. 21 of 1960 of late High Court,
Rangoon, referred to 479
Mi Hauk v. King-Emperor, IV L.B.R. 121, referred to 745
Mill Manager Mot!el Mills, Nagpure, Ltd. v. Dharam
Das, A.I.R. (1958) (S.C.) 3II, refep-ed to :368
Mohamed Esooi v. Maung Thein Hla, .{1953) B.L.R.
274, referred to and approved 342
- - - ]afar Husain Khan v. Mohammad Taqi Khan
and others, A.I.R. (1933) Oudh, p. 517, referred to 152
- - - Abid and another v. Haji Baksha and others,
A.I.R. (1936) Oudh, p. 133, referred to 686
---Ibrahim Rowther v. Sheik Ibrahim Rowther,
I.L.R. 45 Mad. 3o8, 314, referred to . . . 170
Mohandas Karamchand Gandhi v. Mahadeo Haribhai
Dese.l (1920) 58, I.C. :9IS, referred to 734
Mohan Singh v. Janki Das~ A.I.R. (1937) Lab., p. 241,
referred to 16
Mohd. Saddiq v. Wafati, A.LR. (1948), Oudh 51, referred
ro 2~
Mohini Moliati Misser v. Surendra Nanyan Singh, 42
Cal. 550, referred to 48
3
XXVI '. LIST ~E:CASES . GITED
PAGE
l'
Mosoue known as Masiid Sh~hid Gani and oth~n v.
Shiromani Gurdw~ra Parbandhak Com:11irtee,
Anu~tsar .and another, referred to and f.;:,llowed 686
.. M?SS V. Moss, (I9I6) (C.A.) I5f? I6I, referred to 541
Moti Ram v. Hans R~j and others, r62, l.C. 303 re-
ferred to and disting-uished 879
M. Paramasfvan Pilfai ..y. A.V.R.M.S.P$. Ramasami
Chettiar and another, (1939) Mad., p. 290, referred
to 5
- .P. R. M. Iru!a.ndi Mudaliar and Sons v. The Com-
missioner of Income-tax, Burma, Civil Misc. Appln.
No. 40 of 1959, referred to 32S
Mrs: Cecilia King and two others v. Arthur Abreu and
two others, (1909) 5 L.B.R. 141, referred to and
followed 3 57
~ Kirkwood (a) Ma Thein and others v. Maung Sin
and others, A.I.R. (r938) Ran. 74, followed 252
- L. Stevenson and one v. Ma Hla Yin and four
others, (1954) B.L.R. r68 (H.C.), referred t& 582 .
- . Niemeyer v. E. M. Mamooji and others, (r938)
R.L.R. 52-I, referred to . . . 379
Mt. Gomtibai v. Kanchhedilal and others, A.I.R. (1949)
P.G. 272, referred to and followed . .. 358
- Moideen Bibi Ammal v. Rathnavelu Mudaki, A.I.R.
(1927) Mad. 69, referred to 706
- Sajjoo and another v. Basdeo Prasad and others,
A.I.R. .( 1937) Oud..h. 505, referred to . . . 577
"
Muhammad Abdul Latif v. Shaikh Habidur Rahman
and others, XLVI. I.C. 64i, .referred to 366
Musa .Yakub Mody v. Manila! Ajitrai, I.L.R. .x:xrX Bom.
368, r eferred to 657
. Naba Kumar Singh Dudhur<!i v. Commissioner of
Income-tax, . Bengal {1944) XII, I.T.R. 327, referred
to and followed 383
Nagindas Sanka~chand v. "Bapalal Purshottam, I.L.R.
(1930~. 45 Born. 487, referred to. :. . s76
LIST OF CASES CITED xxvii
PAC II:
Nandkumar Sinha v. Rai Bahadur Pashupati Ghosh;
LL.R. 20 Pat. 417, referred to 495
Narayana Row v. Dharmachar, I.L.R. XXVI Mad. 514,
refer;:-ed to and followed 489
- - - - - v. Dharmachar. I.L.R. 26 Mad. 515, re-
ferred to ... 681- 713.
Neki Devi v. Commissioner of Income-tax, Punjab,
(1 934), II, I.T.R. 365, referred to 325
New York v. U.S. 326 (U.S.) 572 (1954), referred to ... 306
Nga Po Tha and another v. Queen Empress, (I897-
-
1901), referred to .
Tha Zan v. Sunder Singh, III U.B.R. 125, referred to
745
712 -
Nilmadhab Bose and others v. Ananta Ram Bagdi,
(1897-98) II, C.W.N. 755, referred to ... 325
Nisa . Chand Gaita and others v. Kanchiram Bagani,
I.L.R. 26 Cal. 579, referred to 712
Nitya Gopal Samanta v. Pran Krishna Dau and others,
A.I.R. (1952) Cal'. 893, referred to ...
Padam Parshad Rattan Chand v. Commissioner of
Income-tax, Delhi, (.1954) 25 I.T.C. 335, referred to 238
Palaniappa Chettiar v. Narayanan Chettiar, I.L.R. 59
.
Mad. 188 (F.B.), referred to
.
Pandistow Total Loss and Collision Assurance Associa-
82
tion, 20 Chancery, . A.I.R., p. :r_37, referred to . ... 843
.p. and 0. c;;~se (oo~o) j dS1 ~(~J)I ~~~?I GfXl~
c ' d C' C' C'
:;o_~ 0 <l.fl~~f=~~ 595
Pannaji Devichand and others v. Basappa Virappa
Bellary and others, A.I.R. .(1943) Bombay, p. 243,
referretl to '
Pannalal Datta v. Hrishikesh Datta, I Cal., p. 192,
referred to . 663
Parasharam Bhika and another v. Emperor, I:L.R. LVII
Born. 430, referred to
.
Parkash Kaur and pthers v. Gian c;hand,. A.I.R. .(1940)
ll S
Lahor~.. 34I, refetn~d to . .. ... .: . ... 407
xxviii liST OF CASES CITED
PAGE
-
Partin~on v. Attorney-General, L.R. 4, H.L. 100 at p.
122, referred to 325
:P. B: I. Bava v. Commissioner of Income-tax, Mysore,
Travencore Co~hin, {1955), XXII, l.T.R.. 463,
refelired to and distinguished 390
Pha\:mabi v.
Abdull~'Musa Sait, A.I.R. (1914) Mad. 714,
referred to 706
P.K.N.P.R. Chettiar Firm v. The Commissioner of
Income-tax, Burma, 4 I.T.C. 87, referred to ... 174-175-
177
v. The Commissioner of
Income-tax, Burma, 4 I.T.C. 340, referred to 175
P. L. I. Kasi Chettyar (a) U Kasi and another v. Ko
Maung Sein and another, B.L.R. (r96o) (H.C.),
p. 501, referred to 836
Ponnamal v. Daw Hla Min, (1960) B.L.R. (H.C.) 216,
referred to .. i 11
Porbandar State Bank v. The Commissioner pf Income-
tax, Bombay City, (~950) 18 I.T.R. 134, referred to 35
Province of Bombay v. Khushaldas $. Advani, A.I.R.
(r950) (S.c.) 222, referred to 546
Pun<> Za Chin (a) P. Khup Za Cin v. The Financial Com-
. missioner (Commerce) and the others, (1960) B.L.R.
142 (S.C.), referred to and followed . . . 420
Pusa Mal v. Makdum Bakksh and others, 31 All. 511,
referred to 718
'Queen Empress v. Nga Taw Aung, .(1893- 1900) P.J.L.B.
369, referred to 745
.Ramadhar Keto v. Ratipaf Ahir, (1958) B.L.R. (H.C.) II,
overruled .... 108
:Rama Rao and an0ther v. Th~ Raj"a of Pittapur and
two others, I.L.R. XLI Mad. 219, referred to 494
:Ramji Dass Rikhi ~am v. Commissioner of Income-tax,
Punjab, Pepsu H.P., ~nd Bilaspur, Simla, (r958) 34
I.T.R: 483, referred to
.,
;Ram,ji .Panday v. Alaf Khan, I.L.R. III Pat. 895, referred
to .... ... 495
LIST OF CASES CITED X XIX
PAGE
Ramlal Murlidhar v. The Commissioner. of Income-tax,
Bengal, {1933) 5 I.T.C. 150, referred to and distin-
guished 240-24Z
Ram Sarup v. Emperor, A.I.R. (1935) An. 446, referroo
to ... 63
Ranjit Kumar Roy and another ' v. Kabiraj Kisori
Mohan Gupta and another, I.L!R. (1940) 2 Cal.
362, referred to 379
Ran 1itpaul v. Controller of Immigration, (1~6o) B.L.R.
(S.C.) 249, referred to 57
R. C. Miller and Sons, Calcutta v. Commissioner of
. Income-tax, West Bengal, Calcutta, A.I.f<.. (1959)
Supreme Court, 868, referred to 121
- - Mitter and Sons v. Commissioner of Income-
tax, West Bengal, A.I.R. (1956) Cal., p. 303,
referred to 119-121
Read and Huggonson. (1742) 2 Atk. 292, referred to ... 733
Re Cine Industries Co. Ltd., Patna, A.I.R. :(1942) Born.,
p. 231, referred to 507
Rengasami Nayudu and another v. Krishnasami lyer
and others, A.ItR. (1923) Mad., p. 276, referred to
Report of the Civil Justice Committee (1924-25),
. Appendix I, Calcutta, p. 8I 197
Rex v. Cohen, (1951) I . All. E.R. 203 at 2o5j2o6,
referred to 746
- v. Fitzgerald; (1928) unrep., referred to 747
Ridge y. Baldwlli and others, (1963) 2 W.L.R. 935,
referred to 565
Rogers Pyatt Shellac & Co. v. Secretary of State for
India, I.L.R. 52 Cal. I, referred to 37-42
R. Ramaprasada Rao v. R. Subbaramaiah and others,
A.I.R.. ~1958) Andhra Pradesh 637, referred to ... 663
. ....;_ v. Fitzgerald, (1948) unrep., referred to 747
- v. Kakelo, .(1923) 2 .(K.B.) 793, r~erred to 74-7
Russell v. Russell, :C1897) {A.C.) 395, referred to 539
XXX LIST OF CASES CITED
R. Va" '..'. ?v1uni. Singh, A.I.R. (WZ9, Ran., p. 3'1
referred tc 2 G3
G
Sandhura Singh v. Kehr Sin&h, A.I.R. (r936) Lah. IOr6.
referret'i to 373
Saraswatibai Shripad Ved v. S~ripad Vasanji Ved, A.I.R.
(1941) Born., 103, referred
,, to 2?2
Sarat Chandra Mukl1,erji v. Nerode Chandra Mukherji,
156,-I.C. 399, referred to and distinguished 327
0 9
Sarvvar Khan and another v. Emperor, A.LR. r1920)
Pat. 334, referred to 679
Satishchandra De v. Mahanmohan Jati, A.I.R. :(r93r)
Cal. 483 at 484, referred to and followed 485
Saw Durmay v. Baggah Singh and others, III Ran.,
p. 213, referred to and dissented fromQ 634
Sayed Pir Mohi-ud-Din Lai Badshah v. Emperor, A.I.R.
(1938) Lah. 762, referred to 248
S. B. Tikavaran v. Maung Pe Than for five others,
tr959) B.L.R. 84 ~H.C.), referred to ... 161-163
Secretary of State v. ]. C. Maurice, (1937} R.L.R. 35,
referred to 563
- - - - - -- v. Shil"obinda Chaudhuri
") (' o (' (' r
ro 'J ( (j I O~?j 0/.01 OJ')o:J()'))55'J~I 0') O?<;ore !'-l'J~8~i:'.)= 524
' - - - -- - for India in Council v. D'Attaides,
(1934) I.L.R. 12 Ran., p. 556, referred to 563
~------ for India in Council v. ]. Moment
"r" r c- 9 " ' o " ~ '='
. Gro:>me1?~:>s~ 09c~;<,>pmq '2' o? oo nlc;::::et~=x= 594
for India in Council v. Kamachee
. .
(' 0(' .C c c (' c-
Boye Sahaba '2' ~~18<(CIGG?J~:>
'7'(3 G\9~~-~~2 -- 595
;Seth Gurmukh Singh and anbther v.. Commissioner of.
Income-tax, Pun:., (1944), 12 LT.R., 393 (F.B.),
referred to 215
Sewpujanrai Indrasanarai Ltd. v. Collector of Customs
and others, A.I~R. {~959) (S.C.) 845, referred to .. . 751
LIST OF CASES CITED xxx i
PAGil
Shankar Rana Patil and others v. Jagannath Mathur
Lal Bhat, A.I.R. {1928) Bom. 2.5, referred to ... 577
Sher Ali v. jagmohan Ram, I.L.R. ~3 All. 466, refem~d
to 495
Shennal Jain v. Coll~ctor of Central Excise and Land
Customs, C::;' :.F ::a, AI.R. (19~6) CaL 621, p. 62,
referred to . 749
Shio Karan Singh v. Surya Nath Singh an~ two others
.{19S9) B.L.R. 207, followed 397
Shri :Madho Rao Narayan Rao Ghatata 16 Harinath
. Bhlkaji .f:>axi and another, :(1939) Nag., p. 276,
referred to 4
Sir Padampat Sing!lania v. Commissioner of Income-
tax, U.P. and Ajmer-Merwara, (1953) XXN, I.T.R.
141, referred to and followed 383
S. M. Ally v. Maung San Nyein, I.L.R. 14 Ran., p. ISS
referred to 146
- Nadsan Pillay and o~e v. John Huie, (I9SI) B.L.R.
71 \H.C.) ~
zs5
_.:_ N. Gramal "- Bombay Steamhip, .;;:~:~~ro?(q)J
c 0 c: \.
~@j@l ~GX i -:n~p:p Jj'l S9~21?:~c: 459
Spencer & Co., Ltd. and Their Workers, (I9S2); Vol. r,
Labour Law Journal 469, referred to 379
->
S.P.K.A.A.M. Chettyar Firm v. The Commission.e r of
Income-tax, 4 I.T.C. 182, referred to 177
Sris Chandra Nandy v. Sm. Aimapurna Ray, A.I.R.
(I9SO} Cal., p. 173, referred to 416
S.R.M.M.A. Firm v. Maung Po Saung and others, I.L.R.
7 Ran. 466, followed 11
Subbaratt Nayudu v. Yagana Pant ulu and another, I.L.R.
Mad. 90, referred to 366
Subrahmanyan, A.I.R. (1943) Lah. 329 ..(F.B.), referred to 109
- - - --Editor and others, I.L.R,. 2S, Lahore III,
referred to 734
xxxii LIST OF CASES CITED
Su~hiya Nath Bhaduri v. Bihar National Insurance Co.
Ltd. Patna, A.I.R. {194~) Pat., p. 603, referred to 507
Suganchand oKanhaivalal R~thi v. Commissioner of
Inc,ome-tax, M.P. and Bhopal, (1958), 34. I.T.R.
152, referred to 364
v. Commissioner of
Income-tax, (1958), 34 I.T.R. 162, referred to .. . 383
Sulaiman and two others v. Ma Hla Bi, Civil Second
Appeal No. 56" ~f 1953 (H.C.), referred to and
followed 36.6
Sultan Ahmed v. Na~ra Jaman, (1950) B.L.R. 372 (H.C.),
referred to 7
Sunderbai and another v. The Collector of Belgaum
and orhers, 46, I.A. 15, referred to 364
Tan 'Ma Shwe Zin v. Koo Soo Chong, r1939) R.L.R. 548
at 563 and 567, followed 107
Tarak Chandra Das and another v. Anukul Chandra
Mukherjee, A.I.R. (1946) Cal. u8, referred to and
distinguished 497
Taw Eue Taik v. The Union of Burma, {196,p) B.L.R.
~.C.) 78, referred to 129
G .
T. C. Basappa v. T. Nagappa and another, A.LR. (1954)
:(S.C.) 440, referred to 75
--'"Bose v. Obedur Rahman Chowdhury, I.L.R. 6
Ran. 297 (300), referred to 379
- - Leong and one v. U Po Thein, (l91)3) B.L.R. 1
(H.C.), referred to ;.:..:~: ~ - 368
Tein Yl:l Han v. The President of the Union of Burma
and one, _(1953) B.L.R. 47 (S.C.), referred to 34-9
Tek Chand v. Harnam Singh, A.I.R., (1936) Pesb. 8],
referred to 64
Terrell v, The Secre~y of S.tate for the Colonies, {195"3)
2 iQ.B.). p. 482, referred ~o 565
The Collector of Akyab :v. Paw Tun and one, 5 Ran.,
p. 8o6 638
LIST OF CASES CITED XXXlll
PAC&
The Punjab and Sind Bank Ltd. v .. Rameshwar Dayal
and others, A.I.R. .(1958) Punj. 14, referred to .. . 4D7
- Queen v. Gray, (19~0). 2 Q.B.D: 3~ referred to .. . . 733
_ _. Tajmahal Stationery Mart v. K. E. Mohamed
Ebrahim v. S. Aliar &. Co., .(1950) B.L.R. 41 (H.C.),
referred to ... 520
"
...:__ Union of Burma v. U Htoon Pe, t1958) B.L.R. 50
.(H.C.), referred to o.. -. 520
Tin Shwe v. The Union of Burma, .(1954) B.L.R. 358
(H. C.), referred to . .. .n~
?
Tyagaraja Mudaliyar and another v. Vedathanni, A.I.R.
.(1936} Privy Council 70, referred to and followed 397
U Aye Maung and on~ v. Daw Nu, Civil Second Appeal
No. 46 of 1959 (H.C.), distinguished and dissented
from 339
- Ba Yi v. Daw Hmi (a) Mrs. Khoo Sein Ban, (1953)
B.L.R. 360 .(H.C.), referred to 513
- Chit ~ v. Shwe Setkya Cheroot Factory Workers'
Association and.one, Civ. Misc. Appln. 76/61 (S.C),
referred to ' 4-10
- Chit Tun v. Daw Ngwe Thaung, C.f.A. 9 of {1960)
(C.C.), referred to and followed 368
- Hla Pe v. Union of Burma Airways, _(1951) B.L.R.
347, referred to 219-
- Kan and one v. Kalachand and one, C.I.A. 6 of
1962 .(C.C.), referred to ... 34
~ Kan Gyi v. Commissioner of Income-tax, Ran.,
(1958) B.L.R. 172 rtf.C.), referred to and followed 383-
Umar Din and others v. Mst. Aidhan and others, A.I.R.
(1921;} Lahore 303, referred to 701
U Mya v. Abba Kassim and one, .(1959) B.L.R. 281
(H.C), dissented from 535
Union of Burma v. U Chit Swe, f1950) B.L.R., p. 278
(H.C.), followed 245
xxxiv LIST OF CASES CITED
i'ACE
U Nyi Lay v . The Union of Burma, (1959) BL.R. 6o
"(C C} 0 c: C: !; 0 c: C'
~ .. :CI{9~1?2t:SJC'10'-f~:x>2 29)
- Or!l Mf!Jng v. Daw Ky~ Kyi, Sp!. C. Ap~~! ~- :~
<?f I958, referred to and followed Hl3
- Po Shin and another v. -Edward and others, AJ.R.
(1934) Ran. 139, referred to and di<:>tinguished . . . ~~ s
- Pyinnya Zawta ~nd one v. U Nyanika, C.R. No. I I 5
of i:9.6o (H.C.)_.,,dated 23rd February r963, refe.t-red
to J53
- San v. U Win Htain, Building Engineer, Rangoon
Municipal Ccrporation and 'd1ree others, C.M.A.
roo of .(r96o) (S.C.), referred tc and distinguished 547
-.- Tha Din v. The Secretary, Ministry of Co-operative
.& Commodity Distribution, rr959) BLK 94 .(S.C.\
referred to 561
Tin Eng v. U Ba Yoke, {-1952) B.L.R. 341 (H.C.),
referred to 524
- Tun Hla and one v. Daw Sein, {r959) B.L.R. (H.C.),
p. 95, referred to . ., 34 I
- Wa Gyi v. The Union of Burma, :(1948) ,B.L.R. 625
(H.C.), referred to 299
Valab Das and one v. r..~aung Ba Than, I.L.R. r, Ran.
372, referrea to ... 63
Vas'\,nt Vinayak Bhagwat v. State, A.I.R. (1951),
Madrya Bharat, 104, followed 2-+S
Vaughan v. Vaughan, (1953) r All. .(E.R.) 209, referred
to and followed 522
Venkata Chetty v. Aiyanna Goundan, IL.R. 40 Mad.
561 (F.B.), referred to 578
V. E. RM. N. RM. Kasi ViS\"r'anathan . Chettyar v. The
Official Assignee and one, (1958) B.L:R (S:C.) 74,
distinguished . .. 56
Vertannes and another v. Robinson and another, I.LR.
5 Ran. 427 _(P.C.), referred to 579
Vidya Varuthu Thirtha v. Balusami Ayjr-ar, A.I.R.
(r922) _(P.C.), p. 123, referred _to and followed . . . 125
LIST OF CASES CITED XXXV
PAGE
Vithal v. Commissioner of Income-tax, C.P. and U.P.
(1938) I.T.R. 264, followed 177
Vizirally v. Emperor, A.I.R. (1928) J;l'om. 550, refcn:ed
to 392
V.M.R.P. Chettyar Firm v. Hajee Mohamed Sultan <md
others, .{1941) R.L.R. 774, refe1;red to 8.-:!
: V. Ramados v. K. Hanumantha Rao, r19II) I.L.R. 36
Mad., p. 3 64, referred to .. 9 151
. \ Varyan Singh and others v. H~ranam Singh ad
~
another, C<:'
~~o~~ :;>~!) 1 G~!~c ~,
(')
'I 0
r OJ~':(:! C'
<D?:~m:.?
0 C' C' C'
Jf3. J 09~2fl0J~ 319
Windeatt v. Windeatt, (1962) 2 W.L.R. 1056 at 1065.
referred to 539
Winter Garden Theatre ~London) Limited v. Mille11ium
..Productions Limited, L.R. (1948) A.C. 173, referred
to and followed 521
785
6 ""'
vi
83.3
794
308
587
979
588
XXXVI LrST OF CASES CITEQ
P..w;m;
C" C" '"l C" '"lG OC" C"
GOJI 0)?())~~ Gffil 81fO)Q'XjOI'J O@jj<f@ OOLCI GOOI IO?QJ~?
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OL'j~O)QJCq -.,~8100)?~?1 O@jO ~'JIOI 00j ~CIIOI IO?~J9?
. 0 (" (" <'
0 ?J m L92?2lt:::ne; .... - 1$6o
0 C' C" C" G C" <" C'
G G (C") C"
t?l ml 00? 'J I 00<*1 Grldl 108-?~f89Q:;lJIOO)r,~ GQ')C{;lJt2i:'
('~(" f.: (" GC"o \ (" 0
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(" (" ("
92?21t~::ne: ....; 96t
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10')
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92?21t:::n~ 2,13.
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~2:~.o~1~ ~]f (1948) B.L.R. l34 c-q 9~t2;>:o:>e; .... 2:85
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~OJ08d')g(})G~J?ffi8~C. <Xj>OI~J'JfOL'J @I ())')CI)ffi~?:l ()0)(\)
c( ) o c c r:c 761
~0) 10 .I 10? 'f~O ~ "J2?2.i1fg::n~
~9~(~)~Jf8'J?CO~?~nlz~ gq'Pf~ (~)I GSJI~[Jro?(9) I
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O@jj ~101 ffi?'XJ0"2??: I 10? 0007 cq 'J2?~f:~
0 C' ("
CO/Df"X:oe: 9/T
(C') 0 C '">
G
0)1 $;~? Q
-t
I OtJC8ffiOI?d8C'
1. ~ l- IJ
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J
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G
())~IO"'ll:::J!.S?QS::'\_'0)?1
0 C' (C') C' C' (' 0
GOOI OOLCI ro ?9 I 0@9@ ~101C'
gg'J()I IO~JO~? ~CfO 0~
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9t::~t:91 O-tmp:::oe: .... .... .. ..
G ' (' C' C" C" 0<" C' 0<" (')
0)1 OOCI ffiJ ilo:>Cll)~ u~e::oo;;:o.p G3di~CI $:)? 9 I O~<j'f
c c c 0 C' C' ("
~1101 ~U")U I 10? ?@CS cq_ 'J2?~f g:;o2? 587
C"OC" C 0 OC'
mtulc'q ~m.y~1 I.L.R. (1932) 10 Ran., p. 490, referred to 843
C' C' C' (' (' (' (" g ('
O)f~G2iOC~S ~~G~J?CI O@?@ ~01 'J'f~f~C9~<dJ?:I 0? J<1''
OC' C" C'
~ '92?~t :::n~ n9
c c c ' c o o c- c- c
O)~IKDC.iC ())C(J.)')() OOQI
J 0 J 0 . . !It JL
(1950) 1 K.B. 18 a-.;l c;,;:o:::n.s:::n;:D,
'-'!.AT ~
306
C' c-
.OO~G(X)')(')')()GQ;&c ~C1D?GQ :Z~C
c- c- c- c: ()I '"l C.
ll
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0
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\
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~
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'r'IOI oxp~ .roG~G~ropoJ~')ro~m o j@ ~ "92?tt=
C'
::D~ 453'
LIST OF . CASES CITED xxxvii
. PAGE
C" C" C" ~ C" C" ~C" OC"
<:q;;:oo:;1~ t12Gco:>~~ - ~::Jr~:>~cct 19sr B.L. R. , p. 148
(S.C.) referred to
Q C" ~ C" fl C" ~ C" OC' fC')
"39a:Yol0~ '~ u:>0~\rn:IOJ m~ I~@J? ~~~~ GG:li~CIOO? \ CJ I
~G~I ~? ~9J ~eJ?~5)~:tj:x>2:
'r::: (" ~ (" 274
<Q \ (' (' (" Q 0 (" ((") (" ' 0
$'Xl~OG9~fl~ Go:>~?G:JCIGJ.l l Sd,C I 8::1? 9 I ~@rj ~t~l CD?<J.(I
'r::: (" (" ("
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0
806
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-~L'F1-:.~9c ~o jj ~t~l l.Hag Ece 1 ~:: ???'ft:SO c-q
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e o c- c- c- c- oo c- c- c- c- c- oc-
<G8ro~::l{~C. 'J~tmro*<..O oxp:('jo:>GO))QJ[OI c.:lf:lfO""-tC:I
I"'
c;g(Q J' c ("
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0 (" 'r::: (" (" ~ (" 437
"(''0 (" (" Q (" c. (" r.; (" ~ (" Q ("
~:31 ts~=,:. e:oxnt og~ro ~~~~ ~::Jt~Jee: ~c~~~p: oxp:
(" (' (" 0 (' (" ("
C'iO)GO)?~J[O I ~? :) ~ 92?2lf::D2 431
C' C' G:, c- C'G C" <" C" QQ C"Q OC'
13m0JC~89~~U~f?~9m8'~ ::JmOJC~8~ 'f'CJ:D81 G:;.)f 9_C I
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Sll?\ 9 1 oe9 ~, ~~1), ~89 o, ~J oJt:S q 9 ~~r~:n2
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<.XjOG(J)?;::~( ~~Jmit? OISj-0~1 .<-q 'J2:~f::ne: 42-9
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()I~IG'PC:~~ ~lJ?0":80? ~ I GOOimlCI8d? ~ I 0@)@ ~~10 1
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::Tp{c! ~:: J2?-J~? ~~ 9c~r::n~ 595
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of CDCDQ~::l'..OS~C OO(.l) CD CDOX~CJWSI 012"1'j :.}~1>1 S'J~{.l)
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LIST OF . . . CITED
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GENERAL INDEX x.lix
PAGB
BAIL-gra;iti;;g Jj -;;y Chief Co~r!. Cr':minal Pr'>ced?lr.t Code,
s. 498-Application against order o; rem~mding magistrate-
whether fre;h application before trial Co:Jrt JII!C!SS:Jry b:fore~'7pply
ing to Cl!itj Courl . The Applicant wh.:> had been nrr :sted under
s. 3 (3) of the Printers and Publishers Reg is:ralion Act, had
applied for bail b~f.:>re the Remanding Magi~~r,Jte, but bail was
refused. He then applied for blil to the ChiefC::mrt under s. 498
of the Criminal Procedure Code. In the meantime, the cnse had
been s<!nt up to th'! Cout f)r inquirr and t:i:d, and it was con-
tended on L')h~llf of the Government that th~ npplication before
the Chief Court ,,.,1:; no longer effec! i ,.e, and the )):O?Cr cou~e was
to file a ires!'! a:~?lication before the tria I Cour:. Held: As the
case has now be.!n sent up before the Co~rt. -~-: :~:.1:tcr ous;ht to be
presen t~d before that Coart u:1der :;. -+ -;; >; th'! Criminei
Procedure Cod~. Unders. 498 oith~ S'lid Co:.l ~ ~~~ C:1icf Court
and the Coart of Sessions h~ve c:>nc.1rrcnt ja~isjic:ion in the
LJ?:atter, bat ordin!lrily th~ Chief Co~ut wi.l n)t c:lt~rt.tin a pe'ition
under s. 498 unless a subordinate Co:.~r: ot c:mcurr.!:\t jurisdiction
ha_s been appro;~ched in the first instil nc:. S,1yad Pir lv.lohi-ud-
Din L!Zl B!ldshah v. Emperor, A.l.R. (193~)L?.h . i6?, ref. rrcd to.
Vasant Vinayak Bhagwat v. State, A.J.R. (1931) 1\Iadhyn Bharat,
104, and Indar Doss v. State, C.L.J. (195:~). p. z3o, hllowed.
Obiter: It is a so:>und prilctic:l that if si:-niiar r;:l'cfs could be
obtained in the lower Cour:s, the Chief Court sho~'ld not be
overburdened with applications for such r~ l iefs.
u 0HN MYlNT v. THE UNION OF BUR:\1A 246
!lONA-FlJiE REQUIREMENTS OF THB SUI'I' PREMISES DY LA.,'DLORD FCR RE-
BUILDING-URBAN RE.~T CO:-<TROL ACT-:V!i! .....''J:-:C OF " REASON-
ABLY,, A..''ID" Bcf:~A-FIDE" 159
BURDEN OF PRCOF-5. x67 A OP TH S!;.~ C:t'OT0:<-15 ACT D05 NOT
ARISE- BURDEN OF THE ACCUSED OR THE PER.:iOS ACAI;-.;ST WH00\<1 THE
PROCEEDINGS ARB OPENI!D - S!llZUM OF COLD D!SCS . . . 738
BURMA COMPANIES Acr- S. 162 .A:-<'0 x66-WINDING UP-
)'VHBN .. JUST AND EQUITABLE " 449
BURMA INCOME-TAX AcT- S. 2 (II) (c) Ol' THE ACT-M!lA.'<,N.G
OF" THI! P.REVIOUS YEA<t " - FOR Tffi! PUR?OSE OF ASSESS~1ENT I7
BURMA INCOME-TAX Acr-How Tv DBTRRMIN:t THE ....SSESSEe WHO
LAST OWN!?.!:> AND USED TH-; ASS!>T3 WITHIN TKE MEANING OF
SUB-S. (via) OF S. ro (2.)-ME-\~iNG OF" ASSETS "-SECOND
PART OF SUB-SECTION (vi:) O:c> !1. IO (2) 92
B uRMA INcoME-TAx(SscoNoAMBNDMs~rr)Acr, x')s;;.-s. ;:o (:z) (-,r~i)
Prarviso-.4.pp!.ies to sale of ships bel011gi.:g to ~::::zr~sid.mt company
-Proportionate share of pro.fits,from such s!l{c-Adding back of-
Legal. The proviso to s . xo (2) (vii) of th() Burma Income-
tax Act as substit1.1ted by t..'lte Burma Income-t;;.x (S.zcond Amend-
ment) Act of 1954 is nppEcable when ships b~Ionging to the
assessee non-r~ident shipping oompmy arc sold end the propor-
tl.onate share of profits fro:n tha sa l'e of th~sJ ships c?.n lawfully be
add~d bzck to the income of th.~ asscss(;C com;:>3..,y.
MEsSRS. SclNDIA STEAM NAvloATzo=-< c~ . LTv. v. THE
Co11r..ussroNER OF I NCO;\iE-'rAX, Btm:\'iA 28
l GENERAL INDEX
PAGE
BURMA INcom:-TAX AcT, s. ro {z) (vi) .~ND s. ro (2) (via) (SECOND
PART)- Difference between. General provisioz <md special provision.
S. ro (z) (via) (second part)- "Assersees 11ho last oumed ar.d 11sed
the assets ' in-1kleanitzg oj- Depreeiation for previous year-
Suc-:essor and not predecessor who is entitled to-" Transfer of
ownership " in-Includes also ~ransfers by operation of law-
" Assets" in-Includes buildtngs. On the xst October 1953 the
business and assets of the applicant, whose accounting year wns
according to the calendar year, were acquired by the Rangoon
Electricity Board under s. z8 oi the Electricity Supply Ace
(Act No. 69 of 1948). For the assessment year I954-S5 releant
to the pre1ious year ~mding the 31st December 1953 he app; icant
<::aimed, a."llongst others, depreciation allowr.r.ce amounting to
K I2,32,97r, which was rejected on the r;ro'-'nd tlnt under s .
xo (z) (via) of the Burma Income-tax Ac<, it was dte Rang'IX>n
Electricity Board and not the af>pl icant which was entitled to the
depreciation allowance for the p~;!\ iot:S yet<r endmg me )lS!
December I9S3 Ileld: That clwsc (, ;) of s. 10 (z) of the
Burma Incon1e-tiix Act envisages a situGtion in wh'ch there h~s
been no ch~nge of owncrsnip duri:1g the course of the pre,ious
year, wheres the second part of clause (via) is:: special pro,ision
relating to cbpreciation allowance on change of ownership during
the course of the previous year. On the maxim generalia
specialilus ttol derogali ~he general provisions regarding
depre::iation granted contained in clause (vi) cannot detract
anything from the special provisions contained in the second part
of clause (via). Held also that the phrase" the assessee, who last
owned and used the assets" contained in the second clause in
s. ro (2) (via)'ofthe Act means the person succeeding and not
the person succeeded where there has ~n only .one change oi:'
ownership and by necessary implication means as if it re2ds "the
assessee, who last owned and used the assets durin&,the previous
year." Held: That it is the successor, the Rangoon Elec~icity
Board and not the predeces~r, the applicant, which was entitled
to the depreciation for the" whole of the previous year I9S3
Where it is contended that the second part of clause (via) of the
Barma Income-tax. Act is entirely itlapp!icable because it
envisages vohmtary transfers of ownership ::md not such an
inv?luntary transfer as had talcen p lace in the case now under
consideration. Held: That the words "transfer of ownership
in the ~. part of clause (via) of . xo (2) of the Act
indude not o;Uyvoluntarytransfers butalsotransfers by operat ion
of law. Calcutta Electric Supply CorpDration Limited v.
C-ommissioner of.Inco{l'.e-tax, West Bengal, (I<J5I) 19 I.T.R. 406,
dissented from. Held .f.erther: That the word ".;issets" used
in the second part of sub-s. (via) -of s. zo (z), Bu~ Income-
tax Act includ~ buildings. .
THE R.u<oooN ELllcrRrc TRAMWAY & SuPPLY Co. , LTD.
v. THE CoMMrssroNER OF INcoMB-TA-'<, BuRMA 92
BURMA INcOME-TAX AcT, s. 23 (4-)-assessment under---when can ke set
aside-absence of applic~tion u11,der s. 27 of the Act. The applicant
had been assessed Iinder s. 23 (4) of the Income-tax Act, and on
application to the Ass~stant Commissioner, th~ assessment was
confirmed. On znd appe.al to the App~ll~.te Tribunal, the
Tribunal set aside the assessment end .directed 'the I ncome-tax:
Officer to makt a fresh asszssment. In passing its order, the
Tribunal 'h ad .-emarked that the. Assistant Commissioner's
de~ision was' not confined to tb.e-qt~~s:ion of assessment only, and
INDEX
CHIEF COURT
PAOli
ACTS.
AMNESTY Oru)F.R OF 1963.
BuRMA INCOME-TAX AqT.
BURMA CoMPANIES AcT.
BUR.l\fA IMMIGRATION (EMERGENCY PROVISIONS) ACT.
BURMESE BuDDHIST LAw.
CrviL PROCEDURE ConE.
CoNTEMP,}" oF CouRTS ACT.
CoURT FEES ACT.
CRIMINAL PRoCEDURE CoDE.
EVIDENCE ACT.
FoREIGNERs' REGISTRATION AcT.
GUARDIAN AND WARDS ACT.
Hrnmr MAruuAGE ACT.
INTERNATIONAL LAW.
LAND NAT!ONALISATION ACT.
LIMITATION ACT.
LoWE,R BURMA ToWN AND VILLAGE L~NDS ACT.
MOHAMMEDAN LAW.
MoNEY LENDERS' AcT.
MuNICI;:L AcT.
NEGOTIABLE INSTRUMENTS AcT.
p AR'rnERsHIP ACT.
PENAL CODE.
REG~STRATION oF FoREIGNERS ACT.
REGISTRATION OF KBITTIMA ADOPTION ACT.
xlviii GENERAL INDEX
PACE
SEA CuSTOMS AcT .
.l=iPECIAL MARRIAGE AcT.
SPECIFIC RELIEF AcT.
SuccEsSroN AcT.
TRr.DE DISPUTES ACT .
TRANSFER OF PROPERTY ACT.
UNION OF BURMA CONSTITUTION.
UNION JUDICIARY ACT.
URBAN RENT CoNTROL Acr.
ADVERSE Po~""ESSION-ARTICLES 14Z AND 144-ARTICLB f4Z APPLIES
. , , ONLY WHEN POSSESSION LOST BY DISPOSSESSION OR DISCONTINU-
ANCE-ARTICLE 144 APPLIES WHEN NOT OTHERWISE SPECIALLY
PROVIDED FOR
AMNESTY ORDER--PARAGRAPH 6 - EXCEPT THOSE OFFENCES INVOLVING
. EVASiON OF RBVI!NUB FROM THE OPERATION OF TI:JE ORDER- ACTION
TAKEN BY THE COLLECTOR OF CUSTOMS IS ONE in rem AND NOT in
personam 739
APPEAL FROM ORDER OF SMALL CAUSB COURT-refusing to ma'k e com-
plaint in respect of offence committed before it. S. 476B, Cr.P.C .
.'When a Court of Sma_\1 Causes refuses 'to make a complaint in
respect of an offence committed before it an appeal lies to the
~istrict Court under ~. 476B of the Code of Crimin:1 l
Procedure anli only when the District Court refuse-s to reverse
the order a revision of the order of the District Court 1ies
unders. 115 of the Civi !Procedur\'. Tek Chandv. Harnam Sir~gh,
A.I.R. (1936) Pesh. 87; E.P. Kumaraul Nadar v. T.P. Sha'"l-
muga Nodar a11d others, (1940) 1 1\J.L. J. 719 (F. B.) ; 1.-olji T <!<":Iri
v. The King-Emperor, J.L.R . ..;. Pat. 6o9 (F. B.); Valab Dos mr..i 01fe
y. Matmg Ba Tha11, I.L.R. 1 Ran. 372; Abdul Hrst:cin Alibh":i
v . Mohamed Ibrahim Maistr:y, A.I.R. (1937) RAn- s.z6; Lokman
v. Haiku, A.I.R. (1934) Nag. 236; D=. Sot::> .KJ:i1c .v. KD Si=~
Phar, (1941) B.L.R. 90; referred to.
SUMMANTA RAM DUTTAV . P.B . D AS AND TWO OT"SZRS 5'
AsSESSMENT OF INCOME-TAX-AssESSMENT ON SALE 01' SHIPS BELO!-IC-
ING TO NON- RESIDENT SHIPPING COMPANY LEGAL-PROVISO TO
. SECTION 10 (z) (vii) OF BUfu'\{A I NCOME-TAX Acr-Scco~
AMENDMENT ACT OJJ I954 .. . .
. ASsESSMENT OF lNCOME- TAX-WHBN CAN RELIEF BE CLA!l\rr;D FOR
, THE CORRESPONDING PERIOD DURING WHICH It-'DAN INC0!-1E-
TAX HAD BEEN PAID-INDIAN AND BURMA INCOME-TAX RELIEF
ORDER OF I936, P ART III, PARA. I 6
AsSESSMENT OF !NCOME-TAX-WHETHBR THB ENTIRE PROFITS A,?-."0
GAiNS UNDl!R 1'HE CONTRAIT ARISE Wl!lOLL Y OUTSIDE THE
TTNloN OF BURMA
GENERAL INDEX li
PAGE
had given de:ision also on the validity of the assessment as if the
respondent hld filed an application u:-:d~ s. 27 of the Act. The
question fo;: co:tsideration by the Chief Court w&s whether the
Tribund had rightly set aside the assessment m:ld~ under s. '23 (4)
of the Act, in spite of the fact that thes~ had be~n n? application ,
under s. 27 of the Act for the canC!llation o!' this assessment.
Held: There is a large preponderance of au-;hori~y to show that
the question referred to should be answered in th'! negatiYe. Naba
Kumar Singh Dudhuria v. Commissi,ndr of Incom~-tas, Be11gal,
Mauladin .Ayub Firm v. Commiuiomr of Income-tax, Bombay,
(1944), XII I.T.R. 327; U Kan Gyi v. Commissioner of IncoTI'.e-
tax, Rangoon, (1958) B.L.R. 172 (H.C); Chlrq.t;l-il Bobardhan
Das v. Commissioner of Income-tax , U.P. and V.P., (1953), 23
I.T..R. 272; Sir Padampat Si11ghania v. Com';.i:s:o:er of Income-
. tax, U.P. and Ajmer-.Vlerwara, (1953), 2~ I.T. R. q!, referred to
and followed. Suga1;chand Kanhaiv:Jlal R:;tfli v. ' ' ommi;sione; of
Income-tax, J11.P. and Bhcpal, (1958),34 I.T.R . 152; referred to.
South, (1959), 35 I.T.R., 449, referred to and f'>llowed
that the Ass:stant Commissioner of Income-tax, had go:1e in:o the
ques~ion wheth-er the b'!st of j~,;dgment assessment under s.
23 (4) was or was notj .ts:ifi~d in the app~:~ 1against the quantum of
the a>sessment under s. 30 of tho Burma Income-tax Act,
does not make any differen-:e. The AssisU~nt Comm:ssioner was
acting witho'Jt any jurisdiction in con-;idering the matter, md
thi~ fact should have been ignored by the Income-tax Appellate
Tnbunal. It is quite wrong to say that because the Assistant
Commissioner had considered the matter over which he had
~o j~ris~iction the Income-tax Appellate Tribunll is justified
1n gomg mto the sa..'ne qu~st :on .
THE~COMMISSIONER OF 1:-~COM-TAX v. l'VlESSRS. PWINT GAUNG
AND BR;>THERS 934
~U!b'\1.\ I NCOME-TAX Acr, s. 4B(a)-mea ..i>~g oi" no; ordinarily resi-
d~t "-:-PositivJ,~oncept-divergence of t--iew:. Held: In ord:er t~at
amndiv1dualj; notordinarilyr!S id~nt "in the t:...nbletcrntones,
he should satisfy one of the two con:lit o;s laid down in s. 4B(a)
of the Act, and under th-at sec~ion what has go! to be consid:red i~,
the assessee's residen~;e in the taxable territories, an-i not h1s rest-
deJ:l,ce outside the taxable territories. Manibi1ai S. Pat:l v. Com-
missUJ1ler of lr.come-tax, Bombay North, (1953) XXIII I.T.R., P
27, referr~d to and f.>llowed. P.B.I. Bava v. Commissioner of
Incwne-tax, Mysore, Travancore Cochin, (1955), XXVII I.T.R.
463, referred to and dis\inguished. Held further: The term
"not ordinarily r.!sident," rderr.::d to above, is a positive concept.
If' the legielature had not intended the term to be a positive
conc.-:pt, the~e was no nec~ssity for the use of the inverted commas
Messrs. Rowe & Co., v. The Secretary of State for India, XI
L.B.R. 299 at p. 306, r<:ferred to.
MR. D. H. Cozms v. 'I'HE CoMMrs,;romR oF INcOME-TAX,
BURMA... 897
BURMA INCOME-TAX Ac:r, s. 26A-Burma Income-tax Ru!e;-R11le 2,
Registration of firm-Ins!rummt of partnership to be in e>.:istence
during a,c~nting year. Although there is nothin~ e'X:pressly
laid down in the Burma Income-tax Act to the effect tha,t an
instrument of partnership sought to be registered must be in
existence in the accounting year before registrat:on can be
, \ l> ,. . "
lii GENERAL INDEX
PACE
cl3imed, it is implicit when th'-l relevant provis'ons of the Ae<
and the Burma Income-tax Rules are read together. Ikfo.-"
s. z6r\. Jf th'! Burm~J Incorh~ .. t!l:< Act was substituted by 7:-=
Burma Income-tax (Second Amendment) Act of 1957, With
effect from the zst October 1957, and Rule 2 of the Burma
Income-tax Rules was substit;..ted by Notification No. 38, d : ted
I 1th September 1956 of t!B Financial Commissio~er, Bu~,
it was nec!ssary for the ir."strument of partnersh1p to be u
e:xistence in t!-,e course of the ::<c;:ounting year to enable thzt
partnP.fship to be registe::ed in respect of the following assessmen~
year.
u THAR.RAWADDY MAUNG MAUNG AGI!NCIES v. THE
COMMISSIONER OF !NCOME-TJ'.X, BURMA ! lO
BuaMA-lNCOME-TAx AcT-WHBTHER Ass:::ssEE's PAYMENT OF INTEREST
MADE OUTSIDE THE UNION 0!' BuRMA DliDUCTAB:LE-S .
18 OF THE AcT-Ml!ANING OF "BUSINJlSS CONNECTION"-
S. 42 (z) .:n
B11RMA lNCOME-TA.x A~T-Payment of i11terest outside the Umon of
Burnza-:-When chargeable to Income-ta:.; under-When dlozuable
deductzon, s. 42 (1)-b1-:siness connection. For the assessment ye~f
1957-58 the Income-ta.'C Officer added back to the income
1eturned by tile appl icants, who are a non-resident company w ~th
an agent in Rangoon, three items of expenditure which included
as~ of K 5,41 ,oo6 which represented interest payment on loans
o~ts1de the Union of Burma on the ground that the applicants had
failed to make tlx deductions therefrom under s . 18 of the
~?.r::na Income-tax Act, h:Jiding that the proviso to s. ro (z)
(ul) of the said Act was applicable. For the app lic~n:s it is
contended that s . ro (~) (iii) of th~ Act and not the pro:iso
thereto is ap~'licab le , a.-1d \'hat therefore the said interest p<y;r.e::t
was an :ilb.-:able deduction. Held: Thst an assessee 's u.-:d~r
no oblifa:icn t J dedu~t t?.x under s . 18 of the BUl'lTI:l hcxnc-
tnx Act fro;o~ :::-;; i:\te.-st p;;id by ilim ol.itside t he Union of Burm:;.
.ml~ss th: i ::t~r... st which h.: had' paid oat>ide the t:niCCl o!'
Bul'ma was c;larg.:able under th.e Burmz ln~tlu: Act. ~-
ba;.dc;r S!a le IJ,:,!'t .,, Th~ C(Jr:rmuti(11'~r ~;{ la...._U:Jr. ~.:>Jf
Czt1, (H)SO) I f) '!.'T. R. I3h rderrd \:>. ilrU.s.boch.u ~~
of tnter,;st O:\t:.ide the Union of Bumut ~iH Oldy be-~
under the Burma Income-tax Act, if chey C3DIIII..._
~
pr?~ts or ~o"Pins accruing or arising- to them~~"
md!recJ) through or from any b;isin~ss ccrn~~ectiort is tit? r!tlittitr. it;f
Burma 2S pro;icled in s. 4~ (;:) of the B~ ~
Act. The e::!:pression " business co:mect'on ' ' in .p, (d
~f }h~. Act, w:.i~'l h;n a wide m~n'ng, admi;s of oo p-.e-~
OeiJ<U:lOn, :lnd thnt accorclin~l;r, the ~olu:iOTt Of me
.quest! on must d~pl)nd ttj>on the oard cL<!?.r factors of each C""$!"-
The c;ommissioner of Income-tax, Bombay v. lv!etro Goldu:y., !r1~
(J.ndia) Ltd., (t939) '7 I.T.R . I76; . .
"In order to constit!lte.:a busin~ss trans~ctibli theN must
b-;). som<:l CJntin1.lity of rdationship bet>veen . a . perso:t in
British India who makes the profits and .t.l}c non-Nsi<!ent
who rec~ives them."
" If ther~ is only one isolated t.t-ansac~ion between a non-
resident and resident that would not const itute a business
transac!ion.''
..... ,."
GENERAL INDEX
'
..
liii
PAQB
Bangalorc Wa:~llen,Cotto:1and SilkMills Co., Ltd. Y. Co~~issimer
of Income-tax, Jli[:Idra;, (1950) IS LT.R ..J 423; Comm1ss1oner of
l11come-ta., Bo:iW:zy v. Curtimbhoy Ei:Jra}Jim & So.'!s Ltd., .<~933)
I I.T.R. 341; Commissioner of Income-tax, Somb!ly v. Curnnlbhoy
Ebrahim <S Srms, Ltd. (I935) 3 LT.R. 395; The Catttnlis,-io::er of
Income-t.:Jx, ;3om'J.Jy Presidency v. The_Bombay Tr!lst Co:-p:~ratio11
Limited, Bom'J.:y, LL.R. 52 Bom. 7oz; The Cnmm.s.ioner of
lncome-ua, Bomb.ly Pr~idBfiCY v. Ths flombay 'J.'~ ..sl Corporation
Limitel, Li....R. 5~ Ho!ll. 216 (P.C.); The Commis;b;;er of ];:com~
tax, 1].;...;:.;. " P. V.R.M. Vi;:Jlakchi AcJri, (I937J H.L.<. 17~; Rc
Rogers Pyau Sl1ellac & Co. v. S!cretary vf .:3tatefor lndi;z, I.L.R.
52 C1l. i; Tile Commissio11er of J.1:JmJ-t.-.1x, Bu.rm:~ v. NUssrs.
Steel Brothers ~ Co., Ltd., I.L.R. 3 Ra;1. 6r~; Commissioner
of /ncom!-!ax, Bominy v. Natio11al i'l-ful;tal Lfe Associa-
tion of A rtstrattJsi!J Ltd., (1933) I.L.R. 57 B~:n. 5 L); Hira Mills
case, (I9+6) 14 l.T.R. 417, referred tJ. Wht~e, according
to the apj1bcants the interest was paid by them on loans secured
m;~inly from the Government of India, fo;: th::: purpose of pur-
cha:ung ships w.to which they were able to expand th::ir
shipping business in Burma and earn more taxable profits
in Barm~. Held: That it cannot be imagined that the
Government of India which hsd lent certain sums
of money to the applicants for the pur;)ose of purchas:ng
ships w.th which to expand the applicants' bus mss can hav~
any 'basiness connect:on' with the appEC3lltS and that of
the sum of K 5,41,096 p1id as inteNst by the applicants out
of the Unio:t of Burma so much of it as was paid to the Govern-
ment of India for loans taken for the purpose of b:Jying ships was
allowab le dedu::t 'oas as interest payments under s. 10 (z) (i'.i)
of th~' B..1rma Income-tax Actr.:ad with sub-s. (3) of s. 42 of the
B:Jrmlln;J:n~-tax Ac' and Rule33 of the Burma Income-tax
Rules .
ii1ES5R; . TtlB Ba..aAT LI~E Lro. t . THE INCOME-TAX
APPELLATE TRIBUN.'\1., BUR.\!.\ A-"D 0:-JI! 3I
BURMA !NCO.VII!-TAX Acr-A'RCIUTI!CTUR\L fES ACCRUED OUT OF
SI!RVICES IU!NDERBO OUTSIDE THB UNION OE' BuRMA ASS!l>SABLE-
S.)4Z (I) AND S. 4 (I) (a) AND (c) OF THB Acr 3l
BuRMA 'INCO:I1S-TAX Acr-Assi!SSMnNT u~OER s. 23 WITHOUT ~FER-
ENCE TO . 44C)NVALID-S. 44;B WHEN A,PP~IES 84
BuRMA INCOME-TAX Acr, s. HB-Applicability-Shipping Companies
har-'ing agents in the r;Jnion of Brmna-Assessaqle under s. ZJ without
refermce to s. 44C-:-Assessment m!lde under s. 4 J.B-Not valid.
During the accounting year ~95I, the Income-tax Officer, Com-
panies Circle, and the applicants agents in Burma adopted the
metho~ indicstcd in s. 44/:r o{ "the Burma Income-~ Act,
of pll'ymg advance Income-tax at the rate of 5 per cent on the
gross fr~ights earned by the four vessels that came to Burma .
during that year on the distinct understanding that th~r.! would
be adjustment on submission of final returns in th'! ordinary way.
~en final ~eturns .w ere asked for by the Income-tax Officer by
xssuc of notice under s. 2~ (2) of . the Act, the agents of th\':
~pplicants informed t}:!.e Officer 'that their princ.ipals did not
mtend to file the returns of income for the prev:ous year ending
31st Decernber 195~ rel.ewnt to the assessment yell' 1952-5~.
liv GENERAL INDEX
PACK
The Income-tax Officer, th..:rebre, proceeded to asso.ss the
applicants on an income of K :.,z8,8s6 under s. 23 (.r) of the
Act, inspit~ of a letter from the applicants' agents to the Income-
tax (lfficer that their principals did not intend to claim any ai.just-
ment under s. 44C of the Act. It was contended t;<a t rhe
assessment under s . 23 (4) of the Act was ultra uire; nnd
invalid,as theapplicancs were rv>t I iable to be assessed u:;d-; r th~
ordinary prov . SO!lS of the l:!unna Income-tax Act. H~UJ: That
the method! of compi.lt .~tion indicated in s. 44B of the lhm1a
Income--tax Act is ordinarily applicab le to 3.SS{;S~meot of c:x on
the Maste'..: of tramp- :teamers and not to those shipping !.rh"s
which have. regular ag~nt w ithin the Un.on of Burma from whom
tax will be recoverable in the follow:ng ye:~.r, under the other
provision of the Burma lncome-tax Act. Htld dso: That t".c,.:
had been no v.1l id l"!sessment under s. 44B of the B .r,;; '
Income-tax Act and that the Income-tax Officer concemeu :l~;;
made a mistake in adopting the method of computation of
advance tax on the bas:s of that section. Held further: That
in the circumstances of the case, the assessment und-~r s. Z3
ofthe Burma Income-tax Act without reference to s. 44C of
the Act is valid.
THB MoGUL Lrm LTD. v. THE INCOME-TAX APPELLATE
T'RI.BUNAL, BURMA AND ONE 84
BURMA IMMIGRATION (EMERGENCY PROVISIONS) ACT-S. 7 (2)-
CoNTROLLE.R TO ACT JUDICIALLY-TO . COMPLY ALSO WITH
EsTABLISHED PRINCIPLES OF INTERNATIONAL LAW ... SI
BuRMESE BUDDHIST LAw-Grant of Letters of Administration-
Competition between elder brother of deceased and Y.,unger half-
sister. The appellant, as elder brother of the deceased, had
applied for Letters of Admin ~tration to her estate. The respon-
dent, who is the younger half-s ster of the deceased, cont~sted
the application. The learned District Judge held as settled law
under Burmese Buddhist Law that younger brothers and s'sters
excltlde the elders as heirs to a deceased brother and sister;
and as equally settled law that for purposes of inherit3nce,
half blood is equal to the full blood. The appellant was therefore
Considered as not entitled to inherit the estate of the decezsed.
On appeal:-Held: (inter alia) the order of the D :strict Judge :s
unsustainable. Among relations of the same degree of relation-
ship to the deceased, the full blood relations should be preferred
to the half b lood relations. The rule that inheritance should not
ascend when it can descend does not operate in a 'c ompetition
between relations of the full blood and those- of the half blood of
the same. degree of relat;onsip to the deceased.. Maur.g Tun
Zan v. Maung Tun Zatl Gyi and another, A.I.R.- (1933) Ran. 3I7i
M rs. K irkwood (alias) Ma Thein and others v. Maung Sin and .
others,.A.I.lR. (1938) Ran. 74; Ma Glay and. one v. MaE Mya
and others, 8 Ran, 27, followed.
u TRIN HNYAR v. MA NGWE SAING zso
B~E.BUD;DH~ LA_w-;-Keittima.Adoption after x~t April,I941-
Reg1st:ratwn of Ke,thma Adoptums Act-Adoptton by deed o.f
adoption unchr the said Act-whether invalid because not attended
by publicity and notoriety-whether deed of adoption by itself,
sufficient to prove adoption. Where the plsint~ had applied for
GENERAL INDEX Iv
PAOB
letters of administration as keittima ad:)pted daughter of the
deceased un<hr a registered d~:::l of ::.:!optic;; itl !\154. and the
defendants, as close relations of the dece"ased had objected tG' the
issue of letters to the plaintiff, m~inly on the ground that the
adoption was a h'> le and corner affair, and the absent publicity
and notoriety, had re:1dered the deed of adopcion inv<~l;d, or had
reduced its value so much, that by itself, i t was insufficient to
prove adoption. H eld: the customary low ralat ing to keittima
adoption has now been crystalliz.:d in the Act, and once a deed of
!!-doption, duiy executed, attested, and resi~tered uncer the Act
1s produced, the fact of keittim3 adoption is eii~9b : ished, and
that is the end of the m:~tter. This is because the intention
of. the Act is clearly to clear away the clouds of doubt and uncer-
tamty that often surround family matters in Burmese customary
law, such as keittima adoption. The Regis;ratioy of Ktittima
Adoptions Act embodies all the tllements that were required by
the customary law. The definition contains all the ingredients
which formerly had to be proved by some conduct. The require-
ments prescribed for the execution of the deed and the registration
also fulfil the need for publicity. The visit to the Registration
Office is in itself a matter of solemnity which for most Burmese
people, would be even more solemn and serious than a ceremony
in the house. The attestation of the deed by atleast two witnesses
also involves solemnity and publicity and the reg:strat:on of the
deed in the books of the public office is, in fact, a proclamation
to all those who may be interested to know about the ::doption.
When a deed of adoption is executed and registered in compliance
with the Act, then the deed itself is a clear and sufficient proof of
the ~dqption. The expression "according to the Burmese
Buddhist Law" appearing in s. 4 of the Act does not mean
that the deed by itself woald not establ :sh the adoption and
that the other reqdirements of the Bunnese Buddh:st Law,
such as publicity and notoriety must a~w ~ satsfied. The
correct interpretation is that the expr~s ionqu~i.fied the inherit-
ance rather than the adoption. iW:a Pu v. Dar Aye l'vfya and
others, (1948) B.L.R., p. 19, and Lim Chim So v. Lim Ge~ksoo,
(1956) B.L.R., p. Z48 (H. C.), referred to and followed. Clum Eu.
Gheev. Mrs. Iris Maung Seinand two others, (1953) B.L.R.,p. 294
(H.<"!.); Ma Ywet v. Ma Me and one, 5 L.B.R. (19091o), p. 118;
Ma Me Gale v. Ma Sa Yi, 4 L.B.R. (1907-08}, p. 172; and
Maung Ba Pe and another v. Maung Shwe Ba, 6 Ran. p. szo,
referred to and distinguished.
MA KYA!NG v. MA OHN KYI AND FOUR OTHERS x8 4
Bl.fllMESE BI!DDHIST LAW-RIGHT OF INHERITANCE OF THE CHILDREN
ON . Tim DBAT.H: OF THE FATHBR-SUIT FOR DECLARATION OF
CHILDREN OF ALLEGED SECOJ;ID WlFE~NO CLAIM TO THE ESTATE
OF FIRST WIFE UNTIL HER DEATil 491
BuRMESE BuDDHIST LAw-WIDow's sHARB-WIDow ENTITLED AS
AGAINST THB CHILDREN OF HEll HUSBAND-BY THE FORMBR MARRIAGES
TO . ONE-FOURTH SHARB OF THE PROPERTY WHICH HER HUSBAND
BROUGHT TO HIS MARRIAGE WITH HER 651
BUR~B BUDDHIST LAw-Share of foidow of Secand marriage to
husband's Payin property from the xst marriage. The Pbintiff/
Respondent was the second wife of the deceased and had sued
the Defendant/Appellant who was the keittima adoptive daughter
lvi GENERAL INDEX
'
PAGB
of the first m~rriage of deceased, for the ad-:ninistration oi the
estate of t.l-t~ de::eased. The propc~ty sought to be adminis:crd
was the p:~yi:1 of t:l~ 'd;;:c.~asll'd, to his second marriag,e with the
P!aintiff/.P.~sponde:it. In p:;:.:s'ng the fuial d~cree for &Jn~tn
istration, the trial j udge had held that the Plaintiff was .. u:,. k-l ;.,:,
tth''shar-~ of the estate and the Defendant w s e:1tilled tot::-!
rem'lining {ths. On app-~ ..1, to the D ' strict Judge th~ d::: r,t' w -s
V.lried' and both p3rties wc;c given equ-.:~1 shar-!s. ELfd : T r..c
learned Dist:ict Judge h~d o:<e:looil:.ed cert.,in decision<; oi th~
Chief Co:.trt o~ Lower B:.mna wh~re it has b~en held th ~< tn:
widow is cn .itled as against the children of her h:.:s!:and b; ;he
former marriages to one-fourth sh11re of th~ property whic~ h !r
l:lusband brought tv'l'ds marriage w 'th her. Ma Ba 'We v . .Hi Sa
U andotf!ers, II L.B.R. 174- (F.B.); and MaLay and one\'. Tun
Skw~, X L.B.R. xo, referred to and f.Jllowed. Ma Nt:;~ \'. ;.!a
Sai D!l, VII Ran., p. 578, referred to. Accord ingly, th!
judgment and decr;~e of the trial court was restored.
DAW Pu v. D AW AYE TlN { 5I
CAUSE 011 ACTION- ITS MEANING-SECTION I I OF THE CIVIL PROCEDO,;RR
CoDE-WHEN DZEMllD TO BE Res .Judicata-WriETliER SUIT t:='O~
URBAN RENT Co:-<"TROL AcT BARRED BY A PREVIOUS SUIT c:-:D.1:
THE SAME ACT .. 6 54
CERTIORARI-writof-:zpplicationbynewtenantofpremisesfrom landlord
obtaining ejectment decree but sul;ject to an order of restitution-
decree for ejectment a condtional decree-s. u (I) (a) and s. I4 (1) ,
Urban Rent Control Act-transfer deemed to be during pendency of
the suit-;. 52, Ttamfer of Prop~rty Act-transferee also bound by
o;der of restitution-question of repairs in excess of 40 per C$1lt of
val~te--irreleva~. The Applicant, who was the new tenant of the
suit premises had applied for a writ of cer!iora9i as the Sub-
Divisional Judg~ had refqsed to enquire whether the cost of
r!pairs made by him was i'u c:ccess of 40 per cent of th~ market
value of the suit premises. Pr~vious to the Applic~nt, the
tenant of the suit premises was the first Respondent. The znd
Re3pondent was the landlord and he h'lu obt-l.ined a decree for
e'jectmeqt and arrears of rent agiinst the: rs .: Respondent. Sub-
so~:quently tli~ first Respondent had been forciply ejc"ted from
the premises and the 2nd Respondent had thereafter rented
out the premises to the f!.pplicant, who then made inte(lsive re-
pairs. In the meantime, the 1st Respondent had been succe;sfuJ
in his appeal .a gainst the order for ejectment, and after
payment of instalments due rega;:ding arrears of rent, had
obtained.an order of r !Stitu<ion in h is favour. Ul imately tb.e tst
Respondent app~ied for poss!-ss:on of the suit prem s~ s to the
Sub-Divisional Judge and the appl ication w~s oppc-sed by the
Applicant on the ground that he made exte!lsive rep~irs ref'!rre:l
to above.'a nd accor.iingly the prem'ses Wl!S now exempt from the
provisi6ns of the Urban Rent Control Act. As st~ted abo,e the
objetions put forward by the Ap;>J.icant were not-accer-ti!d by tae
Sub-Divisional Judge and hepce this Appl:catiorr for a wtit of
cettiotal'i. Held: The decree for ' eje'c tment pa,ssed agai.p.st
the rst Respondent was merely a conditional deq~ee under s. 11 ( 1)
{a) of the Urban Rent Control Ac~ read v<'th s. 14 (r) thereof.
Therefore the transf!lr (lf premises oy the znd Respondent to the
Applicant was during the pendency of tP,e saitwithin the meaning
ofs. sz oftP,e Transfer{)fProperty Ar-t. Co~secp.1ently not only
GENERAL INDEX Ivii
PAGE
the znd Respondent as decree-holder but a.,so his transferee the
present Applicant, was bound by the ord<!-r of restitution. The
fact that th.:: Applicant had made extensive repairs to the premises
alleged to be in excess of 40 per cent of the market value, is quite
irrelevant to this proc_eeding. The Appli~t 'on for a writ of
certiorari was therefore dimissed.
TAIK BwAN CoMPANY v. Ma. N. B. SEN GuPTA AND 2
OTHERS
CERTlORA.lU-Question whether the room allotted by Rent t!:rmtroller was
really vacant-cursory enquiry by Rent Controller before passing
order 'allotting premises-whether order C'H /;~ quashed. Where the
Applican.t had applied for a writ of certiorari to quash the Rem
Controller's order allotting the premises to the R~ndent on
the ground that the room was not really vacant. Held: I; is
apparent that the question whether qr not the room in question
was vacant should have been the subject of a thorough enquiry
on the part of the Rent Controller before allotting the same to the
Respondent. N:othing but a cursory enquiry h~d been made by
the Assistant Rent Controller before he came to the conclusion
that the disputed room was vacant. Accordingly, the order is
a " Speaking order," and must be quashed.
VIJAY KUMAR M. DESAI & ONE v. THE RENT CONTROLLER &
ONE... 950
<CERTIO:AARI-w;-it of-Order of Deputy Commissioner and Commis-
sioner uniMr the J.t[unicipal Act-whether administrative or quasi-
judicial ordm. Natural justice-opportunity of being heard-
not necessary i11 a revut?n. The order of the Town Committee
for the demolition of a building under the Municipal Act, as
we1! as the subsequent oder of the Deputy :Cot?imiss:oner and the
Commissioner in Appeal and Revision, are all adffiinimative
or::le~s and not qitasi-judicial orders. Where the determination of
a question is left to the suojective discretion of the authorities
concerned, the mer;: exi~te.nce of a right of appeal ag.;i;,st an
order is not enough to indicate that the authority concerned
whose ~rder is subject to appeal is under an obligation to act judi-
cially. Hanumanbax Ag:irwnlla v. Subdivisional Officer. Sihsa-
gar and an.other, A.I.R. ~i952), Assam XIS, referred to and
followed. U San v. U Win Htain, Building Engineer, Rangoon
MunicipalCorporationand3 others, C. M.A. roo of 1960 (S.C.), re-
ferred to and distinguished. Moreover, im ooportt.tn' ty of be'ng
heard need n"t be given in a revision application before the
Commissioner under s. zzz of the Municipal Act. Only in an
appe<il under s. zor of the said Act, is the opportunity of being
heard provided for.
s. N. i.lAVERI AN'q z.
<;>THERS v. THE COMMIS$IONER, PEGU
DIVISION A':-lD 3 OT~S .. , 5#
CHILDP.EN'S W!.!'LF ..RE ANDEDUCi..TIO'!"-Privi/ege and duty of parent
regarding. Cruelty to w.ife,-Wlzat amounts to. Condonation-
Not totalforgiveness-.T)rtrpe-:..on of pr0tecti-.J"l afforded by. It was
the priv1lege and duty of the respondent as a f.i:her to look after
t~e w~l~aN of the children and i? provide them with good educa-
tion in happy surroundings. The privilege and duty was shared
by the mo6er but by law an:i custom the leadership was with
5
I viii
the father. Cruelty cap .:ake many forms and the bw !:lz ~
nised ~hat some kind of mental cruelty may be m<,-;<:. S!#i<t-
than physical blows. Jamieson v. Jamieson, (1952) A. C. ps.
referred to. Where physical violence is averred and pro''ed ~
test becomes simpler but th~re again, the measure of the p.'-tYical
violence, the circumstances in which it is administered and the
mental susceptibilities of tile party on whom it is adrninis~
and such f:!ctors become relevant to consider whether the ph::--sw
violence proved-amounts to cruelty. Windeatt v. Win<Uat.t,
(x96Z) 2 ,V.L.R. I056; Evans v. Evans, I Hag. Con. 35; Rusull v.
Russill, (I897) A ..e. 395; Gollins v. Gollins, (1962) 3 W.L.R. t8o;
referred to. Stabbing the wife and causing her injuries of a
.g rievous nature including a fracture of her hand was cruelty by
any test. Striking a pregnant wife surely was cruelty. King v.
King, A.I.R. (I.,.'J25) All. 237, referred to. Condonation is not
total forgiveness; it does not wipe the offence clean. It operates
merely as a suspension of the right to divorce or separation, and
this suspension lasts only so long as the guilty party is of
good behaviour. If and when that party misbehaves, the pro-
tection of condonation is withdrawn. Barnes v. Barnes, (1947)
2 All E.R. 326;. Mackrell v. Mackrell, (1948) 2 All. E.R. 8s8;
Graham v. Graham, (I878) 5 R. I093, I095; Moss v. Moss, (1916)
C.A. rss. I6I; referred to.
MRS. PRoTxMA GsosH v. BxMALENDu GHosH .. sz6
CiVIL PROCEDURE CODE-SECTION I x-ResYudicata-WH.F:rHER stJIT
UNDER s. 12 (r) (e) OF THE URBAN RENT CONTROL AcT
BARRED BY THE PREVIOUS SUIT UNDER S. 12 {I) (f) OP THE
ACT 6*
ll-
CIVlL PRocEDURE CoDE, s. 92--whether bar to maintainability of
ejectment suit filed witkout sanction of Advocate-General-order
x, Rule 8, Civil Procedure Code. The Plaintiffs were committee
members of a Gawshala Society (an unregistered body) and sued
on behalf of themselves the members of the society and of the
Hindu community for ejectment of the defendant from the suit
land. Thesuitbeingundero. I,r.SoftheCode. The defendant
had contended inter alia that the suit was not maintainable in {ne
form it was framed. The learned judge accordingly dis:nissed
it on the grounds that it was constituted without the prior coosent
of the Attomey-Genernl (or the Collector), and sccondf: the suit
land being trust property, oilly a p~ly constituted trustee can
maintain such a l!Uit. On :Appeal!~: Regatding the &eope
of s. 92 of the Civi l Procedure Code .there iS. a clear authority for
the propoSition that where a suitrelating to r~ligious endowment .
doesnotclaim any such relief as i~ ipecifie4 in sub-s. (r) of
. 9'zof the Civil Procedure Code, the section is no bartot he
maintainability of the suit without the sanction of the Advocate-
General,and in the Court of the Subordinate Judge instead of the ~
CoUI:t.of the District Judge. The rel ief asked in the present suit
is certainly 'not one of those specified in sub-s. (1) of s.
gz aforesaid . . Abdur Rahim and others v. Syed Abu Mahamed
Barkat :Ali, A.I.R., (19z8), P.C. 16, referred to. Regarding the
next question whether only a trustee can.file a suit fot possession
in respect of immoveable property belonging to a public trust, a
. lirie of authorities show that such proposition can no longer be.
regarded as good law. Saw Durmay v. Baggah Singh and others,
III Ran., p. Z.I3, eferred to and dis~ented from . Afchami:rzad
lix
PAGE
Abid and another v. Haji Baksha and others, A.l.R. (1936) Oudh,
p . 133 Rengasami Nayudu and a11other v. '. Krislmasami lyer
and other.s, A.l.R. (1923) Mad., p. 276, a!ld il1:osque known [lS
Masjid Shahid Gani and others v. Shiromani Hu.rdwara Par-
bandhak Committee, Amritsar and another, A.l.R. (1940) P.C.
p . 116, referred to and followed. In anx event the learned trial
Judge was wrong in having dismissed the suit without going into
the evidence in order to determine the T,}ature of the trust in
respect of the suit property and the interest which the Hindu
community would have in such a trust property. The suit was
therefore remanded for decision according to law, in the
light of the above remarks.
KRISHNA LAL AND FOUR OTHERS v. SuRAJMAL BAL CKAND 683
CIVIL PROCEDURE CODE, s. 92-WHEN ATTORNEY-GENERAL'S CONSENT
NECESSARY-8UITBYTRUSTEB FOR RECOVERY OF POSSESSION OF TRUST
PROPERTIES 147
CIVIL PROCEDURE CODE, S. lSI-Order made under-No appeal lies
from s. 2(2)-decree-Meaning- of. Limitatio.n-For saving-
Bonafide mistake-What is not. No appeal from an order made
uoders. xsx,CivilProcedure Code by the trial Court lies to
the appellate Court as the order does not amount to a decree
within the meaning of sub-s. (2) of s. 2 of the Civil
Procedure Code. Keshardeo Chamria v. Radha Kissen Chamria
and others, A.I.R. (1953) Supreme Court, 23, referred to.
"Decree as defined in s. z (z) of the Code means the
formal expression of an adjudication which, so far as regards the
Court expressing it, oconclusively determines the rights of the
parties with regard to all or any of the matters in controversy in the
suit. Ignorance of or inattention of the liiW by persons who
should be well aware of its provisions cannot be regarded as a
bona-fide mistake. S.R.M.M.A. Firm v. Maung Po Saung and
others, I.L.R. 7 Ran. 466, followed. Ponnamal v. Daw Hla
Min, (1960) B.L.R. (H.C.) 216, referred to.
iiMANl AMMAL AND ONE t:l, CHIT SEIN AND ONE 6
CtVIL PROCEDURE CooE-0RDER 17, RULE 3-WHEN APPLIES-JUDGE
MBNT SHOULD BE UNEQUIVOCAL 580
CIVIL PROCEDU'RB ConE, 0. Z3, R. 3-Adjustment of suit. Where at
the time of making an application for the passing of a final
mortgage decree it is alleged that there was already a compro-
mise between the parties under which the plaintiff had agreed
to accept a certain sum of money in full satisfaction of the
decree. Beld; That the alleged compromise is ap adjustment of
suit which fans to be dealt with under Order 23, Rule 3 of the
Civil Procedure Code. V.M.R.P. Chettyar Firm v. Hajee
Mohamed Sultan and others, (1941) R.L.R: 774; Pa.laniappa
Chettiar v. Narayanan Chettiar, I.L.R. 59 Mad. r88. (F.1l.),
referred to.
Tm JoiNT UNDIVIDED HrNDu FAMILY KNOWN AS JAGANNATH
SAGARMAL AND ONB v. BABU MAHADEO PR:\SAD
TIBREWALLA AND ONE 97
CIVIL P.ROCEDT?RE ,CooE, o. 41, R. s-Liability of JUT<.tu-r. - -Ed,~/1
- Deiermmatwn of. Su~-rule (3), cl. (c) -PJ.:,.,u~ ' w ~
ultimately be binding upon 'him" in-Meaning of. TY. t--7;;--:'i~
furnisl>.ed security underCrder ft, Rule 5 r,f t he r ' l ~...~
Code for stay of execution of a decree for K 11 .; p =~~ ~
;:-~spondent Abdul Rahim against Abdul Raz:ak s,. t-401'-,.> ~
in the District Court, Bassein, pending appegl. 0:-, ......-...~<..-.
High Court modified the decree of the District Court
forK 1,330 was passed. a'he decree-holder on~te:r.-ed
appeal to the Supreme Court, which set aside the
High Court and restored the decree of the District
When the decree-holder sought to proceed against the
on the strength cf'the bond executed by them, some of the
}ants objected on the ground that *e security fum \shed
was only in respect of the appeal to the High Court
their liability under the bond had ceased with the
of the decree b']" the High Court. The District
ever, ordered that the security bond should be
i :llest extent as its judgment and decree had been n:sro;,:
' 1,:1reme Court. Held: That it is settled law that i.n
ing to what extent the sureties are liable the terms of
should be construed and th~t having regard to the_':l ~~r'Willt'ii
bond execut-ed by the appellants they had bound u 1
the -extent the judgment and decree were confirmed by ~
Court and that as the judgment and decree were p~B,
firmed they were liable only to that e:l.:tent. P~ ~
chand and others v. Basappa Virappa Bellary and otktn, A,'LR.
(1943) Bom. 243; Shri Madho Rao Narayan RQ(I ~ "f.
Harinath B_hikaji . Ba_xi and another, (1939) N~- ~;
M. Paramaswam Pllla1 v. A.V.R.M.S.P.S. Ram-s~
.and another, (1939) Mad. (290); refer-red to. 1-hld a.~w ~ ~
the phrase "as may ultimately be binding upon him iQ ~
{c) of sub-rule (2) of Order 41, Rule 5 of tlfe CQde of Ci'ril
Procedure must be interpreted to mean that the surety llll!llllt
bind himself for the &.le performance of the deaee by 6e
judgment-debtor of such decree or order as may ul~ file.
passed by the first appellate Court.
ABDUL GAFFR AND FIVE OTHEa$ 17. ABIK.'L RA.H:ol Ml& TWO
OTHERS .~ I
'COMPROMISE OF SUITS- WHHN IT lS DEI!KED ro U A..'( &DJt\SIMRn'
ORDER 23, RULE 3 OF THll Crvn. Piti:icsOmt cOo.! ... ... 79
"CoNTEMPT OF CoURT-Publication of aduerti.setnetrts i:1c 3(1 :!.@t,n
relating to an issue in a pending suit-:-Whether atnJJU:tds tQ ~~
tec!mical contempt whether sufficient----necessity for irrlu/~
with th~ C{luse of justice. The Applicant together with the
Responqent were defendants .in a suit for dissolution of~- .
ship. The Applicant had made <:onu:pon cause with the Plaintiff
in the said suit and had a!so asked for rendition of accounts bY the
R~spondent who was the Managing Partner. One of the issues
involved in the said suit wa.s whether the Applicant. and the
Plaintiff had left the Partnership as contend~ by the Respondent.
Inspite of this fact the Respondent had inserted advertisements in
three newspapers to the effect that the Applicant and the Plain-
tiff had c~a.sed to b e partners.s~nce the date of the advertisement.
It was therefore c~ntended that th'i$ action of the Respondent
-constituted a contempt of Court as it was designed to influence
GENERAL INDEX lxi
PAGE
the :nind. of the :ri::l Judge and also to pre_it!liice others. H ! ld:
Regarding the question whether the publication constitutey
contempt of Court, one has to bear in mind that conttmpt
proceedings being summary and a very ar:,itrary metho:\ of
dealmg with an o!fence, should be sparingly instituted and there-
for~ :1 person should not be convicted for contempt unless h ' s
conviction is essential in the interests of j~tice. Accordin~~;ly,
there must be something more than a technical cont.:mpt wn ich
tends in a sa"-'stantial m~nner to interlc~e with th~ cou;-s \ of
justice or to prejudice the public against one of the parties to a
proceeding. The Queen v. Gray, (1900} z Q.B.D'. -:36; In re
Read and Huggonson, (1742) z Atk. 291, 469 ; Rex v. P11rke. (1903)
2. K.B.D. 432; Mohandas Karamclumd Gandhi and Maluzdeo
Haribhai Des:zi, (1920) 58 I. C. 915; In the mauer rf S ..Or.!h-
manyan, Editor and others, I.L.R. 25 Laho. t 11;
Suhrahmanycn case, Civ. Misc. Application No. 11 of 1952 of
the late High Coart, referred to. In examining the circums:ances
o~the case it is to be seen that the Respondent was not only faced
Wtth a civil s:.tit against him, but also found hims :lf t() be the
sui:>ject of severalcriminal proceedings by some of the other parties
to the suit, and others who al so claimed to be partners . News-
papers reports which tended to blemish his character had also
appeared. In these circumstances, he felt impelled to vindicate
himself by publishing the advertisements com.,laiM<! o~ a~ainst
the Appl icant and the Plaintiff, whom he felt were at the bottom
of the suit ag:dnst him, and was instigating others to take ac~ion
against him. The publications complained cannot be cons ide red.
by any stretch of imagination, to have been d~igned to influence
the mind 19 the Judge trying the suit. Nor can it be nid to
tend t:> influence the trial Judge. The publication may, however,
tend _to creat., in the m~ds of the newspaper reading pub! ic, an
impression favourable to the Respondent's version of the story.
In that way it mgy technically amount to ~tempt of Court.
However, as it will not in any way interfere with the course of
justice in the trial of th-: suit which is now pending, the app' ica-
tion fails and is dismissed. Hunt v. Clarke, (1889) 37 W.R.
724 at p. 725, referred to.
Tm~xm Mvo NYUNT v. THAKIN Pu 728
CONTEMPT OF COURTS ACT-WHEN DOES ll" :APPLY TO PUBLICATION
OF RESOLUTION IN NBWSP.'\PBRS-Ss. 2 AND 3 OF THB Acr 102
CoNTROLLER OR ASSISTA.'IT CONTROLLER OF RENTS-HIS POWERS L.'l
DIREc;TING THE LANOt.ORt> TO LBT T'il! PR!N!SES TO PERSON OR
PERSONS SFllCIFIBD BY HIM-URBA.'< RENT CoNTROL AcT OF 19So,
s. 21 (4) x6s
CRIMINAL PROCEDURB CODE, s. 341-where accused a dumb person-
plea of guilty-whether accused untL"Tstoad proceedings. The
Respondent who was a dumb person had pleaded guilty b_efore the
trial court. The trial magistrate had however subr.11tted the
proceeding$ to the Chief Court to pass an appropriate sentence
under~- 341 of the ~ri:ninal Proced-..u-e Cede. Held: The
trial magistrate has misconcieved the provisions of s. 341,
Criminal Procedure Code, for the section envisages a case" where
the acc;.;sed though not insane, cannot be made to understand the
biv CENER.M. Jllt"DEX
PAC II
suit is not bad for want of the Attorney-General's consent . Kltn-
ju Mee>hv a ?J and another ~ Ku?Jjan Marack.rr a~d o!.l:~; and
Khalifa ivt.S . A . Ganny diui others v. Moh~ed F/naJWr. tmd
another:., (supra) ref~rred t~ and distingu ished.
AHMED. YACOOB MAMSA v. GuLAM Hcss.-u.-.. "'OP M~
E..
AND ONE .... .. 147
DECREE- ITS MEANING-ORO~ MADE UNDER S. 151 OF THE
CxviL PROCEDURE Co!:>E-WHAT zs A BoNA-FIDE M1rr..o.R:E 6
DECREE Wll'HOUT HEARINO EVIDENCE-suit on
. whether. examinafi8n of plai'tttilf necessary.
Code, o. 17, r. 3---whether decree proper. In a suit on
note, the trial Judge had decreed the suit, w ithout
evidence. There was also no express directioa
diary or in the j\J.dgment to the effect that
proceed ex-parte as against the defendant.
It was not necessary for the trial Judge to
on oath. Under s. II8 of the. Negodable
must be pr-!sumed that a negotiable instrument
tion unt i lthecontraryis proved. However, in
express direction either in the diary or in the
effect t.l}at the case should proceed ex-parte as
ant, the judgment of the learned trialJ udge
having been made under 0.17, r. 3 As
under appeal is riot unequivocal the defer1<b~-a
easily have been m.isted as to the .proper
pursue. The decree was therefore set
son and one v. Ma Hla Yi1z and 4 others, (1954),
referred to and followed.
U YoKE SAN v. U SAN MAuNe
DIFFERBNCE BETWEEN UCENsel AND TBNAt"'T-WHAT
LICENSE-TO BE CONSIDERED FROM TH.B POil'oo"T OW'
PRINCIPLES OP ENGLISH COMMON LAW~
BILITY
DISMISSAL OF SUIT- failure to give 1lOtice
Defendant not necessary as f>aJrtvdefeildalllt"'!
strike out said party and
an ejectm~nt suit against the first two detec:ld:a:n~s,.
codefendant the Controller of Rent, Rangoon.
take action against them under s. r6A..o\. of
Control Act. The Plaintiff had however
statutory notice required under s. 8o of the
Code. The trial Judge dismissed the whole suit ofdle
said omission. On Appeal. Held: Therefusalofth~~
of ,Rents to take action against the first two ~ uDdei
a. r6AA of the Urban Rent ContrOl Act ,is no gfOUD.d 'll'hy he alioald
have been added as a party-defend~nt. His~ !:JefoR the
Court was entirely unnece!!sary even as a JWO/ontta deti::odant.
Avanulla (a) Hanulla v. U Par Sein and tmo otM:n, (rQ6o}. B.L.R.
zs6 (H. C.}, referred to and followed. The Controller of Rent-s
co~ld therefore have been struck out, and the suit allowed to
, proceed. The suit was accordingly remanded.
IsMAIL AHMED MADHA WAQF v. U KmN MAUNe AA!D z <>THERS
GENERAL INDEX b .v
PAGE
EJECTMENT-Suit for-arrears of rent~here contractual ,.ent. is
lower than the standard rent--no retrospe..rtive operatio11. Where
a decree for ejectment had been passed against the defendant for
non-payment of arrearol of.rent, and one of the questions in Issue
was what was the arrears of rent payable in vit.w of the fact that th1
standard rent fixed on x6 October x96x wru~ higher thsn the
originalcontractualrent. Held: It is now settled law that where
t ot: contractural rent is higher than the stpldard rent, the standard
rent fixed will be operative retrospectively so that the tenant need
not pay the contractual rent. H owever, as a matter of general
principle, parties are at liberty to pay and accept the rent at a rate
lower than the standard rent.
Ko HLA AND ONE v. DAw AYE KHm
3
fJECTMENT-Suit for ejectment~ecree for ejectment pasted for ncn-
payment of rent--no issu on the point- but arrears admitted-
Evidence Act, s. s8-no need to prove admittedfact-dlcree p7operly
passed under Urban Rent Control Act, s. 12 (1) (a) read with Order
xz, r. 6, Civil Procedure Code. The Plaintiff had filed a suit for
ejectment under s. 12. (t) (a ) (c) and (f) of the Urban Rent Control
Act allqing non-j)llyment oi rent, nusance and bone fide require-
ment. Since the arrears of rent was admitted, issues were framed
r~ding th.e que.: i<r.~ of nu i$.8Jlce and bona fide requirement only,
and <n~ both these : ss~ the Plaintiff failed. However a decree
for. ejeament was passed on the admitted fact of non-payment
of rent. On Appe3l it was contended that the trial Court was
wrong in p.1$. il'.g a:-: ejectment decree for non-payment of rent
as therowas no issue on tlte point. Held: Under o.tz, r. t of the
Civil Procedure Code no issue can ar.se on admiss:ons on plead-
ings. Under o.tz 0 r. 5 the Respondent could have applied for
a decree on the admission of non-payment of rent. Uode-r s. s8 of
the Evide.::ce Act no fact need be prov<:<l wbich had been admitted
on. the pleadings. As the non-paymen~ of rent was admitted,
the trial Court could pass a decree for eviction under s. 12 (t) (a)
of the Urban Rent Control Act.
u TuN YIN f). LACHEEYAR ~~I
EJECTMENT . OF TENANT-.FORFillTURE--8UIT HOW FRAMED-TO BE
CONFORMED TO SECTION I I I OF TRANSFER OF PROPBRTY Ac:r &
SECTION IZ OF THE URBAN RENT CONTROL ACT OF 1960 551
EJECTMENT SUIT-right of defendant to question title of afltged landlord-
absence of attornment---n? estoppel. In a suit for ejectment for
arrears of rent, the d~fendant had contended that he was a tenant
of the plaintiff's predecessor-in-title and was never a tenant of the
plaint iff. Held: A tena.'lt is not estopped fro'll questioning the
derivative title of the plaintiff who is suing him. Deena Bondu
Gan v. Makim Sardar, LXIII C:1l. 763; Krishna Prasad
Lal SiT'.gha Deo v. Baraboni Coal Concern, Ltd. (1938), I Cal.
p. r.; DauZat Ram v. Haveli Shall and anothtr, A.!.R. (1939).
Lah. 49; Parkash Kaur and others v. Giam Chand, A.I.R.,
(!94~) L::h. 341; referred t:>. Also the plaintiff h::s not
produced satisfactory evidence to show that the defendant had
attomed to him after the purchase of the land. Accordingly the
'{elat:onship of landlord and tenant has not been established
lxvi GENERAL fli<.'DEX
between . the plaintiff and the d~fend<m!. '!~ &t~--~
therefore' no:>t estopped from .Q.enying the d; le :>e: :;,.- ;:-:h.~~
.
as w~ll a:> h:s status as landlOrd oft:..'! n : l.i.-o;:i
}AGARU v. U Po NAING ..
EJECTMENT SUIT-suit against partner in indir.:id~ '~ ~
tenant is the part7t~rship-i!O'!I'inlidity of nvlica ~~fill
of deceased partner w stay i.12 stlit premis!s-d.fir..zts.- ~"" ~tr''
in the Urban R~r:t Control Act. The rs: F~-! ;;"-)! ~~t:'~~
had filed a su[t for ejectment against the znd r.:sov ndcnl, ~ cf=
husb;.ndof ;:ile appG!Ja."lt, on the ground that the 2nd ;:.:s~
~ho was her tenant had sub-let tht~ premises to th~ h:!s~aml of
the appd:a:tt. The suit W\15 de;ree::l agai:1st both d .!f..-n~.
One of tb.e issues which arose on the pl!adin~s was wh-,Lhe d.te
t.eal tenant was on'$ Byan Sein Moh and Co., of whic'-1 ?!t ~
time, the znd respo:1.dent was a partner, and t:-:1~ h:1s~an.i oi~
appellant was the senior partner. Held: Th:! le3se c~
mentions that the tenant was Byan Sein Moh & Co .. and ~
the znd respondent executed the document s ~rrender~ ch=:
premise:; h~ also signed as " n,a~1 S}i,! !\1:>h.'' T ;,i; ~
clearly that he was not a tenant in his individual capacity. ~
fact that the firm of Byan S~in Moh was not registered will
only prevent the firm from suing anybod.y to enfo~eri,abt
arising from a."l.y contract entered into by it with a third~
It .,,lln;;.>t invali<h:e tJ.e ~>.m:rtct cf lease. Thus the notice~
by the rst r.cspondent/plaint!ff to the 2nd respondent and w
husband of t;-:te appcliant, was invalid in hw. Held furth.u: 'l'k
appellant as the legal re;>resentative of the deceased p'lr..-. is
entided to remain in possession qf the suit prem!ses ss 4li!t
word "tenant" as defi~ed in the Urban Ren~ Con~rol At;!~'..
int;ludes a k:gal representative of the tenant as ~efi.."led ia me
Civ' I Proc!!:iure Code.
DAw HPOON Soo v. D~w Mx Mr GYr A.'ID ONE 851
EJECTMENT SUIT IBSED ON POSSESSORY TITL.E- TTS M.'\ISTAI:-<.-I.Bn..ITV-
NOT NeCESSARY TO BE IN POSSE~i3!0N OF THE St:lT J..!\:"0 FO?. THJI
STATUTORY PERIOD 0!" 12 Y:;ARS OR MORE 708
EJECTMENT SUIT-Slli! against tenant and licensee of tenant--t~
holding over-!j~ctmetlt of-question of recovn-y of rent and ~
profits. The I'hi<1tiffs had filed a suit for cjeC!:nent 4;l!liala
the rst Defendan~ as their tenant, and against the znd ~
as the licensee of the rst Defend.snt. It appeats that- tbe -
Defendent was th~ manager of the rst Defeoda.'X,. lad~
the rst D-~fendant ceased to do bo.LS~ in ~. 1957.
the :and D <:f endant cont inued to occupy the suit ronm and ~
rent therefore till Ju1y, 1958. Rent was~ w be ~id'
after that date, prbvi<!e1lent rec~i-;.ts we:e iss.1c:i in his name..
Th:s request was refu~M by the Pbintiff, and h!nce the arresrse>f
rent. On 4th Apr: lr959, not i::e t') q ..it was givr;n a t.,f}e 1s: D!fen-
dantunders. u (r)-{a) of the Urb;m RentControlAct, tennin..<\ting
the ~enai'lcy on 30:h Apr: I I-959 The trid judge inter alia held
that the xst Defendant was responsible for arrears of rent due
till 3oth A;;>rJ 1959, and that the zn:l. Dde:\d:\nt :;lone.w:lS 1iable
for mesne Profits fro:n x May. 1959 He also hdd that both the
Defendants were liable to be ejected from the suit premises.
Held: It is clear both {rom the n<J~ic(l i~sue:! to th e r~t Defe;1.dant
GENERAL INDEX lxvii
PAGE
and from the frame of the suit filed by the Plaintiffs that it was
a suit against a tenant holding over aft<Jr the terminat;on of the
tenancy, and the znd Defendant was m!r~ly joiaed as a person
in possession of the premises in suit as a licensee of the Ist ~efen
dant. The 1st and znd Defend2nts arc t:1e~cfo:.! :1'>~ joint.
tortfeasors. Goverdhanv.Maru:i,~I.R. (1915) ~ag. 35;
C. Ah Fong a11d one v. Ephraim Solomon and othe,-s, referred to
and distinguished. Tenants hold:ng ov.:r are mer.:: or less in
the sanv~ position as tenants at suffe:ance. Kanth~ppa Raddi
v. Sfleslwppa a1Ui a11other, zz Bom. S;n ; Chandri , .. Daji
Bhau, 24 Bom. 504 ; Pusa Mal v. Makdum Bakr.sh and others,
31 All. 514; Ku11dan Lal v. Deep Chand,, A.I.R. 33All.
756, referred to. Theref.,re in the case no.r. under
consideration both the Defendants an .:I its J ic<.:;;s;;;(! ::r..; Leble
to be ejected because the tenancy had bee:t dct :r:n ned accord-
ing to law under s . Io5 ofthe Transfer of Prope-;tr Ac:. How-
ever, the Pla:ntiffs em oaly ecover rer,t3'a:1d m%ne pro:it; from
their own teMnt. They cannot recover either re:tt or mesne
profits direct from the znd DGf~ndunt who was only a l icensee
of the rst Defendant. Gulam Mohiuddin NaTmavala v. Dayabhai
Chimanlal, A.I.R. (1923) Born. 398, ref.~rred to and followed.
NAGIBHAK t/. CHHAGANLAL AND TWO OTHERS 7 I4
EJECTMENT SUIT FILED BY AN UNREGISTERED HINDU SOCIETY-NO'.
SANCTION OF THE ATTORNEY-GENERAL UND2R SECTION 92 OF
. THE CIVIL PROCJlOURS CODE NECESSARY AS NO RZ'J..IEI.' S?llCIFIED
IN SUBSECT!ON (I) CLAIMED 6.83
0
ESTOPPBLBYTBNANT OF TITLE OF LANDLORD-EVIDEl'ICZ ACT, s. II6_. .
wh,;ther applies tJh~n tenant already i:t pomsoio11 at beginning of
tenancy. Tile Rcspondent/Plaint.fthlld liled a suit for ;;;je~tment
agains! the AppellantfDef,mdant, on a~nr~gist ~red 1-:ase deed
excuted on zzst Oct-:>ber 1959 from c~rta.:n s:;lt-fi.Jds. It
appears that the App.::llant had bee'1 in poss..:s~ion si nce 1956.
The Respondent claimed to be owner of the la:-:d, and co::l-
t~nded that the Appellant w.-s e:;topped from d.:tt::ing th~ ti tl~ of
h ts landlord, the Respondf'nt when he hims::lf ha:i admitt~d th~
tenancy. On Second Appe;.l it was con e.:d~d t:.at ::.s the
Appellant ws not let into 'poss!Ssion at any t .me 'tefo:-e he took
~he l<lase, but was already in possession, es~oJ)pd co;;ld not oe
mvoked. Held : Accord :ng to the evidenc~ cf the R~s:>or:dent,
he let out the land to the Appellant vcrb.lly for the previous
year~ 1957 and 1958. It i; therefor.:: clear that the App~llant
was m po.>sessio:> only at the in!Otmce of the Resp:mde:1.t when be
executed the lease deed in I959 U Po Shi:; and anoth~ v.
&;/w_aTd and others, A.I.R. (1934) Ran. 139, referred to and
d~sttngui sheci. The vieVI! that a tenant :s estoppei from denying
hislandl.,rd's tide only tf he yvas let into p ::.sse sio:r. by 6e hod-
lor<!, and tllllt th~re is no estoppel ag! i.;1st the te::~.1t if, ~ing
alreedy in possession, be lias e."Cecuted a le!s: in favour of
the person ntising the estopoel, is now abs?lct-~. Lal Maha1r.ed
V: ~alla_nus, I.L.R. (x88s); II C;;.lc~:otta s 19, referred to and
dtstmgutshed. Nagindas Sankc lchand v. Bobalal Purshottam,
I.L.~ . . (1930), 45 B.om. 4$7, referred to. The words" as the
~&mntng of the tenancy'' ins. u6 of t:.1>! Evidenc! Act do not
g 1ve a ground for the content'on tint when a pct:S?n already in
poss~sion_ becomes a tenant, th'!ra is no estoop~l against h is
denymg h s lessor's title. Krishna Prasr;d Lal Singha Deo v.
lxviii
PAC I
Baraboni Co:>/ ConETn, Ltd'(. I.L.R. ( rg:;S). t Cal. r P.C.,
referred to a:::.l apporoved. The que; t!o n ;s whether a new
<<:~,.;ncy i)a~ arisen and not whether the t.~-,:~n : had bv""en le: into
pcssession oy the landlord. If it is proved that the~e was a new
ten?.~cy, then under s. u6 of the Evidence Act, the renant was
estopped dur' ng the continuance of that tenancy from denying
his landlord's t itle at the beginning of the tena:-~cy. MT. Sr:jjoo
and another v. Basdeo Prasad a'ld others, A.l.R. (1937), Oudh,
sos.; and !V!a.lz~med Mussa v. Aghore Kumar Ganguli, I.L.R. 42
Cal 8oz P.C., referred to. In the circumstltlC~S of the
instant case, the a;>pella:lt was let into poss...ssion prior to and
at the tim"e of the e>xldcution of the exhibit lease deed by the
re~pondent, and he W3 ~ accordingly esto;:>ped from denying the
respondent's title. The question of ownership becomes irre-
levant. Tenancy being a contract, it was, no doubt open to the
Appellant to raise a preliminary issue that the contract was void
or voidable but he never did. In the absence of find:ng he was
preCluded from agating the broadet quest'on that the respondent
had no title when the relationship of landlord and tenant came
into existence.
u Ttm SHEIN v. u B.\ HMYIH
EVIDENCE AcT, s . 62 AND s. 64-Primary evidence---nudfor produc-
tion of documeat itself. The appellsnt had filed a suit for eject-
ment against the resoondents as trespassers and one of the issues
was.whether the app'ellantwas the legal owner of the land in dis-
pute. The appellant merely p roduced at th.e trie.l. a reg'stered
copy of the Sale Deed, although the origmal deed was in hi:t-
possession. Accordingly, the trial court and the Appdbte courts
held that he had failed to prove his purchase and title ro the land in
dispute. On-Special Appeal: Held: Under s. 64 of the Evi-
dence Act, the Sale Deed nwst be proved by primary evidence
except in the cJses m<mtioned in s. 65 of the sa:d Act; bu: no
exceptions were ole.~ded by the Appellant and no reasons ...-ere
given for withholding the original deed. \.\-.it.hout proof of the
orig: nal Sale Deed , it :s impossible to hold that the sale itself-
valid in law. Under s. 62 of the Evidence Act, "p~
evidence "means the documen: itself produc~d for the in.specrion
of the Court. When the best e'<dence rule is not obsenoed and
only inferior evidence is produced, such omission will go against
the withholder. A party ought not to be al 'owed to defeat b '.s.
opponent on the strength of a document which he has in h is
possession and wl ll not produce. Marmg Th~n Zan and ~ v.
The Union of Burma, (1956) B.L.R. 303 (H.C.), followed.
MAUNG MAUNG '!'HAUNG v . U .HLA Gvr Al-m D.&w An Kn ~s
EVIDENCE AcT, s. 91 AND S. 92-SHAM OR FLCTITIOUS DOCUM!IN'!'--
WHEN EXCLUD!ID--oRAL EVIDENCE-WHEN ADM1SSIBLE ... 394
EviDENCE Ac;r, S. 92- AD:I-IISSIBll.ITY OF ORAL EVI.D.ENCE-RECISrEREI)
DEilD OF SALE-BAR TO BEING CONSTRUED AS MORTGACR 328
.EviDENCE ACT--SECTION I I6-DOCTRTh'll OF ESTOPPEL-WHEN APPLIES
~UBSTION OF THE TENANT BBlNG LET INTO POSSESSION OF. THE
SUIT LAND BY THE LAl'fDLORD--TENANT BSTOPPSD PROM DENYING
THE TITLE OPTfiE LANDLORD .572
GEhiER:AI:l INBEX
PACB
ExECUTION OF DECREE-settlement of smaller amount in sa#sflictiotJ
of deCTee - provision for execution of orii/nal amount on defa~lt
whether can be enforced. The Plaintiff/Appellant had oQpljned
a money decree against 6e Defendant/Respondent, and on
execution of the decree, a settlement was arrived at whereby '
the Plaintiff agreed to accept a smaller sum in full setdement of
his claim, and there were furth~r stipulations that on default of
payment of the instalments which werf', a:;!rced upon, the Plaintiff
would be entitled to execute on the b;!S s of the orig:nal decree.
Subsequently, the Plaintiff attempted to execute on the basis ofthe
onginal decree on the ground that there was a default in the
payment of the instalments agreed upon, and ~fter due enquiry
the trial Court concluded there was a ddault, and ordered execu-
tion on the basis of the origina l decree. On Appeal by the De-
fendant, th~ District Court ordered that payment sh~uld proceed
on the bas.s of the compromise decree as payr.tent of the full
decretal amount in default of regular payment, was a stipulation by
way of penalty. Held: Under the terms of the said compromise,
the Pla' ntiffhad, in truth and substance, a~eed to a concession in
favour of the De(endant, and was not st:p1.1lat:ng for a penalty.
The District Judge was therefore in ~rror in disturbing ~he ori:ler
of the trial Court. Chirrma v. Chunnilal ana another, A.I.R.
(I957), Rajasthan 378, referred to and followed_. . . .
P.L.A. ADAIKJ<,APPA CHBTTIAR t/. P. ABU BACKER KAKA
FOREIGNER-Registration of Foreigners Act, s. 4-0nus of Prorf-
Remed;y in Civil Court-to establish status of Burmese National.
The ~pplicant on being prosecuted under the Foreigners
Reg:straton Act for fa:lture to reg s ter as a foraigner
ple1d!d n?t galcyand adduced wimesses, who deposed that the
father was an Indian national, but did not know the national ity
of the mother. Accordin'5ly, although'"the :;pplic~nt held a
National Registration Card, she was convicted and sentenced
under s. s {r} ofthe Reg:stration of For<:igners Act. On revis 'on
Held: Unders. 4 of the Reg'stration of Foreigners Act, when any
question arises with reference to the Act or any Rule made
th~.reunder, whether any person is or :snot a fore'g:1er, the onus
of i>rovin~ that such a person is not a foreigner lies upon him or
her. Even if the applicant d"d not h~vc the opportun.i:ty of
citing vvi~~sses, other than those at the pla~ where she resided, it
is not possiole on revision to interfere w ith the convict: on. Her
onlyhope to avoid a deoortation order is to establish in a Civil
Court the fact that her status is that of a.Burm!se natfonal.
DAW KYU KAR v. T Hll UNION OF BURMA xs6
FoREIGNER~ REGISTRATION Ar:r, s. 5 (I)-prosecution and conviction
uP.dtr-proof of citiiensh{p to b_e consideted at trial. In a prosecu-
tion under s. 5 (I) of !he Foreigners Registration Act, the accused
had raised the defence that she was . a citizen of the U""lion.
The t>ial Judge "convicted her, holding that once she held a
certificate, she must obey the law and renew it annually. He
further held thllt the qa~stion of citizenship was ~ matter for
the Min'stry of Judicial Affairs, and did not corisid.e:: the evidence
led. Held: According to the evid~nc\:, t.t,..-, A;>plicant an~ her
parents were born in Burma, and her grandparents had l1.ved,
In .
PAGE.
and like' her parents, died in Burma. She h as therefore com-
plied with the provisions of., s. 4 (2) of the Union 0itizenr.hip
Act and e::cordingly it must be deemed t h at she is a citizen of
the 'union of Burma, and as such, there is no necessity for her to
renew her certificate. Bishna Lal v. The Union of Burma, (1959)
B.L.R. 3 (H.C.); and Teitl Yt Han v. Th, Pre:ident of the
Union of Burma and one, (1953) B.L.R. 4 7 (S.C.), referred to.
INDU BHAI v. THE UNION" OF BURMA
FoRFUTURE- determination of tenancy by forfeiture~ssity to
conform with the provisions of s. I I I Transfer of Property Act and
s. xz (I), Urban Rent Control Act. Benami--whether relevant in
a mit for eject:tnent. In a former suit for ejectment for non-
payment of rent, '\:he Defendants had contended that they
.. were not the tenmts of the Plaintiffs. Accordingly, the
tenancy was determined by forfeiture, and the Plaintiffs filed
'a new suit for ejectment. The trial judge dismissed the Plain-
.t ilfs' suit on the ground that the house has been purchased
benami and that therefore no relationship of landlord and tenant
existed. The Plaintiffs then went on appeal. Tne District
Judge also dismissed the Appeal on the ground that no notice
under s. xo6 of the Transfer of Property Act and under s. u (I)
of the Urban Rent Control Act had been served. He however
held that the question of Benami should not have been gone into.
On Second Appeal by the Plaintiffs. Held: Although it is
true that the lease to the Defendants had been determined by
forfeiture, assuming that the Plaintiff's story be true, the s:.tit
now framed by him is not maintainable in law. As provided'm
s. u x of the Transfer of Property Act, a lease of immoveable
property is determined by effiux of time, or by ':he expiration
of a notice to quit or by forfeiture, etc. In the case -of a
notice to quit, it muse satisfy the provisions of s. to6
of the Transfer of Property Act. In the case of forfeiture,
there must be notice in writing showing the lessor's inrent:on to
determine the lease. Also, though the lease of the suit h.-o:JSe
mlly be said to have been determined by forfeiture, the Plaintiffs
must neverth<!less frame their suit as one under s. 12 of the
Urban Rent Control Act, 1960, as the definition of" tenant"
includes person remaining in possession of the premises let to
him after termination of the tenancy. Held fu:rtJtn: It is
not a correct exposit ion oflaw t() say that in a suit undtt s. 11 (t)
(a) of the Urban Re11-t Control Act the Court should oot go into
the question whether the sale of the suit house t01he' Pb:inrift'
was a benami transaction. Th:s is because one of th~ quesi::OO$
involved is whet~er or not the Defendant is the tenant of d:w:
Plaintiffs as claimed by the Plaintiffs. U Mya v. Abba Kasim
and one (1959), B.L.R. z8r (H. C.), dissented from .
. u 'HLA KYAW ~D ONBv. u AUNG BA AND FIVB OTHi!as 551
FoRFBITURE-detcrm.in.ation of tenancy by setting up a~ title-
change in law 1929.:.__3, )II (g) of Transfer of Pr&perty Act-
requisite, of written notice indicating intention to determine lease.
Th~ plaintiffs{rcspondents' ha(I filed a suit f01: ejeCtment 'a gainst
.~eappeUantS{p.efendants and th~ suit was decreed by bQth the
tnal<:ourt and lower appellate court. One of the issues raised in
~- JNDEX lxxi
PAOB
the appeal was that since the defendant>t had set up an a~;erse
title since 1956, the tenancy must be deemed to have terrnm~ted
by forfeiture and therefore the present sui~ ba~ed on the relatiOn-
ship of landlord and tenant was not mamtamable, and should
have been brought against them as trespassers. Held: By the
amendment to clause (g) of s. 111 oi the Transfer of Property
Act in 1929, to determine a tenancy by forfeiture a notice from
the lessor to the lessee of his intention to determine the lease
because of forfeiture is necessary. Nilmadhab Bose and others v
.4-nanta Ram Bagdi, (1897-98) II C.W.N. 755; Khater Mistri v.
Sadruddi Khan, I.L.R. (1907) XXXIV C:d. {lz.z; Muhan.mad
Abdul Latif v. Shaikh Habidur Rahman and others, XLV, l.C.
642; and Ahamadali Fakruddin Bohri and others v. Mulla Fidasli
Sultanali Bohri, A.I.R. (1938) Nag. 162, referred to and distin-
guished. The only notice sent to t.'le defendant~ subsequent to
1956 was on 9th Aprih959 and this was nota notice contemplated
under s. II 1 (g) of the Transfer of Property Act. Besides, a
"tenant" as defined in the Urban Rent Control Act, 1948,
includes" 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." Accordingly, even if the
tenancy of the defendants has been determined by a notice
under Section xI I (g) of the Transfer of Property Act, the
plaintiffs must necessarily sue the defendants as <r tenants" as
defined in the Urban Rent Control Act, 1948, and not as
trespassers. The plaintiffs' suit is accordingly maintainable
in law.
MAUNG THAUNG NYUNT AND ONB v. DAW SEIN YIN AND ONE 919
,,
FRAUD-Objection in a later suit to set aside a decree in a fOTmer suit
on grour.ds of fravp-fraud intrinsic to the former suit-later suit
not maintoUwble. The respondent had filed a suit in 1951 against
the Appellant, praying among others fo~ a declaration that the
sale deed in favour of the appellant in respect of the suit
lands was null and void as the sale was Benami. A decree
was passed ex-parte against the appellant in that suit in I959
Subsequently in 1961, the appellant filed the present suit for
a declaration that the ex-parte decree passed against her in the
px:!vious suit was null and void, as the same was obtained
against her by fraud and by making of false statements. The
learned trial Judge, however dismissed the suit. Held: In the
previous suit, the apj>ellant by her written statement had raised
.the very same points raised by her in the suit under appeal.
The fraud and false statements alleged by her were intrinsic in
nature and not: extraneous to the previou.s trial. Therefore,
the suit under appeal is not maintainable in law. K.E. Musthan
v. Babu Mohendra Nath Singh, I Ran. p. soo, referred to.
Moreover, in .t4e case.now under consideration, the appellant
cannot seek to agitate the issues which she had already tried to
agi~t; in the former suit on the mere allegation that the state-
ments made by the plaintiff in the former suits were.false. M.A.
Maistry v. A~dv.l Aziz Rahmen, V. Ran. 471; and Gopater and
anothar v. Abdul Aziz, IX.Ran.. XJ5, referred to.
DAW N"l(ll~N KHIN f). MEssRS. JAFFER BROS. LTD. 864
.JARDEN. LAND-meaning of-Land Natilmalisation Act, s. 3 (h)-
. "agricultural/and "-excludes house site which is within a town OT
village. When in an ejectm~t suit it was alleged that the Plain-
tiff landlord became the owner of the suit land by virtue of a S11le
lxxii
PACE
which was illegal as the lat;-1 in question was " garden land,"
which was not transferable under s. 4 of the L'~n:l Nationab;ation
Act; and consequently the suit was not m1intainabie. t:uuz:
Un-ic~s. 3 (l1) of the Land Nationalisation Act, the term" agrkcl-
turalland "includes garden land, but does no include a !louses~
wnicb. is wit:tin a town or vii lag.::. Though the suit land is rem:aed
"garden land," there is clear evidence to show that it was De"U
occupi.::d or W.lS o;Ji,larily u'dised or le..tsed for agric-.Jltma.f
purp:>ses or purposes subservient to agriculture. The S\ltt
land is more or less in a town, if not a big vil1age. 1\~.
tiere is iocu::n.ent"Y evidence to show that the Distri-ct t..and
~ommittee had declined to classify the aui t land as agr'.cuhun:l
bid unde~ ~. 39 of the Land Natio::l.alisation Act, ::ts tis ab:mlat
dw~lling place. The suit land is therefore not an ~~
land as defined in,..s. 3 (b) of the Land N:1:ionilisa.tion Act.
A:mglanda:o Ko K'hm Sein and 4 others v. U Maung Chk; Civii
Revision No. 89(196I, referred to and followed.
RAN NATH SINGH f). CHANDRICA PRASAD AND Q~ ~
SHANKAR AND 0~, BJSNATH AND ONE, U. K.. ~
AND ONE, RAM GoviND AND ONE, RAGffil N'.A.~
PRASAD AND ONE, RAM KISHORE SINGH AND O~'E
GoVERNMENT SERvANT-sui.t liy qtroernment Sifv'!'nt agl4mt ~
ment-based on wrongful removal from se'rvice~ ..
cause of action exists. Necessity to examine whether ~ /1
action exists before suit proceeds- Pauper suits-Prerog~,..
of dismissal-whether still exists. The Plaintiff was a ~
ment S ervant wh:> had been dismissed from service. ~
to
quently, he had applied the late Supreme Courtn'or a Writ'
Mandamous(Certioran to quash the order of dism.isasl. cill
the key ques:ion before that:court was whether the dis:Dissd..,
wrongful, :llegal or ultra vires. ::Phe Supreme Court bad t!!a
held that the present po;;ition of Civil Servants in Bumr.a 'li1ls
that of MaPter and Servant, as the prerogatlve of d~lcsei
cised by the Grown no longer exists, and also beCIU!ie tt~ae
no longer any statutory or constit'.lt on ~1 gt:arant!CS dbr 1iz1e
a B'.lrmese Civ!l Servant to show cause against punidlmcat.
The Supreme Court according! y indicated that the prOper-~
wo'.lld be by way of s:.~it. The Plaintff then fil~ the~
suit befure the Chief Court as a pauper for a D::1u.a:cn :met
also for atrears of emoluinents, gratuitY: pensioo md odler
payments. Held: It is not the State alone, but~~
also,who can dismiss its servant at ~Jeaslire. In the ab!e:lO: of
c :>nstructud or Statutory restra:nts in ~ case of tbe Sure,
the.additionalconsiderntion of the welfare and safety 9fdiepeD?le
gives rise to the nee<!ed im,munity .from $uits fj)r wroogr.,.t d.is-
mis.s al. Ex:cept where the power to d ism'ssat pleasureis WiiJng:ly
r.:stdcted by the S overeign himself, such suits 'do DOt lie. Tbt
rcmar!;: oft=:~ Supreme'Cqurt in.the previouS writ8p91ication that
the prerogative rtght of .dism 'ssal at pl~e bad t;1l)t found a
obce in the Constitut'on of Burma, seemed to hlve been py
way of an obiter dicta. The .p rerogat:ves of me Crown con-
tinues to have for.ce and l :fe in the Union, though !n a different
:form. Prarogative power is in essense the sovereign power of
the state and when Burma became a sovereign state, tne prerog~J.~
tive or sovereign or sovere:gn power cont'nues in the state.
The Constitution of Burma s. 223 ex:pr~sly PI'9Vides for a con-
tin:.Ja:ion of the prerogative powers prev 'ou~ly belonging to
GENERAL INDEX lxxiii
PAOli:"
the Crown. This view of the continuance of prerogative right. of
dismissal is also supported by the prot is:ons of the Public
Servants Inquiries Act. In s. 25 of the Act, the doctrine of
employment during the pleasure of the State is expressly l)re:..
served. The basis of the pro:sent suit is that the dismissal of the
Plaintiff from the service wss wrongful or illegal or ultra vires.
The cause of action therefore is that die Goverrunent had acted
wrongfully or; llegally or ultra vires in removing the pla:ntiff fr:>m
the service. This is a question which the late Supreme Court had
fully considered. The dismissal of the Plaintiff's applicat on by
the Supreme Court W3S on th:! ground that the Government
had not acted wrongfo.~lly,lllegal.y or ultra vi1es in 'emoving l:tim
from service. The ruling of the Supreme Court and the law on
the subject, deprives the suit in its present form of its cause of
action. U Tha Din v. The Secretary, ll1inistry of Co-operati'l:e
and Commodity Dishihu~ion, (1959) B.L.R. 94 (S.C.); ~ccretcry
of State v. F.C. Maunce, (1937), R.L.R. 35; 11arom v. The
Secretary of Sta:e for India in Council, (1929) I.L.R., 8 Ran.
215; The Secretary of State for Indian in Council v. D'Attaides,
(1934), I.L.R., 12 Ran. ss6; RidgP v. Baldawin and others,
(1963), 2 W.L.R. 935; Terrill v. The Secretary of State for
the Colonies, (1953), z Q.B., p , 482, referred to.
u THA DIN v. THE SECRETARY, REVOLUTIONARY GOVERN-
MENT OF THE UNION OF BURMA, DEPARTMENT OF SUPPLY
AND Co-oPLmATION ss6
GuARDIAN A.'ID WARDS ACT, s. 1o-Applicatio11 by mother for appoint
ment ofguardian-s. I!), Guardia11s ami Wards Act-no appoint
m!fnt of guardian unless father is rmfit. The Application of the
Appellant .under s 10 of the Guardians and Wards Act for
appointment of herself as guardia!l of her minor children, who had
been living w!th their father, the R~pondeQt, had b~n dismissed
by the lower Court. On Appeal:- Held: Section 19 of the
Guardians and vVards Act enac;s that subject to the provis or..s of
the Act with respect to Euro;>enn Christian nothing in the Act
would authorize t he Court to appo nt and declare a guardian of the
person of am nor whose fatlnr is I ving and is not, in the o;>inion
of t!:tc Court, unfi: to be the guardian of the person of the minor.
There is nothing in the evidence to show that the Respondent as
the father, is unfit to act as the guudian of h :s minor daughters.
Further more, they an rec-.:iving the best education and the
best care and attention which could be provided. H owever,
it is also to the welfare of the minor.; that they should not be
entirely estranged from their mother. Accordingly the Appcl!ant
should be allowed to see them once a month in school.
MANu v. Ko SAN AYE 689
HINDus IN THE UNION oF BuRMA-APPLICATION oF HrNDu MARRIAGE
ACT ilNDJAN Acr No. 25 OF 1955)- POLYC..O.MY PBRMITTrlD IN
BIJRA THOUGH PROHIBITED IN INDIA IO~
H INDU Lto.w- Polygamy permitted ~tnder, .Hindu Marriage
(Indian Act No. 25 of 1955)-Cannot have effect on Hindus in
Burma-Wlten may be recognized. Bigamy in India- Hindu, who
is a citizen of Umon of Burma and an Indiil_n citizen ~cannot be
0 6
lxxiv 6ENERAL INDEX-
P AGi!
prost>~:ded iu Burma for. Con!emp! of Courts Ac; >S. 2 a."d 3 ---
I'llhat d~es not amount to o$nce und,r. Hindu Jaw as recvgnized
b:; =~~! (.:~!.!rts in Barma i~ th'~ ~; 1JSton1?.ry t:-~u- r~!?.':{ng t0
Hindus and the Jaw as laid down b; the decis ions of the Couns .
..\\;cording to this law, a Hindu m:;y rMrry again though he has a
wife or wives living as Hindu bw p crrni's pol)'g<L"Tl:f though ir
docs not approve of th~ practice. Jn India an absolute prohibi-
tion agsinst polygamy is em:cted by sect:on 17 of the Hindu
Marriage Act (India Act 25 of 1955). This being a statute law
enacted by the Indian Legislatui'e it cannot per se have any effect
on the 'ijindus in Burma. It may be recognized, if after genera-
. ,t ions of obedience to th is statute law, new migrants from India
come into Burma and claim that so far as they are concerned
monogamy is a custom h aving the force of law. Then, in so far
'as they are concerned, monogamy may be enforced, the H indu law
relating to marriafi,e having been altered by custom having the
forceoflaw. TanMa Shwe Zinv. Koo Soo Chong, (1939) R.L.R.
548, followed. Ramadhar Keto v. Ratipal Ahir, (1958) B.L.R.
(H.C.) 1 I, overruled. A Hindu who is a citizen of the Union of
Burma cannot be prosecuted in this country, under section 49 5 of
the Penal Code for alleged bigamous marriage which he had con-
tracted in India and an Indian citizen cannot under any
circumstances be tried in Burma for an offence undei' sec:ion 495
-of the Penal Code, which was committed in India. By saying
diat the applicant and his wife should be boycotted for encourag-
ing their son to contract a bigamous marriage in India, the respon-
dents have not prejudiced the trial of the applicant for the alleged
offences of cheating and criminal breach of trust as to constirute an
offence punishable under sections z and 3 of the Contempt of
Courts Act. King Emperor v. Ma Tin Saw and one, 6 Ran. 39.
referred to.
THE UNJON OF BUR;>d:A (CHHAGANLAL LAVJI KOTAK) t>.
M.V. GADHA AND TWO OTHERS 109>
HINDU LAW-Stridhana property-daughter as heir-sale by rom-
possessO'Ty title ripening into prescriptive title-conflicting dai.s
between such title obtained through impostor-finger print et:Jidenc:e- ,
evidence of expert-iJalue whn1 expert witness not properly aoss-
e:~amined. The Pla:ntiff/Appellant had filed a suit against the
Defendants/Respondents for a dedarntion as to the owne:ship of
the suitland byvirtureofpurchase rom one" D-M.".andanother
by a. registered deed of sale in 1958. The Defendants filed
counter claim in.the suit and also claimed ownership by virtue-
of purchase, by .a registered deed, from a Cheuyar fum which
in turn had bought the same from the legal representative
and heirs.of the said . ~ M.D.", who was the original lessor of
the suit lati41 in 1:941. The most important issue was then;fo~
whether the registered deed of sale relied upon by the pla~ff
was in fact. executed by' D.M.", or by some impersonator.
Another iinpoxta.nt issue was whether the Chettyar firm from
whom the Defendants bought the suit land, had iself obtained
title to the suit land by the de~d of 1941. The learned trial
Judge dismissed theplaintiffs suit and decreed the counter claim.
On Appeal:-'-Held:. R~garding the Deed of Sale, there i~ very
little .doubt that it was executed by an impostor. The evrdence
thumb of the Finger Print Expert of the C.I.D. hal: shown that
. the thumb impt!'lss ion.-of "p ..M. , .appearing on the Sale J:?ee~ of'
1958 relied upon by the Pl!!~nhffJAppellant, was that on a d1fferent
GENERA:L INDEX .. inv
PAGE
person from "D.M." wh.,se thumb imprassion appears on thP.
original deed of lease. The evidence of the Finger-print Expert
has been assailed on the ground that it does not contain any
reasons for the eonclusio>1. arrived at hy him. How.;v<:r, the
Finger-print Expert w:1s himself present in Cour t fo: the
purpose of being cr.:>ss-examined. Sarwar Khan and w;;;ther
v. Emperor, A.I.R. (1930) Pat. 334, refcqed to. Regarding the
validity of 6<: ><.:le deed b!twecn th..: Chettyar firm and the
. repr.!sen!~':iY.;S oZ the dc::!JS<!d " D. :\1." it has been a! ieged that
as the heir of D.M." in resp;:ct of the suit land wa:. the
daughter, inst-~ad of the sons, and as th<.: sons h.ui ~igned die
Sale. Deed, it was invalid. Undoubtedly, if the dec:e~sed
~' D.M." was a Hindu lady of the Sudra caste, succ.>:s;iori to
. her Stridhana would st:ll be governed by the :VI ltl<ksib r .1 )Juw.
However, there is nothin)t in the evid..:;1c.: to sho,'<-.whether the
deceased "D.M." was a lady belonging to the Sudra or to the
Panchama caste. Bastar Transport and Trading Co. v. Co:;rt of
Wards, Ba:tar and another, A.I.R. (1955) Nag. 78, referred to.
Assuming that the sons only of" D.M." and not her daugil.,ers
having conveyed the suit land to the Chettyar firm the title of
that firm was defective at its inception; that firm had been in
possession since 1941. It therefore had possessory title which
in course of time ripened into prescriptive title. Narayana
Row v. . Dh!lrma.char, I.L.R. 26 Mad. sxs; Ma Saw v.
Maung Shwe Gan and Ma Ban, XI L.B.R. 415; Mo Pwa Zon
and two v. Ma Pan I and one, l.L.R. s Ran. 154; and Mg Mya
Than and another v. U Tun Tin, Civil S~cond Appeal No. 44 of
196o of the Chief Court, referred to. Accordingly, the
defenda.rfts clearly have a better title to the suit land.
Ko Kvx SHEIN o. Ko So& SA~ AND ONE
lMMl!MORIAL USER-ITS PROOF TO 82 AO~IITEO WHEN DI.RECT EVI-
DENCE LACKING-EXISTENCE OF Woqf- woMEN CAN ACT AS
MUTWALLI 69%
INCOME-TAX Acr-s. xo (2) (vi)-claim by shipping company of initial
depreciation-Right of Income-tax Officer to assess without having
recourse to Rule 33-Depreciation on ships which did not come to
Burma-reason for allowing depreciation. Income-tax Acts. ro (z)
(iii)-interest paid outside Burma.--nuoning of "business con-
nection "-dep:mdant on facts of each case. In assessing the
. income-tax: payable by the Applicants computation of the asses-
sable income was made under Rule 33 of the Income-tax Rules
and with s. xo of the Act. No initial depreciation was given in
resP.eCt of certain ships belonging to the assessee company. Of
these some of them (including new ships) had never come to
Burma ~during the year in question. The main question there-
fore was what depreciation allowance should be made to the
assessee company. The other question referred to was regard-
ing. the interest which was paid outside the Union of Burma.
Held: If the Income-tax Officer is of the opin!on that such
amount cmnot be computed except in the manner provided in
Rule 33 he must make the computation in accordance with
the provisions of.the Bunna Income-ta.'C Act as provided in that
Rule. Where there are ships which h ad never come to Burma
during the year in question, it is open to the Income-tax Officer
to igni:>re such ships, and to co~pute if he can, what amount of
luvi GENERAL INDEX
incom~. profits or gains 4;ld accrued to the non-reside:m a.bt;>-
ping company by plying the ships which had come to ~
In that .case, he need only consider whether he should~~~~
~ual 5 per cent depr.:ciation in respect of the ships ~
actually come to B:.z.-:n:~. Gre:Jt Eastern Shipping Cc. l.8:i. "'-
The Commissioner of lrzcome-ttv:, Burma, Civil Refe~ ~f.~
196o of late High Court, referred to. However, if bt ~
assess the non-residentshipj1ing company on the basismru......dif:
income, because of the prvvisions of the
tax Act, he is obliged to give 15 per cent
respec~ of newly)pstalled ships and alw to co-.s 'k
he should give s "Per cent annual depcciation
which never came to Burma. The logic of the sitw&J:~
compels the Income-tax Officer to allow init.ial de;:tnxi:a:
the newly installed ships which never cm1e to
they being more ~odern and faster and more
to contribute greater profit to the shipping cos:npa."l~
point to remember is, that the amount of d~IPt"C:'!'t~llUG
Burma has to bear is in proportion to
Burma as against the total 1:eceipts of the non-s:cstdi:S
company from its world basiness. In a
equitable =nstruction is not admissible, and the
statute have to be simply adhered to. MessrJ.
v. The Secretclry of State for India, Xf L.B.R..
3 K.B. 212 at p. 219; (190il) 1 K.B., 705 at p.
Attorney..General, L .R. 4 H.L., xoo at p. xu;
General v. The Earl of Selborne, (1902) x K .B
referre:i to. Held fu;t;rer : R!gardinJ th~ q
the proviso to s. ro (2) (iii) of the Burma
would only apply to interest paid outaide
Burma, if there is" business connecton" oei:W<:!CDUll
company and the le.n ders of money. This exJt)~:..ia
connection" depends on the o,u-ticular facts
As the required info.rm:;~ion has not yet ~
Tribunal, the matter is referred back to it fora
MESSRS. NoRWEGIAN AFRICA & AOSTJliAI.l~
CoMMISSIONER OF I NCOMETAX,
INCOME-TAX ACT-s. zo (2) (viiia)-bonus
allowable deduction-pror;iso eo s. xo
u11recognized provident Fund-also
Held: :Under s. xo (2) (vi; i a) of the
sums sho~ as bonus to staff but actualJy to
Staff Provident Fund to be appr-opriated in --~ with t!1e
Provident _F und Rules, is not an allmrlbk cledoc:tion. To
be allowable deduction, the sum pajable as borr.:ts ~ be
actu~ly paid to the employee coocer::oed. H~/4 also: Con-
tributions to an unrecognized Prorident Fund are also not
-allowable deduction. The. proviso to clause (ix) of s.
10 .(z) of the Act is explicit on this pOint~ '
THE CoMMrssroNeR oF lNCOM-TA*. BuRMA, RANGOON v.
MESSRS. CATHAY PACil'tC AlRWAYS. LlM!TBD 93I
INcoME-TAX Acr, s. z6A-:zppliazticn for re_newal of registratio"n
firm registered -under Registn:~tion Act only after (he date of order of
I. T.O.-whether such application to be accepted. _ For the a sse~s.- .
ment year 1958-"59 the assessee had applied for renewal of regxs-
tc~tiO:l unde.r s. 26A of the Burma Inoome-t:u: Act,. onthe 3oth
GENERAL INDEX lxivii
PAGa
De~mber 1958. The Partnership deed of the firm had hem
regtstered under the Partnership Act o~ that dat~, but the
registration under the Registration Act was done only on the
z8th April 1959 On the 17th June 1959, the I.T.O. passed an
order refusing renewal of registration on the ground that the
Deed of Partnership was not duly registered under the Registra-
tion Act on the date of presentation of the application. The
Assistant Commissioner (Appeals) uphEl,ld the said order but
the Income-tax Appellant Tribunal, held that under the
circumstances the I.T.O. was bound to register the firm.
The Commissioner of Income-tax being dissatisfied with the
said order, the Tribunal referred the question oo the Chi'ef
Court. Held: Sub-s. (1) of s. z6A of the Burma Income-tax
Act read with the proviso thereto clearly lays down that in
order that a finn mav be able to make to the Income-tax
Officer the necessary application for registration i"must be (1)
constituted by an instrument of partnership specifying the indi-
vidual shares ofthe partners ; (z) if situated in any area to which
the provisions of the Registration Act apply, the instruml:flt of
partnership has been registered under the Registration Act and
(3) if situated in any area to which the provisions of Chapter VII of
Partnership Act apply, duly registered under the Partnership
Act . . It is not sufficient that.. at the time of the appl ication for
regil!trati?n under s. z6A is made,. the firm is in th~ process of
being registered under the Partnershtp Act or that the mstrument
of partnership should be in the process of being registered under
the Registration Act. The words .. is registered" and the words
''is duly registered" appearing in proviso (a) and proviso (b)tO"
sub-s. (1) of s. z6A have the same force as the words "has been
registere'll" and "has been duly registered" as the case maybe.
Commissioner of Income-tax, Madras v. D. A rokia swami Chetti
and Co. , (1948), XVI l.T.R. p. 404 ; Kashiram Bhajan Lal v.
Concmissirmer of Income-tax, u.p. (1962), XLV I.T.R., p. I,
referre4 to.
THE CoMMISSIONER oF INcoME- TAx, BURMA v. THE RANGooN
TIN FACTORY 38S.
INCOME-TAX ACT, s. 66 (x), s. 66 (z)-Application ~ Commissiond
against qrJer of Income-tax Appellate Tribunal-question of suffi-
cietu:y of accounts-not question of law. Where the Commissioner
of Income-tax had appl ied und~ s. 66 (x) of the Income-tax Act
for reference to the Chief Court certain question of law, being
dissatisfied with the order of the Income-tax Tribunal which
accepted the counts.of the assessee. _Held: It has been held over
and over again by this Court as w~ll as by the late High Court
that sufficiency of the accounts. for the purpose of deducing
profits lnd gains therefrom is eft by 'the:proviso to section I 3 of
the Income-tax Act, 1922' to the judgment of the Income-tax
Officer and that once the j,udgment pad been exercised by the
officer against the assessee, it cannot be assailed unless it can be
demonstrated to be hot "judicial '~ but " capricious." M.P.R.
Jl.Irulandi Mudaliar and Sqns v. The C6mmissioner of Income-tax.,
B.n.a, Civil Miscellaneous Application No; -40 of 1959; Messrs.
.,_and
L.S. Alladetn and Company v. The l ncoinetax Appellate Tribunal, :
one, Civil Miscellaneous Application No. zz of 1961;
lxxx
l'AQB
enter inio a fresh partnershi E w ith other firms or persons. There-
fore, even iftho partner whd' signed the two Agreements can bind
:;b.c ~-:-..;:::ship with ot.~er fir:ns or inc!i,!c!:.:z!s, h:: ~ ::::J ?=x!! ~
to bind the individuals composing his partnership firm , by
en1ering into a fresh partnership with other firms or persons.
Held further: There can be no question of ratification in the
present case. The application for registration was not put
forward even by the partne.r :,vho signed the deed, but was pu.!. .
forward by his agent who was manager of the ~bip
:firm. Ramlal Murlidhar v. The Commissioner of~~
Bengal, .(1933), V, I.T.C. 150, referred to and disti.ngui..~
Firm Brij Kislum? Ram Sarup v. Sileo Charan Lat. A..I.IL
(1938) All. 69, referred to. Obiter: As to the ~><In
whether the application for reg:stration itself was ~llm! u
it was not signed by a partner as required by the Rules bux by an
agent of toe partnev, there is sufficient authority for the propo;;.i-
t-ion that it would not comply with the statutory rules prescrib<Dg
the manner in which the registration is to be effected.
THE BuRMA STARCH PRoDucrs LTD. v. Tim iNCOME-TAX
APPELLATE TRIBUNAL, BURMA AND ONE ::t;J<t
INCOME-TAX Acr, s. 66 (3)-Question of Law-Question of wfficimci
of cause for the purpose of cancellation under s. 27 of the Bruma
Income-tax Act-Whether question of Law. The assessee, the
applicant in this case, was assessed under s. 23 (4) of the Income-
tax A<:t as he was deemed to have failed to <:omply with the
notices under s. 22 (4) and s. 23 (2) of the Act. An applicatibn.
for cancellation was made under s . 27 to the Officer making
the assessment, but was dismissed. The applicant being:
dissatisfied with the said assessment, then appealed to the Ass:s-
tant Commissioner, main!.:~ on the ground that unless and until
he had posted the entries contained in the rough day books to
the respective ledgers, he would not be in a po$ition to pl"':pare
a profit and loss acpount and submit the books to the Income-tax
Officer for examination. The Assistant Corrunission.c r however
took the v iew that the Income-tax Officer concerned had tried
his best to help the applicant to complete the posting of accounts
and to comply wlth the requirements of the notice undeT s. :u ()
of the Act and that extension after extension oftime was given to
the applicant so as to enable the applicant to avoid an assessment
unders. 23 (4) and to qual ify for an assessment under s. 23 (3) of
the Act. The appeal to cancel the assessment was therefore
dismissed by tlJ.e Assistant Commis'oner. The applicant
then filed a Revision Application before the Additional Com-
missioner, who, however, summarly dismissed the applicat:on.
On applicati'On to the late High Court.under s. 66 (3) of Burma
Income-tax Act. Held: The point for determination is whether
on the facts f~)Und .by the Assistant Commissioner in the appeal
against' the Income-tax Officer, any question of law arose for
the co.n~ideration of the late High Court and by this Court. The
quCl)tiori of sufficiency of cause for the purpose of cancellation
under s. 27. .of Burma Intome-tax Act, of an assessment made
~der s. 23 {4) of the Act, is essentially one of fact. P.K.N.P.R.
Ohettyar Fimi v. The Commissioner of Income-tax, Burma, IV,_
I.T~c. 87; P.K.N.P.~. C[leuyar Firm v. The Col!lTIIissioner of
Inco.me~taX, Burma, IV, I.T.C. 340; A.K.R.P.L.A. Chettyar
Firm v. The Commissioner of Income-tax, Burma; s I.T.C. r8z,
GENERAL INDEX
PACB
referred to. Abdul Baree Chowdhury v. ,7'he Commissio11tr of
Income-tax, 5 I.T.C. 35z; Vitlwl v. Commissioner of I11come-tax,
C.P. and U.P., (1938) I.T .R. z64, followed. Therefore, no
question of law arises. The!ap;>lication must be dismissed.
} IWANRAM Rt\~1PARTAP tl. THE COMMISSIONER OF INCOME-
TAX, Bun:\tA z6S
INDIA AND BURMA (INCOME-TAX R!!LtEP) ORDER, 1936. P:\RT III,
PARA. z-Meaning of phrase in-When ta.'C relief ca1; be allowed.
In regard to the assessm~nt on an income of K z6,93 x-by the
Income-tax Officer for the assessment year 1946-.H. relevant
to the accounting year ended the 30th September 1946, the appli-
cant claimed tax relief under the provisions of l ndh and Burma
(Income-tsx Rel ief) Order of 1936 on the ground that in r :spect
of the same income it has been assessed to Income-tax in India
as follows:-
I ndian Income-tax Year. Accounting Year. Income assessed.
1 1045 to 3 t-IZ45
II-46 to 30-9-46
Tax relief was granted on K I ,368 by Income-tax Officer under
an erroneous belieftb;,t this was the income ofth'! applicant which
was doubly taxed in India, but the Income-tax Appellate Tribunar
in confirming the order of the Income-tax Qfficer held that the
same assessment years as labelled in the respective assessment
orders in India and Burma should be considered as the basis for
rel iefand not the identifiable income assessed in both the countries
even though the said income was assessed in one assessment year
i n Burma and in two different assessment years in India. Held:
That the only logical way of construing the phrase-
" if any person who h"is paid Burma Income-tax for
any year on any part of his income proves to the satisfact:on of'
Income-tax Officer that he has paid for the year I ndian
income-tax "
occurring in paragraph I of Part I II of the Indian and Burma
(Income-tax Relief) Order of 1936 is to say that if a person who
has paid Burma income-tax for any assessment year on any part of
his income, proves to the satisfaction of t he Income-tax Officer
that he p!lid for the corresponding period, Indian income-tax he~
would be entitled to appropriate relief. Held also: That when a
person who claims rd:efin Burma for h aving paid tax in India, i.-
able to the satisfaction of the Income-tax Officer that he h ad
already paid in India tax for the whole period covered by the
accounting period i n Burma, namely, xst October t o 30th
September he should be g iven relief for the amount of incom~
-.ssed in Burma for t he account ing period xst October till
. die 30th September. L aw oflncomc-taxin India b y V.S. Sunda-
~ 8ch Ed. p. zou, referred to. Commissioner of Income- tax ,.
GENERAL INDEX
PACB
Central Calcutta v. TM Burma Oil Co., L:.d., ( l9+.V. : 7. !.T.R.
348; Assam Raiboays a1z$ Traditz!( Co., Ltd. , " C'J!"""""-''i(>--..r
of Inland Revenu~ . (1934) z LT.R. 467, db--t:i.il$;U ~'=i.
THE BANK 0? BEHAR LTD. BY rrs A~. Z:n.~..-4ro'<
SUGAR FACT:)RY LTD. v. THE l"'.CO~l:M -~~~:re.
TRIBUNAL, BuRMA AND ONE 6:;
0
1N'HERITANCE-BUK\IE5E BuDDHIST LAW--QUESTIOS 8lrrU~ ~~~
OF FULL-BLOOD AND H!\LI'-BLOOD COMES FIRST ~~ 1:S. ~
THAT INHERITANCE SHOULD NOT ASC&'lD WHE:'< lT C-'-" ~"!;)
APPLI~-LET'i:ERS OF ADMINISTRATION . . zso
.INJUNCTION-WHEN ADL"'TERIM l.t."l}uNCTION TO BE CONF!lt;._<W--~
PARTIES ARE IN BITTER DISPUTE AND WHEN RESPE.CflVt;: ~~~T:>
ARE AT STAKE .~. 881
"'INTERNATiONAL LAw-ESTABLISHED PRINCIPLE AS REC.t..a:l:l<5. ~
. POWERS OF nm SOVEREIGN STATE OVER FOREIGNERS' RtC<.'T ~
. INGRESS AND EGRESS-BURMA IMMIGRATION (EMS!U:lSSCT Plzo-
VISIONS) ACT, S. 7 (2)-::oNTROLLER TO ACT JlJDlCU.U..
. ':KJltTTIMA ADOPTION UNDER THI! REGISTRATION OF KEJ~. .~
TION ACT OF 'I94I-ITS VALIDITY
LANDLORD AND TENANT-mai1ltainability of suit for~ /:y ~
.against lessor-liabilities of lessor under s. 108 of IN 1'~ <if
..Property Act. Held: Where the lessor himself bas ~ ~
:Jessee from the premises leased to him during ~ ~~
of the lease, a suit for possession by the lessee~ the~
-will be maintainable. Md. Fazihzzaman v. A~ ~~
A.I.R. (1932) All . 314; and Bishen Sarup v! Ab.:J:J ~
A.I.R. (1931) All. 649, referred to. A..'tl:>:q t~ liahilibes
of t.'>.e lessor as enumerad::l. ins. xo8 of the Tra'l.Sf.er 'l'~ ~F
. Act, are that he is bound to put the lessee in posses:.sioa ef tiM
property and be deemed to contract with the lessee thu bl:! ~
hold the property during the time I imited by the le~ .;~
interruption.
DAw KmN KrnN SEIN v. DR. Y. G. GtJt..-\n ...
LANDLORD AND TENANT-TITLll OF LANDLORD TO &fl E$T~
BI!FORE FILING A SUIT FOR EJECTMENT FOR ARRE.\SS OF ~0
PROVE ATTORNMENT BY PREDEcESSORIN-TITU: TO THE ~
LANDLORD . 3()2
. t.&"''D NATIONALISATION Acr, S. 3 (ft)- " CARDEN LA.~D --CiS ME.\..~
- AGRICULTURAL LAND EXCLUDES HOUSE-siTE' 370
. iLEA~BHOLD LA:ND-sale of part ate~~~~';. trot
. td sub-divide-effect of execution -sale---rigTitJ of p.rdz.asa--doim
by presC-riptive title. . Part of the su.it l~ld l&nd had been
sold in an execut.! on sale jn spite -of an express prohibit'o:~ in the
lease that suh-:iivision or transfer- was ;riot w be made without
the consent of the Deputy Co:TUJI.i$sioner; Tiie exe~uion sale
was in respect of a decree obtllined ~inst the wife of the original
lessee, the plaintiff's father, and the defendants had bou.ght the
land at the sale. Held: There is.~l~r aufu?rity to the effect that a
GENERAL INDEX lxxxiii
PAGB
general restriction on nssignment does not apply to an assiy,n-
ment by operation of lnw taking effect ill je,;vitum, as a safe under
an executiOn and that even if there had been a pro.. ision in the
lease for forfeiture or for re-entry by reason of an u ss ' gnment in
violation of its prov.sions, it would no~ have the effect of invelida-
ting the sale in execut:on, which had always been held not to be
of itself a breach of a convenant not to a)>sign. Golak Nath Roy
Chawdhury v. Mathura Nath Roy Chowdhury, I.~.R. (1893) XX
Cal.27J, referred to. However, though'thc s:tle was valid, what
the defendant had obta:ned from the purchase was the :ight title
and int-: rest of the seller (the w.fe of the o~ig inal lcssee). As a
Bunno:se Buddhist wife of a subsisting marriag<!, I'J\e could aot
cl~im partition of the suit land as against her husband nt that
TJ.me. Therefore at the time of the purchase the defendants also
could not claim panit:on of the suit land ag.tinst th! orig:nal
lessee: All that the defendants could probably c)aim in a suit
properly framed against the originallessee, was joint poss..:ss ion of
the suit land as well as of the house standing thereon. As the
defendants did not file a suit but squatted on the land, th~ ir
possession at the inception was l ittle better than that of mere
trespassers. However, since they had been in possees:on for
about 13 years, they had obtained a prescriptive title thereto as
against the plaintiff as successor-in-title to her father. Obiter-
As the 25 years lease expires in November, 1964, it would then be
open t? the Deputy Comm:ssionr.r concerned to grant a lease of
the sutt laad e .ther to the pla'ntiff in her own right or to any
other person as he pleases. The position of the defendants so
far as thlt lease is c;>neerned might well be different.
MN.mc KYI:-> MAUNC AND ONE v. MA WAINC KYI
LICENCE OF STATE LAND- whether can eject a tresp(l$ser-difference
betweenleaseandlicence-Lower Bunna To~ and Village Lands
Act and Rules. Where thP. question in issue was whether a
person could succeed in suit for ejectment of a trespasser on
the basis of a licence tssued by the Government to occupy th!'
land. Held: Ut:der the Lower Burma Town and Village Lands
A~s and Rules, there is very little diffcren~ between a lease and
a hcence so far as it concerns the licence or the licensee h imself ;
~din~ the right to occupy and use State lanq. On~ of the
maJor dtfferences between a lease and licence granted by the
Government is that where as a lease is h!,itable an:.l trans{erab \c
a I !cence is n:>t. A suit for possession of State Laad by a \ icensec
thereof against a mere trespasser is maintainable in law. U Tun
H/4 .Maung and one v. Daw Sein, (1959) B.L.R. (H.C.), P 95
followed; U Aye MaungandoMv. DawNu, Civ!lSecond Appeal
No. 46 of 1959 of High Court distinguished and dissented from.
Mohamed Esoof v. Maung Th$in Hla, (1953) B. L.R. 274, referred
to and approved. Manabahal Rai .and others v. Ram Ghulam
Panday,A.I.R. (1927) All. 633 and Chimnnan and otlters v.
~anfitham11Ull, A.I ..R. ( 1931) Mad. 216, d istinguished.
DAwTm!IN MAY v. MoHAMJJD Eso~F A.")D"ONC 337
Lxc.ENS!lll ANOTENANT-Licensee for c~nsideration-irrwocability of
lrcense. The Plaintiffs had sued the defendants for a declaraJ
tion that they are in possession and enjoyment of a certain building
under a!l iuevocable 1;censc granted by the defendants. It Wls
lxxxiv GENERAL INDEx
PACB.
alleged by the plaintiffs that it was agreed that they ~o-~ld ba: Lithe
said building, half of which"' was to be occupied by 'hem. a00 the
other half by the defendants who would pay for d::eir shu'e of
the costs of the building by easy instalments. The de~nts
h~wever contended that building belonged to than. a:ad ~bat
the plaintiffs were merely their tenants. The trtai ~ I!J;'I!e
a decree for the plaintiffs. On Appeal. Held : \l-"B;u ~
t':ltes a! icense ca~ be seen {rQm the English Common. ~~
ctples mvolved m the present case. The ~ L(W~.
England was and still is applied in this country under:&:- $3(S:}V
the Burma Laws Act, as justice, equi~ and good o~~li:'
,The Tajrnahal Stationery Mart v. K.E. Molumwl ~
V.S. Aliar & Co., (195o), B.L.R. 41 (H. C.), The U~4 . , . _
v. U Htoon Pe, (1958), B.L.R. 50 (H. C.), referred ro. f.n~
Common Law, there is a difference between a buoe ~-.l
a contractual licer.'Se which is irrevocable. To ~Ata~
tuallicense, there must be a promise which is i~ Cit &c:
binding and is eith!r supported by consideration or u ~
be acted on and is in fact, acted on. An irrevocabld~~
an equitable title. Winter Garden Thtmre (.l.ooW.'C} Uitilili#l
v. Millenium Productions Limited, L..R. (t~) . A.C. l'1'.J ; ,-...
v. Robinson, (1950), z All. L.R. 3; VmqJr.m .... F'.......
(1953), I All.E.R. 209; Erringtonv.Enm-gumazu:~..~
I All. E.R. 149, referred to and followed. It b.u a&obelllaklli
by the late High Court that where there ia. alic:o::un ~ a _...
~actualright,equitywouldalways i.ntetveueto ~&,itju.
~lon; the licensee's right from any ~ OC' da E 1 ; g
mterpretence in breach of the contract. U Tar~,_,. fJBc r-..
(1957), B.L.R. 341 (H. C.), referred to. lt is ql!P 1iA iD. dla.
case that the Plaintiffs were mere licensees 1liOd fi01t ........._
for whatever they had promise<;! to do, they WO'.dll be..-....
There was nevertheless a b'nding contract dJst i.ft .,..;,,.. 4io
C.
reside peacefully on their own se::tion of the boule. "'''ll::l:izale
was accordingly an irrevocable one.
Ko MAUNG GALB AND ONil v. MA ON Nvm.-r AND Cl!m S75
LIMI~A:rroN AcT,S. s-time-barred appeal-whether aJILplillai# f
ltllgant good grou11d for exemption-medical cer~
tiary value of. The Appellant's appeal being ~~=
barred, exemption was prayed for on the ilround of his
and a medical certifkatesigned by a priva-t e medical prKtit:iOner
certifying that he had been suffering from giddiness and oel'9oUS
debility was filed. Held : There is nothing on record to show
that the APpellant could not have sent instructions to his A~
to file the appeal within the prescribed period. There 1Vll5 also
!lothing to prevent a lawyer from visiting the appellant and taking
xnstructio-ils. For illness to be sufficient cause, it must: be~
that the man was utterly disabled to attend to anything. Ma
Thein Kftln v. Ma U Byu, I.L.R. 6 Ran. p. 571 ; S. M. Ally v.
MiiUng San Nyein, I.L.R. 14 Ran. p. xss ; and Le Hu v. Ah Yin,
'(I897- 1901) Vol. II Upper Burma Rulings (Civil),45t, referred
to . . Held furth~r : For a medical certificate to be admissible,
~t .must be proved by the author. An ordinary medical certifi
cate.is only hearsay evidence and is not admissible. A medical
certificate does not prove itself. Emperor v. Ahilva Matwji, I.L.R.
47' Bom. p. 74; Sris Chandra l:lamdy v. Sm. Annppurna Ray,
GENERAL INDEX lxxxv
PA GB
A.I.R. (I950) Cal. p. 173 ; and C.F. iJtJlaram and another v.
Rukman1Ufmma and others, A.I.R. ( I953), Hyderabad, p. 209,
referred to.
V.N. NADESA THEVARV. A.V. MUTHUSAMI
LIMITATION ACT, SS. 5 AND If-pursuing w1ong remeay-:uhether time
spent can be excluded. A decree had been passed against the
Appellant Bank in a summary suit on Negoda~k Instruments
under 0. 37 of the Civil Procedure Code, on srh August I959
Instead of oppealing against the decree, the App.:llant liled a11
application under 0. 37, r. 4, of the C1vi ll'rodcdur.; Code to set
aside the decree and the :~ppl ication was dism~ssed on 29th
August 1960. The App~llant then appealed under s. 20 of the
U nion Juc.iciary Acand the Appeal was d ism S'ed o:txoth January
1962. The App~llant then real ized that the proper course
wou ld be to appeal against the decree dated 5th August 1959
Accordingly an appeal was filed, and it was contended that the
time occupied in mak:ng the ap?licat.on under 0. 37, r. 4, of the
Civil Procedure Code and in the appeal r.!sulting ther~from,
should be excluded under s. 5 rl!ad w 1ta s. If of th~ Limi~a;ion
Act. Held: The Application under 0. 37, r. 4, which was
dismissed by the learned Judge of the Orgin!ll Side, was
dismised not for want of j urisdiction but on the merits.
Therefore the time spent in prosecuting the said applicat:on
cannot be excluded under s. 5, read with s. If of the
Limitatfon Act. Moreover, if the Appellant was dissatisfied
with the oraer dismissing the said applicat:on, the proper coarse
would be to file an ~pplication for spe::ialleave to appeal und~r
s. 6 of the Union Judic:ary Act, and not an appeal under s. 20
of the Union Judiciary Act, when such nn a~peal W.!S bound to be
dism'ssed in view of several Bench de: is o:1s on the p:>int. Magan-
la! Pranjuva11 Mehta v. Mrs. Chantp!lkunvar Ratilal J'dehta
and others, (I952) B .L .R . 192 (H.C.) ; T.C. Leong and one v.
U Pf:! Thein, (1953) B.L.R . I (H. C.), referred to.
MEssRS. THB BuRMESE EcoNOMIC BANK, LTD. (PEOPLE's
BANK No. ro)t~.DAwTlNMAYANDONE 360
L IMITATION ACT, ART. 49-suit for recovery of possession of property
entrusted-time TtmsjrQtll. date of refusal ro return property. Plain-
t iff-appellant in the suit filed by her alkgcd that she was the
j oint owner of a car tog~ther with her deceased husband and
t hat a few days after h:s death the said car was entrusted with the
defendant-respondent. The defendm~-respondent however
failed t Q deliver the car to her when requested. Hence the suit.
The trial Judge accepted the story of the plaintiff. He however
diesm 'ssed the suit, holding that the suit forposs-!S>icn of the car
or the value thereof was beyond the period oflimitation prescribed
by Art. f9 of the Limitation Act. On appeal , Held : The defen-
dant-ro!Spondent's possession of the car became wrongful only
when h"' refused to d~l iver it to pl aintiff-appel ~ant, and t h 's
demand was made only a few months before the suit was fi led.
Therefore, under Art. f9 of the L imitation Act, l im " ~at'on would
begin to run only from the date of such refusal. Ma Mary v.
M a Hla Win, J.L.R. 2 Ran., p. 555, fo llowed ; Gop:1l:1santi Ayyar
lvtxvi GEN ERAL INDEX
"PAGE
'" S ulrrc ma:. S .i<lti. L L. k 35 Mad. , p. 636 ; K a!yar. Ji.Jla and
:;.,-.::::.~::.: . ;-.::,;.,,~ ,~;lm:d. l.L.R. 41 All. , p. 6-<J ; a:~J l/.lddo
B_~gam , .. J ,;,;w{-:;d-ain, I. L.R., 42 All.. p . .;5 . referred .ll:l.
~'<!.\ T1:-.; :\lAY U Po 1\h::-~ 20 l
LtM!TATIO:-<-sui t f or dw nages based Oil ad- in~erim infunction and
breach of contract - Lin:itation Act s. 42- ;uit to be filed within
3 yeaTS from date injunction was vacated-Limitation Act, Art .
, ns-,-t.ffee years from breach of contract- Limitation Acts. 2J-
CGIItir~uing wrong--nature of. The Appel.anr hsd ent.;red i:1to an
agreement w ith the Respondent Pharmacy, und.::r which he had
set up practice in that Pharmacy. Subsequently, due to disagree-
ment between them, the Respondent had filed a suit for injunction
againstthe App<llant in I954 An ad-interim injunction was at
first given against the Appellant but was vacated on 6th August
. x9S4 The said suit was ultimately dismissed on 13th Augu~t
1956. On 3oth March 1959, the Appellant filed the i>r~sene SUlt
fordamagesagainstthe Respondent. The trial judge however,
dismissed the suit on the ground that it was barred by limitation.
On Appeal : Held : In so far as the present suit is bzsed on the
ad-_interim injunction issued against the Plaintiff Appellant in the
former suit, it is barred by limitation. The ad-interim injunction
was vacated on 6th August 1954, and under Article 42 of the
Limitation Act, a suit for compensation for injury caused by such
injunction must be filed within 3 years from the date on which
the injunction ceased. Harinder Singh v . Anant Ram and others,
A. I.R. (1939) Lah. 6, referred to and distinguished. M6.\ini
Moh!Jn Misserv. Surendra Natayan Singh, 42 Cal. sso, referred
to and followed . Held further : Regarding that part of the
Plaintiff(Appellant's suit for damages for breach of contract
between him and the Defeindant/Respondent, the latest date from
which time would begin to run would be from tst June 195+;
that is, the date from which P laintiff/Appellant was prevented
from entering the premises for his practice. Article 115 governs
the Plaintiff(Appellant's suit. Regarding the further contention
that even if Article tIs applies, the sui tis within time because the
breach alleged is a continuing one, s . 23 of the Limitation Act
should be referred to. The facts of the case do not establish that
a continuing breach such as that contemplated in s. 2.3 can be
committed by the Defendant/Respondent. Sarat Chandra
Mukherjii v. Nerode Chandra Mukherjee, 156 I. C., 390 and Moti
Ram v. Ham Raj qnd others, 162 I. C., 303, referred to and distin-
. guished. Fagot Kishore Pd Narain Singh v. Parmesh war Sing~
and others, A.I.R. (1951} Pat 348, referred to and followed.
DR. R.S. G~ v. MESSRS. Tim PAUL PHARMACY LTD. 871
LI!'{iTATlON ACT- Articles 142; 14-<}-Artic/e 142 restricted to cases of
' dispossession and discontinru!mCe-'-i!o abandonnumt by plaintiff-
Article 144 applies. In a suit.for e.Jecti:nent, one of the defences
rais~d was that the defendant had bt;en' in possession for more
that the prescriptive period of 12 .years and hence the suit was
barred by 1imitation. He!d : As to whether Article 142 or
Article I # applies to the present suit, it is clear that Article 142
will apply only when the p laintiff's prior possession has been lost
by dispossession or discontinuance. Sulaiman and 2 others v.
Ma Hla Ei, CivilSeoond Appeal No. 56 of "1953 of the late High
GENERAL INDEX Jxxxvii.
PAGB
C:>u:-t; U Chit Ttm v. Daw Ngwe Tlumur:, C& v i , Fi:-s: Appeal No.
9 of IQ5o of the Chief Court, referr.::d to a:ui followed. In thec
presen~ suit the plaintiff never abandoned the suit land. There
was no ..lis,osJession or discontinuance of possession with!n the
meaning of Article 142 of the Limitation Act. Article 144
appLies, :~nd the defendant had not proved ndv:!rse possession for
more :!:!J:i til~ statutory pe;:;od of 12 >~ars.
D .\W ::1.1AI S111N v. U KAI.t AND oNn
LOTTERY- - lTS MEANING-PENAL CODE-S. 294A-" PR0:10TING OR
CONDUCTING ANY LOTTERY" 39!.
LoWER BuaMA TowN AND VILLAGE LANDS AcT ,..o RuLES-
DlFFER.E.:'ICE BETWEEN LEASE AND LiCENSE- WHEN CAX A T!{ESPAS-
Sl!R iiil EJECTED . . 337
M1>HAMMDAN LAw-divorce-khula divorce-signing of document
by wife reciting receipt of dower--'tllhm binding.Under Moham-
medan Law, the wife is at liberty to release her husband from
payment of the dowry promised her, when divorce is obtained at
her own instance. As the divorce obtained by the Appellant/
Plaintiff was khula as it resulted from her proposal, it is immate-
rial whether the dowry was received or not. It was the Plaintiff
who consented to sign an acknowledgement of receipt as a condi-
tion of a khula divorce; it is therefore binding on her.
MA ltu...RA KHATU v. MAuNe THA Au~o:c ... 35T-
MoHAMMEDAN LAw-waqf-standard of proof regarding waq
property-proof of immem()rial user in tl1e abs1!11Ce of produc-
tion of deed- Mutwalli-women can act as lay Mutwalli-
distinction between manager and mutwall i of Mosque. The
Respondents who were members of the Muslim Community
had filed a suit for a Declaration against the Appellants that 3
pieces of land namely Holding No. 30 Kagyi, Holding No. 3<>-
Khagwe (both originally being Holding No. 30) and Holding
No. 55 were waqfproperty, and had been dedicated as such by z
Muslim gentlemen about 70 years ago by a registered deed.
Holding No. 30 was the site of a mosque and Holding No.
55 was the site of a Madrasa (school). Held: Regarding the
existence of the reg'stered deed creating the waqf, it is to be
found that some witnesses were speaking from hearsay and
those who were said to know of the existence of the deed had
not actually read them so s ino be able to give admissible eviderce
regarding their contents. Ma Mi and another v. Kallander
Ammal, I.L.R. V Ran. x8 (PC}, referred to. In the absence of
direct evicence, circumstantial evidence is admissible in proof of'
the existence of the waqj, and it is well settled that a waqf may,
in the absence of direct evidence of dedication, established by
evidence of user. Abdul Ghafoor v. Rahmat Ali and otM1s,
A.I.R. (1930) Oudh 245; Umar Din and others v. Mst, Aidhan
and others, A.I.R. (1921) Lah. 303, K. Raushan Din and"
others v. H. Mohamed Sharif and others, A.I.R. (1936) Lah. 87
at p. 88, and Mazhar Hussain and others v. Rao Bahdur Adiva
Saran Singh, A.I.R. (1948), P.C. 42, referred to. In such
circumstances, the standard of proof necessary is that the fact
atablished must lead to the only reasonable inference possible..
lxxxviii
PAC I
Although d irect e\idence is lacking, circ,.tm.s.<antial evidence
regarding the ex istence ofthe toaqf its-.:: if was c.on-:e::ned must be
regarded as conc iu::;l \oe ,as imrne;norla! u .;.:.: !-. .;..:! ~.::..:~ ~~~! !sh'!c! .
,This however, canno;; be s:11d of the Holdng ~o. 55 on which
rh e Madrasa (school) stood. As it is n~n a ; a : l n~cess;:..-y fo r such
5chool to be waqfproperty to enable itt:> funct wn , the existence
of waqf so far as the school itself is concernd. , can hardly be
said to have been establisl.ed by the evidence on reco rd. The
.case of Holding No. 30 is more difficult t o decide. There is
evidence to show that part of the holding was used to breed
horset for many years. It is surprising that the Muslim
r Commun;ty would have permitted the m isuse of the mosque land
for such a long period. The fact that they had done so, st rongly
militates aga;nst the truth of the story that the whole of h olding
No. 30 on which the mosque is si tuate was tvaqf property .
Regarding the contention that, as the mother of one of the
desendants assumed the duties of mu.twal/i of the Mosque after
.the death of her first husband (one of the alleged donors and the
ISt mutwalli), she must be assumed to h:tve been acting as
mutwalli in letting out and collecting rents with regard to the
suit lands, there is nothing in the cv!denc.e to show that she w.1s
in fact acting as a mutzoalli of the Mosque because there were
provisions in the alleged deeds of waqf to enable her to act as
:such. There is however not:1.ing in Mahommedan law to
prevent a woman from performing the lay duti..:s of mutwalli
.of a Mosque. Kassim Hassan v. Hazra Begum, A.l.R. (x9zo)
Cal. Boo; and Mt. Moidee1t Bibi Ammal v. Rathnavelu Mudali,
A.I.R. (1927) Mad. 69, referred to. In the absence of any
admissible evidence on record to prove the content of t~e
alleged regi-stered deed or deed of waqf, it cannot be0 said
that she was acting as a mutwalli o th! wa1f property.
Phatmabi v. Abdulla Musa Sait, A .l.R. (1~~1) Mad. 714,
refen:ed to. The probabilities are that after obtaining Letter
of Administration to the estate of her deceased husband, she
had arrogated to herself the duties of the manage.r of
the Mosque known as E-Byaing PJliwhich had been coJJStructed
by her husband. This fact w .ll not prove that the suit lands
belonged to the waqf.
1\11A 81 Sr AND ANOTH!lR v. SAYA MYA AND TKJU!E OTHERS 69 Z
MONEY-LBNDER- Que.stion wherther a person is a money-lender-can be
raised at tbe Appellate Stage- registration of agent as money-lender
.- not sujJici.entfor carrying 01z money-lending business on behalf of
prin,cipal. The Respondent had brought a su.it on behalf of his
,principal {or recovery of ~oney on a promtssory. no~. The
trial Court decreed the SUlt, but on Appeal, the ques1on that
ihe principal was not a reg:ste'r ed money-lender was raised for
the first time. Held: It is clear on the evidence that s<;v~ra\
. money.- lending transact:ons had been made by the respondent
a~ing as agent of his principal. As there were no other business
for the principal in Burma, his business must be that of m<;mey-
'lendlng, regard being had to the said transaction's . Bishwa
Nath 'Rai v. Kashi Nath Rai, (1948) B.L.R. 449, referrtd .to an<).
distinguished. The issue whether the principalis a money-lender
.or not:, though raised only at the App~llate Stage,can be conSidered
. if it is based on facts either adtnitted or proved beyo~d coritro-
versy. Bishwa Nath Rai v. Kashi N4th Rai, (1948), B.L.R. 449,
c
GENERAL 1NI>tx J:r.xxix
PACE
.-cferred to : A.R.M.N.A. Chettyar Firm v. R.ivi. V.S. Chettyar
.and'others, (1938), R.L.R. 256, referred to; U Ba Yi v. Daw Hmi
.(a) Mrs. Khoo Sein Ban, (1953),' B.L. R. 356 (H. C.), referred to .
.No..decree can be passed in favour of the principal as he was a
money-lender, but was not reg ' stered as such. The agent may
:have his own money-lending business, but this is not sufficient.
His r~gistration is good only for his owfl money-lending busi-
ness. It is of no use for the money-lending business which he
was conducting for his princip:'ll. The Appeal was therefore
allowed.
K.M. CHIDHAMBARAM CHETTYAR v. S.T.P.N. SvaaiAH
CHETTYAR, ACENT AND ATTORNEY OF S.T.P. NACHIAPPA
CHETTYAR 5' 9
.MONEY-LENDERS ACT, S. 9-Expiry of cert(ficate during trial-Court
should give reasonable time for obtaining new certificate. Where
the certificate of registration of the Plaintiff as money-lender
expir~d during the pendency of the suit and a new certificate was
obtained two days after the dismissal of the suit . . Held: Under
s. 9 ()f the Money-lenders Act, a decree can be passed if the
mon~y-lender can produce a certificate of rcg'strat'on during
the p'e ndency of the suit filed by him. In the circumstances of
the CJSe, the 1-~arned trial Judge should h~ve given the Plaintiff
reasonable time to producP. the new certificate of registration
which would be vo1lid at the time the decree is passed in his
favour.
R. D. RAM tl. K~NJA MAISTRY
.MORTG!!.GB BY CONDITIO::-l'AL SALE AND SALE-Oral understanding of
right to re-purchase-m stipulation in the deed-proviso to s. s8 (c),
Transfer of Property Act-statutory bar to being construed as a
mor:tgage-inadmisdbility of oral evid:mce-s. 9~. Evidence Act.
Where there was Reg'stered I;>eed of SJle of certain immoveable
property and the Buyu h'ld admitted that he had verb 11ly promis-
ed to tllow.re.demption, but such a promise was no~ embodied in
the Deedr -and it was c_o ntende:l th'lt the document embodied
a mortgage bv Con:lition'll Slle. Held: The prov'so to s. 58 (c)
<Of the Traasfer of Prqperty Act is a statutory bar to the De-ed of
s~J~ in qu~~ion b~ing co:-~strued as a trans1c~ion evidencing
a mortgage by Coniitional Sole, notw'thstanding the verbal
agree:nent to return the property on payment of the purchase
price. 111:aung Aung Thin and one v. Bimath Sirgh and one,
{1958) B.L.R. 314 (H.C.), referred to and dis:inguished. Also,. :
where a reistered instr:uine!l.t charly shows a transaction between
the parties to be a S1le;oralevidence to show th<tt :twas intended
to be a mor~gaJt0 is inadmissible under s. 92 of the Ev.idenc;' Act.
.-..fa?Jng Shwe Phr>o and eight oth-n-s v. Maung Tun Shin and three
others I. L.R. 5 Ra!!. 644, referred to and f:>llowed.
DA\V KYIN Pu v. U OHN KHIN .A.."'D ONE 328
. 'ih:"XlCI!'AL ACT-ORDER FOR DllMOLITION OF BlJILDING-AN ADMIN-
. ISTRATIVE ORDER-NOT Q'!JA'>I-]UDiCIAL O:irDE!t-CANNOT BE
QUASHED BY WAY OF A WRIT OF CERTIOMRI 544
7
GENERAl,. INDEX lxxxx
PA08
NECESSARY PARTY- CONTROLLGR Of ReNTS NOT NECESSARY TO BE
ADDEO AS PRO-FORMA DEFENDANT FOR REFUSAL TO TAKE ACTlON
UNDER s. x6AA: OF THE URBAN Re:-<T CoNT.ROL AcT-THE
:UIT TO PROCEED WITHOUT THJ;I RENT CoNTROLLER .. . 88']'
NEGLIGENCE- res ipsa loqu~tor-Doctrit~e of-application in a collision
case. The doctrine of resipfa loquitor is simply a rule of evidence
which fixes the burden of'proof. The essential condition for
the doct.rine to come into play is that the facts must speak out so
loud and clear that no other-conclusion can be drawn from them
except that the Defendant had been negl igent. U Hla Pe v.
Union of Burma Airways, (1951) B.L.R. 347, referred to. M.
Chowdhury v. Indian Airlines Corporation; A.I.R. (rg6z) Cal.,
p. 554, referred to. Where the plaintiff's vessel-coli :ded with the
defendant's vessl"\ and the plaintiff's vessel was surik aoout 240
feet from the right bank of the river. Held: Ifthe plant iff's vessel
has sunl' or run aground close to the right bank, then perhaps
the doctrine of res if>sa'loquitor might be invoked, for, it would
show that the phintiff's vessel was keeping dose to its right bank
and was struck and sunk while doing so. The facts of the C3.Se,
however, do not warrant the 'operat:on of .the doctrine. Held
also: On the facts of the case, that the tllegations made in the plaint
and the stories of the key 9{itnesses g iven in evidence are confiict-
ing, and thus the b'urden of proving neg ligence had not been
discharged by the phintiff. Inland Steam Vessel Manual,
referred to.
TsT Toe Rtcs AND OIL MILLS v. THs INLAND WATER
TRANsPoRT BoARD , ... 217
. ....
NEGOTIABLE I NSTRUMENTS Acr- S. 1 r8 (a)-PROMISSORY NoTE-
. .
PRESUMPTION AS TO CON31DERAT10N-MAINTAINABILITY OF 'SUIT 375
No FuRTHER ENQUIRY ro BE DIRECTED UNDER s. ~37 oF CRIMINAL
PROCEDURE CODE UNLI!SS ORDER OF DISCHARGE PI!RV'I!RSB OR
prima facie INCORRECT I It
N oTICE UNDER THE URBAN RENT CoNTROL ACT-'!'o BE CONFORMED
TO S. 12 {t) (a) OF THE AeT-AMOUNT OF ARREARS OF RENT FOR
CERTAIN PllR!OD TO BE EXPLICITLY SPECIFIED 666
O RDER OF RESTITUTION-TRANSFER DURING THE PNPENCY OF THE
SUIT-TRANSJ'EIUlE BOUND BY 'I'HB ORDER-s. 5Z OF THE
TRANSFER OF PROPERTY ACT~UESTION OF RBPAIRS IN BJ>CESS
OF4<> PERCENT OF VALUE IRRELEVANT 723
P ARTITION- suit for partitiOn~ourt without power to direct a sale
apart from the provisions of the Partjtion Act-dismissal of ~it
whether proper-propriety of llllowing amendment of pleadings.
The Respondents had ob.tained a- decree for possession against
the appeUant in a previous' suit and at:the execution proceedings
the Appellant's husband' :had fi led an application under o. 21,
r . too, of the Civil Procedure Code without success. He had
thereafter filed a suit for De~laration against the Respondents
that he had a one-third share in the pri:>pef'ty, under o.z I, r. 103
of the Civil Procedure Code. In that suit he was successful.
Thereafter, the Appellant's husband filed th~ suit related to the
.... . ...
' .. .. .. . .. . . JNDBX,
GENERAL ~
lxx~~i
PAOil
present Appeal against the Respondents tbr partition of the suit
land by th? method of sdling it and distributing the proceeds of
the sale in the ratio of!:%. A pnliminary objection was tak~::n
bythe R~spondents that the suit in its present form was not
maintainable: In the meantime the Appdlant's husbmd died,
and the Appdlarit was brought in as his leg.1l representative.
The objection was uph-!ld by the l~rned trial judge who
dismissed the suit. On Appeal against such dismi' sal: H!ld:
If apart from the provisions of the Partition Act, 1893, -::ivi I courts
had inherent power to order s,.Jo;: oi the immoveable property
. sought" to be oartit:oned on the groun:i thllt it s just and
equitable to f.)llow such a procedure, t:l~ phint.ff's suit would
be quite maiqtainable in the form in which it. has bee'1 pr~sent~d
to the Court. However, on the q uest ion whethe; such an
inherent power is posse~sed by the Courc there :s gttea! c!ivergenc~
. o f ooinion. Pannalal Datta v. Hrishikesh Datta, I Ctl., p. 192;
Nitva G!Jp.J.l Samant:J v. Pran Krish1~<1 Dmt and others, A. I.R.
{1952) Cal. 893; R. Ramoprasada Rao \'. R. Subb:.rmnaiah and
others., A.I.R. {1958) Andhra Pradesh 6.+7, rderrcd to. Among
the conflicting views, the view taken by th.e Calcutta High Court
that in a suit for. par~ition the Court h1s no power to direct a sale
apart from the Part:t'on Act and th~t the power. of. the Court to
direct a sale in a suit for partition must be h~lq to be limited to
the cases provided for within the Pa~t"t oon Act, ts the sounder
view. Aecordingly the suit was not man ta' nable in the fori:n :t
was presented to the Cou~t. However, the learned trinl judg~
should not have taken tjle dr..1s:ic step of disrpissing the t:>hintiff's
suit without giving him an opportunity of !3-me!).ding the obint,
which l!l:mld have been eas ly done.. Hardandas Paladroy v.
Sunder, IV. U.B.R. p. 57, referred to. The suit is therefore
returned to the olliginal Court for .readmis.sion under its
original number and for disposal according to law.
DAw ToKE To!<E v.f r. U HLA MAlJNG,
. AND 2. MA THAN Kvx 660>
PARTNERSHIP Acr, s. 69 (2) - No bar to suit, when-Firm unregistered.
S. 69 (2) of the Partnership .(l.ct does not operate as a bar to
a suit on a promissory note by the endorsee of the note although
the endorsor firm i.n whose favour the promissory note was execut-
ed was not a reg'stered firni. Monan Singh v. Janki Das, A. I. R.
(1937) Lllh. 241; Goverdandoss Takersay v. Abdul Rahim, I.L.R .
.. (1942) Mad. 775, referNd to. KmziramlV!alparni . v. Paramanan-
. da Tewari, A.l;.R,.: (1940) Cal. 528, dissented from.
KHAIR DIN v. ABS.\RULLA IZ:
"PREVIous YEAR ~'-ITS MEANING-:-S. 2 (u) (c)-As IT sTooo
BEFORE fHE BUl{M.'> 'INCOME-TAX AMENDMENT ACT OF 1960 17
PENAL CODE, s. 294A~Drawing,promoting and conducting any lottery
scheme for . th~ distributiim of plastic baskets for purchosers of tins
of coffee containinga coupon--whether a lottery. The Respondent
was acquitted. of a charge under s. 294-A of the Penal Code, for
organising a'scheme for the distribution of prizes, namely plast ic
baskets, by inserting a eoupon in the tins of coffee sold by him.
On a~--~:11 against acquittal by the Government. Held: s. 294A
of(:: Penal Code had peen amended by Act 32 of 1960 and the:
PACB
~
secrioo is not confined to" drawing" but now extend to" oromo-
u.ng v< o:t:~ducting any lottery." The word " Ionery ,; is not
.dejined in any statute. Its common meaning is an arrangement
for distribut:ng prizes by chanc~s. What a purchaser bought
WllS not 0.1ly a tin of coffee, but also a chance of getting a plastic
bJsket. The R-!spondent is therefore g..1ilty of an offence
under s. 29fA of the Penal Code.
U"l,ION oF Bu!U'IA v. M. E. JosEPH 391
if>OSSESSORY TITLE OF LAND-WHEN RIPENED INTO PRESCRIPTIVE TITLE
QUESTION OF VALIDJTY (IF THE SALE DEED WHEN SONS SIGNED THE
SALE DEED INSTEAD OF THE DAUGHTER UNDER MITAKSHARA LAW 67:1.
JPossBssonv TITLE-suit by holder of possessory title against mere
purclwser-whether maintainable-110 necessity of possession for
the statutory perio4 of 12 years. The Pbintiff/Respondent sued
, the Defendant/Appellant for their ejectment from the suit land.
. AccorJing to the Plaintiff he became the owner of the suit land
by obt3ining it as a gtft from one "P.T." the rriginal owner::
{and h :!' grandfather and that he was in possession of the suit
!and ttl! about 5 years before the date of suit wnen heleft the
.area because of insurgent activities, and had left the same with
:his h1lr-si:>ter, who in turnhad left the v llage fer Rangoon..,for
:medic~! treatment in 1319 B.E. The Defendant/App~l!ant.s
.contel\:l.!j firstly that the Plaintiff/Re3pondent h~d aband: ned
"the su t land; and also contended that one of thet':n being a lineal
descendant of the said " P. ~ .'' had some sort of claim over the
land. The trial judge hiid that as the gift to the Plaintiff was .
not e"videnced by a registered deed, it was inv ..lid in law and
dismi;sed the suit. On Appeal by the PI Lintiffs, the lower
App~llate Court decreed the su t on the ground that a suit
'based on poss~ssory title was maintlinable against a mere
trespasser. On further Appeal by the Defendants to the Chief
Court. Held: The Pl Linttff had been in possession either by
"himself or thtough his licensee, his hLlf-sister, till abott 4
years b'lfore the d ate of suit. Accordingly, th~ conclusion
.arrived at by th~ lower App!llate Court is correct. Ismail Ariff
v. Mahomed Ghous, I.L.R. 20 Cal. 834 (pC); Martrrg N()~o v.
Ma Sh:.ve Hmut and one, 8 L.B.R. 227 (FB) ; Nisri Chand Gaita
.and oth:rs v. Kanclziram Bagani, I.L.R. 26 Cal. 579 ; Nga Tha
Zan v. Sunder Singh, III. U.B.R. 125 ; Narayana Row v: Dluzr-
machar, I.L.R. 26 Mad. ".524; referred t">. It can be t-;~ken
as set.led h.w th'lt it is not necessary in order to. m~inta'n. a suit
for ejectm~:1t b .::s ed on a poss~sory tit~e that the plaintiff sho:1ld
have been n poss ~s ? ion of the su:tl-and for the statutory periotl. of
xz year~ or more. In the c ;se now. under co:~sider~t;on if the
olaint ff"s story is true, he h'ld been 1n poss~s>ion for more than
12 years~ Assuming that he was 'n poss~ss on for no more
than ro or u years by hi:ns! lf and, through his lice:tsie, his
h tlkjser ,"he wo1ld. st\ll h :.1Ve the right to eject the defen:i-
-:ans. Ma Saw v. M :mng ShweGan cndone,X.r. L .B.R. 415 i Ma
Pw:~ Zon and tw;:~ v. lJ Pan I and one, l.L.R. V. Ran. 154,
ltrefe(I'ed to .
. l\1.-l.tmc Mv11. THAN AND ANOTHER v. U TuN Tm
lxxxxiii
PAGJI:
PR0~1J.:iSOR'{, NoTJ?.-comi:ieMtion-sait 011 II!!~ pro-note i.'f re:p.'ct of
some d_e.;t due under old pro-note-premmp !I:Jn as to ::omiderc.tidn-
!:f..egotl~b?e Instrume11ts Act, s. 110 .(n).--'m!lilltaillabdity of suit.
ln~ Detenctant had t:lken a tot:tl o! ;-.. 77,o'o forth: P laimin
Ban.!(, and for which two pro.nissory not~s were executed by him.
Later, a pro-not! forK 75,000 w.ls I!X~cated by him ;n r!spect
of the sam~ debt, and the previous pro-notes were canc:lled bv
the PIJintiff. The m1in issues in the suit wtr.: wil~thcr the
suit pro-note was execnted for cons iclf.rat:oa and ll'h :ther the
S'.lit was m1iot:tinablc. Held: Sine<.: the Defend:tm h.d made
a fr~s':l pro:n:se to pay the amount by executing the s.1it pro-no:e.
it w~s executed for considerat'on. According <o s. 25 (3) of
the contract Act, the old d!bts ur~ not r..:: veJ, b5t tis C.:>:!sid-
ered to :,e a go:>d c.>:Hider.uion for th: pr-.> nisc to pn a:~J t<-i s
new pr.>:nise is the melsurc of the cr ~J itor"s righ. Tn ~ Pl.i -
. tiff Bank is not relying upon th'! o ld not.!s for pa;:r:en< b~t o,\ th !
new suit note. It is altogether a ncwcon;ra~;. It.i:N su~lS i.,Licn
and. not a renewal. Sandhi4T.1 Singh v. ICehr Singh.:\.. i. R. ! 19.' 1
Lah. 1016; Abduliakin v. JV/aung Ne Dw1 aad anotil~r, I.L.R . .,
Ran. 292 ; Brajetrdra Kithore ;'?.oy Ch~::Jdhury v. Hi.::
dustan Co-:>perativt lns;~ranct So~iely Limit~d, I. L.R. H Cal.
"978; Mrs. Niz-Nleyer v. E.M. Mamor>ji and other$, (1938) :tL.R.
521 , r~!erred tC>. There :s no need t? demand p3ymen t. .mder a
promissory note if tho: debt is payabl~ on dem3nd. A pro-no:e
paya~le on demand is a present debt And is payable without
denund. There is :10 obligat on in law to give any notic~. T.C.
Bhose v. Obedur RJhm:m Chowdhury, I.L.R. 6 Ra'"!. 297 (30.>) ;
Ranjit Kumar Roy a11d atzotlrer v. Kabira Kisori Mohan Gupta
and another, I .L.R. (IS'40) (2) Cal. 362, referred to.
ST~TE CoMl>rllRCIAL BANK v. U BA THm 375
P UBLIC PROSECUTOR-WHEN CAN Hll WITHDRAW CRIMINAL CAS;:s-
CRI MINAL PnocEDUJU! Coos, s. 494 . . e
R ECEIVER-WHEN CAN BB APPOINTED BY THE RBVENUB 0F:0 1CER OF
THE INCOME-TAX D EPARTMENT UNDER NOTIFICATIONS IS'SUI?.D BY
THE COMMISS!ONBR OF INCOME-TAX AND MINISTRY OF FINANCE
AND REVENUE
REGISTRATION OF FOREIGNER'S Acr, S. 4 - TO PRO'/S THAT A PERSON
IS NOT A FOJU!IG::-l!lR-BURDEN OF PROOF I$6
REs JPSA LOQUITOR-ITS APPLICATION-RULE 0!' EVIDENCE 2.17
RELAT IONSHIP BETWEEN Tiil> UNION GOVERNMENT ANO ITS C:VJL
SERVANTS-MASTER AND SERVANT-DISMISS.\L FRO)! S : RnCE WHEN
WRONCFUL-CONSIDER.\TtON OF THE WELFARE A.."'D S:\.F. TY OF THE
PEOPLE-NO CAUSE OF AcriON 556
RE:-IT CONT~OLLER'S ALLOTMENT OF VACANT ROOM MA.OE WITHOUT
PROPER L'<QUIRY-" SPE.\KINO OaoeR "-wHs:-~ TO BE QuAS"AE"J
UNDER WRIT APPLICATION 950
Rs:-n- OF ~::NTIAL PREMIS:S-PARTI ES ARE AT LlBERTY TO PAY AND
AcCEPT THE.RENT AT A RATE LoWER THAN THE STA:-ID.\RD RENT- 669--
NO RETROSPEcrlVE OPZR.\TION
Rss ]'UDIC.\TA-s. II, Civil Procedure Code-suit urdcr s. n (t) ( )
of the Urban Reut Control Act-whether barred because of previous
suit unde1 s. IZ (1) (f) flf the Act-difference in cause of a::tior.-
0. z, r. 3, Civil Procedure Code-Bonafidc Requirm-.rnl. The
Pb!:ttiff{Respo:ldent had filed a prev:ous suit under s. IZ (1) (.f)
Jixxxxiv
PAGE
of f.1~ Urb:m RentContro!Ac~. The suit was however dis:r.i . sed
on th~ gro ..md th'lt he was p')t tile" owner." S...tbsequen ~ ly, the
Pl.!imiii'/ R~spondent fil~d the present suit for ejectmen; for
0011a ;'id~ r-!:pir.::ment for reconstruction untkr s. 1 z ( 1 I (<) v: ,;,.:;
Ur0an R;:a C.:>ntrvl Ac;. Among the d0fene-!s r~ised were that
the s...tit was b:l.rr-.:d under s. I I of the Civil Prvcedure Cod~ re~d
"irh Explana: ion IV thereto and that th~ premises were not
required r~ason,.ble and bona fide for reconstruction. Boti:. the
triaijudge a'l.d the lower Apj:.ellate Court found in favour of the
PJaintiff/R~spondent and decreed the suit. Held: A suit based
oa clause IZ (I) (e) of the Urban Rent Co:J.~rol Act, I96o, is in
r:!soect of a totallv different caus~ of action from that based o;1
;. Iz ( t) (f) of the s3me Ac:. "Cause of action" m<!a;'ls
ta itbu.dle ofesscntialfacts which it is nec~ssary for a pl:.intJf
to prove bdor;:: he cln sttccee:l in tne case. It comprises ev~ry
fact which it wo ..tld be n:'lcessary for the phintiff to prov::., it
traversed, in order to support his right to the judgment or the
.c;:,urt. 1Vlul:1 Yakub lltliJdy v. iVI.m:l:1l Ajitrai, I.L.R. XXIX
Bom. 368; Alexa;tder Brault '1. Indrakrishna Kard, I.L.R. LX CnL
9I3, r.cf.crr.::d to. In a s:1it u .1 der s. rz (I) (f) of the Urban
Re:1t Co:J.trol Act, th~ plain:iff must prove, inter alia, ~'l'it he is
the "owner" of th~ p!~:nises as defined in the prov s? heret')
an:i t.~3t h~ r~:J.Uird. the premises reasonably and bona fide for
occuplt:o.l by himsdf exdusiv.ely for res icen>ial purp;:,ses. In
a suit und~r s. x2 (r) (e) of the Urban R:mt Coatql Act, he
must prove that the baildi:1g is re;lsonably and bonafide r;::q,uired
by him for t.~e purpose either of r.::-er~c~ion or for effec~ ing
esseh,ialand nnjo:r structural repairs. Accox:dingly," the bundle
of essential facts" which the pbintiff must aver and pr.:>ve in the
.one cas~ is tot \lly different from those which he must awr a,rd
prove in the oth~.- case. No doabt, Ord!r II, Rule 3 of the Ci\i 1
Procedure Co:L~ permits the joinder of sever.tl causes of action
ag-ainst the srme defendant in one S'-!it. However: this provisio:l
.is merdy permissive, not mandatorr. Accordingly, ther.e is
not!1ing to prevent th';! phintiff in this case, from filing th~ z
s~parat-~ suits referred to above. Besides, "Explanation IV" to
s. I x of the Civif Procedure Cod~ says tlwt any matter w:1ich
might and o:tghtto have been made ground of defenc~ or atta-::k in
a former suit shall be deemed to have be~n a m'iltter directly and
substantially in issu~ ;n a subsequent suit. In the case now und~r
consideratioa it would be difficult to say that the plaintiff ought to
aver in the same suit sac1'l contradictory statements to the effect
that:-(x) th'.l house in qu'!stion is r.::asonable and bo11a fide
required by him for his own occupation, and (z) th'ilt it should be
p:~lled down fo;: th~.Purpose of erecting a mw bail ding in its plac~.
Therefore, the !)efen:iant/App~llants contention th'1t the suit
now und~r appealis barrd by res judicqta C!lnno.t be ;~.cceptd .
Regadini the question of reasonaql'e and boi:ui jid.e requirement
for re-erection,.Oile. C'innQ't apply a subjective :test', but must be
decided<:>bjec~ively i n the context of facts and circumstances
relevant in each case. Daw Daw Thi v. U Thein aun!f and Co.
Ltd.; (19$.6) B,L:R.' 14(H:C.), referred to. Accocdingly, on fne
evidence; thetwo Co:~rts' b~low cannot be said to be wron" in the
con-::lu~ion arr~vcd a't by them. .~
. . ., . : .,
DAw Mvi. .-6. Ko'MAUNG THAN ...
BA .CusTOMS Acr, I67A~Bu.rden of proof--1W necessity of p;ima
s:..
facie proof by. sea. curto~/.S authorities-Illegal seizure- whether
vitiatesproce'edings-'-compirison wi.t h s. 259 of the English Act and
-~INDEX lxxnv
PACB
s. 178A of the Indian Act-presumption of honesty of Collector of
Customs, Burma-but not bound by Evidence Act-functions of
superior court in c;~nsideriug rurit app/icati?m-not a Court of
Appeal-non-application of Amnesty Order, 1963-goods seized
not in personam but in rem. Til~ C'.lS~o:ns autnorities had taken
action against the Applicants on the s:izure of certain gold discs in
.a vault in theApplican~'s Bank, as each of the g.:>ld discs had a h')le
in the middle, and there weN Cnin~se ch11racters imcribed
thereon, on the presum?tion that th~y were smuggled go~ds .
The gold was subsequ~ntly confiscJtcd by th ~ Collector o:' Cus-
toms who held that the Appl ict~nts ha J not d ischarged the Burden
of proof imposed on the.n und!r s. 167A of the Sea Custom> :\c!.
The order was uphdd by th: suc.:~ssi\'t higher autRoriries. :md
hence rhis application for a wri t of cer1icrari. Hd:f: :3.
167A of the Sea Customs Ac makes no rder.:nce whatsoe,.:r to
the man:ter of ~izure of the go.:>ds, the im?Qrtation or c:,portation
ofw.llichhad been prohibited or r~stricted under &. 19 of the
Act. In fact, the Sea Custo:ns Act its~lf recognizes the iact that
goods! iable to confiscation under the Act may t>e seiz"!d by persons
other tlun those mentioned in s. 178. For instance, g.:>ods
liable to confiscation under the S~a Custo:ns Act may be s~ized
under s. r8o by a police officer on suspicion that they hve
been stolen. Goods liable to confisc.ttion under the Sea Custo:ns
Act can also be seized by excise officers. U Tun Aung and one and
four oth~rs, Civ. Misc. Application Nos. 130, 133, 157, 197 of 1960
and No. 35 of 19S1; Kantilal Gorh:Jndas Sh!rh v. The Ass:st.Jnt
Collector of Customs, (1951) B.L.R. 244 (S.C.);DawNyuntNyu.'l!,
Daw Than Tha11 and Ma Tin Win v. The Hon'ble Minister jor
Finance and Revenue and two others, Civ. Misc. Ap;>licat;on No. 56
of 1961 of the late Supreme Co:.1rt, Nferred to. Assuming that
the seizure of the gold made by the officers of the Army, Bur~au
ofSpe:ialinvestigationand the P.:>Iice Department in the case now
under consideration i'<l illegal, th:s fact alone w. ll not vit 'ate
the proceedings taken by dt-, C')llector of Customs f.:>r
confiscat:on of the gold in quest:on. Q:tero Empress \". Nga
Taw Aung, (1893-1900) P.J.L.B. 369; Kyin Sein (a) ,11ml'ig
Shwe Mya v. The Finance Minister and two others, (195~) B.L.R.
196 (S.C.); Ni Hauk v. King Emperor, IV. L.B.R. IZl; Sg1 Po
Tha and another v. Queen Empress, (1897-19:>1) I U.D.R. 239;
lVlaung San jj.fyin v. King Emperor, i.L.R. 7 Ran. 771; Aung Kim
Sein v. The King, (1941) R.L.R. 552, r~ferred to. Where the
search is illegal persons participating in the search render them-
selves liable for damages for tr~s pJss, but the illeg1lity of t:'le
search doos not affect the question whether the person whose place
wll searched has committed the off~nce if property which cannot
be leguly possessed is actu~lly found in the course of the search.
Regarding s. 167A of thl: Sea Customs Act, it may be co:npar<!d
to s. 2.59 of th: C.tstoms Consolidation Act of 1876, and s. 178A
ofrhe Indian Act. Rexv. Cohm, (I9SI) I All. E.R.zo3 at p. zo5(
zo6; R. v. &kelo, (1923) -z K.B. 793; R.V. Fit~gerald, (1948)
unrep., referred to. It is noti~ble that in India the burden of
proof under s. 178A of the A-:t w.>uld o::~ly ar s! ifthe goods
in question had been seized in the relsonable belief th at they were
smuggled gwds. The same phr.~se.:>logy does not appear in s.
16i.'\. o: th~ S~1 Cult>'lll A-:to B..trml. Never<h~less, it is
a fair prcsumpt:on that Collec:ors of Customs are honest in the
discharge of th~ir duties and that they would not take out pro-
cee:iingsin respect of any goods the importation of which has been
prohii?ited or r~tricted under s. 19 of the Sea Cus:oms Act,
unless they as reasonable perso:1s, b~lieve that such act:ons wns
lxxxxvi.
PACE
necessary. But in coming to that conclusion they would not be
neces>arily bound by the provision& of the Evidence Act.
Shermal Ftii.'l v. Collect~; of Central Excise and Land Customs,
Calcutta, A.I.R. (1956) Cal. 621 at p. 623, referred to. The
Chief Court is not sitting as a Court of Appeal over the decis:on of
the Collector of Customs and those authorities who confirmed his
decision. T.C. Basappa v. Nagappa and another, A.l.R. (1954)
(S.C.) 44G, referred to. In granting a writ of certiorari the
superior Court does not ~xercise the powers of an appellate
Tribunal. It does not review or reweigh the evidence upon
which the determination of the inferior Tribunal purports to be
based. It demolishes the order which it considers to be without
jurisaic,io:n or IJ!!lpably erroneous but does not substitute its own
views for those of the inferior tribunal. Seup;.janrai Indra-
sanarc:i Ltd. v. Collector of Customs and others, A.l.R. (1959) (S.C.}
845, referred to. Regarding whether the pro\i;ions of the
Amnesty Order,<eovers the case in question, assuming that the
order passed ag.1inst the applicants was penal in nature the
applicants cannot claim to have the benefit of the Anm csty Order
in view of paragraph 6 of chat Order which excepts thos'! offences
invvlving evasion of rcvenu~, from the operat'o!1 of the Amnesty
Order. But there is clear authority for the view that the action
taken by the Collector of Customs wrs one in rem ag.1ir.st the
goods s!ized and not in personam as against the applicants. In
the result the application fl h.
U SoE NYUNT AND ANOTHER v. THE CoLLECTOR OF CUSTOMS
AND TWO OTHERS
SHAM AND FICTITIOUS DOCUMENT TO CLOAK REAL TRANSACTION-:l.Hire
agreement to cloak loan transaction-Sham and fictitious nature
of document can be proved-Evidence Act, cs. 91 and 9Z-
Admission of Advocate-when binding on client. The Plaintiff
had filed a suit on an a'i.lcgcd hire agreement of a Cinema sound
projector, and the Defendant had stated in his written statement
that it was a sham and fict :tious agreement and that the relll
relationship between them was that of borrower and lender.
..:The learned Advocate for the Defendant had agreed that on
he pleadings no issues need be proved. The learned trial
Judge then decreed the Plaintiff's suit on the pleadings alone.
On Appeal. Held: The learned trial Judge had taken a mishken
view in thinking that the written statement disclosed no defence.
The adtni~sion made by the Advoca~~ for the Defenc;l.antfAppel-
lant that onthe pleadings no issues.need be framed, is not binding
on 'the Defendant/App-ellant as it is not an admission of fact.
Besides it was the duty of the tria:t Judge to discover whether
the written statement disclosed any defence or not. Held
further: Evidence of a sham or fictitious nature of a document is
not excluded by s. 92 of the Evidence Act. Shio Karan Singh v.
Surya Nath Singh and two others, (1959) B'.L.R. 207, f6llowea.
Also, oral evidence is admissible to show that a docunumtexccuted-
by a person was never intended to operate a s an agreement,
but was brought into existence solely for the pur'pos~ of crellting
evidence about some other matter. Tycyjar:aja Mudaliyar and
another v. Vedathanni, A.I.R. (1936) (P~C.), referred to and
followed. Accordingly the suit was remanqed for trial Ol;l the
merits.
U KYAW v. U AH CHUN (a} U BA YoNE
GEN~RAL IND~X :lxxxxvii
,
PACB
SPECIAL M ARRIAGE ACT- JUDICIAL SEPARATION-WHAT CONSTITUTES
CRULTY-cONOONATION IS NOT TOTAL FORCIVllNESS 526.
SPECIFIC RELIIIF Ac-r-3. 9 -WHEN APPLi.ES-PRJOR S:.;IT t;NDER
SPECIFIC RELIEF ACT SHOULD NOT BE STAYED PENDING THE' DECI-
SI0::-1 OF A CROSS-SUIT B.~SBD ON TITLB
STAY Oli' CRIMINAL PnoC2ZDINGS-Qeneral rule r.'!gardi:z.?. The
general rule is every Court should as far as possible ciispo~e of the
case on its file with th~ utmost exped .t~on and the mere fact tiu:t
some of the witnesses and t..l-te documen~ary evidence w . l! be the
same in both th~ cases is not always n gn>and for staying Gne of
them untJ the disposal of th~ other. The p,.1blic mtelests
demand that the gu. lty should b e pun'sh-;d w thout B!'ly d-~ lay
while the events are st.! I fresh in the minds of the pu'::> l :c and in
particular the w.tce~ses, and the innocent should be :~bsohed as
e'ady as p;>ssible. Taw Eue Taik v. The Union q~ Burma, (ro6o)
B.L.R. (H. C.) 78, referred to.
U THEIN AtJ'NG (alias) U TIN LwiN, MAUNG KYAW,
U THIN SEIN v. U MAUNG Ko r2s
SURETY'S LIABILITY- How FAR AND TO WH.~T EXTENT LIABLE-
ORDER 41, RuLE 5 OF THE CIVIL PROCEDURE CODE . . 1
STAY OF SUIT-Suit under s. 9 Specific Relief Act whether should be
stayed pending cross-suit based on title. A prior suit filed under
s. 9. of the Specific Relief Act should not be stayed pend.ng the
decision of a cross-suit based on title. Ma Kyaw and another v.
Daw !lye U, A.I.R. (I9JS), Ran., referr~d to and dissented from.
Irrespective of the fact that the plnint:ff in the cross-suit is the
true owner of a piecofland, the plaintiff in a prior suit s . 90f the
Specific Relief Act is entitled to a quick and summary justice in
the form of a decree for ejectment of the p.:::rson who had forcibly
dispossessed him. Satishchandra De v. M adanmohan J a ti, A. I. R.
(1931), Cal. 483 at 484; and Naryana Row v. Dhtmnachar,
I.L.R. XXVI, Mad. 514, referred to and followed. Further-
more, the cause of action in a suit under s. 9 of the Specific
Rel:ef Act is entirely different from th~ cause of action of a suit
based on title. Therefore, a decree granted in the former suit
should not be restrained by injunction from being executed in
the latter suit.
DAw THA.'l MAY v. Ko KYAW HLINE AND THREB OTHERS 485
SUCCESSION ACT-S. 6J-WILL-0NUS PROBA.l' WI ON THE PERSON
WHO PROPOUNDS THB WILL .. 355
TEMPORARY lN}UNCTLO~-::onfirmation of ad interim injunction-
tempo:;ary injunction to restrain defendants from selling Plaintiffs'
sto;e; of oil. Plaintiffs and the Defendant were co-owners of the
suit oil wells, and the Defendant had been extracting the oil as
agent of the plaintiff!'. On the applic;t:on of the plaintiffs, in
their suit for accounts, an ad interim injunct'on had been issued
r~training the defendant from s !ll :ng the plaint:ffs' shar~s of the
oil extracted. Wh~re th_, qu~:ion before the court w:~s whether
the ad interim injunc:ion should be confirmed. Held : In view
of the fact that the parties were in bitter dispute and have even
ixxxxviil
PAGB
filed c:mt.ampt pr.:>cee:iings against each other, the fear of the
plaintiffs that the defendapt w:ll not look after th'!ir inter.'!sts
properly, is not altog~th-:r an exagg~rated or an im~ginarv one.
It willther.::fore do j:.ts :i~ t,;, th'! phintiffs withuut uui:1g i!.jw;:ice
to the defendant, to confirm the inj ..mction order d:uing the
pendency of the suit.
ESOOF HASHIM MEHTAR A..'<D THREE OTHERS v. AI.l HASHIM
MEHTAR r 88i
TilNANTS-HOLDING-OVER AND TENANTS-AT-SUFFERANCE-:>I ORS OR
LESS IN SAME POSITION-THOUGH NOT JOINT TORT-Fi!ASO?S-Sl'rT
~OR EJECTMENT 7I4
The appl icants started their bus!ness on th'! 1st Dec,;:mber 195z
and closed their accounts, which began from that da<e, on the
xst February I954,-after a p~r:od of I { months. For the ass~s
ment year 1954-55 the ap;>lic:mts returned an incom-e for this
period of 14 months, but th~ Income-u.x Officer ;:ook the
"prev:ous year" for the applic3nts as the pe:iod from th.~ 1st
December 1952 t'll the 3oth November 1953 and assess~.d them
accordingly. Th'! assessment ord<:r was U?b.!ld by the .Assi~tant
Commissioner of Incotn<!-tax and the Income-tax App! llate
T ribunal. Held: Th'lt on an interpretation of s. 2 {n} (c)
of the Burma Income-tax Act as it stoo:l before its amendment
by the Burm'l Income-tax Ame::~dment Act of 19'So, c,en if the
applicants in th-:: present c1se, h'id expressly chimed the optio:!.
referred to ins. 2 (II) (c) th~y cannot be allowe:i to do so as
their accounts had been m':lde up for a p~r:od of I+ mo~ths
be;;:inning fro:n the rst D~cember 1952 and that th~ Inco:ne-ta.'l:
Officer had no option. but to ass~ss the applicants for th! pen'bd
from rst December 1952 t:ll the 30:h September 1953. Hdd
also : That the " prev: ous year" as determined by the Income-
tax Officer and confirm'ld by the Inco:ne-tax App~llate Tribunal
for the assessment year 195~-55 in respect of the inco:ne returned
by the applicmts is incorrect. The Gemral Commercial Cur-
puration Ltd., In re: (1954) 26 I.T.R., 316, referred to. Com-
missioner of Income-tax, Madras v. K. Srinivasan a11d K. Gopalan,
(1953) 23 I.T.R., 87, explained. Jetlmal Sada Sui~"- v. Com-
missioner of Income-tax, United Provinces, (I953) 23 l.T.R., 443,
distinguished.
MESSRS . ASHOK KUMAR NEMJEE v. THE CoMMIS.SIO:-IER OF
I NCOME-TAX, BURMA, RANGOON I 7
TRADE DISPUTES Act-Film actress claiming for wages--->Whether trade
disp!ite...,.-whether-a worl~man under s. 2 .(k) of the Act.: I n a claim
by a film actress agai.nst her employer for wages, for taking part
in a film production, it was contended th'it there was no trade
disputew.ithin the m.eaning ofs. 2 {j) of th'! Tr.;de D sputes Act
and also that th'! 2ctr~ss 'in :question was not a "workman"''
. within the mean.' ng of s .. 2 (k).of the Act. The Court oOndus-
trial Arb itration . rejected both the contentioas in its Award.
On Application. for a V{ritof Certiorari to quash the Award.
Hel:d : The Mqtiori Picture Counc'l, Burma, to whch the film
actress belong~. h<is taken up her case and reported the matter
tothe Governmentand it c'innot be said that this Council does
not represent the interest of film. Actresses ; accordingly, it cmnot
be contended that tpet:e was no "trade dispute .. as defined in
GENERAL. INDEX lxxxxix
PACB
-s. z (j) of th~ Trade Disputes Act. R"!garding th~ qu :srion as
to whether th~ actress in qu~stion is a "workman" ther.: is tl.e
finding of fact that she did n:>t intend to ghe her services grat~,
but that she did expect remuneration for the sam!. She 1s
therefore a "workman" as defined in the A-::t. The Punjab
and Sind Bank Ltd. v. Rameshwar Daval and other;, A.l.R.
(1958) Punj. 14; D.N. B:merji v. P.R. Mukherjee al!d others,
A.I.R. (1953)(S.C.), p. 58 ; Management of Tocklai Experimental
Station, Cinnamara v. State ()f Assam a:td others, A.I.R. (1960)
Assam IJZ at p. 137. Held fu;tlzer : Mere non-observanx of th~
Rules of Pro::edure framed under s. 16 of the Act, will not
n~cessarily div.:st the Court of Industrial Aroitrat on of the
jurisdiction to d ec:dea trade dispute referred t? it u;1d.::r s. Q of the
Act. U Chit Pe v. Shwe Set.ltya Ch~root Factory Workers'
-Association and one, Civ:l Misc!llaneous Appln. No. 75 of 1961
of the late Supreme Coart.
-u T uN AuNc v. CouRT OF INousrar.>.L ARsrr.:t.\Tio:.,
BURMA AND ON I! 405
'TRADB DISPUTES AcT-s. q.B ill~galstrike-dismissal of workers partici-
pating i11 illegal strilte-s. I+-4 -illegal lockout-effect of r~fll.sul to
re-employ workers after stri.'~e -whether dismissaljustified-comp.m-
sa~ion in Lieu of re-i11;tatement-.:zpplicatio11 for writ of c~r;io:ari
whether pr~~r l'tm.:dy. The Ap;licant was th~proi)ri!tJr of a
goldsmith sho? and h~ h!ld dismissed his workers b;loni:i!'lg to the
znd R~s~onde:~~ tin:on, bec.1usc of participation in a" sit-down"
strike staged by th~m from 8th October 1958 until 21st N:l':ember
1958, on acc:>;~nt of t.'le d ismissal of another worke:. 0.1 the
dispute being r~fe:-r~d t:> th~ Co:ut of Industrial Arb.tratio.l
the Court h-eld th nth.'! "$ :t-down" strike was illeg.;l under
s. 14B of the Trade Disput~s Act as the m!ltter was pendin:l before
a Cofl-:il iation Offi~r ; and also the ref.!ssl of d1e Ap;l 'cant to
re-em:;>loy the workers in quP.stion after 6e end of th~ strike was
also illega,l under s. 14A of th~ Act as t~ matter in dispute
regarding the worker for whom the strike was staged, had alre1dy
:been referred to the Industrial Co;~rt. Acc.)di.ngly the workers
in question were not gran~;! tlHir" strike pay" a':ld th~ A-;>?licant
was also ordered to pay six months pay for each .wo;'ker for
wrongful d :s.ni!s;l, in lieu of" reinst1tement ", w:1ic~ was n:o
longer fe:sible. Ori AppliC3tiCY.l for a wrt of certior.:ri to qu1sh
thes1id order. Held: T;1e provisions in the Trade Di;p:.tt~S Act
-of Burma, are di(j'~rent fr:>:n the pror s :on of s. 24- (3) of th<:
Indian Ind1strial Disputes Act, 1947, .where it is pro,id~d that a
:lock-out da::lar.::d in. c:mscqu~!l~ of an illeg1l strik~ sh1ll not be .
deem~:! to be llegak Spencer ami Co., Ltd. and Their Workers,
(1952), Vol. I. L'\..)?'.J.r L'lw }nrn1l. 469 ;Jeev:liT Lalle and others
and Mltal B6x Compauy of India Ltd., (195z), Vol. II, L.L.J.
-p. 869 ; Mill M:J ng~r, Mod~l Mills, Na!!p:sr Ltd. v. D.~,r:n:z Das,
.A.I.R. (z958), Supreme Court, 31 I. In th~ ca;e under c.m;id-
eratio:J., ~van ift':n A:>:>l ~c1nt h1-:l rtfused to e:xnloy th~ work-
ers in quest on as he had de::ided to shut do,vn his plds:nit.lt
shop_because of t..lt~ strike, his act '.on woald s:ill be illegal, as
under s. 14C of th-:l Tra-:1~ Disput~s Act, retr~nchment, di;charge
-or dis:11~ssal under such circatnstances, is inegal. Regarding the
conten~ton that the a:noul'\t orderedas com?ens'ltion was unduly
Osrsh as the C.)nduct of the w:>r.:Cers 'in q:ns~i0:1 h:~d e:t:ir~ly
c GENERAL - INDEX
PAGa.
dislocated the A;>;>licant's business, the ChiefCout"t cannot take
into cognizance facts which are only within the province ~f the
Appellate Court.
THE D.\GON SHwiH3A-DEIN Co:viPANY u. THE CouRT -oF
INDU~TR!ALARBITR.'\TLON, BU_RMA .-\NO O~E 943:
'TRANSFER OF Pno?ERTY ACT, s. 43 -Operation of-Afortgage of
property without good title-subsequent acq1lisitio:1 of good title-
Effect of pr.Jviso to the section-question of good faith and notice.
The x.~t R;spondent-(Plaintiff) Bank had filed a mortgage suit
against the 211d Respondent in respect of thesui t property, and had
j~ined in the Appellant also, zs he had bought 1:he suit property
from the znd Respondent during the sub~istence of the morcgage.
The main fa.:ts briefly "vere that the suit property had been
bought by the 2nd Respondent from one M, who purported to
act on beh1lf of her minor daughter, on 7--I 2-56. At that time
M had no legal authority to s~ll on behalf of her minor daught~r.
The 2nd Respondent then executed a mortgage by registered
deedofthes;.litproper-tyin favour of the rst Rzspondcnton x-Z-57
Then on 28-2-57, the 2nd lV:spondent sold the suit property to
the Appellant, dur.ng the subsistence of the mortg~ge . On
20-12- 57, M, who had in the meantime been appointed by the
Court as guardian of her minor daughwr,.executed a fNs~ regis-
t.:;red deed of sJle in favour of the znd Respondent, in respect of
_the suit property. It was specifically mentioned in that deed
that it was to legal ize the former deed dated 712$6, which M
had executed before in favour of the :md R~spondent before -she
had been appointed guardian by the Court. The-trial j udge :;ave
a preliminary mortgage decree in favour of the xst RI)Spondent as
prayed for, giving 1i berty to the Appel :ant to redeP,m the mortjpge.
Held, on Appeal : As pointed out by t he learned -trial j udge.
the 2nd Respondent had 510 valid title to the suit pcoperty at the
t ,i me it executed the mortgage in favouc of the xst Respondent
{Plaintiff). This wss because the sale made by M, as mother of
her minor daughter who owned the property, was made before she
was appointed guardian by the Court. Thltsale was void ab initio.
C.T .V.E. Vyravan Chettyar v. Ma Saw Mwe and others, I.L.R.
12 Ran. 47 ; A11to v. Reoti Kar1r a11d others, (1937) Al l. 195 ;
and Ajudhia Prasad and another v. Chand2l Lal -and another,.
A. I. R. (1937) All. 6xo, followed. However, when on 20-12-57,
as legally appointed guardian, M, execut~d a fc.!Sh deed of sle tn
faV.our of th' 2nd R~spondent, the 2nd Respoqdent obt1ined
a valid title thereto. Also, as the 2nd R~pondenthad repr-lSmted
to .t he xst R~spondent (Plain iff) at the time of her mortgage and.
in the re::italofthemortgage deed, 1:hatit was al:lthot'se:l to ~~e
a val :d mOJ::tgage, s. 43 of the Transf-ilt of Property A<:.t ca!'fle mto-
operation in favour of the 1st Respondent -(Plaintiff) l3ank.
Held further : Regarding the appl ication of the _prov'so to ~ 43
of the T ransfer of Property Act; the circamstances' were -such ~h'lt:
the App~llant sho:.~M hweb~en on his.guar d.b efore.pur-chas in5!i1:he
property outright. In view of the nature .of hts past de1hn~s
with the 2nd Respondent, he should have been .more th'l.n ordt-
narilydil'gent. He must be d.~med to have no~ice ofthee1Cis~~ce.
of the mortgag~ in favout' o[the Ist R~oo-nd~nt(Phintiff) Bank>
and -c1nnot be. given the benefit of th~ proviso. R. Vas 'fr.
Muni Singh, A.I.R.{I9Z!)) Ran., p. 34, -refer-red t o. S. 43 ofthe
Transfer of P.co;>erty A~t is also applicable to mortga,ges. Eshaq
GENERAL INDEX ci
PACE
~ .
.La~and anotherv. Dalla, A.I.R. (1930) All. p. I IS ; and Mahadeo
Singh v. Har Buksh Dube, A.I.R. (1928) Oudh, 13, r..:fe:red to.
The Appeal must therefore be dismissed.
U YE MY INT v. THE CENTRAL COMMERCIAL BA:-<K 0::' BURMA
LTD.ANDONE . 254
':TRANSFER OF PaoP.ERTY AcT-PROVISO TO s. 48 (c) --REGI3TERED
D.B.ED OF SALE-STATUTORY BAR TO BEING CONSTRUE:.> AS ;\'IORTGAGE
-EVIDENCE ACT-3. gz-AD.\iiSSIBILITY OF ORAL EVIDEXCZ 328
'TRANSFER OF PROPERTY ACT-S. I08-LIABILITIES 'OF LESSOR-
SUIT FOR P03SESSION BY LES3EE AGAINST LESSOR MAI:-ITAINABLil 8s6
'TRANSFER OF PROPERTY ACT-FORFEITURE-S. Ill (g) OP THE
Acr-.~!!QUI~E.) NOl'ICB TO BE Sli:RVBD-DBFINITION OF " Tli..'>!ANT "
ACCORDING TO URBAN RENT CONTROL ACT 919
"TRIBUNAL OF LIMITED JuRISDICTION-Excess of power-Whether
can be challenged in Civil Court. Transfer of Property
Act, s. 53A-use as a shield to resist a suit for possession.
The plaintiffs-r~spondents had filed the suit against the
defe!ldan.,ts-appdlants for the possession of certain immovable
property alleged.to have belonged to their ancestors. It was also
alleged that th-:: same had been r!}Ortgaged about 40 years before
the date of suit to tht. ancestors of some of the defend:1nts by an
.invalid deed. The original debt due und;r the mortgage had
.also been discharged by Order of the DeiSt Settlement Board,
.Pakokku, in I958. But the defendants had rdused to give up
_possession. The trial Judge decreed the suit for possession
.coming to certain findings of facts in favour of the pbintiffs, and
.also by holding that the debt had been discharged by the Debt
.Settlement Board. The District Judge upheld the order of the
trial Judge on appeal. In second appeal to the late High Court,
the learned Judge on the App~llate Side held that h-;: co.!ld not
.interfer~ with the concurrent finding; of facts of the two Courts
bdow, and also that he w1s pNduded by s :- 2o of the Burma
.Agric-;~ltudsts Debt R!lief Act,-from_going into 6: vll idity_or
-otherwise of the ordet of the Debt Sattlement Bo.1rJ. 0:1 Spe-.;ial
Appeal to the Chief Co:~rt un:der s. 20 of the Uaio:1 Judiciary
"Act. Held: The order of the Debt S~ttlement Bo.ud is ultra
vires as the expr~ss!on" debt " -as defined ins. z (d) of the said
.Act does not include money for ~he Ncovery of which a suit is
barred by limitation. There isclcara,.lthor:t-Y forth~ proposition
that wh~re a tribunal of limited jurisdiction excee:!s its pow~:r,
its de:ision can be chdlenged in tP.e c:v 1 Coun. Lachmq._n,
Singh v. Nath:z Si.~gh through Harnain Si:1g.'1 and otlms, A.I..R.
' (1940) Lah. 401, followed . Held also: Both the District Judg~
and the low~r appdlate Judge ovedooke;i the fact th'i!t the alleged
mortgage of the suit land was by an_instrum,ent sig,1e:l by the
:mortgagor and attested by 2 witnesses. Accordingly, the provi-
c.Sions of s. 53 A of the Transfe_r of Property Act m .1st be t'i!ke!l. into
"consideration. Tht>refore it can be used as a shield to r.~sist
the suit for pos_s~ss:on. Howeyer, In the circumstance-, of
;the c1se, th! m)st eqaitable order that should be passed is that~
PAGB!
the suit for p:>ssession shou.ld be decreed on the plaintiff's depos:t-
ing the original debt in Court. Babu Ram D!!ss v. U i11aung Gyi
and 4' others, (1959) B".L.R: 179 (S.C.); and Ko U Mar and one v.
,i![a Saw JVlyaing, (1950) B.L.R. 8o. (H.C.), referred to .
Ko PE TA AND TEl'< OTHERS tJ, MA KAUNC -:\Lu AND FlVIl
OTHERS -:-..
UNION }vDICIARY .AcT-S. s-BEINC REPEALED BY UNION
. }UDICIARY ACT A'\1ENDING LAW OF IQ02 WITH RETROSPECTiVE
. EFFEcT FROM IST APRIL 1962-PENDlNC APPLIC,\TiON UNDER
THE FORMER ACT SHOULD BE DISMISSED . . . 2 4-
UNION ]UDIGIARY AcT, S. s-Pendir;g application under- Effect of repeal
on-Cimnot be convnted into one u11der s. 6. In view of the repeal
of s. s of the Union Judiciary Act, with retrospective effect
application fikd under this s. before the late High Court and
pending before the Chief Court must be dismissed. As an
application under s. s of the Union Judiciary . Act is .an
entitel)' different application in nature from that under s. 6
of the said Act, an application under the former section cannot be
converted into one under the .latter section.
MESSRS. KANNYALAL SIRI KISHANLAL v. MESSRS. SHR!lERAM
CHANDULAL 2 ~
..
'UNREGISTEREO FlaM-SUIT oN PROMISSORY NoTE E.>JDORSEo BY THE
. SAID FIRM M,;INTAINABL!l-S; 69 (2) OF THE PARTNERSHIP
Acr NO.BAR - ... xz,"
URBAN RENT CONTROL ACT-Bona-fide requirement by landlord for
purpose of te-erections or major structural repairs-dismcmtfing of
house still habitable for 10 or IS years for re-erection whether
requirement bona-fide. WheN the owner of a house which was
about 30 years old, but was still habitable for ro or 15 years,
had sought to eject the tenant, on the ground that he required it
booo-fide for r~-building. Held: The owner can be said to
require it bona-fide for the purpose of rebuilding. Regarding
the means possessed by the owner, on the evidence, she is undoub-
. tedly in a position to raise the sum required for re-erect!on.
That fact of strained ~lationship between the owner and the
tenS,nt, will not mean that he does not require the suit premises
re;~sonably and bona-fide for the purpose of re-ection. Daw
. DqrJi Thi V. U Thein Maung & Co., Ltd:, and one, (1954) B.L.K
14 (H.C::.); and Bhulan Singh and others v. Ganendra Kumar Roy
Ciuru;dh~ry, A.LR. (1950) Cal.. p. 74, followed. S.B. Tikavliran
/ v . .V.aunJ Pe Than and five o.thers, (1959) B.L.R. 84 (H.C.),
referl:_e d to.
DAW THEl~ SH\tn (1. S.M. CHOWDHURY .....
U~....:~ RENT CONTROL AcT-NOTICE SERVED- ON A PARTNER OF A
. . FffiM NOT VALID-WITH OF A DECEASED PARTNER HAVING THE RIGHT
. T.OR.IlM..).IN IN POSSl!SSION-DEFINITIQN'oF ''TENANT" . 8sx: .
GENERAL .INDEX " CUI.
URBAN RENT CONTROL Acr . (I948), s. I I (xXc)-eviction-whether
tenant ca, be evicted for sale of illicit liquor by ~loyees at the
premises- offence under s. 30 (b) of the Burma ExciSe Act. Where
an employee of the tenant had been.convicted under s . 30 (b) of
the Burma Excise Act for the sale of illicit liquor and the question
in issue was whether the decree for ejectment obtained by the
landlord based upon such conviction could be supported in law.
Held : It is clear from the proceedings ~at the tllicit liquor was
sold in the shop premises maintained by the defendants. Some
of the beer was stored in the ice chest belonging to the defendants,
and it was openly consumed in the shop itself. .:r'herefore: at
the very least, the defendants must have conn ~vcd a;: the offence
committed by their employees. Consequenrly, they are liable
for ejectment under s. 1 x (x) (c) of the Urban Rent Control Act,
1948.
YIN LoT AND Tf{RB!l OTHERS v;. MA HLA Y1:.
URBAN RENT CoNTROL Acr, s . I2 (x) .(a)-written demand for arrears
of rent--necessity to specify in notice the arrears of rent. Where
the notice to quit did not specify the a..'nount of arrears of rent
due. Held: Under s. I2 (I) (a) of the Urban Rent Control-.
Act, I96o, it is necessary for the landlord to make a written
demand for payment of arrears of rent and to send the same to
the tenant by registered post. Only when the demand has not
been complied with in three week& from the da.te thereof tan a
suit under that section be filed. .Accordingly, it is necessary for
the lan<flord to specify in the notice of demand the arrears of
rent said to be due by the tenant. In the notice now under
considerat:on there ,s no inkling whatsoever as to what amount
was due to be paid . . Jaamna Lal v. Ravz Bilas attd another,
A.I.R. (I950) AJmer, 17, referred to.
DAW THEIN SHWE v. S.M. CHOWDHURY 666
URBAN R.I!NT CoNTROL Acr, 1960, s. I2 {I) (c)-Ejectment decree passed
on account of conviction for gambling committed after the e:-cpiry of
the 1.948 Act and before the enactment of the 1960 Act -whether mit
maintainable-whether s. 12 (t) (c) can operate retrospectively.
Where the question in issue was whether a landlord could eject
his tenants under s. 12 (1) {c) of the Urban Rent Control Act,
196o, on the ground that they had been convicted of an offence
under the Gambling Act on x8th November 1959 that is after the
expiry of the Urban Rent Control Act, 1948, and b~fore the 1960
Actcameintoforce. Held: Unless s. I2 (x)(c) of the Urban Rent
Control Act, x96o, can operate retrospectively wi~ effect from
the date the earlier Act expired, the suit against the tenants
under s~ 12 (I) (c) would not be maintainable. It has already
been held that the prov:sions of the Urban Rent Control Act,
I96o, are not retrospective with effect from the date of the expiry
oftheoldAct. UOhnMaungv.DawKyiKyi,Special Civil Ap-
peal No. 19 of 1958 ; Ko Lan Bah v. Propulla Chandra Palaka and
. three, Civil Miscellaneous Application No. 18 of 1962, referred to
and followed. Accordingly, although t he- suit was filed after
the new Act came into force, it is not maintainable in law.
U THEIN SHWE AND ONE tl. U MAUNe MAUNG AND ONB 40~
..
,.
C lV
URBAS . RS.'H C:>~rnL A;r, s. 13 (I)-Issue of permit as a result 2!
collusion with outgoing 'en:mt against whom ejectment decree has
been p::zssed-no noti.:e issued to landlord-$. z8, Urban Rent
. Control Act.-" Speaki;rg Order "-to be quashed by Writ of
Certiorari. Tile Appl :cant had obta 'ned a decr-ee for ejectment
against her tea~nt from c-~rtain pr>!:nises and thereafter the znd
Respondent applied b,Jorc ~he tst Respondent for issue of 11
permit to occupy the said prem'ses under s. 13 (r) of the Urban
Reint Control Act, on the ground that he h tJ b.::~n in occupation
<If the sr.me for "t.~e p 1St seven d~ys". The per:nit was issued by
ilie tst RJ)spondent w thout the issue of any no:ice to the Applic :nt
.as required under s. z8 of du Act. Hdd: Prim.l facie there is
;iuilple gr.:>und for the conten~ion that the applicJ.tion of the znd
Respondent for :ssue of a permit under s. 13 (t) of the Act, was
.a r.!salt of the C)husion between him and the outgoing ten:J.nt."
Apart fro:n the mandatory provisi()n of s. z8 of the Act,
-common prudence would dictate that the Applicant sho:..ld be
given an opportu:lty to contest the applicat"on of the znd Res-
. porident. In th"..se cir.:umstances, the order of the tst Respon-
. dent" granting the per.-nit to the znd R~spondent is a "Speaking
Order" and must be quashed.
DAW SHWE MYA u v. (I) AssiSTANT CONTROLLER OF RE:-<TS,
lNSEIN, AND '(z) U KYAW SSIN 3 33
URBAN RENT CoNTROL Acr, s. 30A-Bar to suits against Rent Con-
trO.ller f:Jr thi~tgs done in good faith.-alleged evictio11 by Rsnt
Controller without complyi11g with the provisions of s. x6AA(4)(a),(b)
and (c) of the Act-w!uther suit against Controller maintai.'lable.
Where th~ Appellant, had fidd a s;.tit aga'nst th~ Controller of
Rents- for a dedaration U}at the orders of evic~ion p~ssed ag :inst
him were illegal as it did not comply with the pro-,risions of s. 16
AA(4)(a)(b) and (c), and th~ Lower Court had dism ssed the suit
without taking evidence or he,r"ng arguments on the p:>:nts
r.1ised Nlying on s. 30A of th~ Urban Rent Contr:>l Act. Held:
It was for th~ Contr.>ller to show that what he did was "in go:>d
ftith in ex ~r~ie of his powors "in e.:>m:>lying whh the prov'sions
o.f s. t6 AA (4)(a)(b) and (c) of the Ac:. Without taking evidence
to prove his alleged comol:anc' and his act in good failh, the ttial
Court was wrong in dismi ;sing the suit. Civil Colr:s have
ju7isdict:on to examice into cas;:s where the provisions of th~
Urban Rent Control Act h~ve not been com?lied w ith. B. S.
Mohamed Euso')_fv. Bairidi a11.i another, (1952) B.L.R.248 (S.C.),
r~ferced and followed.
H. A. SAMUEL v. THE CONTROI,.LER OF Rll.'HS, R.~NGOON AND
ONE 343
When prJfits and gains arisir.g out of goads supp~ied f on ozmick B:1rma
be d~emed to arise within Burma. \Vhere under a c:>ntnlct signed
in Raugooa th~ ap;>l 'cants shipped. goods from C tlc:1tta to
Rangoon, where a~r inspe::tion o.1ly th' :y w~rff acr.e;>t.)d "and
Pl\Yment for the go:>ds ware ma:ie to th'< ap;>licant's agent in
Ra:igoon. Held: That the .entire profits a.!'1d. ga 'ns under tli.e
said contract arose within the Yn'o!1 of Burma.
T HE iNoi:~ WATERPROOFING A-::io DYEING WoRKS v. THE
Co:\1MIS3IONER oF INCOME-TA-x, BunMA 7 s
cv
PAGB
WHEN CONTRACT SAID TO BS lllAOE IN BURMA-OFFER MADE FROM
OuTSIDE Bua~u. BURM:I. INCOME-TAX Acr, ss. 42 (1){4 (r) (a)
AND (c)-Remuneration received i11 D11rma aJUl remitted to foreign
country-Assessable. In pursuance of contract with the National
Housing Board, Rango:>n the applicants, who are a firm of
architects, structural engineers and quantity surveyors of Singa-
pore supplied the National Ho:.ts ing Board with plans and
designs of building which were prepared in Singapore. On
completion of the buildings the applicants were paid as . th'.)ir
remuneration K 29,608 computed on the percentage basis"' of
cost of b..1ildings e~:ected as their renumeration and this money
was ut:I:sed in purchasing for them bank dr;~fts which were then
posted to them at Singapore to enable them to encash the same
in foreign currency. Tne appl icants denied theirl.iabi:i ty to pay
income-tax in J;lurma on the said remuneration received by them
on the ground that the contract was carried out wholly outside the
Union 'of Burma. Held: 'I1ut as the offer for contract of
services made by the applicants by means of a letter from Calcutta
was accepted by the National Housing Board by means of a
telegrain, the contract of service must be deemed to have been
made in Burma although no document was signed by tho;: appli-
cants in 13\l:fma. 'Held also: Tha:t the remuneration received by
the ap<lli<;!ints was from a: source of income in the Union of Burma
and ~a~ -ih~~ef~re th~ appilc;:a!lts are !!SSessaWe to income-tax in
Burmu.n vtew of the provts_1ons of s. 42. {x) of the Burma
In~e-tax Act, r~d. with s. ~ (x) (a) .and (c) ~l:tereof.
M~s~. W. . w..wooo, .SoNs AND PARTNERS o. THE CoM-
~rssro"NER: oF Il'loo~-TAX, Bt!RMA 45
yy dBTHER ~LAINTIFF HAS CAVSE. OF ACTJc;>N---CAN BE ~ETERMINED
AT -\NY TIM IN SUIT. fm:~'\TIO~AL f;AW-PR~NCIPLES IN.
Bu~ IMM.tOR.\ rtoN (E~saoE:iqv PaovistoN's) Acr,s. 7 (z)-
'n
Dut~ .~ l!/ .Control/it of" ~!~~~tg~'a~'io.n .e~erc"ising p~~r under.
Wh"'X:1t IS OOn~nded.thafit{e afe!ldant w\to has not yet filed his
written statement cannot raisei th-:: prellmiriary objection that the
suit is' ri.~t -maintliinable in'law. "HeliJ.: That ids "a't" all times
relevimt i,n th6 trial of a suh; to consider whethet.there is a cause
of actlori, 'or' whether the plaintiff has' asked for a relief which is
witqi,n _thp po.we): ~f the ,Co.urt .to ~rant. If the plaintiff can
convince' the Court that he has at l~st a _co~o\lr <?-h le~.l right it
would be the duty of the Court to gtve btm an opportunity to try
and establish that right by leading evidence at the trial. It is a
well es~blished pr-ip.ciple .in International Law that foreigners
entera sO,vereign State only' by pe~mssion onthe sufferance of
the S~te and they are I ilible to be expelled or deported from the
State a(the P.leasure of.the authoritieS who exerc:~e the sover~ign
powerofthe'State. Kyi'Ciiung York v. Tlz.eController of Immi-
grati01i;Biirm~. (1951) B.L.R. (S.C.) 197, followed. It is also a
fairly wetlestablished principle of Intemation&lLaw that f~reign
ers wl:io a,ro.adm;tt.ed into thil' State must be treated iri many
resP64.ts 'in 'the same way as citiZens, witho:J.t discrimination,
Thi~prioc!ple, however, Cloes pot d~rogat~ from the power of the
sov~eli!i Sta~~ to decide 'who amoqgst for~igners w.h'<> apply for
. leave"to~ine may eiiter arid liow long theymay stay and under
what'c ondit'jQns as .far as "their perm~ of s~y arc concerned.
V.E.Il!'M.N':RM; Kasi ViSwanatltaii c~ttttyar v. The. Officia.l
AsSi,c:~~'!'.Ji;~.f#;. (~~~~>. .~=.1?~~: (S:C.) !.4 ~i~~ingu'she(l. If the
g
CVl GENERAL INDEX
PAGir.
rathei drastic power granted by s. 7 (z) of the Burma Immi-
g."ation (Emergency Provisions) Act is to be used, the Controller
inust act judicially, after proper inquiry, and in conformity with
rules .of natural justice such as giving the other side an opportu-
nity' to defend himself. Hasan Ali v. Sectetary, 1\'Iinistry of
Immigration and one, (1959) 'B.L.R. (S.C.) 187; Rmz Fitpaul v.
Controller of Immigration, (r96o) B.L.R. (S.C.)249,referredto.
. lV!-!>HA:'.iED E8RAHIM SALEBHOY v. THE CONTROLLER OF
IMMIGRATION 5 I.
WJU.-Burden of proo/-onus probandi on person who propounds the
Will-Succession Act, s. 63-Evidence Act, 68. Where the Court
bad placed the burden of proof on the Applicant, who was the
husband of the deceased, as to whether the Will of his wife had
beeit'executed by her under undue influence, merely because the
Applicant had written to the Court from India, that he would
respect the Will. Held: Where a Will is propounded, the onus
probandi is on the party who propounds the Will. It is for him to
show that the W,ll was duly executed. Mrs. Cecilia King and
twoothers v. Arthur Abreu and two others, (1909) 5 L.B.R. 141;
G.H. Pqul v. T. Thomson, (x9zo) 13 Bur. L.T. So; Eusoof
Ahmed Sema v. Ismail Ahmed Serna and others, A.I.R. (1938)
Ran. 32:>., referred to and followed. Under s. 63 of the Suc-
tession Act, the Will must bc'attested by two or more witnesses,
and under s . 68 of the Evidence Act, at least one attesting wit:'less
must be called to prove execution. The onus isi~not shifted by
the qualified admission that the signature on tb,~ Willi_s that of
the testator. Kesheo v. Vithal and others, A.I.R. (19:>.5) Nag.
4:>.'7, referred to. In ord~ary cases, testamentary capacity will
be presumed. But the moment it is called in question, the onus
lies on those propounding to affirm positively the testamentary
capacity. Lachho Bibi v. Gopi Narain and others, I.L.R. 23
All.; 47:>., referred to. When the propounder of the Will hat;
discharged the o1zus, the burden of proving that it was executed
undei: uni:lue influence is on the party who alleges it. Mt. Gom-
tibaiv. Kanclzhedilal and others, A.I.R. (1949) (P.C:) 27:>.; and
Boyse v. R-ossborozigh, {r8s6-57) 6 H.L.C. 2 at p. 48, followed.
M.~ADA MoHAMED KHAN v. MAUNG MAuNG GYI (a) ALFRED
~UNO GYI AND ONE 355
WiNnffio OF CoMPANY-ss. x6z AND r66. BtrnMA COMPANIES Acr.
. ~application by two riwmbers:of Company on grounds of miscon-
duct' and -. 1~ge:ment.:.......whe.ther "just and equitable." The
Pet itioner had appliedt o. the Court for winding_.up of the o'Res-
p~mdent Co. of which tP,eywere members,.on gro\.mds of fuisoon-
. 'duct and r:nismanigemeri.f, under ss. r6z and x66 of the- Bumia
Companies Act. At the h~ing, .the main charges were misffi!Ul-:
agement of the Board of -Directors, past and present; ineffi.cieney
. andwastage; and.the gloomy' prospects ofthe Company to mako.
profits i.n the future; Held:- A sufficient case. has not been.
riiii.de out to render it just and ,equitable for the Court to orde~ .
a: wi~ding up of the Company. A company islike a family. of
peopJe who have pooled their' r~ources: to.work together and
share the profits, sticking-togethe.r in good times and in' bad: .
When problems arise abou.t the management of the ;Ufai~ the .
GENERAL INDEX cvii
P ACR
natural and reasonable thing for the members of the family to do
is to get together and discuss the problems and arrive at their
solutions. The family of shareholders is thus the domestic
forum of the Company where matters such as management and
the sharing of risks and of rewards must be discussed and
decided. It is only when decisions ca~tnot be arrived at the
domestic forum and the grounds are strong and sufficient that
Court should intervene and take a hand in the management of the
affairs of the Company or the drastic step of winding it up. He~
the petitioners have disdained to voice their feet:~gs or seek
their remedies at the domestic forum and rushed to the Court
instead. In the matter of Moltomandol Sltastra Prokasltak
SomityLimittd. Benores, I.L .R. Vol. XXXIX Allahabad, p. 334;
Sudh v. Nath Bhadur v. Bihar Notional Insuro1U:~ Co., Ltd.,
Patno, A.I.R. (1941), Patna, p. 6o3; Re Cine Industries and
Recording Company, Ltd., A.I.R. (1942), Bombay, p. 231; and B.
Cowasji and others v. Nath Singh Oil Company, Ltd., XIII B.L.R.,
p. 51, referred to.
IN Tim MATTER OF CHAN THA ZAv Co. 499
W lTHD.RAWAL OF CRIMI~AL CASE-Code of Criminal Procedure,
s. 494-Magistrote to exercise judicial discretion-Powers of
Public Prosecutor to withdraw a case. Where the Public Pro-
secutor had applied for withdrawal of a pending case under s. 30
(a) of the$xcise Act and the trial court allowed the w:thdrawal
and acqu itted the accused (respondent). Held: T he Magistrate
had failed to exercise i'l.sjudicial discret;.on if he granted permis-
sion ~withdraw the case w:thoutg ivingany reasons. Withdrawal
of a case is an executive act. When the leame4 Public Prosecutor
himself was not in charge of the case, he would not withdraw
the case on his own motion. Unifm of Burma v. Chit Swe,
(1950) B.L.R. , p. ~78 (H.C.), followed.
T m u~ro~ OF BURMA v. MAtiNG TuN Kvr 2-of~
WRIT APPLICATIO:-lS--POWERS OF THE SUPBRIOR COURT- DOES NOT
EXERCISE THB POWERS OF AN APPELLATE TRlBUNAL-lT DEMOLI-
SHES THE ORDRR OF THB lliFEruOR TRIBU~AL O~Y WHEN IT CO~
SIDERS TO BE WITHOUT JURISDICTIO~ OR PALPABLYER RONEOUS-IT
DOES NOT SUBSTlTUTil ITS OWN VIEWS FOR THOSE OF THE INFERIOR
TRIBUNAL .. 739
WRIT OF CERTIORARI-Order of .Assista11t Controller, wrder ss.
2 1 (4) qnd (?)-Urban Rent Conlt'ol Act-Findi'ng of facts-not
speaking o1-der. The Applicant had applied for a writ of cer-
tiorari alleging that the Respondent No. I had acted without
jurisdiction, as he had not sub-let the premises as alleged, and
further contended that the order alloting the premises to the
owner for his own ocC\lpation was tantamount to an evasion of
the provisions of law relating to fil ~lt of suits by landlords
against tenants on the ground of b01Uijide requirement for their
own occupation. Held : s. ZI (4) of Urban Rent Control Act
(1960) gives jurisdiction to ,the Controller or Assistant Controller
of Rents to direct the l apdl0 rd to let the premises to a person
or perSons spe(:lfied by ruJ;D if the premises had been occupied
after ~e ~~st October 1950, without hili pol'JI)ission. In this
CVlll
PAOX
case the Respondent No. 1 had after due enquiry come to the
eonclusion that the Applicant had sub-let the premises, and the
_ pro'ceedings show there are materials on which he could have come
to such a finding of facts. Therefore h!s order cannot be con-
sidered as a "Speaking Order". Held also: Since the owner
is one of tne Applicants for a=mmodation, there is nothing in law
to prevent the Respondenc No. r to allot the prem !ses to him,
if he considers that such a course is warranted by the circum-
stances of the case. The order therefore cannot be said to be
mad-:: without jurisdiction.
H. N. SEN (H. R. SEN GUPTA} v. TI-lE AssiST.-\1-iT Co~OLl.eR
oF REJ'ITS, MY.-\."'AUNC .-\NL> TH.REB oTtreRS x6s
WRIT OF CERTIORARI - Order of R-evenue Officer, I nro~-ta:r Department,
directing appointment of Receiver for taking charge of assessee's
properties--whether made toithin jurisdict.Um. t.: nder the ''arious
Notifications issued by the Commissioner o Inoome-tax. and
the 'Ministry of Finance and Revenue, a Revenue Officer of the
Income-tax Department h<J.s jurisdiction to pass an order direct-
ing that a Receiver be appointed to take charge of the p:-operties
belonging to an assessee and which has been attached for the
recO,v.e ry ,9f inco~.tax".
:U KY.AUK SEIN -v. THE FINANCIAL CoMMISSIONER, ~URMA
; .. '~iw-
, ._
"TR~E .oi-ltllns . '... . .. . 398
WRIT OF:C!!R'l'IORARI......s. x<G7,(8), Sea Cu.stoms A,ct,.Tead,with_s.!f (1)
of t~~!Janil Cu.sloms Act'-poods;fou(ld on pl.pne at Kalemyo A,ir-
port.;.-rilutber amounts to a,ttemkt'to expor.t gqods out of -B_pr:TTifl.
Ori 1oth.March 1957, the Applicant had 11erit.fo11r-packages marked
" i\C " by plane to Kalemyo Airport which purported to be motor
CU$PI\re [>arts. On beiqg openedby,Customs Officers they were
found to contain 200 dozens o bobbins and 300 dozens of bobbin
casings of Japanese manufacture, adaptable for use on Singer
sewirtg_;machines. Actiornvas 'thentaken against the Applicant
on the !gr~>und ' that.anattemgt hadbeen ma&le to export the goods
illegall,olit' of-Burmai rOnahapplieation-for a writ of cettiorari
to qllllSh:the -respeetives orders of th-e Sea and Land Customs
Authur-i~e:s. H eld; Even-iftlie :Applical1t had the intention9f
~mliggling the goods eventually out of Burma, through the
Cltin Hilts, his action amounted to no more than mere
preparation to sm_uggle the ,g90Qs. 'It did not .a.mo11nt to an
a~wpf" wi~hin. the,mischiefofs. 167 (8). Obi.ter: Undouqt
edlY.;Ji,ne.w offence o'f !'. a~tempt" has been created by S<~ x67B
ofth.e ~ .C.ustoms (A.men4.ment) Act,.I.95.9 But the provisions
of s .~t:47B; c.oul~ ..~ot h;lY.eJ)~n, ~d; i~ fac~, the~. d~d no~. pu~po'rt
to b~~~fr,o~pecttve. J?un "~a Qm.(q) .P .Khun Zf1 C.m y, Tfoe
Fin'dtreii:Jl:poinmissioTJer-(Co.nwzerce)JPUi !tO .ot!zers, (;96o} B ~L;~.
142 <~~Q:)._ ;;~.ndLal{~ingfJ v. :TI!e Minister qf)Jipa(ice_ atijl. R,evctZ~Je
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follo~~ ..,.., -- --
VAMTuAt; v. 'l]m ' F.~!AL _qoMr41$StOt'[~R (CQ.~~RCI!) AND
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GENERAL INDEX cxxv
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CJCXX .GEN~RAL INDEX
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GENERAL INDEX cxxxv
PACE
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CXXXVlll GENERAL INDEX.
PAGE:
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GENERAL INDEX cxxx.xix
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GENERAL INDEX
PAGE
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GENERAL INDEX eli
PAGE"
07.01
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GENERAL INDEX clix
PACE
.971
xp:.
30Vd
X3GNI '1V1I3N3!>
30\'d
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X'a<INI '1V1!3N3!)
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GENERAL INDEX clxvii
PAGE
O<" '"I "0" r~o<" <" o<: o o.: '"I <: o<: '"I
SdlolCI: 0~C~lc.g<D~C-'..J<D;:l:>t'J::>,Sls:lCIX100?::T.l~C I:C>GO:<>~I~Cs:l~o>CI:~ n~C-
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eC:. 1 T JJ L c. A C "'iJ l L A
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C' C" OC' C' 0 C' C'C' C" 0 "r C' C'
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0
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G I~GO:::::>tJ<: ~111;;()1'Jf OI'J~lo:roo'J::>Ij~ I ')f"1f>OOCGO:O?roo:::oo
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c c (' (' \0(' c oc c (' (' f:C'
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c c o c o C" c o oc o c r,:c
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G<D?<:J ~:tlro~l:IC:')'?I COG::l!l49 tlg.,t:;;,JmtJ0:o~u The Collector
of Akyab v. Paw Tuo a11d one, 5 Rangoon,.p. 8o6; L. Hoke
Sein v. The Controller of Rents / <' t.lle City of. Rangoon
. 0 0 (' C' .s 'h ('
a11~ one, (t949l B.L.R,, p. t 6o (S,C.) O?,m, 'l~i?lt=~ ~l:l?:~c:
roc::~ II Aswini Kumar Pramarik Petitioner v. Dominion of
India (tl:rouglt the Certificate Ofjleer) ~d{ 'l~i?l~:~ ~-:>:~
(' C' C' .
S)CICI:lCI'J::>~ II
0 C'
G::PI > I m;;,.s: ~c o>::n:co.s:~:~c:
C C' OC' C' @3: 636-
AT J oC.:. T .
dxviii GENERAL INDEX
PAGE
APPENDIX
COURT-MARTIAL APPEAL CASES
Lieutenant Ko Ko Aung v. The Union of Burma 1029
Maung San Aung v. The Union of Burma 1033
BURMA LAW REPORTS
APPELLATE CIVIL
Before U San Maung and U Tun Tin, J.
ABDUL GAFFER AND FIVE OTHERS (APPELLANTS) .:!.C.
1963
v. Feb. 7
ABDUL RAHIM AND TWO OTHERS (RESPONDENTS).*
Civil Proc!!dure Code, o. 4 1, r. s-Lia.'Ji!ity of sureties-Extent of-Determina-
tion of Sub-r1tle (3), cl. (c)- Phrase " as may 1tltimately be binding upon
him" in-Meaningo.f.
The appellants furnished security under Ordl:'r 4~, Rule 5 oftheCivil
Proc<>dur.! Code for stay of execution of a decree for K u,330 obtained by
r~sponde:tt Abdu.l R~him against Abdu l Razak and t.wo others in the District
Court, Bass:in, pending appeal.
On appeal the High Court modified the decree of the District Court and
a decree for K I ,330 was passed. The decree-holder preferred a further
appeal to the Supreme Co~rt, which set aside the decree of the High Court
and resto~.:d t~c decree of the D istrict Court.
When the decree-holder sought to proceed against the sureties on the
strength of tho: bond executed by them, some of the appellants obie~:t~d on
tle ground that the security furnished by them was only in respect of the
an peal to the High Court and that their linbility under the bond had ceased
"'itt: the m!>diiication of the decree by the High Court. The District Court.
however, o.rd.:cd that ~h ~ security bond should be enforced to the fullest
extent as its jucig.nent ;;p.:J d.:cr~e hac :..~en. restored by the s.upreme Court.
Held: That it is settlrd law that in determining to what exter,t the sureties
are liable the terms of the b.o nd should be construed and that having regard
to the tenns of the bond executed by the appellants they had bound themselves
to the exient the ju.d gment and decree wen; confirmed by the High Cpurt
and th~t. as the judgm~nt .an!i decree 'vere partially confirm~ they ~ere
iiable only to that: e-xt~nt.;
. . . Pam:a}i Devichand alld other; v. Basappa Virappa Bel{ary .:znd others.
A;i,R.(r943).Bom.243; ShriMadhoRao NarayanRao Gllaiatev. Harinath
Bh/kajiBaxi and another, (19~9) Nag.27b; M. Para.masivam Pillai -\r, A. V.
R: lvi. $ .. P: S. Ramasami <.-'fz~ttiar and another, (1939) Mad. 2 90, referrtid to .
Ci :;-il Micellaneous Appeal No. 29 of Iy6I against the order .of the
Dristrict Court, Bassein, dated the 29th March 1961 in Civil Executio11
Case No. 8 or 1952.
27
2 BURMA LAW REPORTS.
c,c. Held also : that the phrase " as IUay ultimately be bindi>,g upon him ,,
J963"
ABDUL
.
i"n clause (c) of S\lq-r.ule (z) of o.dcr .P' Rule 5 of the Code r:f CiviiProcecbre
nr1H b :.: i .,t~rpret<-d to m:an that th'! sut:ty mu,:t bi,lli hirr> 'i..:lf for the d u~
GAFFER perfr,;ma.occ c.f the decree hy 1. ~1e j~<~g'mcnt-debwr of such decree or order as
AND may ultimately be passed by the first ape! late Court.
...
FIVE OTHERS
ABDUJ... N.C. Sen .for the appel~ants.
R.um.r
AND TWO
OTHERS.
Kyaw Khin for the respondents.
USA~ MAUNG, J.-This is an appeal against the order
of the learned District Judge, Bassein, dated 29th of March
1961 in his <!ivil Execution Case No. 8 of 1952. The
facts giving rise to the present appeal are briefly these.
I""= Civil Regular Suit No. I of 1952 of the District Court
of Bassein, Abdul Rahim, the rst respondent in the present
.appeal obtained a decree for K II,330 with interest at the
rate of 9 per cent per annum. against Abdul Razak and
tWo others. vVhen the decree was sought to be executed
by ,Abdul Rahim in Civil Execution Case No. 8 of 1952,
the judgment-debtors filed an application for stay of
execution on the ground that theY. were preferring an
appeal against the .judgment and decree of the District
Court. Eventually the execution was stayed on the
present appellants Abdul Gaffer and five others furnishing
security under Order XLI, Rule 5 of the Civil Procedure
Code by offering their immoveable properties as security.
The appeal by the judgment-debtors Abdul Razak and two
others to the. High Court was partially -successful and the
judgment and dec;:ree of the District Court was modified
and a decree "for K 1,330 only with interest at 9 per cent
per annum from the 9th January 1949 till the date of the
filing of the suit .was given to the plaintiff Abdul Rahim .
The plaintiff y.ras dissatisfied with the judgment and decree
of the High Court and. preferred a further .appeal to the
Supreme -ourt which ultimately set aside the judgment
and decree. .of. the High Court and restored those of the
District Court.
BURMA LAW REPORTS. 3
Therea:fter when the plaintiff sought to proc~d against
the sureties on the strength of the bond furnished by "them.
.ABDUL
the appellants Abdul Gaffer, Eunoose and Ma Sabuda filed GA"FFER
a written objection saying that th~ security furnished '!Jy FIVE"~~HERs
them was only in respect of the appeal to the High court t:l.n;uL "
and that since the judgment and decree of the District Rt.HIM,
AND TWO
Court had been modified by that Court they had been oTHER'S.
discharged and that their liability had ceased: The>
plaintiff Abdul Rahim, however, contended that the
. security bond executed by the sureties being one under
Order XLI, Rule 5 of th~ Civil Procedure Code, the liability
of the sureties extended until such time as the Court of
final appeal had dealt with the matter. This contention
was accepted by the learned Distric~ Judge of Bassein who
ordered that the security bond should be enforced to the
fullest extent as the Supreme Court had restored the judg-
ment and decree of the District Court. Hence, this appeal
by the sureties.
In our opinion it is settled law that in deter;ID.ining to
0
what extent the sq.reties are liable the terms of the bond
shmdd be construed. The bond now under consideration
in so far as it is relevant for the purpose jn h~~<i runs : -
"That Abdul Rahim the plaintiff in Civil Regular Suit
No. I of 1952 having sued Abdul Razak, Abdul Wahid and .
Zulaikhabi, the defendants. in this Court and a decree having
been passed on the 23rd day of Septem~r ~952 in favour of
the plaintiff, and the defendants having preferred an appeal
from the said decree in the High Court, Rangqon, the said
appeal is sti~l penqing.
Now the defendants-judgment-debtors have applied for stay
or execution filed by the plaintiff-decree-holder and have been
called l).pon to furnish security. Accordingly, We .(x) Abdul
Gaffer (Self), (2) Abdul Gatfer for his two ssms Abdul K~dar
and Abdul Hamid (Iiolder of the General Power ~f. Attor~ey),
(3) Ma Sabuda, (4) Ah Bai and (5) Eunoose, all residents of
Bassein, of our own free will stand security to the extent
BURMA LAW REPORTS.
c.c.: :c)tK' !S:s59-I8 pyas (Kyats fifteen thousand five hundred fifty-
':1:"963''
hili~ ~nd pyas eighteen only) mortgaging the properties
.A-Bou( .;'>peCifi.ed in the schedule hereunto annexed and' covenant that
GAFFER
AND }f the ~decree of this Coun be confirmed by :!he appellate
:FlVB OTHI!Rs' Court, the defendants shall duly act in accordarrce with the
. - . :- ... (I, .
. ' ~~OPJ!. . uecr~. of th~ appellate Court and shall pay whatevu may be
RAHIM " payaQl~ by them tHereunder, and if they should fait therein
IANJ? TWO
.. .
,OTHER~. then' ~ny amount so payable shall be realized from the proo-
perties hereby mortgaged, and if the. proceeds of the sale of
~he .said properties . are insufficient to pay the amount due.
We .and oi.ir legal representatives will be personally liable to
p~y the b~lance. To this effect we execute this secur.i.ty
bond this 23rd day of February 1953-"
. n 'is therefbre clear that what the sureties had bound them..
~elves was .. '. tq. . the extent the judgment and decree were
corifiriried by the High Court on appeal againSt the
j~dgmeh!: a nd 9,ecr~e of th~ District Court. The judgment
. and decr~e 6f the District Court were partially confirmed
~nd to that extent only the sureties are liable.
The decisions in the following cases are in support 0f
this view . : .. '
..;;=: In Pannaji Devichaizd.'and others v. Basappa Virappa
B~llary and others (I) it :was held that if the 'terms of
surety bond refer only to a particular. appeal pending in
'. ~h~. Hl.gh Court, the surety's liability cannot be extended
to a4e.cision given by the Privy Council, reversing the
decisimi of the High Court. In Sbri Madho Rao Narayqn
.: R.ao : chata~-'v. Hcirinath Bhikaji Baxi and another (2). it
~as held that' when pending.an appeal, execution is stayed
6~: the appeilant's furnishi:ng security for the dl,l~ per-
.
o.f.
fp:(.mance
..
imy
r
decree
.
or order that
.
might be passed by
' the appelhite 0;H1rt, the bond s~cures the performance of
the: .obligation imposed by the decree passed by the first
aP~lla~ cQurt and cannot make-the surety liable for the
decree pasSedby the second appellate Co~rt. See also
(2) (1939) Nagpur, p. 276.
BURMA LAW REPORTs. 5-
M ..Paramasivam Pillai v. A.V.R.M.S.P.S. Ramasami Chettiar
and another (3) where it was pointed out that the proposi-
ABouL
tion of law which can be deduced from the authorities is GAFFER
that each bond must be interpreted according to its own FIVE ~~HERS
terms. 11..
Ai3ov.i. c
RAMI~{
The learn_ed Advocate for the respondents has relied AND T ,.VO
upon clause (c) of sub-rule (3) of Order XLI, Rule 5 for OTHERS.
his argument that the sureties are liable for the decree-
passed by the Court of fina l appeal. This clause in so far
as it is relevant for the purpose in hand reads:
"No order for stay of execution shall be made under sub-
rule (I) or sub-rule (2) unless the Court making it is satisfied
that security has been given by the applicant for the due
performance of such decree or order as may u{timately be'
binding upon him."
However Order XLI, Rule 5 is a provision relating to stay.
of execution pending appeals from original decrees:
Therefore the phrase underlined <lb~:>Ve. J:IlU_st be .interpr~ted
to mean that the surety must bind himself for the .due
performance of the decree by the judg&eht-debtor of suc;h
decree or ord~r as may ultimately be passed by the first
appellate Court.
Iri any event, the language of the bond in the case now
under consideration admits of no other construction than
that given by us above. In the result the appeal succeeds...
The order of the learned District Judge appeal~ again~t
is se~ aside and the learned Judge is dire<;:ted to proceed.
accord~ng - to _law in ~he . l~ght qf the remarks given above.
Each P<l!ty _must ~ear its o~ cos~s of tbi$ appeaL
{3) (1939) Ma:lras, p. 290.
B~MA LAW- REPORTS.
APPELLATE CIVIL
Before U Kyoto Zan U, J.
c:c.
' il)6'J'
AMANI AMMAL AND ONE (APPELLANTS)
--
jan. 23.
v.
..
CHIT SEIN AND ONE (RESPONDEl\TS).*
C wil P,-oced;re~Code, s. 151 -Order made ttndr-No oppealli,sfl-om, s. 2 (2)-
, ckcree'.:-!lt!ea;iing of. Limitation-For saving- Bona fide mista lie- ~tat
is not.
No' ao'peal from 8'1 orcier m.:de under sc~ioa tSt, C-ivil Procedure Code
by' the 'eial Couct iies to the a!>pell ate Cou-t as h~ order .Jles nnt at~1ount to a
' decree'{vithi ,t;.,,, mean in~ of sub.section (2l of section 2 of th'! Civil Procedure
Code.
Kesha~dco Ghmneta v. Radlza JCi,sen Clzameta and others, A.I.R. (t953),
S :1preme Court, 23, referred tt>.
'' 'd~ccee ' -a:, uefin<:d i.t section z (2) or r:1e Code means the fom;tal expr.:s ;ion
of a:n adjudicathm which, so far as regards the Court expressing it, conclusively
'determi1l~ the' rights of the parti 's with r.:gard to all or any of the matters in
controversy in the suit.
Igdorance of or inatt ~ntion of the Ia\\' by perso,ns who sho:1l:l be well aware
c
of i t<> provi hns c annct b : r gad ;1s a bonafih 1' i take
S. R~ ~.,.{, i'.f; A . Firn! v, .W:au gPo Saung tm:J t:ers, I.L.R. R1.n. -4:6&,
foliowed.
'Ponnamalv. Daw HlaMi11, ( 9 'o) 8. L.R. (H.C. ) 21 ' ,referred to.
P: N. Ghosh and Maung Maung Myint for the appellants.
T. c. Torrens forth~ respm1dent No. r.
No one for the respondent No. 2.
B: KYAW ZAN U, J.-rn Civil Reguiar suit No. 81 of
i'g6cr of the Township Cour.t ot' Inseih, _.t he xst respond,ent
Chit Sein sued the tvvo apJ}ellaritS. and' tlie ind respondent
'for possession of a piece of land being holding No. 10 in
Block 50 of Kanbe Oksu, No~ 27, Thingangyun, measuring
0145 of an 'acre dajming to be the ovvner. paragraph 2 In
. ll CivilS!cond Appeal No. 6z of tQSi ag:linst the decree of'th~ Additional
DistiictCourt;lns :in,datedthe26tlu\.1~st 1.9'>1 in Civil Appeal No.6 oft96x.
BURMA .LAW REPORTS.
of the
.
plaint. these defendants were
.
said to bbe in o.ccupa-
.
Cf
19 3
tion of half of the said land as trespassers
.
y erectmg
.
a AMANI
- AM-
house thereon. The 1st respondent obtamed an ex-parte MAL ANn oNs
decree on 26th May 1960. It was alleged in execution of CHITf)SElN
the said 'decree being Civil Execution No. 54 of 1960, A.~o oNg
vacant possession of the land v1as given to the 1st
respondent. In the meantime, all the three def~ndants
applied separately to the Court to set aside the ex-parte
decree which was eventually set aside on 22nd October
1960, and the Court directed to proceedwith the suit.
On the next date, namely, 5th November 1960, which
was fixed for filing written-statements, the defendants, by
their separate applications under section 144 of the Code
of Civil Procedure, applied for restoration of the land.
The xst resppndenJ (Chit Sein) admitted in his objection
dated 27th December 1960 that the house on the land had
been demolished under the said decree, but he denied that
the land should be restored to the defendants as it belong~d
to him. In the meantime, he himself had also erected a.
house 0n the land. The Trial Court, ~~lying upon Sul~an
Ahmed v. Nasara ]aman.{I) held th~t no application tinder
section 1# of the Code of Civil Procedure iay as the ex-
parte decree was not varied or reversed by any appellate
or revisional Court but by itself, and treating the appiica-
tion as under section I5I of die' Code of Civii Pro'ced~re
disniissed: all of them on 12th May 1961, stating tijaf it
would not exercise its di~cretion under the section in
favour of the defendants as the 1st respondent (pl~iQ.'tiff)
had. a1ready bui'lt a house on the land. It said, the ist
respondent would have to d.fsmantle the ho~seif restitution
was ordered and that would complicate matters.
The ~ef~n~~i1t-~ppella11t;s .tlien p:eferr~d an app~l to
t~e. , ~e~rned A~dition~l District Judg~ o( Ins~iri iii .q~~
Ap~:.~~:. ~ 9f_12_6J .ag~!~t ~h~ .(~t r~spon~ent under
. ......
:
(1) (1950) B.L.R. 372 (H.C.).
8. BURMA LA'vV REPORTS .
. sectiol) 96 of the Code of Civil Procedure on 23rd May
r96r. Section 96 says:
AlllANi AM-
MAL ANDONE '~ 96. .{1) Save where otherwise expressly provided in the
v. .
CsiT StnN
body of this Code or by any other Jaw for the time being in
AND ONE. . . force, an appeal shall lie from every decree passed by any
Court exercising orig:nal jUlisdiction."
'The learned Additional District Judge held that the trial
; Court-.. was right in treating those applications as under
section rst of rhe Code of Civil Procedure and not under
section -144 of the said Code, as the defendants deemed
them to. be, on the authority of Sultan Ahmed v. Nasara
]aman (sl.!.pra) and dismissed the appeal stating no appeal
lay against the order made under section rsr of 'the Code
...of <:;ivil Procedure. Hence this second appeal presented
. on .2oth 'September 196r, i.e., over four months after the .
date of the original order.
The point in the aforesaid authority is similar to the
.. point .in the present s:a:se. In that <.a uthority. the trial
C-ourt gave an ex-pqrte decree for ejectment and put the
plaintiff -iri possession in execution of the decree which
was later set aside, and the trial Court, purporting to act
under section 144 put the defendants back in possession
and the High Court, exercising its revisional powers, held
that section 144 applies only wl~en the decree had. peen
varied or reversed by any .appellate or revisional authority
. and4hat t he .order of restoration was one under section
I5:I ,of.the Code 9f Civil Procedure. The learned Advocate
f-or the_,appellants, 11~,ylng upon the Full Bench decision of
the .Allah~bad. Hig~ 'cqiu-t in ]agendra N ath Singh v . Hira
Sahu ..a~d others (2}, and Abdul. Razak .v. Mauna Aung
. Thein (3), :Vliere actiop. was tal\~n u~der. ~ction I'# and
.not:un:der section 15~ of the <:ode.of Civil Procedure';after
the.:
'
ex-parte:
. '
decree.llad . . ~ei
.
been
. .
,asi4e .by itself, 'doub.ted
(z) (1948) LL.R. Allahabad, p. 6z (F.B.).
#
(3) (1958).B.L.R. 237 (H.~.).
BURMA LAW REPORTS.
the correctness of the authority relied upon by the Courts ~~
below , but the main point for consideration in the instant AMANI
- -.n.M
--
CaSe iS nOt the COrreCtnesS Or OtherWiSe Of the Said MAL AND ON
:.J v.
authority, or whether the appeal lies from the order under CHIT SEIN
AND ONI!.
sectio'n 144 of the Code of Civil Procedure, but whether
an appeal lay to the Additional District Court against the
order of the trial Court made under section I 5 I of the
Code of Civil Procedure. In Abdul Razak v. Maung Aung
Thein (supra) it seems the decision in Sultan Ahmed v.
Nasara ]aman (supra) was not brought to the notice of the
Court. As a matter of fact there was no issue whether
section r# or section 151 applied in the former case. In
both these cases.. the Court set aside its own ex-parte decree
and restored the property taken in execution of the said
decree. In -one case section I5I was applied and in the
other the action of the trial Court taken under section I44
was riot disturbed as it was not. COJ?.tested and brought to
the notice of the Court. I am not at present concerned
with the point whether the Court should act under section
144 or section I 51 when it has set aside ~~m ex-parte decree
granted.by itself and the defendant has applied for restitu-
tion of the property of which he is dispossessed_ in execu-
tion of the ex-parte decree which has been set aside. As
this appe~f arises out of an order under section 151 of the
Code of CiVil Procedure, I must at the outset say no appeal
lay against the order to the Additional DiStrict Court as
it did 'not amount to a decree within the meaning of sub-
section (2} of section 2 of the said Code. .When the ex~
parte decree was set aside there was nothing to execute
and all those actions taken before were null and void, ~nd
sectibn 151 of the Code of Civil Procedure which furnisheS
legislative- recognition of an age-old and well-established
priricipfe rljat every Court has inherent. power to ad ex-
debitio:justitice to do real arid s~bstantial justice for the
judicial administration had to be invoke<:}.: Lf the ordinary
10 BURMA LAW REPORTS.
rules of procedure result in injustice, they can be broken
for the ends of justice under this section. The point! is
:!~~ ~~; .settled in Keshardeo Chamria v. Radha Kissen Chainria and
v.
GlUT S EIN
others (4) of the Indian Supreme Court which held that an
ANo or. order simpliciter u11der section 151 is not appealable.
Mahajan, J. said, "It was not contended and could not be
seriously urged, that an -order under section r 51 simpliciter
' is appealable. Under the Code of Civil Procedure, certain
specific orders mentioned in section ro4 and Order 43,
Rule I only ~re appealable and no appeal lies from any
other or'ders (vi-de section 105, Civil Procedure Code). An
'order made under section I5I is not included in the
category of appealable orders." Under section 96 of the
'Code of Civil Procedure, an appeal lies from every decree
"Save when otherwise expressly provided in the Code or by
any other law for the time being- in force, and " decree "
.as defi~ed in section 2 (2? of the Code means the formal
-expression of an .adjudication. which,_so far as reg?rds the
Court expressing ft, conclusively determines the rights of
the pa!ties with ~gard to all or any of the m~tters in
controversy in the suit. In the instant case, there is no
"Such "decree." Though an appeal lies from certa'in orders
as provided in section 104, read with Order 43 of the Code,
there is no provision therein allowing an appealfrom the
order made unde-r ~ect:ion . ~51 of the Code. An appeal is
purely
-.'
a-a::eature
.
of statute. .
The-learned Advocate for the.appellants has urged that
if no apPea_l lay to the lower appellate <;::ourt against the
<Or-der o~ the trial Court made \.lll.d~r section I 5 I of .the
Code of Civil Procedure, to treat this appeal as an applica-
tlon in r~0sio.n, relying upon section I4 of the _Limitation
.Act. Jn view of the autho:r:ity in Sultan Ahmeiv. Nasdra
ia~an _(;up~a}, whi~h is stiil good law, tile qu~tiori ~ri~
whethe~ the . proceedings t~ken in. appeal . hefore the
BURMA LAW REPORTS. l1
Additional District Court were with due diligence or in c.c
1963
2ood faith. The appeal was not .r:ecognised by law. --
-~ . A'dANI AM-
Ignorance of or inattention to the law by persons who 1\'IAL ANo oNE
should be well aware of its provisions cannot be regarded C1u; smr
.as a bona fide mistake. The appellants were represented AND ONE.
before the lower appellate Court by their advocates and
there is now no excuse that they made a bona fide mistake .
The error made is so patent that it could have been avoided
.
with the exercise of due care. \Vhere the High Court has
-said that it does not ordinarily interfere in revision with
orders of removal of attachment and that the party should
file a suit, but the party filed a revision on the advic.e of his
Cou~sel, and after the petition was dismissed, subsequently
filed a suit, it was held that the time taken up during
revision should not be excluded under sectlon 14 of the
Limitation Act. S.R.M.M.A. Firm v. Maung Po Saung and
others (5). \Vhen the appellants have deliberately chosen
a stand that an appeal lay against the order, it cannot now
be allowed at so late ~ stage, to change their stand and say
that a revision lies to the Chief Cou:::t when they have
failed in their appeal. See Ponnammal v. Daw Hla Min (6).
In the result, the appeal fails, and is dismissed with
costs. Advocate's fee two gold mohurs.
:; ..
<s> l.L.R -7 Rangoon,p. 466. (6) (r~6o) B.L.R. p.-2t.6 (H.C.).
12 BURMA LAW REPORTS.
APPELLATE CIVIL
Before U jl,dau11g Jvlouttg, J.
c.c. KHAIR DIN (APPELLANT)
1963
v.
]at~. x8.
ABSAR ULLA {RESPONDENT).*.
Part11ership Act, s. 69 (z)-No bar to suit, when-Firm W!regisured.
Section 69 {2) of t he Partnership Act does not operatt: as a bar to a suit
on a pron' issorynot'" by tht'! endorsee of the not~ although the endorsor finn
in whose favour the pro:nissory note was executed was not a regist red firm.
Moh.a11 Singh v. Janli.i Das, A.T.R. (1937) Lah. 241 ; -Govordandoss
. Takersay v. Abditl Rahim, I.L.R. (1942) Mad. 775, x:e ferred to ; Kaniram
Malparni v. Parama1tanda Tewari, A.l.R. (1940) Cal. 528, di~sented from.
S. L. Verma for the appeHant.
P. K. Bose for the respondent.
U MAUNG MAUN{;, ].-The appeal is from the Appellate
judgment and decree of the District Court of Mandalay,
in its Civil Appeal No. 14 of r96o which set aside the
judgment and decree of t'he Subdivisional Court, Mandalay,
in its Civil Regular Suit No. 10 of 1955. The bone of
contention in the original suit and the appeals is a
promissory note which the appellant had executed in
favour of the firm of Messrs. Khair Din & Company on
his retirement from the firm in February I952 , Th~
promissory note was part of an overall adjustment of the
rights ' and obligations that existed between the appellant
and: the other partners of the firm. An agreement was
signed &tween the appellant and the other partners on
the occasion of his withdrawal and one o'f its terms was
* c iv'ilSecond Appeal No. "!O of 1960 (Mandalay) agaiO:st th-: deoree of th!
District Court; Mandalayi d~.t~d the-26th July 196o in ~iyiJ Appeal No. ~4 of
1960.
BURMA LAW REPORTS. 13
that the firm which took its name from the appellant c.c.
1963
should cease to use that name after a certain date. KHArR DIN"
The promissory note was endorsed by one Rahmat v.
ABSARULLA,
Ul1ah for the firm of Khair Din & Company in favour \:lf
the respondent in this appeal- after that date had passed.
The appellant, therefore, contendedin the original suit in
which he was defendant that the endorsement was bad,
because it infringed the terms of the agreement betweeJJ.
himself and the other partners of the firm, and also that
as the firm was not registered section 69 (2}-of the Partner-
ship Act stood in the way of enforcement of the. right that
might accrue from the promissory note. The .learned
Subdivisional Judge dismissed the suit jn acceptance of the
two contentions.
On appeal the learned District Judge considered these
two arguments in extenso and came to the finding that the
agreement betvveen Khair Din and the firm did not affect
the endorsement by the firm in favour of Absarulla, the
respondent in this ap.Peal. It was also held by the learned
District Judge that section 69 (2) of ,the Partnership Act
would only apply to suits instituted either by or oh behal.f
Of an unregistered firm and as there was no evidence to
show that the suit filed in the original Court ha~l been
instituted either on behalf of or in the inter:est :of Kha.i r
Pi!~ & ~ompany se.c~on ~9 (2) di~ not .raise any obstacle
;<1g4inst its instit_ution.
In the appeal before zrte Mr. Verma, . learned counsel
-for the appellant, strenuously takes up the -same. two
ground,s that had been thoroughly agitated before the first
.appellate Court. The first ground is that the endorsement
of the promissory note.made. by Ral;lmat Ulla in the -name
of Kh;rir Din & Company was invalid .and did not have the
effect of passing title in the promissory note to the
respondent. Mr. Verma does no~ seriously contend ihat
~al:u~at . Ulla dld not have the authority to endorse th~
14 . . BU~MA LAW REPORTS.
Cf3
19
promissory note. What he argues is that as the firm P,ad
. .. agreed to drop the riame ofKhair Din from its own name
KliAlR DIN
-v.
.
after a specified
. . .
date, the endorsement m . h t h e name
. wI1IC .
-ABsARuLLA . ' <if Khair' Din & Company was used offended the terms of
the agreement and thus rendered the endorsement itself
invalid. Now, as Mr. Bose points out there are other
terms in the agreement which indicate that on his retire~
. ment Khair Din had agreed that the firm should continue
-its busiliess a:nd take all steps to recover debts due to it
arid collect all. bills, promissory notes, cheques and other
such instruments. Since he himself would no longer be
actively participating in the conduct of the business Khair-
. Din \vould naturally wish to have his name deleted from
the firm's name, and that apparently was the intentjon of
the tenri: of cigreement that his name should be deleted
fr.om the firm's name. This understanding however~
cannot haye' the effect of making infructuous, after the
:pres(;ribeddate, the promissory note that he executed in
Iavour of the firm and other bills, notes,. cheques and such
. instrumen:ts' whid:l the firm might colle~ in its former
name jri 'the condu~t and continuation of its business.
The learned District Judge after studying the facts of
the case and the provisions of the Negotiable Instruments.
Act that are applicable came to the -conclusion that the
respondent Absarulla was a holder in due course of the
promissory ;note given to him and section I2I of the Act
. came into pla:y. - A promissory note, which is a special
iristrument oWing its nature and quality to the Negotiable
Instruments Act, has its value iri the commercial world
:beca~se if ca"n pass fr~m hand to h~nd ~fter proper endorse-
. ment, evenas currency itself.. After -a_note has come into
being as a promissorY: note 9ile test .in considering whether
t~tle; to ' it passes' effectively would be to see whether t;he
end,m;sement is property made. r:n .this {;ase there is no
dis{mte:that -R~hmat . Ulla, who signed for the firm had .
BURMA LAW REPORTS. 15
authority to act on its behalf. The appellant cannot deny,
either, that he had executed a promissory note in fa.vour
KHA1RD1N
of the fum. His objection is only ~o the firm's continuing tl.
ABSARUUA~
to use his name contrary to the terms of the agreement.
between himself and the firm. If he takes serious objection
to this and if he considers that his iuterests are seriously
prejudiced, he may perhaps file a suit against the firm
for breach of contract. This alleged breach ho~ver,..
would not, to my mind, have any effect on the validity of
the promissory note in its passage from han<i to hand.
The next ground advanced by the learned counsel for
the appellant is that Absa~ulla, the respondent in whose
favour the promissory note was endorsed by the firm
would be caught in the provisions of section 69 (2) of the
Partnership Act which bars suits " to enforce a right
against any third party-unless the firm is registered and the
persons suing are or have been shown in the register of
firms as partners in the firm."
It is contended that the respondent, deriving title to
the promissory note by transfer from the firm, coul~ not
sue, as the firm itself could not have sued because of the
disqualification imposed on it by section 69 (2) of the Act~
Reference was made to the case of Kaniram Malparni v.
Paramananda Tewari (r) to support this contention. In
that decision it was held by Jack, j. that a. suit by a
transferee of a debt due to a firm which had not been
registered was barred by section 69 (2) of the Partnership
Ad. The facts .given in the decision, however, were
scanty. There is no indication of how the " transfer "
took place from the unregistered firm to the plaintiff and
in what ~apacity the plaintiff sued, that is whether in his
own jndependent in'4ividual capacity or as an agent of the
firm. It must also be noted that there was no promissory
(1~ 44 Calcutta Weekly Notes, p. 387-A.I.R. (1940) Cal., p. 528.
__ / 16 BURMA LAW REPORTS .
c.c. note involved and as I have discussed earlier, a promissory
1963 .
. , - note has a nature and quality of its own as a creation of
KHt\IR DIN
" statute. The.appellate decision of Jack, J. was s et aside
AssARuLLA by a Bench of the High Court on the ground that the appeal
did not lie for want of jurisdiction. The case is also
reported in A.I.R. oi940, Calcutta, at page 529 but the
report there only covered the decision of the Bench which
upset the decision of Jack, ]. on th e ground of want of
jurisdiction: it did not deal with the merits of the appeal
or with the ~uestion whether the plaintiff could 'have sued
as transfe ree of a debt from an unregistered firm. This
is the decision on which Mr. Verma, learned counsel for
the appellant;' placed some reliance and to consult which
I have reserved ju<lgment after hearing the arguments in
Mandalay.
Against this unsatisfactory and indecisive ruling cited
above there js a weight of authority to which the learned
District Judge referred, to hold that section 69 (2) of the
Partnership Act must be strictly .':o~strued and that its
provisions .could qnly be attracted to a suit if it was insti-
tuted either by or on behalf of an unregistered firm
[Mohan Singh v. ]ahki Das (2).; Govardandoss Takersay v.
Abdul Rahim (3).] I should also have thought that the
pmvisions of section 69 (2) of the Act are fairly clear and
the decision in this case on that aspect -could have been
made without the assistance of authorities. My view
. therefore; <in agreement with that of the learned District
Judge,.is that.the respondent was in no way barred by the
said provisions from suing the appellant in the original
Court. The fact that the firm of Khair Din & Company
was not registered, was not fatal to the suit.
, Having .thus disposed of the two main grounds whic}1
were t~ken . up, J have now no alternative but to dismiss
$e appeal with costs. .Advocate's fee K 85.
(z) A.I.R. (1937) Lah., p. 241. (3) I.L.R.(x942) Mad., p. 775
BURMA LAW REPORTS. 17
APPELLATE CIVIL
Before U Sarz Maung, U Saw Ba Tlleirz and U Tun Tin,JJ.
MESSRS. ASHOK KUMAR NEMJEE (APPLICANTS)
I c.c.
v. 1963
THE COMMISSIONER OF INCOME-TAX, BURMA, Jan. z:a,~
RANGOON {RESPONDENT) .*
The a?plicants started their business on the xst December 1952 and
closed their' accOunts, which began : from that date, on the Ist FebruarY
1954, after a period of 14 months. For the assessment year 1954-55 the
applicants rettirned an income for this period of ~4 months, but the
Income-tax Offic~r took the' previous year' forth~ applicants as the period
f rom the xst December 1952 till the 30th November 1953 and assessed
them accordihgly. The assessm<>nt order was upheld by the Assistant
Co:n:nissioner of t ncom ~tax and the Income-tax Appellate Tribunal.
Held: That on an interpretation of section z (x 1) (c) of the Burma Income-
tax A:t .as 'it stood b:forc its amendment by the Burma Income-tax
Am~ndrn~nt Acto 19So, ev:nif the applicants in the present case, had
-expressly claimed the option referred to in sect ion 2 (I I) (c) they cannot be
allowed to do so as their accounts had been made up for a period of 14
m.,nths beginning from the xst December I952 and that the Income-tax
" Offi::;r ha:l no option but to assess the applicants for the period from xst
'necemberJt952 t'ill the 30th September 1953.
Held also : That the ' previous year ' as determined by the Income-tax
Officer and confirmed by ' the Income-tax Appellate Tribunal for the
:asses.s~'!nt year 1954-55 in respect of the income leturned by the applicants
~s incorrect.
The General Commercial Corporation Ltd. , In re. (1954) 26 I.T.R. 316,
re.rerrec1 to~
Commissioner of Income-tax, Madras v. K. Sri11ivasan and K. Gopalan,
(1953) 23 LT.R. 8.7 , explained,
Jetlmuzl Sada Suklz v. Commissioner of Income-tax, United Provinces
(I9S3) zj I.T :R. 443, distinguished.
U Paing for the applicants.
Ba Kyaw (Government Advocate) for the respondent.
U SAN M.AuNG, ].-Under the direction of the late High
Coun in CiVilMiscellaneous Application No. 32 of 1959,
whi.ch was an application by the assessees, Messrs. Ashok
Civil Miscellaneous Application No. 32 of 1959 against the order of
. I . A. ' 11 T "b . . Appeal No. 69 of (1957)
11: h e ncome-tax ppe ate n una1tn tts R f N f( )
e . o. x o 1959
2
: BURMA -LAW .REPORTS.
c.c.= ;Kumar Nemjee under -section' 66 (2) of the Burma ~ncome
. l96J .
'tax ~ct, the fncome-tax Appellate Tribunal, Rangoon,
ME!!SRS.
MHOK referred the following question of law for the decision of
KUK.\R
. NEMJEE .the Chief Court :
. '1/.
QTiteC~!'-f
' " Whether in the circums'tances of this case, the previous
Mtssio~R OF
INCOME..TAX,
year ' as determine,?by the Income-tax Officer and confirmed
BURMA,
by the Tribunal for the assessment year 1954-55 is correct?'-
RANGOON.
The facts are briefly these. The applicants Messrs.
Ash9k Kumar Nemjee are an unregistered firm of four
p~rtners carrying on the business of rice milling under the
name :aha style of A-shok Kumar Nemjee at Thegon in
' Prdnie District. They started their business on the rst of
.l!ocember 1952 and their acc.qunts, which began from that
.date,' were dosed on the 1st of February 1954, after a
of
p~rioo . I4 . months. For this period the applicants
:returned an income of K 7,48538 pyas only, submitting
their books of account which were kept in the usual course
of business. The Income-tax Officer, Prome-Thayetmyo
Circle, however; took the " preyious year ,. for the
app{icants as the period from the Ist of December 1952
till the 30th of November_1953, and assessed them accord-
. ing1y for the assessment year 1954-55 The accounts
produced by the .applicants ':"ere accepted and the assess-
. rrient was made on the basis of th~ applicants' ac.counts
.'With a: total add back of K 47,846. The applicants
appealed to the Assistant Comn'iissioner of Income-tax,
Western Range, agairist the assessment but the-appeal was
unsuccessfuL They_ thep. appealed under section 33A of
' the Burma Incom:e-t4x Act 'to' the Income-tax Appellate
Tribunal on the groun<;l, i~ter. alja, that " adoption of the
- period 'of I i months ,ending .3oth -November -1953 as the
-pieVious year', for._the _I~54~5s a$sessment w~s ultra vires
of section 2 (r r) of tb.e Burma Income-tax Act and con-
sequently the assessJ;Uent was m~gal." Two other grounds
mentioned in the application were waived.
BURMA LAW REPORTS .
. 19
. -The Appellate. Tribunal, however. dismissed the
applicants' contention that the assessment was illegal on MESSRS.
the aforesaid ground arid the applicants' application under ASHoK
t. KuMAR
section 66 (r} of the Burma Income-tax Act, to ref er tne NsM;Es
case to. the High ~ourt on the ground that a question of Ti!sCoM-:
law arose from
the order
,
of the Tribunal was
dismissed.
MISSONJm o
I NCOM&-TAX,
In dismissing the application, the Appellate Tnbunal rehed BuRMA,
upon certam . declSlons
.. of t he Allahabad H'1gh court
. ltt . RANGOON.
]ethmal Soda Sukh v. Commissioner of Income-tax. United
Provinces (I) and of the Supreme Court o~ India in Com-
.missioner of .Jncome-tax v. Srinivasan and Gopalan (2).
The. appUcants. then applied un~er section 66 (2) to the late
High Court with the result that the High Court by its
order dat~-_ the 19th June 1961, directed the Appellate
. Tribunal . to , s~te the case of the applicants and refer the
same for decision on the question of law arising therein.
The question which now arises for decision is whether
.the applicants should have been assessed for the assessment
year 1954-55 on the, basis of their accounts from the xst
of Dece1n:ber. 1952, till the 3oth of .september 1953 as
contended. by: the applicants or for the period-1st of
December 1952 till the 30th of November 1953, as has
been do,ne by the Income-tax Officer, Prome-Thayetmyo
Circle.
In ~eating with tl)is question the definition of the term
" preYio~s y~ " given .in section 2 (r r) of the Burma
In~ome-tax Act will have to be construed. This definition
in so far as it is relevant for the purpose of .the present
reference reads :
" 'Previous year ', .means in respect of any separate source
of income, profits and gains :
(a) the twelve months ending on the 30th day of September
. next preceding the year for which the assessment is
to b~ made, or, if the. accounts of the assessee have
(x) (1953) 23 I.T.R. 443 . (z) (1953) 23 I.T.R. 87.
20 BURMA. LA,W :REPORTS.
c.c. been made up to a date within the said twelve months
1963
in respect of a year ending on any date other than
MEssRI. tlie said 30th day of September, then at the option
ASI;lOK
KuMAR " of the assessee the year ending on the day which his
NEMJEE accounts have so been made up: * * *
f) '
:ra11 C"M- ~c) where a business or profession has been newly set up
. MISSiONER OF iri :the finar1cial year preceding the year for which
."INCOME-TAX,
BURMA, assessment is to be made the period from the date
RANG60N, ' of the setting up of the business or profession to the
36th day of September next following, or if the
actounts of the assessee are made up to some other
da~ than the 3oth day of September, then at the
option of the assessee, the period from 'the date of the
s~tting up of the business or profession to such other
date : provided that such other date does not fall
between the setting up of the business or profession
and' the next following 3oth day of September, it
shall be deemed that there is no ' previous.' "
' The above-quoted definition is substantially the same as
the definition of the term " previous year " in section 2 (I I)
Qf theIrfdian Income-tax Act before its amendment' by the
A men'd ing Act XA'\~ of i953. Mter amendment dause (c)
<>f section 2 (rr) reads:
"Where a business, profession or vocation has been newly
set up in the financial year preceding the year for which
assessment is to be made, the period from the date of the
setting up of the business, profession or vocation to the goth
day on March next following . . . . . or, i'f the accounts of
the.assess-ee are made up in respect of a period not exceeding
12 months from . the date of the setting up of the business,
profession or vocation . . . . . . then, at the op~ion of the
asseSsee, the period from the date of setting up of the business,
profession -or vocation to the date to which his accounts have
been so made up."
':'\hi .this \:onnection, it should be noted that in India the
:fu:i<ihcial year ends on the 31st of March instead of the
3oth of September as inthis country.)
BURMA LAw REPORTS. 21
Clause (c) of section 2 (r r) of the Burma IncoU'le-tax
Act has since the ~pplicants' appeal was disposed of by
'MESSRS
. the Income-tax Appellate Tribunal, been amended by t~e AsHoK
Burma Income-tax Amendment Act of 1960 so as to be on ~uM~
the same lines as ..the corresponding clause in the Indian TilE coM-
Income-tax Act as ~mended by Act XXV of 1953. MxssoNER op
. INCOME-TAX,
. In its order dated the sth of May 1959 by which the BuRMA,
Appellate Tribunal refused to refer the case to the late RANcooN.
High Co.urt under section 66 (2) of the Burma Income-tax
Act, the Tribunal thought, that the decision in the appli-
cants' appeal might well have been different had clause (~)
of section 2 (r r) of the Burma Income-tax Act been
amended in a way similar to that in which the Indian Act
had been amended by the Amending Act XXV of 1953
However, .the .attention of the Tribunal does not seem to
have been-drawn to a decision of a Bench of the Madras
High Court in the case of the General Commercial Corpora-
tion Ltd. (3), where the learned. Judges held that if the
ass~ssee had made up his accounts not for a period of a
year but .for a period exceeding a yeaf' he could not claim
the benefit of the latter part of clause (c) of section 2 (rr)
or of the proviso thereto. as such a requirement which was
expr:essed in clause (c} as amended by Act XXV of 1953,
was impijcit in this clause even as it stood before the
amendment. In that case the assessee took over the assets
of a partnership concern, commenced business on the 7th
of April 1947,. and made up its first set of account. up to
the 7th qf May 1948. The entire stock of goods of the
assessee was . then taken over by a new company.. The
assessee contended that it was not liable to 'be . taxed in
. the. assessment year 1948-49 as it was entitled to the
benefits of the ,proviso to section 2 (rr) (c) and tllat for the
assessment year 1949-50, it should be assessed for the
previous year 8th May, 1947, to 8th May, 1948, under
(3) (1954) 26 I.T.R. 316,
BURMA LAW REPORTS.
c.c. sectiop 2 (r r) (a). It was held that as the assessee had
1963 ' .
- made Ins accounts not for a penod of a year but for a
-~sr:~~- period of 13 months, 'it .could not claim the benefits of the
~=~~ hitter part of section 2 (rr) (c) or the proviso to that part
Tffilt~co~~ and that therefore fo; the assessment year 1948-49, the
MissxoNBRoF.. first part of section 2 (IIHd) would apply, and the account-
INCOMB-TAX,
' .BCRMA, , ... ing period was from the'date of the commencement of the
RANG00N. . :
busmess to 31st Mar~h, r948. This decision was arrived
at on the int~rpret~tion of section 2 (rr) (c) before its
amendment by Amending Ad XXV of I953
With' due respect, we are in entire agreement with the
-above decision of the Ieru::ned judges of the Madras High
Court.
Accordingly, on. an interpretation of section 2 (r r)- (c)
.. - as it stood before its amendment by the Burma Income-tax
AmendmentAct of 1960, we are of the opinion that even
the
if applicants in the present case. had expressly claimed
the benefits of the option referred to in section 2 ( r r) (c)
they cannot be allow-ed to do so as their accounts had been
:. made ' up for a period of 14 months beginning the 1st of
December 1952. The Income-tax Officer, 'therefore, ha:d
no option but to assess the applicants for the period rst of
December, 195~ till the 3oth of September, 1953. The
assessment made by the Income-tax Officer, Prome-
Thayetrnyo Circle, for the assessment year 1954-55, on
the basis that'the acc;ounting year of the applicants should
be for a period of 12 months beginning the rs~ of _December
' 1952 -is in~orrect and shoil~d .have been set aside by the
Appellate Tribuna.~:.
In the order d~te<l the 5th of May 1959, by which the
income-tax Appeliate. Tribunal dismissed the application
of th~ applican~s under section 66 (2), the Tribunal had
1eferred to cer:ain observations_of Mehr Chand Mahajan, J.
BURMA :LAW REPORTS. 2J
in Commissioner of Inc.ome-tax, Madras v. K. Srinivasan
.and K. Gopalan (i). The Tribunal has, however, over-
. MESsRs.
looked the fact that these observations
. were in respect of AsHoK .
clause (a) of section 2 (rr) and were therefore irrelevant ~~=~
for the purpose of construction of cla~se (c) of that section. T~~CoM- ~
The Tribunal bad also referred to the decision in the case MissioNER oF
. . f 1NCOM'ETAX
0
'Of ]ethmal. Sada sukh v. Comm1sswner o lncom~-tax, BuRMA,
United Provinces (r) which. was distinguishable on the RAscooN.
facts. In that case the relevant accounting period of the
assessee .for the assessment year I9-H--tS ~gan from the
'8th November 1942, and the assessee closed his accounts
on the I.3h Decembcr 1943, at the end of 13 months and
5 days. The.Jncome-tax authorities ...,vrongly held that the
incom,e made during the whole of that period should be
taken into account in making the assessment. The
Appellate .Tribunal on appeal held that the assessment
-could 'Qe made only on the income made during the
previous accqunting period which must be a period of I 2
months an-d made the necessary corrections. The
assessee claimed that the entire asse~ment proceedings
were ultra vires by reason of the fact that the Income-tax
Officer had treated the income for the period of I 3 months
.and 5 days as the income of the previous year. It was
held by, the Allahabad High Court that the assessment
proceedings were riot ultra vires and that the Appellate
T ribunal could correct the error committed by the Income-
tax authorities by making the assessment for a period of
:12 months only.
. . .
For these reasons we consider that the answer to the
question referred by the Income-tax Appellate Tribunal
should be in the negative. The applicants are entitled to
~osts which we assess at 20 Gold Mohqrs.
(t ) (1953) z : I.T.R. 443 (a ) (1933) 2.3 I.T.R. Sf .
24 BURMA .LAW REPORTS.
APPELLATE CIVIL
Before U San Maung and U Tun T n, JJ.
c.c. MESSRS. KANNYALAL SIRI KISHANLAL (APPLICANTS)
I96J"
Jan. 8. v.
MFSSRS. SHREERAM CHANDULAL (RESPONDE~Ts).*
Union Judiciary Act, s. s-Pendi11g applica ion tmd r-Eflect of repeal on-
Cannot be converted into one under s. 6.
In view of the repeal of section 5 of the Union Judiciary Act with retro-
spective ~ffE;<;t an application filed under this section before the late H !gh-
Court an~,p~ding before the Chief Court must be dismhs~d.
As a.i~~po:>iication unde~ section 5 of the Union Judiciary Act is an
entirely different application in natt.re frcm t hlt under section 6 of the
said Act, an applicat ion under the former s ~ction cannot be convertt'd i. .to
one under thl' latter section.
G. N. Banerji for the applicants.
Soorma and Boon for the respondents.
U SAN MAUNG, J.-In Civil Regular Suit No. 8r of 1955
of .the, Original Side of the late High Court the plaintiffs.
Messrs. Kannyalal Siri Kishanlal, who are the present
applicants under section 5 of the Union Judiciary Act, sued
the defendant-respondents Messrs. Shreeram Chandulal for
the recovery of a sum of K r2,ooo as damages for an
alleged breach of contract. The plaintiffs' case was that
they had contracted to buy from the defendants ro cases.
Of dyed poplin measuring about I 2;009 yards and that
. under theterms of the contract they ~ere to take delivery
and .pay for -the goods within 3 days of its arrival in the
defendants~ godown, but that the defendants had contrary
to ..the terms.. of the contract sold away 'the goods to o,ther
traders without intimating to them the f'it of the arrival
* .Civil Mil;ce!laneous Applicaticn No. x6 ofr96.z for a <;!riificate under ,
section S; ' Union Judiciary Act for further appe~l frcm the decree of the
High Court (Appellate Side) Rangoon, in Civil Fin.t Appeal No. 55 of 1958.
BURMA LAW REPORTS.
of the goods in the defendants' godown. The 'defe11.dants
on the other hand contended that after the goods had
reached their godown, they had duly informed the plaintiffs ~:~~to.
but that the latter had declined to take delivery, thus Kxs~!LAL.
compelling them to .sell the goods to other traders. The 'M:;,~RS.
learned trial Judge came to the conclusion that the defen- SHREERAM
dants had proved that the plaintiffs not only declined to CHANDuLAL-
take delivery of the goods when intimation was sent to
themon the 17th of May 1955, but had also told the defen-
da-nts that they could dispose of the goods in' any way they
deemed fit. Accordingly, there was no breach of contract
on the part of the defendants and that therefore the
plaintiffs' suit should be dismissed.
The plaintiffs appealed, but a Bench of the late High
Court. concurring with the finding of the learned Judge on
the Original Side. dismissed their appeal. The plaintiffs
then filed on the 28th February 1962, an application before
the late High Court for a certificate under section 5 of the
Union judiciary Act that the case was a fit one for further
appeal to the Supreme Court, as 'it involved some
substantial question of law. However, the High Court
and the -Supreine Court were abolished on the ISt of April
1962 vide Notification No. 25 dated 30th March 1962 of
the Revolutionary Council, and the Chief Court which was;
created was directed to exercise the powers of the late High
Court and the Supreme Court. By Notification No. r
dated 31st March 1962 of the Chief Court it was declared'
that. all the cases pending before the High Court and the
Supreme Court would be disposed of by the Chief Court.
Therefore, the plaintiffs' application before the High Court,.
which was treated as Civil iviiscellaneous Application
No. 16 of 1962, became an application pending before the
Chief Court. However, by the Union Judiciary Act
Amending Law, 1962, section 5 of the Union Judiciary
Act of 1948 was repealed with retrospective effect fr~m
BURMA LAW REPORTS..
c.c. the I~t April I962, the d~te on which the Chief Court was
t96J
established, .while section 6 of the Union Judiciary Act
~ESSRS.
'K..\'NNYALAL was. amended: so that special leave could be granted by
KI~~~:a.L the Chief Court from any judgment, decree or final order
"' v ~
. MESsRS':
of any Court, including a Court constituted by one o r two
SHRJlERAM Judges of the Chief C~urt itself.
' CHANDULAL.
In .view of this Union Judiciary Act Amending Law of
i962, : the plaintiffs-have now applied to this Court to
. convert their application into one under section 6 of the
Union Judiciary Act. The question is whether an appli-
cation so to convert, can be granted.
Now, although Civil Miscellaneous Application No. I 6
. of 1962 may be deemed to have been pending before the
Chief Court since its creation, in view of the repeal of
: section 5 .of the Union Judiciary Act, with retrospective
..effect, the plaintiffs' application under section 5 of the
Union Judiciary Act must be dismissed . . Furthermore,
since an application under section 5 of the Union Judiciary
Act is an entirely different application in,nature from that
under. section 6 of fhe. Union Judiciary Act; the plaintiffs'
application under the former section cannot be converted
into one under the. latter section.
The only question which remains to be considered is
whether the plaintiffs.' application dated the I Ith December
I962 can.be regarded as a fresh application under section 6
.of. the .Union Judiciary Act and in. view of the eire-
.urnstances it ~hould be entertained long after the period
.o f limitation. had.:~apsed. We have carefullyconsidered
' this matter ~nd ''!.e ar<not of the opinion that sect;on 5
of . the Limitation Act car( be invoked in the plaintiffs'
favour . . There n why the plaintiffs could not
have filed an c: L . .nq~r section 6 of the Union
.. ]l:ldiciarYAct.before t l;le .late Supreme Court at about the
same .time .as. ,they filed their application under section 5
thereof, before the. late ~igh Court. It . was not a case
BURMA LAW REPORTS; 27
. where the plaintiff~ application under section 5 o~ the c.c .
1963
Union Judiciary Act was bound to have been granted; as M .ESSRS.
the judgment and decree of theOriginal Side was affirmed KANNYALAL
SIRI
by the Appellate Bench. Furtherm<?re, it was arguable KISHANLAL
tl.
whether or not the appeal involved some substantial M:!SSRS.
question of law. Accordingly, a 'iitigant of ordinary SHREBRAM
CHANDULAL-
prudence would ii1 the circumstances of the case, have
'filed an application under section 6 of the Union Judiciary
Act before the late Supreme Court. The plaintiffs have,
therefore,. only themselves. to blame for ~hHr failure to
have taken such a step.
In ~hese circumstances the plaintiffs' application dated
the nth December 1962 ca!'lnot now be entertained.
The applications dated the 28th February 1962 and
the .I rth of December 1962, are accordingly dismissed with
no order as to costs.
28 BURMA LAw: REPORTS.
APPELLATE CIVIL
Before U San Marmg, U Saw Ba Thein and U Tun Tin, JY-
c.c.
r96~. MESSRS. SCINDIA STEAM NAVIGATION Co., LTD.
jan. 29. (APPLICANT)
v.
THE COMMISSIONER OF INCOME-TAX, BURMA
(RESPONDENT) .*
Burma Income-tax (Second Amendment) Act, 1954-s. to (2) (vii)-Proviso-
Applies to sale.of ships belonging to non-resident company- Proportionate
share of prolits from suck sale-Addi11g back of- Legal.
-The ."l'rwi5o 'to s'!ctio'l xo (2) (vii) of the Burma Income-tax Act as
sub>tituted by th<> Burma Income-tax (Second Amendment) Act of 195-1- is
applicable when . ships belonging to the assessee non-resident shipping
company are sold and the Proportionate share of profits from the sale of
. these -ships can:lawf Jlly be added back to the income of the a55essee company.
U Paing for the applicant.
Bq. Kyaw (Government Advocate) .for the respondent.
"
U SAN MAUNG, J.-The Income-tax Appellate Tribunar
has referred under section 66 (r) of the Burma Incometax
Act the following question of law to the late High Court :
" Whether on the facts and circumstances of the case the
Tribunal was right in law in adding back the sum of K 2,19,230
as the proportionate share of profits from the sale of ships.
under section ro (2) (vii) of the Burma Income-tax Act."
The factsgiving rise to the pr~ent reference are.briefly
these. . In assessing the applicant Messrs .. Scindia Steam
Navigation Company Limited for the ye~ 1954-55 on an
..income of K. 4,36,695, the Income,.tax 'Offi.cet, Companies
Circle,. Rangoon, had disallowed initiai depreciation on
motor-cars K .6,830 and added back pro rata proftts on the
* Civil R.ference No. 3 of 1960 arising out of Reference No. z:aof 1')59
made bytl-e Incom ~tax Appellate Tribunal,Burma.
BURMA LAW REPORTS. 29
sale of four ships K 2,19,230 made by the Company. ~~~j
Being dissatisfied with the assessment, the Company MEssRs.
appealed to the Assistant Commissioner but the dis- l:>ciNDIA STEAM
allo\vance as .well as the add back were confirmed by him. NAvlcATION
The Co~pany ag~j.n. appealed before the Tribunal and this co~~~TD.
.
tlme . was success'f ~1 ~s. regard s th <:: disa 11owance on t h e MrssloNER
1t THt: Cor.t-
oF
initial depreciatid~ on motor-cars, as the Tribunal held IN~u~,;~~x,
that that motor-cars came under the category of " plants
and macpinery " which were newly installed within the
meaning . of section ro (2) (vi) of the Burrfi.a Income-tax
Act. On the question of the add back of the proceeds of
the sale. pf four ships, the Tribunal held that the Assistant
Commissioner was correct in holding that it was proper.
These four ships which had been sold, had been coming to
Burma ports regularly since 1948, and depreciation had
been allowed successively every year for six years
continuously, proportionate to Burma's earnings. There-
fore the Tribunal said, that when these ships had been sold
Burma's.proportionate profit of K 2.I9,f.30 computed from
the di~erence between the amount realized, and that
y.vritten . dow~. after deducting the depreciation which harl
been allowed continuously for six years, was liable to
Burma income-tax vide the second proviso to section
10 (2) (vii) of the Burma Income-tax {\ct.
Now, the late High Court and this Court had consist-
. en~ly held that in the case of non-resident shipping com-
panies which ha<i been assessed on the basis of their world
income, not only the annual depreciation allowance on old
ships, but also initial depreciation allowance 0n new ships
is admissible under section io (2) (vi) of the Burma Income-
tax Ac~. Consistently with that view, when these ships
were sold the proviso to section ro (2) (vii) of the Burma
Income-tax Act as substituted by the Burma Income-tax
BURMA LAW .REPORTS . .
(Second Art1endment) Act of 1954 would be applicable.
ThiS proviso r-eads :
MESSRS.
ScxriDIA " Provided further that. where the amount for which any
STEAM building, machinery or plant is sold whether during the con
NAVICATIO!'i
Co.,'.LTo. tinuance of the business or after the cessation th-ereof exceeds
.. f)!'. the original cost ~ reduced by the aggregate of the deprecia-
THE COM-
MissioNER . OF :,ti:on allowances already given. so much of the e:){cess as does.
!NCOME7TAX, :ttof exceed the aggregate of the depreciation allowances:
. BuRM~. , ..
akeady' given shall be deemed to b-e profits of the previous;
year in which the sale took place."
For these reasons we would answer the question pro- .
pounded by the Income-tax Appellate Tribunal in the
affirmative.
BURMA .LAW REPORTS. 31L
APPELLATE CIVIL
.B4ore U Son Matmg, U 'Saw Ba Th~in and U Tun 1'in, JJ.
MESSRS. THE BHARAT LINE LTD. (APPLICANTS)
v.
THE INCOME-TAX APPELLATE TRIBUNAL, BURMA
AND ONE {RESPONDENTS).*
Burma Income-fa.-.: Act. Payment nf interut outsid' the Union of Burma-When
chargeable to Income-tax under. When allowable 1feduction s. 42 (t)
btlsiness connection.
For the assessment year 1957-58 the Income-tax Officer added back to the
income retumed by tbe applicants, who are a non-resident company with an
agent in Rangoon, three items of expenditure which included a sum
of K s,o~-x ,o96 which represented interest payment on loans outside the Union
of Barma O'l th~ ground that the applicants had failed to make tax deduction
therefrom under section 18 of the Burma I ncome-tax Act, holding that the
proviso to section 10 (2)(i i i) ofthe said Act was applicable. For the applicants
it is contended that section 10 (2) (iii) of the Act and not the proviso thereto is
a?plicabk, and that therefore the said interest payment was an allowable
deducdon.
Htld: Tbat.an assessee is under no obligation to deduct ta.x under sec: ion x8
of the Bunna Incoroe-ta."C Act from the interest paid b) him outsidt> the Union
of Bunn.a, unless the inu.rest which he had paid ou\side the t:nion of Burma
was chargeable under thr- Burma Income-tax Act.
Porbandar Swu Bank,.. Tiu Commissioner of Income-tax, Bombay City,
(1950) xS I.T.R. 134, refetTed <o.
Held also: That payments of inte~t outside the {;nion of Burma will only
b' chargeable under the Burma lncom~ta.X Act, if they constitute income,
profits or gains accruing or arisin~ to rbm1 whether directly or indire. tty.
through or from any busi11ess connection in the U"io11 of Burma as provided in
section 42 (t) of the Burma Income-tax Act.
The expression" business connection" in section 4~ ( 1) of the Act, which
hal a wide meaning, admits of no precise definition, and that accordingly, the
. solution of the question must depend upon the particular factors of each case
The Ctmlmissioner of Income-tax, Bombay v. Metro Goldwyn Mayer (India)
Ltd. (1939) 7 I.T.R. I76;
" In order to constitute a business transaction there must be some
continuity of relationship between a peraon in British India who makes
the profits and the non-resident who receives them."
CivilMisc. Application No. ~1 of 1960 arising out of the reference by the
Incom::-tox Appeltate Tribunal, Burma, in its Reference Nt), 19 of 1959
32 . BURMA LAW REPORTS.
" If there is only one isolated transaction between a non-resident and
r~ident that would not constitute a business transaction."
MESSRS. THB Bangalore Woollen, Cotton arul. Silk Mills Co. , Ltd. v. Commissioner of
llHARAT LIN'S
. LTD. . Income-tax, Madras, (1950) z8 I.T.R. 423; Commissioner of Income-to.-.:,
: " '!3ombt:zy v. Currimblwy Ebrahim & Sons, Ltd., (1933) I I.T.R. 34I;
THE Commissioner of Income-ta:>:, Bomboy v. Currimblloy Ebra!Jim & Sons, Ltd.,
.i'fNCOME TAX
APPELfATB (1935) 3 I.T. R. 395 at pp. 40o-4oi; The Commissioner o.f Income-tax,
TRIIlUNAL : Bombay Presidency v. T~ Bombay Trust Corporation Limited, Bombay
.BURMA, AND I.L.R: 52 Bom. 702; The Commissio11er of Income-tax, Bombay Prcsidenc;
ONE.
v. TM Bombay Trust Corporation Limited, I.L.R. 54 Born. zr6 (P.C.);
- .The Commissioner of Income-tax, Burma v. P.V.R.M. Visalakshi Achi, (1937)
R.L.R.174; Re Rogers Pyatt Sherlac & Co. v. Secretary of State for India,
I.L.R. 52 C al. 1 ; ~he Commissioner of Income-tax, Burma v. Messrs. Steel
Brothers & Co., Ltd., I.L.R. 3 Ran. 614 at 6sz; Commissiorzer of Income-
tax, Bombay v. Nati011al JV!utual Life Association of Australasia Ltd., (I 93 3)
I.L.R: 57 Bom. 519; Hira Mills case, (1946) 14 I.T.R. 4 17, referred to.
'Wb'ere, according to the applicants the interest was paid by them on loans
secured mahlr from the Government of India, for the purpose of purchtsing
ships with which they were able to expand their shipping busine..-s h Burma
and earn more taxable profits in Burma.
Held: Tl:lat it cannot be imagined that the Government of India which
bad lent certain sums of money to the applicants for the purpose of purchasing
ships with which to expand the applicants business can have any business
. connection "ith the applicants and that of the sum of K 5,4I ,096 paid as interest
by the applicants out of the Union of Burma so much of it as was paid to the
Govern):nent of India fo~ loans taken for the purpose of buying ships was
allowable deductions as interest payments under section 10 (2) (iii) of the Burma
i. lnboine-taX Act read with sub-section (3) of section 42 of the Burma Income-tax
Act and Rule 33 of the Burma lncome-tax Rules.
U Paing for the applicants.
Ba Kyaw (Government Advocate) for the respondents .
.l! SAN MAUNG,j .-ln pursuance of.the order of the late
Hig~ Court dated t~e 31_st of. July 19~1. ln Civil
Miscellaneous Application No. 21 of 1960, the Income-tax
.t\ppellate Tribunal, Rangoon, has referred the followiJ:ig
q_uestion of la'.V for consideration: .
" Whether on the facts and drcumstances of the cru;e. the
' sum of K 3',4I,096 was an ~llowa}>le deduction as interest
BURMA LAW REPORTS. 33
payment under section ro (2) (iii) of the Burma lncolJle-tax
Act r:ead with sub-sec'tion 3 of section 42 of the Income-tax
Act and Rule. ~3 .of the Burma Income-tax Rules." MESsRs. THE
BHARAT; LINE
. .. . LTD.
. . T4e facts giving rise to the present reference are briefly Ths .
.these. for the assessment year I5l57-58, the applicants INc~ME-TAX
Messrs .. The Bhar?t Lin~ Ltd. which is a shipping company 4::~;~~~
with an . ag~nt in Rangoon, declared a nett income of BuR~8~No
K 1,80,388 . and produced their audited profit and loss
accounts. The Income-tax Officer; Conwanies Circle,
Rar1goon, acc~pted the accounts, but considered that
. -certain. expenses claimed by the applicants were not
admissible ... Therefore, after adding back the initial depre-
ciation alk)~vance of K 8,88,669, the unrecognized Pro-
vident Fund . contribution of K 59,919 and the interest ..
payment on I?ans of K 5,41,096 claimed by the applicants, .
he assessed. them on a net income of K 6,23,504. The. .
applicants being dissatisfied with the assessment appealed
to the Assis~nt Commissioner but their appeal was dis-.
. missed... T~ey then appealed to the Income-tax Appellate'
Tribunal which also dismissed their appeal on the ground: .
. (1) . tha~ tll.e.. initial depreciation claimed under section
10 (2) (vi) by. the applicants .was not admissible as such
<leprecia:tion was meant for resident industrialists only,
(2t) that the.Provident Fund payments could not be allowed
as ~he law allows only payments towards recognjzed Pro-
vident Funds, and (3) that the payment of interest outside
~he. Union of Burma .w~s directly against the law as
provided for in the proviso to section. 10 (2) (iii) of the
Bur~a Income-tax Act. The applicants then filed their
?pplic~tion under section 66 (r) of the Burma Income-tax
A~t requiring .the Tribunal to refer three questions of law
whic.ti were said to have arisen out of the order passed by
.the Tr~bu~a~. The application .was, ho~ever, dismissed
and they then applied under section 66 (2J of the Burma
Income-tax Act to the late High Court to direct .the
3
34: BURMA LAW REPORTS_.
_C.C . Tribunal to refer the 3rd question relating to the interest
1963
. - T- payments outside the Union of Burma. The present
M ESSRS. HE
-BaARAT LINE reference is the result of. the order passed by the late High
-: ~~- Court dated the 31st of July 1961, as mentioned above.
THE
~c~~~~x Now, . the applicants being a regular line of shipping
: TarsuNAL , , 'w ith an Agent within the Union of Burma, the special
BURMA AND
'" oNE.
. - } 1 f h" .
.provlSlo~s re atmg to certam c asses o s 1ppmg contame
. d
in Chapter V-A do not apply to them. In the case of those
- shipping companies w which that Chapter applies, the
rough and ready met hod of recovering the tax at the
sou:rce has to be made, option being given to the assessee
to be regularly assessed in the next year in the usual course,.
if they prefer it.
The applicants are a non-resident company owning ships
whichply not only between India and the Union of Burma:
but also between India and other parts of the world.
Accordingly, the Income-tax Officer concerned has to rely
on Rule 33 of the Burma Income-tax Rules which enacts,
that if the Income-t.ax Officer is of opinion that the actual
am0unt of the income, profits or gains accruin_g or arising
: to any person residing out of the Union of Burma, whether
directly or indirectly through or from any business connec-
tion in the Union of Burma ca-nnot be ascertained, the
amount of such income, profits or gains for purposes of
assessment to Income-tax m_a y be calculated. on such per-
cen~age -of the turnover so 0:ccruing or arising as the
Income-tax Officer may consider to be reasonable~ or on
an amount which bears the same proportion to the total
profitS -of the .business of such person such profits being
computed in accordance with the provisions of the Burma
Income-taxAct, as the receipts so accruing or arising bear
to the total '.receipts o f the business.
' . As :already pointed out above in computing the incom~
profits .or gains of the applicants on the basis of their world
BURMA LAW REPORTS. 3-5
business,. the Income-tax Officer had disallowed interest c.c.
1963
payments on loans of K s.4I,096. -
h 1
In so domg t e nco~e-tax Offi h ld h h MEssns. 'fin~
cer e t at t e proVIs,p BHI\RI\TLINE
to section ro (2) (iii) of the Burma Income-tax Act was L~.
applicable and that,. therefore, no allowance could be made ~~THE.
~ lNCOME-TI\X
to the applicants "to the interest paia by them outside the MPELt.ATE
Union of Burma, as they had failed to make t~x dedqctions ~~~
therefrom under section r8 of the Act. The contention oNE.
of the learned Advocate for the applicants is that the
provisions of section ro (2) (iii) and not the proviso there-
to are applicable to the applicants' Case.
Now, from the decision of the Bombay High Court in
Porbandar State Bank '" The Commissioner of Income-tax,
Bombay City (r), it is clear that the assessee is under no
obligation to deduct tax under section r8 from the interest .
paid by him outside the Union of Burma, unless the interest
which he ~ad paid outside the Union was chargeable under
the Burma Income tax Act. With great respect we are
entirely in agreement with the learned Judge of the Bombay
High Court in their interpretation of tk.e proviso to section
ro (2) (iii) of the Indian Income-tax Act, which corresponds.
to se<;tion ro (2) (iii) of the Burma Income-tax Act.
Sec~on ro in so far as it is relevant for the purpose of
the present case reads :
"10.. Business.-{r) The tax shall be payable by an assessee
under ~he.. head . " Business " in respect of the profits or gains of
any_business carried on by him.
(2) Such profits or gains shall be computed after making
the foilowing allowances, namely:
* * *
(iii) in respect of capital borrowed for the purposes of the
business, where the payment of interest thereon is
not in any way depending on the earning of profits,
th-e amount of the interest paid;
(1) (1950) 18 l.T.R. 134
BURMA LAW REPORTS ..
c:c.
x9o3
'Provided that no allowance shall be made under this
. P-- . clause in any case for any interest chargeable unde:
MllSSR$: TH:;: this Act which is payable without t~e Union of
BHAI(~T LIN"Jl
LTD.
Burma e~cept interest on which tax has been paid
... or from which tax has been deducted under section
THe
IJ:<CO.'-IE TAX r8 or in respect of which there is an agent in the
APPELL.~ Til Union of Burma who may be assessed under section
TRIBUNAL,
gURMA AND 43-''
ONE.
The question which tlOW requires consideration is this:
Where the in~rest payments made by the applicants to
persons residing outside the Union of Burma chargeable
under the Burma Income-tax Act? Such payments will
OI1iy be chargeable to tax under the Act if they are of the
nature enumerated in section 42 (r) of the Burma Income-
tax Act which reads:
'' 42. Non-residents.-{r) In the case of any person residing
out of the Union of Burma, all income, profits or gains
accruing or arising to such person, whether directly or in-
d~rectly, through or froni any business conne(;tion in the
TJnion of Burma. or through or 'from any property in the
Union of Burma, ,.or through or from any asset or source c.i'
income in the Union of Burma, or, through or from any
money lent out on interest and brought into the Union of
' Burma in cash or kind, or through or from the sale, exchange,
relinquishment or transfer of a capital asset in the Union of
B~trma. shall be deemed to be income accruing or arLc;ing
within the Union of Burma, and shall be chargeable
to income-tax either in his name or in the name of his agent.
fmd in the latter case such agent shall be deemed -to be. for
ail the purposes of this. Ae.t, the assessee in respect of. such
income-tax."
9the~ part~ pf this sub~section being irrelevant payments
. of interest by the applicants to persons residing out o f the
Union of Burma will only be ch~rgeable under the Burma
. Income-tax Act, if they cqnstitute it:lcome, profits or gains
accrui~g or arising to them whether. directly or inQ.irectly,
~11rou9b: or from any business c?n.nection in the Union of
Burmp.
-BURMA LAW REPORTS. 37
According to the applicants the interest was paid by ~9f3
them on loans secured mainly from the Government of M ESSIIS. ---- THE
India, for the purpose of purchasing ships with which they BHAIIAT LtNe
. . . B d L TD.
were able to expand their shippmg busmess m urma aJl v.
thus earn more taxable profits in Burma. This statement ~Nc'!::-TAx
of fact has not been controverte.d by the Income-tax ~~;~~~~~
authorities. Assuming~ that the creditor of the applicants BuRMA AND
0~!'
is in the main, the Government of India which had l~nt the
applicants money for the purpose of purchasing ships with
which to expand their business, can it b~ said that the
interest on these loans had accrued to the Government of
India either directly or indirectly through or from a
business connection in the Union of Burma. As to what
constitute " business connection " within the ambit of
section 42 (r), is not capable of exact definition. However,
reference.will now be made to a few cases bearing on this
question. In Re Rogers Pyatt Shellac & Co. v. Secretary
of State for India (2), a company, incorporated in the
United States of America and having its head office in New
York and branch offices, agencies and factories in Calcutta,
London, etc., whic'h purchases goods 'in India for sale in
the open market in America or for another company in
America and which had also a factory in the United
Provinces, where raw produce was bought locally, and was
worked up into a "form suitable for exports to America,
was held to be no~ exempt from assessment to income-tax
or super-tax in India, because of the existence of a business
connection in India. In this connection, Ch?tterjea J.,
who wrote the leading judgment in the case observed that,
" The English Finance Act (No. 2) of 1915 section 31 (2)
ll:Ses the words ' through or _from any branch, factorship,
agency! receivership or management ' and the comprehen-
sive expression ' business connection was probably used in
the Indian Act to .cover all thqse words.' "
(z) I.L.R. sz, Cal. p. 1.
38 BURMA LAW REPORTS.
C,:f
lyv3
This view of Chatterjea ]., was quoted with approval
-
. MESSRS. THE
by a.'Full Bench of the late High Court of judicature at
B'HARAT4.I N Rangoon in the Commissioner of Income-tax, Burma v.
LTD . Messrs. Steel Brothers & Co., Ltd. (3) where it was
THE
INCOME-TAX
observed :
APPELLATE
TRIBUNAL,
" VY.e a.dmit the d~fficulty arising from the vague expression
BURMA AND 'froin. any. business connection.' Taken in its wide sense, it
ON I .
W0uld render liable to Indian income-ta~ any profits made by
a manufacturer in England on a single consignment of goods
to an . importer in India. This is the meaning which the
. Commissionh of Income-tax seems to have attached to the
phrase, and is the meaning which, the learned Government
Advocate contends, is the correct one. It is one, however,
. wh~ch w.e cannot adopt, as sucn a meaning would be repugnant
to the word 'business ' in section 6 as defined by section 2 (4),
and w-e can assign no wider meaning to it then the latter
words of. the definition as ' any adventure or concern in the
nature ,qf trade, commerce or manufacture.' It was probably
use:l, as Mr. Justice Chatterjea conjectures. as ~ compendious
expression. to cover such concerns in the nature of trade.
commerce. or manufacture as arise through a branch, factor-
ship, agency. receivership or management. But be this as its
may its meaning': in our opinion, must be strictly confined
to the meaning of the word ' business in s~tion 6."
In Commissioner of Income-tax, Bombay v. Currimbhoy
. Ebrahim & Sons Ltd. (4) which was decided prior to the
1939 amendment of section 42 (r) of the Indian Income-
tax .Act, it was held that interest on monies lent abroad
and brought into India was deemed to accrue in India i.f
the tran~action of the lo;1n constituted or sprang from a
business connection in India and that such business connec-
. tion can .only exist, whe:te there is a succession of acts or a
;~ontinuity of transaction or acts so that the granting of a
smgle loan .by a resident outside India to a person in India .
. did not fall within the ambit of section 42. In that case
the .assessee was a company carrying on business in
. (4) (1933) I I.T.R. 341
BURMA LAW REPORTS. : 39
Nizam of Hyderabad . at a certain rate of interest and the c.C
1963
principal and the interest was payable in Hyderabad. The --
. . "d . h MESSRS.TH
.assessee paid a sum of Rs. 3 lakhs as mterest urmg t e BHARATLtNE
year of assessment. They were charged vdth income-ta;x ~~-
on this amount under section 42 and 43 of the Indian btoo~~~TAx
Income-tax Act as agents of the Niza~n. and it was held that API>ELLATE
TRIBUNAL,
the assessee company was not liable tO be assessed as there BuRMA A."lD
was no business connection between the company and the ONB.
Nizam; the relationship between the parties being that of
:debtor and creditor and nothing else. This.,decision of the
Bombay High Court was confirmed by the Privy Council in
the Commissioner of Income-tax, Bombay v. Currimbhoy
Ebrahim & Sons Ltd. (5) wherein it was observed:
" Upon the question whether the interest arose to the Nizam
through or from any business connection in British India, 'their.
Lordships observe that so far as appears from the facts found
i!'J the Letter of R-eference. the loan made by the Nizam to
the respondent company on August r6, 1929, was an isolated
transaction between the parties. It is not shown that the
Nizam has at any time had an interest direct or indirect in the
respondent company. There is no e\9dence of a course of
dealing between the parties such as might fairly be described
as a business connection previously substisting between
them ...... "
In another case from Bombay, however, the Privy
Council agreed with the Bombay High Court that a
... business connection " within the meaning of section 42
existed between two banking companies in the Commis-
sioner. of Income-tax, Bombay Presidency v. The Bombay
Trust Corporation Limited, Bombay (6), the facts were as
follows: -The Hongkong Trust Corporation was a limited
company incorporated in Hongkong in July 1921. Its
memorandum of association showed that it was established
~or purposes of carrying on business as bankers and
Is) (1935) 3 I.T.R. 395 at pp. 400-401. (6) l.L.R. sz Isom. 702,
40. BURMA LAW REPORTS.
~;: firtaliders and advancing, depositing or lending mqney tO>
. .!....!. . or with companies and others at Hongkong or in any other
MESSRS. THE
BHARA'r LrNil part of the world. The assessee, the Bombay Trust
. ~7o. Corpor-ation Ltd. was a private limited company incorpo-
. INco~.fAx rated. in Bombay in September 1920. Its aim was to carry
APTPEt.L-<r.E .on business as finan<;iers and to conduct all kinds of
RTBUNAL, ,
Bu_RMA 'A ND financial operations such as lending money to compames
ONE. "and.. otihers.. The paid-up capital of the Hongkong Trust
=..Corporation was 8 crores of rupees. in addition to 7 or 8'
crbres of rupee;; it had at its disposal on account of deposits;
received. from all sources. Although it could do money
:lending business in all parts of the world, it had confined
. its acti'yJties to Bombay Where almost the whole of the
above sum of. 16 crores had been lent from time to time
in the shape of fixed deposits with the assessee at 5 ~ per
cent interest. The total interest paid thereon by the
.. assessee .for the year 1924 amounted to over 88 lakhs and.
the total interest paid for the year 1925 amounted to over
82 lakhs. .It was held by th~ Bombay High Court that
there ~as a ".business connection " between the Hongkong .
.Trust Corporation and the B<?mbay Trust Corporation Ltd.
within the ~meaning of section 42. With this view the
Privy CouncH agreed in tl;.e Commissioner of Income-tax,
Bombay Presidency v. the Bombay Trust Corporation Ltd.
(7). The above two cases of the Bombay High Court were
referred to by the late High Court of Judicature .at Rangoon
.in the Commissioner. of Income-tax, Buf'ma v. P.V.R.M.
Visalakshi Achi (8)~ .where it was held that .. business.
connection" within the meaning of section 42 (r} of the
.Income-tax Act, meant. an adventure or conce:rn in the:
nature ,o f trade, commerce or manufacture with which a:
:person was. cori.nected. and that 'iSolated loan transactions.
, entered into -outside the country did not <:orne within the
purview of the section.
. . . . .
: .. . (7.,. I i L.R._':s~ Bom. 702. . . . (8}. (1937) R.LR,. 174.
BURMA LAW REPORTS.
From the above it is clear that the expression " busi- ~9~3
ness connection " which
.
has a wide meaning. admits vf no M . T
ESSRS. HE.
Precise definition' and that accordingiy ..the solution of the BHARAT
LTo.
LtNE
question must depend upon the particular factors of each t~o
. THE
case. 'This was emphasized by Beaumont C.J .. in Commis- INcO:\tE-nx
. APr.ELLA TE
swner of Income,-tax, Bombay v. Metro Goldwyn Mayer Tnxs~;=-H.
BURMA A);D
(India) Ltd. (9), where if was held that "business connec- ON.
tion " denotes some element of continuity in the relation-
ship between the person in India who makes the profits
and the non-resident who receives them and that a single
transaction would not fall within the section.
The case law on the subject has, however, been exten-
sively reviewed by a Bel4ch of the Madras High Court in
Bangalore Wollen, Cotton and Silk .Mills Co., Ltd. v. Com-
missioner of Income-tax, Madras (Io). So the followjng
passage from the judgment in that case may be usefully
reproduced :
" In o~der to elucidate the meaning of the expression
business connection ' the learned couns-zl on both sides drew
our attention to several decisions which have considered
the quest:on. A detailed .exainination of the5e decisions
however .does not enable us to arrive at. the exact meaning
of the expression business connection ' and. define its
scope and ambit. It is, however, clear that it is an expre,ssion
of a very comprehensive nature and not necessarily confined
to the definition of business ' in section 2 (4} of the Act.
T~is is made clear by the decisi.on of Sir George Rankin in the
Privy -Council case in Commissioner of Income-tax, Bombay
v.Currimbhoy Ebrahim & Sons Ltd. {5). There, it was pointed
out that the. words business connection' .and 'property'
were not repetitions of the expressions 'business ' and 'pro-
. perty ' ap~aring in section 6 when~ . the heads of income are
described. In view of this decision the view expressed by the
(9) (1939) 7 I.T.R. 176. (IO) (1950) IS I.T R. 423,
.. - .
(s) {1935) 3. I.T.R. 395 at pp. 4oo-4o1.'
: . .. . .. . . . ... . ,'
42 BURMA 'L AW REPORTS.
Calcut'ta High Court in Rogers Pyatt Shellac & Co. v. Secretary
- -
'MESSRS. 'l'HE
of State for lndia (2) and of the Rangoon High Court in Com-
missioner of Income-tax, Burma v. Messrs. Steel Brothers &
-:BHARAT LINE
LTD. Co., Ltd. (3) is not correct. In order to constitute a business
v. connection there must be some continuity of relationship
THE
J:NCOME~TAX between a person in British India who makes the profits and
APPELLATE the non-resident -who receives them. As observed by
TRIBUNAL,
BURMA AND Rangnekar, j. in Commissioner of Income-tax, Bombay v.
ONE . National Mutual Life Association of Australasia Ltd. (II) "the
expression business connection is a more comprehensive ex-
pression as including not only the kinds of things specifically
described ~s being included in the term. but the kind of
things which are specifically mentioned in the English Ac't."
In the English Finance Act, II of r 9 r S'. in section 3 the words
used are through or from anv branch factories agency.
receivership or management." I respectfully agree with the
learned Judge when he says at page 534 "All that is ne{:essary
is that ..there should be a ' business ' in British India and a
connection .between a non-resident person or .company and
that ' busines.s and that the non-resident person or company
has earned an income through such connection." This was
.also the view accepted by the Allahabad High Court in Hira
Mills case (12). A business connection therefore may arise
by reason of th~ existence of a branch of the non-re;:dent
company or organization in Britisn !ndia or b~' the
existence of a factory or even by the existence of an agent.
Very often, there may be a su'Jsidiar;. company in British
India, subsidiary to the non-resident company, formed with
the object of selling 'the manufactured goods or wares of the
non-resident principal. The business connection may be even
a connection arising out of financial relations. The non-
resident busine~s and the r-esident business may be tv\fO
separate legal entities and they may be closely connected or
assoGiated either by reason of some common control or by
reason . of>the non-resident company or firm fin;ancing the
resident company or firm. The goods of a non-resident
company may be sold by a broker or commission agent
residing in Br:tish India or the person resident may render
(~l l.L.R. s2 Cal p. 1. . (3) I.L.R. 3 Ran. '14 at 652 .
(1 r) (19.33) I.LR. s9 Born. 519 at 534. (12) (1 946) 14 I.T.:R,. 417.
BURMA LAW REPORTS. 43
various services to the non-resident or conduct business acti-
vities. These are some of the factors which result in a busi-
ness connection within the meaning of the section. The cases MEsSRs. TH
. . BHARATLINE
c1ted at the Bar fall under one or other of the categones LTD.
enumerated above. If there is noly one isolated transaction v.
THE
between a non-resident and resident that would not constitute INcoME-TAX
a business connection (vide Commissioner of Income-tax, APPELLATE
.. TRIBUNAL,
Bombay v. Currimbhoy Ebrahim & Sons Ltd. (5). BuRMA ANI>
ONE.
Coming to the case now under consideration, it cannot
be imagined that the Government of India which had lent
certain sums of money to the applicants for the purpose
of purchasing. ships with which to expand the applicants'
business can have any " business connection " with the
applicants. It is not known who are the other creditors
-other than the Government of India and how close are
their "business connections" with the applicants regard
being had to the observations made above. Are they
persons who regularly financed the applicants so that their
own success or failure in their business as money-lenders
is inextricably bound up with the success or failure of the
applicants' company; what is the degree of control, if any.
that they have in the affairs of the applicants? Upon
these factors will depend the answer to the question
whether they have any business connections with the
applicants and therefore, the interest paid to them by the
applicants chargeable under the Burma Income-tax Act in
view of section 42 (r). For these reasons we can only give
a qualified answer to the question propounded by the
lncome-tax Appellate Tribunal, Rangoon. We will say
that of the sum of K 5,41,096 paid as interest by the
applicants outside the Union of Burma so much of it as
wa~ paid to the Government of India for loans taken .for
the purpose of buying ships was an allowable deduction as
interest payments under section 10 (2} (iii) of the Burma
(s) (1935) 3 I.T.R. 395 at PP 400-401.
BURMA LAW, REPORTS.
c.c.
r963
Income-tax Act read with sub-section (3) of s,ection 42 of
MEssRS. ThE the ,Burma Income-tax Act and Rule 33 of the Burma
BHARATLlNE Income-tax Rules.
LTD.
v. Each party must bear its own costs of this reference.
THE
INCOME-TAX
APPEIO.ATE
TRIBUNAL,
BuRMA AND
. 0~~-
BURMA LAW REPORTS. 45
ORIGINAL CIVIL
B fore U San Maun_;t, U Saw Ba Thein rlltd U Trm Ti 1, JJ.
MESSRS. VV. W. WOOD. SONS A:->!:> PARTNERS
(APPLICANTS)
Feb. zr.
v.
THE COMMISSIONER OF INC0:\1E-TAX, BURMA
(RESPONDENT).*
When contract said to be made in Burma--Ojj8r m-:zd: from outside Burma
Brmna Income-tax Act, ss. 42 (t)/4 (r) (a) and (c)-R,muneration received
in Bur ma and r~mittni to for~ign cormtr:y-Asuttabk.
In p.Jrs:.tanc~ of a c:>.ttract with the National Housin g Board, Rangoon,the
applicants, who are a fum of architects, structural en stineers and quantity
surveyors of Singapore supplied the National Hou; ing Board with plans and
d~ig~s of b:.tilcting which were prepared in Si 'gapore. On completion of the
b:.til:iing the applicants were paid as their remuneration K 29,6o8 computed
on the perc!ntage basis of cost of b:~ildings erected a:~d this money was uti!!ze:i
in purchasing for them bank drafts which wen th~n posted to th~m at Singapore
"to enable them to encash the same in foreign currency.
The applicants denied theirliability to pay income-t ix in Burma on the
-said remuneration rec3ived by them on the ground that the contract was carri~d
<>ut wholly outside the Union of Burmo.
Held: That as the offer for contract of s ~n ic :s made by the applic.mts by
means of a lett~r from Calcutta was acc.ept ;d b~ tiu )\ational Housing Bonrd by
means of at !I :gram, the contract of servic: mu~t be deemed to have been made
in Burma although no document was sign!d by th~ applicants in Burma.
Held also: That the rem"J.n,ration rec ;iv~d by th~ applicants was from a
.Sourc! of income in the Union of Burma and that therefore the applicants are
assessable to income-ta.'C in Burma in view of the provisions of section 42 (1)
<>f the Burma Incom~-tax Act, read with section 4 (1) (a) and (c) thereof.
U Paing for the applicantr
.Ba Kyaw (Government Advocate). for the respondent.
U SAN MAUNG, J.-This reference under section 66 (2)
of the Burma Income-tax Act arises out of the order dated
the 9th March 1959 passed in appeal No. 81 of 1958 of the
. Civil Miscellaoeo\.:.5 Application No. 51 of I959 Reference made by the
Income-tax Appellate Tdbunal, Burma, with regard to its o~der, dated the 9th
i:J. \ ppeal No. 81 of (1958).
46 BURMA LAW REPORTS.
Inco,rne-tax Appellate Tribunal, Rangoon. The question.
which was referred for the decision of the late High Court
MESSRS.W.
W. Wooo, reads: .
SONS AND " Whether on the fact and in the circumstances of the
PARTNERS
(/ .. case the architectural fees are assessable under section I I read
THE CoM- with section 4 (1) of the Burma Income-tax Act?"
MISSIONER
OF INCOME
TAX, BuRMA: The facts giving rise to the present reference are briefly
these. The applicants Messrs. W. W. Wood, Sons and
Partners; are a firm of architects, structural engineers and
quantity surveyors of Singapore. They had entered into
. a contract with the National Housing Board, Rangoon, to:
draw plans and designs for some buildings to be erected at
Rangoon. The contract took about three or four years
t6 fulfil and in the year 1953-54 the applicants supplied to
the National Housing Board plans and designs of some
buildings for which they received payments amounting to
K 29,608. It was not a casual undertaking of the
applicants with the Board, because they subsequently
declared that they had during the same period of three or
four years fulfillea similar contracts with the War Office,.
Commander; Burma Engineering Branch, Government o{the
Union of Burma and the Union Bank of Burma, Rangoon.
In respect of these contracts they received their remunera-
tion separately during the same period. They, however,.
denied their liability to be assessed under the Burma
Income-tax Act for these payments, and declared that their
income f-or the assessment year 1954-55 was nil. They
also gave nil returns for the assessment years 1955~56,.
1956-57 which are the subject-matter of the references in
Civil Miscell~neous Application Nos .. 52 and 53 of 19S9
The Income-tax Officer, Companies Circle, Rangoon,.
however refused to accept the returns submitted by the
applicants as valid, and making the .assessment under sub-
section (4) of section 23 pf the Burma Income-tax Act.
determined the income of the firmfor the assessm~nt year
1963] BURMA LAW REPORTS. 47
1954-55 to the best of lt1s judgment as K 29,608 vide the c.c.
1963
assessment order dated the 27th November 1957, a copy -
of which has been annexed to the statement of the case. ~~s:o!:.
.
The app11cants appealed to t he Ass1stant
. commiss1oner
. . . SONS ANI>'
PARTNERS
of Income-tax on the ground that they were not liable to T~vCoM
any income-tax in Burma, as the contract was carried out MlssxoNl!R
OF lNCOMB-
Wholly outside the Union of Burma, except for a few TAx, BuRMA-
occasional visits of their partners to Rangoon at the request
of the National Housing Board for the purposes of taking
necessary instructions. The Assistant C01hmissioner of
Income-tax however held that the applicants' contention
that the payments were received outside Burma as these
payments for their bills in respect of the work done, were
received in foreign currency in their Banks outside Burma,
was untenable and that in the circumstances of the case
the payments for the contracts were, in fact, received in
Burma and that accordingly, they were assessable under the
provisions of section 4 (r) (a) of the Burma Income-tax Act.
The applicants then appealed to the Income-tax
Appellate Tribunal, Rangoon, and the Tribunal by its
judgment dated the 9th March 1959 in Appeal No. 8I of
1958 dismissed the appeal. The Tribunal's decision was
that the source of income of the firm was not the place
where professional activities were performed by. the firm,
but the place where the National Housing Board that
employed the firm to perform the professional activities,
and made the payment for the professional fees is situate,
namely, Rangoon. Accordingly, the Tribunal held that
the firm though non-resident was assessable to income-tax
in Burma under section 4 (r) (a) and (c) read with section
42 (r) of the Burma Income-tax Act. The Tribunal also
refused to make a reference to the late High Court under
section 66 (r) of the Burma Income-tax Act, but the late
High Court by its order dated the 17th July 1961 under
section 66 (2) of the Burma Income-tax Act directed the
48 BURMA LAW REPORTS.
c.~. Trib~1nal to state the case of the applicants .for the.deter-
9
. ! _, mination of the question of law arising therefrom.
MESSRS. W.
w. Wooo, Now, according to paragraph' 4 of the firm's declaration
SoNs AND
PARTNERS dated the 26th May 195 .
8 (Annexure " B ") , t h e contract
'):'He vCoM~ for the services performed by them for the National
.,o~~~~~~B- Housing Board was by letter of offer made by them from
cAx, BuRMP.: Calcutta. This offer was accepted by the National Housing
Board by telegram dated the 29th May 1953 accepting the
fees quoted bv the applicants, vide the grounds of appeal
filed by the applicants before the Assistant Commissioner
of Income-tax. Therefore, although no document was
signed by the applicants in Burma, the contract of service
ml:lSt be deemed to have been made in Burma.
Regarding payment, it is common ground that the fees
which were computed on a percentage basis of the cost of
the buildings involved (which was in kyats), were remitted
to the applicants by bank drafts purchased for them in
Rangoon . These bank drafts which were in terms of
foreign. currency, -yvere then despatched to the applicants
at Singapore by post. In these circumstances, the Assistant
Commissioner of Income-tax held, that the applicants
received payments in Rangoon for the contracts performed
by them, the bank drafts concerned having been posted at
Rangoon. In this connection, the Assistant Commissioner
relied upon the -decision of the Supreme Court of India in
Com'tnissioner of Income-tax, Bombay South, Bombay v.
Ogale Glass Works Limited (It). In that case the assessee,
a non-resident company carrying on business of manufac-
turing certain articles in the State of Aundh, secured some
contract for Jhe supply of the articles to the Government
of India. The contract provided that " unless otherwise
agreed between the parties payment for the delivery of the
stores will be made on submission of bills in the prescribed
( t ) (1954) XXV l .T .R . 529.
BURMA LAW REPORTS. 49
form in accordance with instructions given in the ~9~3
acceptance of tender, by cheque on a Government Treasury "" -
.nESSRS.
\l"
IV.
in India or a branch of the Reserve Bank of India or the ,v. Wooo,
Imperial Bank of India transacting Government business::. ~c;;:N;;."so
In submitting the bill in the prescribed form, the assessee TH,"" Co?.r-
requested that the amount be sent w him by a cheque in ~111~COJ\fETAX, sstoNER oF
his favour on a bank at Bombay. Accordingly, a cheque BuRMA.
drawn on the Bombay branch of the Reserve Bank ofIndia.
was sent to him by post. In these circumstances it was
held that apart .from the implication of ~n agreement
arising from such business usage, the assessee expressly
requested the Government to remit the amount of the bills
by cheque and that this clearly amounted in effect to an
express request to send the cheque by post. Therefore
when the Government posted the cheque in Delhi this fact,
in law, amounted to payment in Delhi. The Tribunal
while .not disagreeing with the view expressed by the
Assistant Commissioner of Income-tax, held that in any
event the provisions of section 42 (r) of the Burma Income-
tax Act were applicable. and that_ accordingly the
applicants were assessable to income-tax under section
-t (1 l (a} and (c) of the Burma income-tax Act.
:\ow. :.,ceiion -~ 2 : ; : d t:~'- tiu:-n~,\ lncornc-~ax .-\ct c;o far
as it is rele,ant for the present purpose reads:
" In the case o: .1ny pcrsor. rc-;!ding out of the Union of
Burma_, all income prcilts or ga;n> .:;n.:ruing or arising to such
person, wh~ther direct!y or indirectly through or from any
busin~ss connection in the Union of Burma, or through or
from any source of income in the Union of Burma shall be
deemed to be ~.ncome accruing or arising within the Union of
Burma, and shall he chargeable to income-tax either in his
m
name or .the _nam~ of his agent, and in the latter case such
agent shall be deemed to be, for all the purposes of this Act,
the assessee in respect of such income-tax."
We are entirely in agreement with the Income-tax
Appellate Tribunal, that the remuneration received by the
4 ~
. Bl)~MA LAW REPORTS .
. ...
-:.
c.c. applicants was from a source of income in the Union of
1993
Burma. Th'e . applicantS supplied the NationaI Housing
~~~~~~: Board with plans and designs of buildings which afte:t
sPoNs ~u''D . approval by the Board were utilized in erecting the build..
ARTNBRS
v. ings concerned. The applicants were paid on the basis of
i-..:;s~~~~F thecost of the buildipg erected. Their remuneration which
. J~B:~~:Ax , was. computed in kyats, was then utilized in purchasing
for t>hem bank drafts to be sent to them by post at Singa-
pore enabling them to encash the same in foreign currency.
In these circlJmstances notwithstanding the fact that plans
and designs were drawn by them outside the Union of
Burma, the applicants are assessable to income-tax in Burma
in view of the provisions of section 42 (r) of the Burma .
Income-tax Act, read with section 4 (r). (a) and (c) thereof:
In the circumstances, it is unnecessary to consider
whether the law has been correctly laid down by the
Supreme Court of India in the case of the Commjssioner
of Income-tax, Bombay South, Bombay v. Ogale Glass
Works Limited (1) and if so, whether it has been correctly
applied to the circumstances of this case. However, had
it been necessary so to decide, we would be inclined to say
that the views of the Assistant Commissioner of Income-tax
are not without merit. For these reasons, our answer to
the question propounded by the Income-tax Appellate
Tribunal will be in the affirmative. The Applicants must
pay costs of this reference, Advocate's .fees being assessed
at 20 {twenty} -gold mohurs.
(z) (1954) XXV I.T.R. 529 . .
BURMA LA;W I_\EPORTS. .51
ORIGINAL CIVIL
Before U Marmg Mmmg, J.
c.c.
MOHAMED EBRAHIM SALEBHOY (PLAINTIFF)
v. .--
1963
Jan. 24
THE CONTROLLER OF IMMIGRATION (DEFENDANT).*
Whethu plaintiff has cause o.f action-Catr be determined at any time in suii
In~rnational Law-Principles in. Burma Immigration (Emergmcy Provi-
sions) Act, s. 7 (2)-Duty of Cotrtroller of ImmigratiQ in uercising pou:er
under.
Where it is contenaed that the defendant wlio has not yet fiJed his written
statem~nt cannot raise the preliminary objection that the sui tis not maintainable
in law.
Held; That it is at alit imes relevant in the trial of a suit, to consider wh.-ther
there is a cause of action, or whether the plaintiff has asked for a rdief which
is within the power of the Court to grant. If the plaintiff can convinc.:the
Court that he has. at least a colour of a legal right it would be the duty of the
Court to give him an opportunity to try and establish that right by leading
evidence at the trial.
It is a wdl established pdncirle in International Law that for.:igners enter
a sover.:ign State only by permission on the sufferanet of the State and they. are
liable to be expelled or deported from the State at the pleasure ofthe authoritieS
who exercise the sovereign power of the State.
Kyi Chung York v. The Controller of Immigration, Burma, 1951 B.L.R.
(S.C.) 197, followed.
I tis also a fairly welle;hblished principle of International Law that foreigners
who are admitted into-the State must be treated in many respects in the same
way as citizens, without discrimination. This principle, however. does not
derogate from the power of the sovereign State to decidE' who amongst foreingers
~~b~~~~~~~~~~~~~
what ~onditions as far as their permits of stay are concernea.
V.E.R.M.N.R.M. Kosi Viswanathan Chettyar v. The OjficiaJ Assignee and
one, 1958 B.L.R. (S.C.) 74, distinguished.
If the rather drastic power granted by section 7 (2) of the Burma lmmigra
tion (Emergency Provisions) Act is to be used, the Controller must act judi-
cially, after proper inquiry, and in conformity with rules of natural justice such
as giving the other side an opportunity to defend himself. Hasan Ali v
S~cretary, Ministf'y of lm_migr~tion and one, 1.959. :B!L.R. (S.C.) 187; &~
Jttaul v. Controller of Immtgratton, 106o B.L.R. cs:c.)
.249; referred to.
Civil Regular Suit No. 105 of 1962.
NOTB.-This decision was upheld in Civil First Appeal No.18 of 19.63
decided on the 19th September 1963.
BURMA LAW REPORTS . .
c.c. R. Bq.su for the plaintiff.
1963
Tun Nyo (Government Advocate) for the respondent.
MOH.-\..~ED
EBRAHIM
s.u.iumov U MAUNG MAUNG, J.-The plaintiff, a foreigner, sues
~ under section 42 of the Specific Relief Act for a declaration
CoN~:oLLER that he is qualified to-stay in Burma perrnanently, and that
IMMIGR\-. he inay not be directed by the Immigration authorities to
TI.ON.
leave: In paragraph r of the plaint the qualifications for
the so-called status of the "permanent resident" are laid
out. The plai.ntiff says that he first came to Burma in 1930
and was in continuous residence from the rst January 1932
to the ISt January 1942 except for a few breaks which are
described. The continuous residence up to 1942 qualified
him, according to the plaintiff, to a re-entry and permanent
stay in the country.
The Immigration authorities have taken up proceedings
to expel the plaintiff from Burma a nd the first date they set
for the plain~iff's departure was 23rd March I959 Against
this order, the plaintiff appealed to the Ministry of Immi
gration without success, and also went to the Supreme
Court in Civil Miscellaneous Application ~o. 85 of 1960
for a writ of certiorari. The application for a writ was
dismissed because the Supreme Court heid that there was
no justifiable order and the application was premature.
The Immigration authorities then asked the plaintiff to
leave by 7th April I96I and once again the plaintiff
appealed to the Ministry and c:~.lso applied to the Supr.eme
Court ii?- qvil Miscellaneo~s App~i<:ation No. 68 of I96I
for ~ writ~ on<;eagain to be rejected on. the ground that the
application. vv.as premature. The dat.e .of his departure w~
exten~~d to 29th, September r96r. by the Immigration
authoriti~s and the plaintiff was also pJ;"psecuted before the
3rd Additio~al . Magistrate, Rangoon; under section r 3 . (r)
of the Burma Immigration (Emergency Provisions) Act in
c ivil :Remlar
" .
Tria~ No.
.. .
9o2. of
.
r96r . and was convicted:
BURMA LAW REP,qRTS, 53
Tne Controller of Immigration, defendant :in the suit,
has raised a preliminary objection that the suit is not
MoHAMED
maintainable in law because in the first place he has the EBRAHJM
SALEBHOY
administrative authority and had acted after a due inqmry "
and found sufficient ground for cancellation of the co~u.u.
plaintiff's stay permit and, secondfy, that the plaintiff, r~~u
being a foreigner permitted on the sufferance of the noN.
Government to reside in the country, has no legal right Oil'
which he may found the present suit. The issue of main-
tainability., thus raised, needs to be decid~d and I have
heard arguments on that point by Mr. Basu, the learned
Ad,ocate for the plaintiff and U Tun Nyo, learned Govern-
ment Advocate for the defendant.
\lr. Basu would have me hold that the defendant
cannot raise such a preliminary objection since he has not
yet filed his \Hitten statement, and therefore, as it were,
not yet fully in the picture. I do not however consider
that to be a valid contention because it is at all times
relevant in the trial of a suit, to consider whether there is
a cause of action, or whether the plamtiff has asked for a
relief which is within the power of the Court to grant. If
there is no cause of action or if the relief sought for is not
within the power of the Court to grant. then there is no
point in going through the motions of the trial such as the
filing of the pleadings, the framing of the issues and the
hearing of evidence. This does not mean, however, that
the plaintiff must be cut short, for if he can convince the
Court that he has at least a colour of a legal right it would
be the duty of the Court to give him an opportunity to
try and establish that right by leading evidence at the trial.
Mr. Basu, in his learned and valiant arguments before
me for two days, tries to make out in the first place that
his client had a legal right to stay permanently once he
had been granted re-entry into the country after the war
because he had satisfied the requirements of contilluous
54 BURMA LAW REPORTS.
fJ; residence before January 1942 and secondly, that the defen-
M~so ~ant has not given him the necessary opportunity to
EBRAmM establish the right but instead had taken steps against 'him
SALBBHOY
v. wh1ch were wrong m law.
THE
CoNTRo'tx.r:R In advancing his first argument, Mr. Basu is unable to
OF
INMicRA- refer me to any provision of law which says clearly that a
TION,- man such as his client who has resided in Burma
mntinuously for a specified period of years before specified
dates has a vested right to stay p~rmanently in the country,
. immune from any action on the part of the Government
tO expel him. Mr. Basu, can only speak of the long
established practice by which the Immigration Department
issued visas. for " permanent stay ", or rather visa without
limitations as to time allowed for stay, to those who have
the above mentioned qualifications. U Tun Nyo, on the
other hand, submits that the permission granted to
foreigners who have the residential qualifications to stay
on without any time limit is arranged by administrative
instructions and does not constitute a right on the part of
the foreigners to stay permanently. In any case when
after due inquiry it js discovered by the Controller of
Immigration that the re-entry had been obtained by
fraudulent .means or that the holder of the so-called per-
manent stay permits has been guilty of certain breaches
of the rules and the requirements, the Controller has the
right either to have the foreigner prosecuted or ..to move
.for his explusion under section 7 (2} of the Act as i.Iitro-
'duced in 1959. In this case, U Tun Nyosubmits; a careful
and elaborate,inquiry had been conducted as evidenced in
proceedings No. 19 of 1959 which is produced, and it was
only on the facts as revealed by the inquiry that the
.defendant had proceeded to have the plaintiff expelled
from the country.
' To have cause of action in order to sustain the present
suit, ~he plaintiff must have a legal right which this Court
-,
BURMA L'AW REPORTS. ss
may protect. He must therefore, be able to say at all times c.c.
1963
-whether at this early stage when the defendant has not
Moawm
yet even filed his written statement or later by way ofc El!RAHl M
S.>.LEBHOY
evidence- that he is clothed with the right to reside in ~-
this country in defian ce of all orders issued against him by "llni
Cor-.'TROLLER
the Immigration or other Governmental authorities. It is OF
IMMlGRA-
a well established principle in International Law that . TION:
foreigners enter a soverign state only by permission and on~
the sufferance of the State and they are liable to be expelled
or deported from the State at the pleasure of the authorities
who exercise the soverign power df the State. This
principle has found its place in such of our statutes as the
Foreigners Act, section 3 of which gives unbridled power
of deporting foreigners to the Governmental authorities.
and there have been numerous decisions which ha\'e upheld
this power. See Kyi ChJJng York v. The Conrro/ler of
Immigration, Burma (1).
Mr. Basu, while conceding that if an order of deporta-
tion had been issued against hi~ client under section 3 of
the Foreigners Act, t here would be no ,_emedy available to
him against the order argues that proceedings are now
being taken against him under the Burma Immigration
(Emergency Provisions) Act and rules made thereunder
which bestow a " right " to his client to stay permanently
in this country. This would put the plaintiff in the
anomalous position of being a foreigner who has no " legal
right " to stay under the Foreigners Act, but who has such
a right under the Immigration Act. Mr. Basu, also draws
my attention to a decision of the Supreme Court which has
held that an alien in this country is not denied the funda-
mental rights enjoyed by citizens though some of the rights,
such as the right to trade or transfer immoveable property
may be restricted by law. That also is a fairly well
established principle of International Law under which
(t}(I95I) B.L.R. (S.C.), p. 197.
BURMA LAW REPORTS.
foreigners who are admitted into the State must be treated
in many respects in the same way as citizens, without
l'tri~:::;~~) discrimination. The principle however, does not derogate
. . SAL:.HoY from the power of the sovereign state to decide who
THt amongst foreigners vvho apply for leave to come may enter
CONTROLLI!R d'
oF and how long they may stay and under what con 1t10ns as
~~~;~~"'- far a~ their permits of stay are concerned. The decision to
which Mr: Basu refers namely V .E. R.M.N.R.M. Kasi Viswa-
nathan Chettyar v. The Official Assignee and one (2) decides
that an alien's right to leave a country is a basic human
right and he may not be detained unlawfully when he
wishes to depart. Here in this suit the plaintiff, a
foreigner, is asking this Court to declare that he has a right
to stay on ip the country permanently, and his right to
depart is not being in any way questioned.
The second argument which is taken up strongly by
Mr. Basu is that the defendant has prosecuted against his
client wrongly. A proper inquiry should have been made,
Mr. Basu argues, and if the plaintiff is found to have broken
any rules or conditions he should have been prosecuted.
If a conviction results, then the Controller may act to have
him deported. The decision of the Supreme Court in Civil .
Miscellaneous Application No. 85 of 1960 in which the
plaintiff asked for a writ outlined the procedure in which
the Controller may act in such cases. If the rather drastic
power granted by section 7 (2) of the Burma Immigration
(Emet:gency Provisions) Act is to be used, the Controller
must act judicially~ after.proper inquiry, and in conformity.
with, rules of .natural justice such as giving the other side .
an opportunity to defend himself. If action under section
7 {2) does n;ot conformto this ,requirement~ the order is
liable: t<(be quashed by a writ of certior.ari. The pow~r,
the. 'Supreme Co1.1rt has also held in another case, is more
fitted for employment in dire. circumstances where room
(z) (1958) B.L.R., p. 74
BURMA LAW REPORTS. 57
for 'doubt cannot exist, such as when a foreigner is dis-
covered as a stowaway found in Burmese waters. See MOHAMED
Hasan Ali v. Secretary, Ministry of Immigration and one EBR.AHI!\f
SALEBHOY
(3') and also Ran ]itpaul v. Controller of Immigration (4). v.
THE
In this case, I am satisfied that a due and proper inquiry Col"_TROLl.BR
OF
has been held by the defendant and'' that the plaintiff has IMMIGRA-
TION.
had ample opportunity to defend himself. He has also
had extensions of time from 25th February 1959, which
was the first <late set by the defendant for his departure,
up to date, in which time 11e has gone to the ~upreme Court
twice and to the \linistry on appeal several times. Also,
U Tun Nyo reports that further steps will not be taken
against the plaintiff until his application in Criminal
Revision No. 192 of r962 in the Court of the District and
Sessions Judge, Hanthawaddy, against the conviction before
the 3rd Additional Magistrate, Rangoon, has been disposed
of. According to the learned Government Advocate, the
prosecution, though strictly unnecessary if section 7 (2} of
the Act is invoked, is resorted to under administrative
instructions in every case in order t0 prevent abuse of .
power granted by the said provisions of the Act. In any
case, it is not my task to consider whether the proceedings
that have so far been taken against the plaintiff by the
defendant are in strict accordance with law, for what is
before me is a suit for the declaration of a legal right and
not an application under section 45 of the Specific Relief
Act for a writ of mandamus or of mandatory injunction.
V Tun Jl:lyo invites my attention to several unsuccessful
applications made by foreigners for mandatory injunction
against deportation orders under section 45 of the Specific
Relief Act but since this suit is of a different nature, I need
not go into them too deeply: e.g. Civil Miscellaneous Cases
No. 19 of I958 and No. 217 of r96o of the late High
Court.
0 (3) (1959) B.L.R., p. I87. (S.C.). (4) (t.96o) B.L.R., p. 249 (S. :::.}
58 BuRMf 'LAW REPORTS.
c. c.
1963
Vthat I have to consider is whether the plaintiff has the
- legal right to stay permanently in the country. If he has
MOHAMED
EBRAHIM that right or even a colour of that right--e.g. if he claims
SALEBHOY
v. to be a citizen of the Union of Burma-I must entertain
co~o\LBR the suit and try it on_ its merits. If it is dear that he has
oF
I MMlGRA-
no such right then the remedy under section 42 of the
TION. Specific Relief Act is not available to him, and this suit
inust fail for want of cause of action. This is a suit under
the Specific R~lief Act and not a suit under the Burma
Immigration (Emergency Provisions) Act nor one under the
Foreigners Act. The means, the procedures and the power
that are used and invoked against the plaintiff or their
correctness are irrelevant.
The plaintiff, a for-eigner, having no legal right to -stay
permanently in Burma his suit for a dedaration that he has
such a right must fail. The suit is, therefor-e, dismissed
with costs.
BURMA LAW REPORTS. 59
APPELLATE CIVIL
lJI'jore U Kyaw Zan U ,J.
SUMMANTA RAM DUTIA (APPLICANT) c.c.
~63
v. Jarr. 19.
P. B. DAS AND TWO OTHERS (RESPONDENTS).*
.Appealfrom order of SmaU Cause Court refusing to make complaint in respect of
.
offence committed btfore it, s. 476B, Cr.P.C.
.
'When a Court of Small Causes refuses to make a comp laint in respect of
-an offence committed before it an appeal lies to the District Court under
section 476B, of the Code of Criminal Procedure and only when the
District Court refuses to reverse the oraer a revision of the order of the
District Court lies under section IIS of the Civil P rocedure Code.
Tek Chandv. Harram Singh, A.I.R.(1936)Pesh. 87; E.P. KumaravelNadar
v. T . P. Shamnuga Nadar t.nd others,(1940) 1 M.L.J. 719 tF.B.); Lalji Tev:ari
v. TM Krg Emperor, I. L.R. 4 Pat. 609 (F.B.); Valab Das and one v. Maung Ba
1'1tan, I . L .R. 1 Ran. 372 ; Abdul Hussein Alihhai v. Moltamedlbrahim 1\1aistry
.U.R. (1937) Ran. sz6 ; Lokman v. Halku, A.I.R.(1934)Nag. Z36 ; Date Sate
Klrin v. Ko Slnoe Phar, (1941) R.L.R. 90; referred to.
Maung Maung Khin for the applicant.
D. N. Dutt for the respondents.
U KYAW ZAN U, J.-In Small Cause Suit No.8 of 1960
'<>f the Court of the Subdivisional Judge of Akyab the ISt
respondent P. B. Das sued the applicant for the recovery of
K 67 due for the medicines supplied relying upon the
Exhibit " Kagyi " voucher. The 2nd respond.ent deposed
that he himself wrote the said VOUCher and the 3rd res-
pondent was said to have heard the ISt respondent say that
'the amount due was K 73 and that he saw the applicant
-pay K 6 towards the amount due and sign on the voucher
admitting that there was a balance of K 67 as claimed by
the Ist respondent, but the hand:writing expert deposed
that the original figure K 13 was converted to K 73 and
Civil Revision No. 19 of 1.9 61 against the order of the Subdivisions!
Judge, Akyab, dated the 27th Decemb er 196o, in Civil Miscellaneous Case
No . .f of 1960.
BURMA LAW REPORTS.
~~6~ the (:ourt accepting his evidence decreed tor K 7 only
against the applicant with proportionate costs on 3 rst
SUMMANTA
RAM Dun" October 1960. On 3rd December 1960 the applicant
P.B. D~s AND applied to the Court under section 476 (r) of the Code of
Two oTHens. Criminal Procedure to lay a complaint for using as genuine
a forged document. for perjury and for abetment of the
offen~es under sections 193, I93/I09, 471, 47I/I09 of the
Penal Code against the respondents, but the trial Court in
its Civil Miscellaneous Case No. 4 of r96o declined saying
that it did not 'hold that the respondents conspired t<>gether
to forge the aforesaid voucher. Hence this application in
revision under section r rs of the Code of Civil Procedure
against the said order.
The trial Court in its judgment in Small Cause Suit
No. 8 of 1960 said that at the instance of the applicant
the hand-writing expert was examined as he had no other
witness to support his defence of forgery. The main point
raised for determination is whether this application in
revision under section IIS of the Code of Civil Procedure
arising out o f the order of the Small Cause Court declining
to lay a complaint under section 476 (r') of the Code of
Criminal Procedure as aforesaid against the respon.<:J.ents is
maintainable or not. The law applicable is laid down in
section 476B of the Code of Criminal Pr.ocedure which
says that any person on whose application a Civil Court
has refused to make a complaint under s ection 476 of the
Code of Criminal Proc-edure may appeal to the Court to
. which such former Court is subordinate within the meaning
9f sub-section (3) of section 195 of the said Code. 'Section
: 476 is thus to be read together with section I95 Urider
sub.-section (3) of section I95 a Court shaH be deemed to.be
: subordinate to the Court tD which appeals or-dinarily lie
from the appealable decrees of such former Court, or in the
case of a Civil Court from whose decrees no . appeaL
'.' ordinarily lies to t:he principal Court having ordinary-
BURMA LAW.REPORTS. 61
-original civil jurisdiction within the local limits of whose
~Jurisdiction such civil Court is situate. Ordinarily no
SuMMANl' A
appeal lies to any Court from any decree of the Small RAM DuTTA
Cause Court. There is only one exception as provided hi P.B. o~s AND
section 24 of the Burma Small Cause Courts Act 'Nhich Two oTHERs .
says where an order specified. in clause (fl) or clause (!J)
.
of sub-section (r) of section 104 of the Code of Civil
Procedure is made by a Court of Small Causes, an appea~
therefrom shall lie to the District Court. Clause (ff) refers
to compensatory costs in respect of .falsi! or vexatious
claims or defen ces and Clause (h) to an order imposing a
fine or directing the arrest or detention in the civil prison
and they have no application to the present case. Under
section 27 of the Burma Small Cause Courts Act save as
provided in that Act, a decree or order made under the
provisions of the said Act are final. As no appeal ordinari-
ly lies from the decrees of the Court of Small Causes the
appeal in the imtant case lies " to the principal Court
having ordinary original civil jurisdiction within the local
limits of whose jurisdiction such civi~ Court is situate "
and i.e. to the District Court of Akyab. In this connection
the definition of the expression " District Judge " in the
General Clauses Act, 1897, and of "District" in section
2 (4) of the Code of Civil Procedure, is helpful and leads
to the same conclusion at which I have reached. As there
is no appeal ordinarily section 25 of the Burma Small
Cause Courts Act provides that the Chief Court, for the
purpose of satisfying itself that a decree or order .made in
:any case decided by a Court of Small Causes was according
to law, may call for the case and pass such order with
respect thereto as it thinks fit, but where there is a remedy
open by way of appeal to the District Court it will not
ordinarily interfere. This Court cannot properly allow
itSelf to be influenced by any consideration of trouble,
hardship or inconvenience which the order might cause.
62 BURMA LAW REPORTS.
..
c.c. Only when irremediable injury will be done, and a mis-'
!963'
carriage of justice inevitably will ensure if the Court holds
i..~:;~~~~~ its hand, that it ought to intervene. " Merely because an
~.B. D~s A?-<o erroneous decision has been arrived at is no ground for
Two OTHERS. holding that the Court, in coming to the decision it did,
exercised its juris~iction illegally or with material
irregularity. However sad the mistake. a Court has juris-
diction to decide wrong as wel-l as right ' ". Ma Than Yin
'v. Tan Keat Khang (a) Tan Keir Sein (1).
Before the amendment of section 195 of the Code of
Criminal Procedure in 1923 the High Courts of Allahabad
and Patna. had held that when an order of granting or
refusing sanction to prosecute was made by a Court of
Small Causes under section 195, the Court to which an
application for reversal of such order lay was the Court
of the District Judge. In Lalji Tewari v. The King-Emperor
(2) which was a Full Bench decision of. the Patm High
Court, it was said that section 25. of the Provincial Small
Cause Courts Act, r8~7 (same as section 25 of our Act)
did not confer an apsolute and unqualified right of appeal,
and, although it euabled the High Coun in the exercise of
its discretion and power of superintendence, to review the
proceedings of a Small Cause Coun with a view to seeing
that justice was done, and that the law was properly
applied and administ~ed, it did not constitute the High
Court a CouJt to which appeals from Small Cause Courts
ordinarily lay in the sense contemplated by section 195
of the Code of Criminal Procedure: Jwala Prasad, J. a
member of the Full Bench observed in that case that an
application against an order passed by a Small Cause Court
Judg:e granting or refusing sanction might be made either
to the District Court or to the High Court, but as a matter
of procedure the High C~uit should not entertain an appli-
cation except under special circumstances unless such an
(r) (195t)' B.L.R. x6x H.C. (F.B.) (<~) I.L.R. ~Pat. L.J. 6o9 F.B.
BURMA LAW REPORTS. 63
appli~tion ,.,.-as first presented to the District Court.
Valab Das and one v. Maung Ba Than (3) was a case under SliMMANTA
section 25 of the Provincial Small Cause .Courts Act before ~, OuTTA
the amendment of section I 9 5 of the Code of Criminal P.B. n~ ANI>
Procedure. Two oTHERs.
In Abdul Hussein Alibhai v. Mohumed Ibrahim Maistry
(4) Spargo, J. held under the law as it now stands that on
the Small Cause Court refusing to make a complaint"undeJ
section 476 of the Code of Criminal Procedure an appeal
lies to the District Court under section 19~ (3) of the said
Code. In Burma a District Court has jurisdiction to hear
and determine any suit or original proceeding without
restriction as regards value, and is the principal Court of
original jurisdiction within the meaning of sectio~ 195 (3)
of the Code of Criminal Procedure. In Lokman v. Haiku
(5) it was held, " It is settled law that, in respect of offences
committed in Courts of Small Causes and orders passed
in respect of complaints made or refusal to make com-
plaints under .section 476, Criminal Procedure Code, by
such Court, an appeal lies not to the_ High Court but to
the Court of the District JU:dge to which Court, within the
meaning of section 195, sub-section (3}, Criminal Procedure
Code, the Court of Small Causes is held to be subordinate ".
See also Ram Sarup v. Emperor (6).
This application for revision under section II5 of the
Code of Civil Procedure was entirely misconceived. When
a Coun of Small Causes refuses to make a complaint in
respect of an offence committed before it an appeal lies to
the District Court under section 476B of the Code of
Criminal Procedure and only when the District Court
refuses to reverse the order a revision of the order of the
District Court lies under. section I I 5 of the Code of Civil
(3) I.L.R. I Ran. 372. (s) A.I.R. (1934) Nag. 236:
(4) A.I.R. (1937) Ran. sz6. (6) A.I.R.. (1935) All. 446.
BURMA LAW . REPORT~
c.c. Procedure. This view as indicated above is fortified by
1963
the decisions in Tek Ch<1nd v. 'Harnam Singh (7) and
RAM OuTTA E. P. Kumara":ei Na ar v.
SUMMANTA d T . r. Sh anmuga,Nadar and oth ers
7)
.P B Dv.ASAND -(8) relied upon by the learned Advocate for the applicant .
:rwo oTHERs. In these two cases the matter was taken up on appeal to
the District Court fi~t. I may note here that these cases
however did not arise out of an order of the Court of Small
.Causes but the law is the same. The point for decision in
these cases is indentical with the one in Daw Saw Khin v.
Ko Shwe Phar (9), where it was held that the combined
effect of sections 195, 476, 476A and 476B of the Code of
Criminal Procedure is that where a Civil Court decides to
institute or withhold a prosecution the appeal is to the
'Civil Court, and the revision, i.f any, then'from to th: High
Court is also on the Civil side under secrion r l 5 d the
Code of Civil Procedure and not under section Bn nf t he
Code of Criminal Procedure. The learned . \ O::m:-.::~ ~or
the applicant has entirely misconcehed t i ~e ;.: w ..: :. i ~' .:<;
come up before this Court before he vcfr~~c~: :::: ::pp:-.:: l
to the Distri.:t Co~rt of Akyab. Tl~e p;-e<::::: :: ;:-~~: : ~ ::~i 0:~
being under section I IS of the Code (/ Cidl ?;- c!~ .:-dure
and not under section 25 of the Burma SmJi! C1use Courts
Act, I need only point out that the 2nd ~nd 3rd respondents
were not parties within the meaning of srnion 195 (r) (c)
of the Code of Criminal Procedure for prosecution under
section 471 of the Penal Code but were witnesses only.
'They are accused merely as abettors. The~e seems to be
no evidenc-e to show who actually forged the voucher.
The evidence of the Hand-writing expert is merely
Corroborative. Tin Shwe v. The Union of Burma (!o).
For aU these reasons given the application is 'disiPJssed.
As th~re has been a misconception of law and the matter
being of a criminal nature, I make no order as to costs.
{7) A.I.R. (1936) Pash. 87. (9) (194 ~) R.L.R. 90.
('8) (1940) M.L.). 7i9 F.B. ( xo ) . ('I954) B.L.R. 3.58 H.C.
BURMA:-tAW REPORTS. 65
APPELLATE CIVIL
!34ore U S:m ;11mma, U Saw Ba T:z~iu all(/ U Tu11 Tin,J:J.
THE BANK OF BEHAR LTD. BY ITS AGENT, c.c.
1;103
ZEYAWADDY SUGAR FACTORV LTD. (APPLICANT)
Feb. zo.
THE INCOME-TAX APPELLATE TRIBUNAL, BURMA
v. .
AND ONE {RESPONDENT).*
I ndia aml Burma ( bzcome-tax Relief) Order, 936. Part Til, para. t-.11emzing
of phrase in-When tn.-.: reli~f can be nllotced.
In r :~:trd to the ass~ssm~nt on an in.com: of K 26.931 by the Income-
tax O!'fic ~r fc>r th~ a>' ~~s m :!lt y:ar 1946-47 r::kva'\t to the account in!! year
c:1d~d th~ .~,,:,':):Hem'> : I<Hii, ~he a'Jpl ica:1t claimed tax rdicf ur.d.:r the
prc:wi.;ion. ,,f h\li::1 :t lrl D:.rrna (l.1com:-tax R:lier) Ordc>r of 1').' 6 <'n the
!l:~o ..md ri\J: in r~<~.:c~ of th: sa m ~ hc~m: it had been assessed to Tncmnc-
tax in ~ : di a~ f~iJo,,s ;-
A.ccou>~ting Year. JncOII/1' !<S!'SS<'d.
K
1941i-+7 1-1o-45 tO 31-12-45 1,368
19+748 1-1-46 tO 30-9-46 2;;,563
'! a.x r ! : f was grant.:d on K I ,368 by Income-tax Officer under an errone-
ous, b::!idthnt this was the income of the ;tpplicant which was doubly taxed in
I ndia but the Income-tax Appellate Tribunal in confirming the order of t he
Income-tax Officer held that the same assessment years as labelled in the
Tespective assessment llrders in India and Burma should b e considered as the
basis for relief and not the identifiable income assessed in both the countries
even though the said income was assessed in one assessment year in Burma
-and in two different assesstne1\t years in India.
Held: That th~ O:lly logical way of construi~ the phrase-
" if any person who has paid Burma Income-tax for any year on any
part of his income proves to th~ satisfaction oflncomc-tax Officer that he
h'as paid for the ye:~r Indian income-tax"
occ:::i:::i~g in paragraph
I of Part III ofth e I ndian and Burma (InCO,P~ci-tax
R.~llef)Order of 1936 is to say that if a person who has paid. Burma inctome-
tax for any assessment ye3r on any part of his income, pr<>ves to
. l ::. . ... : ..
.. .
~-.
:/
.. ~ *:Q,i.v il Misc~llaneous Application N o. 41 of 1959: Referet)ce.:J;>j ~h.e.
I n,::qmp-4;aK Appellate Tribunal, Burma, with rcgllrd w it~ order, !i.atc.d -.th,e ~4W..
Decembe~ 1958 in Appeal No. 26 of 1958. . . ' .. ~.:.:
5
BURMA LAW REPORTS.
C.C. the satisfaction of the Jncome-ta.'< Office-r that he paid for the corresponding
1963 period, ' ndian income-tax he would be entitled to appropriate relief.
THBBANK OP Held also: T hat when a person who claims r~liuf in Burma for having
BEHAR LTD. paid tax in Indi::, is able to.prove to tb~ satisfaction of t he I ncome-tax Officer
BY ITS AGWiT, th.at he had already paid in India tax for the whole period covered by
~EYAWFDY the accounting period in Bunna namdy, xst October to 30th September he
~g:; L.:: should be given relief for the amount of income assessed in Burma for t he
11. accounting period tst Octob~ till the 30th September.
THE Law of b zcome-ta:o:in India by V. S. Stmdaram, 8th Ed., p. 101 x, referr~d to.
INcoME-TAX
APPBLLATB
Commissipner of Income-tax, Central Calcutta v. The Burma Oil Co. Ltd. (1949)
'l"R.mUNAL, )iVIJ I.'I'.R. 348 ; Assam Railways and Trading Co . Ltd. v. Commissione1 of
BURMA AND InlandRevemce (1934) 2 I.T.R. 467; distinguished .
ONB .
U Paing, Hla taw and A. C. Rodriguez for the applicant.
Ba Kyaw (Government Advocate) for the respondents.
U SAN MA.UNG, J.-Thjs reference under section 66 (2}
of the Burma Income-tax Act arises out of the order dated
the 24th .of December 1958, passed by the Income-tax
Appellate Tribunal, Rangoon, in Appeal No. 26 of 1958.
The question referred for the decision of the late High
Court was:
" Whether on a correct interpretation of the provisions
of the India and ~urma (Incometax Relief) Order, 1936 and
other relevant provisions of the law, the applicant is not
entitled to the full amount of the relief as claimed in respect
of the assessed income of K 26,931 ?"
The facts giving rise to the present reference are briefly
these : -The applicant, the Bank of Behar Ltd. by its
agents, ~e Zeyawaddy S:ugar Factory Ltd., was assessed to
income-tax on a.n income of K 2{),931 for the assessment
year 1946-47 by ~he Income-tax Officer, j.n respect of the
accounting year which e~<;led. on the 3oth September 1946.
As the applicant-Bank 'YI'as also assessed inIndia for income
accruing from the same source, it made an application
un'der the provisions of India and. Burma (lncome.:.tax
Reliefl) Order of 1936 for appropriate relief. The Income-:-
tax Officer, therefore, caUed for th_e lndia Income-tax
BURMA LAW REPORTS. 67
Payment certificate and found that income-tax .
had been c.c.
1963
paid in India on an income of K 1,368 accrumg from the -
. d 'd THBBANKOF
same source as the income upon which tax ha been pa1 BBBAR LTD.
BY ITS AGBNT,
in Burma. The difference between the mcome assessed ZEYAwADDY
. I d' SuGAR FAc-
in Burma, namely, K 26,931 and t h at assessed m n 1a, ToR~ LTD
namely, K 1,368 was due solely to the fact that as the T~E
assessment in In'dia was made on the basis of the calendar ~~~=.::
1
vear
' '
only three months out of the 12-month period.BTRmuNAL, URMA AND
assessed in Burma fell within the Indian ass~sment period. oNe.
The Income-tax Officer, Burma, therefore. gave relief to
the applicant -o n K 1,368 only and not on K 26,931 as
claimed by the applicant. So the applicant appealed to
the Assistant Commissioner of Income-tax, Western Range.
Rangoon, but its appeal was dismissed and a further appeal
to the Income-tax Appellate Tribunal, Rangoon, was again
unsuccessful.
The applicant then made an application to the Income-
tax Appellate Tribunal under section 66 (r) of the Burma
Income-tax Act. The Tribunal, howc:wer, dismissed the
application on the ground that its order ilismissing the
appeal was correct. Relying upon the decision in the cases
of Commissioner of Income-tax, Central Calcutta v. The
Burma Oil Co., Ltd. (1) and Assam Railways and Trading
Co., Ud. v. Commissioner of Inland Revenue (2) the Tribu-
nal held that the applicant was only entitled to relief in
Burma. on an income of K 1,368 for which it was assessed
in India for the accounting year ending 'rst December 1945.
The applicant then made. an application to the late High
Court un~er section 66 (2) of the Burma Income-tax Act
with the result that the Appellate Tribunal was directed to
state the case for decision on the question of law arising
therein. The question of law referred to th.e late High
Court:was that alr~dy mentioned above.
. ' (1) (I949) I7 'r.T.R. 348.
68 BURMA.LAw :REP:ii>RTS.
II] its appeal to the App~llate Tribunal, Rangoon. the
applicant-Bank stated in its grounds of appeal as foUovvs:
THE BANI( OF
. BEHAR LTD. "The learned Assistant Commissioner of Income-tax erred
IIY ITS -AGBNT, in confirming the order of the Income-tax Officer granting
Z AYNWI\DF>Y
SuGAR FAc- relief on an income of Rs. 1,368 only, which the Income-tax
TORY i!TD.
Officer erroneously. held to be the income doubly taxed in
s f).
THB India and Burma, against appellants' daim that relief should
INCOME-TAX
APPET;LATB
have been granted on an income of Rs. 26,931 which was the
TRIBUNAL, income actually doubly taxed. The leamed Income-tax
BURMA . AND
ONE.
Officer and the learned Assistant Commissioner of lncom~-tax
failed to t1lke into consideration the fact that the year of
account in Burma for the assessment of 1946-47 was the year
ended 3oth September 1946, whereas the year of a,::count
adopted in India was the calendar year I945 Hence the
profits o'f the r2 months ended 30th September 1946, assessed
in Burma for 1946-47, was assessed in India in two different
years a:s follows :
Indian
~ent.
Profits from r-10-1945 to 31-12-1945 1946-47
Profits from r. ro-1946 to 31-I2-1946 1946-47
Although the _ur.ofits of the 12 months ended 30th September
1946 were assessed in India in tvi'O different years they .should
have been held to have been doubly taxed in India and Burma
for purposes of refund -under the India and Burma ffricome~tax
Relief) Order, 1936,
The Government financial years in In<lia and Burma are
also .different."
In itS. application to the late High Court the ap_~licant
state-d, inter alia :
( 1) . that it had submitted -evid~nce be~~re the lncome-
-as
tax Officer to the double taxation on: the
identical income in Burma and in India and
explained that though the income. per~riea
. to the same accounting .peri<:>~; the. assesirnent
year . under the- -~Bmrna: " :'fncorile;,tax' K~t
. :liapp~i)ed: to be I946.-47> whiie .t he . asse5sment
~ - ...
BURMA LAW REPORTS. 69
year under tlie Indian Income-tax Act. vvas ~9~3
partlv in 1946-47 and nartlv in 1947-48;
'
4
L -
T
HE .BANK OF
(2) it is not in dispute that the total sum of K ~6 .931 BEHAR LTD.
BY ITS AGBNT
was assessed by the Burma Incometax ZEYAw ADov
authorities for 1946-47 assessment year, but S~~: f~;.-
by Indian cakulation the amount would appear T~E
aS ; l!'CO!'.lE-TAlC
APPELLATE
Indian Accounting Year. lucom'' M$:sud. ThiBUNAL,
lncc,me-tax Year. BURMA AND
K ONE.
1-10-45 tO 31-12-45
1-1-46 to 30-9-46
(3) the Income-tax Officer granted relief on K 1,368
being pan of the income assessed in Burr:na for
1946-47 assessment which was assessed in
India also for 1946-47 assessment;
(4) the Appellate Tribunal erred in confirming the
orders of the Income-tax Officer and the
Assistant Commissioner of Ineomc-tax and in
holding that the same assessment years as
labelled in the respective assessment orders in
India and Burma should be con&idered as the
basis for relief and not the identifiable income
assessed in both the countries even though the
said income was assessed in one assessment
year in Burma and in two different assessment
years jn India ".
It is a matter for consideration whether the applicant's
contentions should be allowed to prevail.
Now, the arrangement between India and Burma for
double income-tax relief is governed by the India and
Burma (Income-tax Relief) Order, 1936, which is an Order-
in-Councjl under section 159 of the Government of India
.7(), BURMA LAW REPORTS.
c.c. .Act. On the separation of Burma from India in the year
1963 . f orce m
d to b e t l1e law m . Burma huecause
- - 1936, It contmue
T.H!! BANK OF f h . . f .
BI!HAR LTD. o t e proVIsiOns o secnons 14 an
8 d ~ th G
149 01 e overnment
i:V-r:.::~ ~of Burma Act, 1935, as explained and amended by the
SuGAR...f.Ac- India and Burma (Existing Laws} Act, 1937. On Burma's
TORY -"'TD.
v. attaining its independence on the 4th of January, 1948, it
THE
INcoME-TAX continued to be in force in this country because of the
~~~~~ provi~ions of section 226 of the Constitution of the Union
BURMA AND
ONE.
of Burma read with the definition of r. Existing law " in
section 222 (1) thereof. Subsequently, by the India and
Burma (Income-tax Relief) Order (Repeal) Act, 1952 (Act
No. XXX of 1952) which was deemed to have COII?-e into
force -on the 4th of January, 1948, the India and Burma
(Income-tax Relief). Order, 1936, was repealed with the
proviso that notwithstanding such repeal the provisions
of the said Order should continue to be. in force till the
30th of September 1948. Consequently for the period
relevant to this case the provisions of the India and Burma
(Income-tax Relief) Order of 1936, must be considered as
the law in force in this -country.
The solution to the problem now under consideration
lies in the interpretation of paragraph r of Part III of the
said Order. The relevant portion of this paragraph reads:
" r. If any person who has paid Burman income-tax for
any year on any part of his income proves to the satisfaction
of. the Income-tax Officer that he has paid for tha't year Indian
income-tax, or Indian income-tro{ and United 'Kingdom income-
tax, in .respect of that part of his income, he shall be enti~ed
'to a refund of Bunnari tax oealculated on that .part of his
income at -the appropriate rate of relief."
The questiqn is: what does the phrase " if any person
who has paid Burman income-tax for any year on any
part of his income ~oves to the satisfaction of the Income-
tax Officer .t~al he has paid for that year Indian -income-
tax " occurring jn this paragraph really. means? . When
BURMA LAW REPORTS. 71
both in India and Burma the assessment year was the
same C. C.
1963
as the calendar year there will be no difficulty whatsoever T .. -
HEBANKOF
in construing this phrase as regards the period in respect BeHAR Lm.
~ D't ITS ACENT,
of which the person concerned has paid income-tax in ZEYAwAnnY
Burma as well as mIn d"1a. However, smce
. the separatiOn
. SUGAR
~RY LTD.
FAC-
of Burma from India though the as~essment year in Burma
d f rom t h
nm
has been changed so as to cover a peno . e 1st o f lNCOMETAX
Al>PELLATB
October till the 30th of September, that in India his 8~~:=~N~~~
remained the same. Therefore the only, logical way of ONE.
construing the abovementioned phrase is to say that if a
person who has paid Burman income-tax for any assess-
ment year on any part of hls income, proves to the satisfac-
tion of the Income-tax Officer that he has paid for the
corresponding period, Indian income-tax he would be
entitled to appropriate relief.
The Income-tax Appellate Tribunal has relied upon
paragraph 3 of Pan I of the India and Burma (Income-tax
Relief) Order, 1936, in support of the view which it had
taken. This paragr3pb is as follows;
"3 Any reference in this Order to, or to any proYisions of,
the Indian Income-tax Act, 1922, shall be construed as a
reference to that Act or 'those provisions as for the time being
in force in India, as for the time being in force in Burma, or
as for the time being in force both in India and in Bunna, as
the context and the circumstances may require, or, if 'that Act
or those provisions have been repealed and re-enacted, either
with or without modifications, to the re-enacting Act or pro-
visions as in force as aforesaid."
We have carefully considered the meaning of the words
occurring in this paragraph and jn our opinion it would
be of no assistance to us whatsoever in construing th~
phrase in paragraph 1 of Part III which we have already
mentioned above.
72 BURMA LAvV -~J?PORTS.
We have also carefu:lly read the decisions in the cases
of Co'r:nmissioner of Income-tax, Central Calcutta v . The
THBBANK OF . "j
BEHAR LTD. Burma 01l Co., Ltd. (r) <!nd A ssam R01 ways an
d T- a
. ra mg
zv~~~~C:~~ Go., Ltd. v. Commissioner of Inland Revenue (2) relied upon
SuGAR LFAc- by the Appellate Tribunal and we are of the opinion that
TORY 1'0.
v. these cases have no bearing whatsoever on the question
THE
INcoME-TAx now under consideration, inasmuch as they did not deal
APPELLATE
TRIBUNAL, vrith the question as to the method to be adopted when the
BuR~~2o assessment years in two countries cover different periods.
The Appellate Tribunal had considered that its point
of view found support in the following passage of the
.c-o mmentary on section 49A of the Indian Income-tax Act
in V. S. Sundaram's Law of Income-tax in India, Sth Edition,
page IOII:
" If the assessments in the two countries are made with
reference to the accounts of different periods, Le., if the year
of ac-count corresponding to the Indian assessment enters
into the for.eign assessment of two different years, the Indian
assessil!-ent will have to be split up and relief on each part
allowed separately."
The learned Advocate for the applicant conten,ds that
the view expressed by the learned Author is more in
support of his case than of the view taken by the Appellate
Tribunal. It is a matter for consideration whether there
is any substance in this contention.
The passage in the Commentary on the Law of Income-
tax in India by V. S. Sundaram "!'hen applied to this
co:unU"y will read :
": . .. if the year of account corresponding to the Bm:man
assessment enters into the account of two different years,
'the .Burma assessment will have to be split up and relief on
each part _aliowed sepa)"ately."
. Now, the year of account s~ far as india .is .conc~rned
is from January rst to 3rst of December, . So, n.or~ally.
(r) (1949) 17 I.T.R. 348. {z) (r'9 34). I I I.T:R. 46.7.
BuRMA LAW REPORTS. 73
. .
when a person who 'has paid tax in Indi~ claims_ double ~~-
taxation relief in this country. he can be g1ven rehef only - ..
. h' h THEB,n;" OF
on that part of his income which falls w1t m t e corres- BEHAR LTo.
. accountmg
pondmg . .. peno
. 'd m
. Burma, that lS. t
o say ' for ~v ITSACBNT,
ZxvAwAoov
the months of January till September in respect of one i;:~.i~~~
5
accounting year and October to December in respect of T~~E
the succeeding accounting year. That is because, generally INCOME-TAx
. f APPELLATB
speaking, he will not be able to prove dunng the course o TRrauNAL,
d'mg assessment year m
t he correspon Burma, tl1at hc nad BURMA oNE.
AND
paid tax in India in respect of the whole per~od. In such
a case the Burman assessment will have to be split up and
relitf on each part a1lmi\'ed to him separately. HO\vcn'r.
there may be instances when a person who claims relief
in Burma for haYing pa id tax in India, is able to prove to
the ~tisfaction of the Income-tax Officer that he bet
already paid in India tax for the whole period covered by
the accounting period in Burma, namely, ISt October to
30th September. In such a case, there seems no reason
why, jn view of our interpretation of the provisions in
paragraph I to Part III of the India and Burma (Income-
tax Relief) Order, 1936, he should not be given relief for
the amount of income assessed in Burma for the accounting
period Ist October till the 30th September.
For these reasons, even .assuming that the passage in
the commentary abovementioned, can be said to have
expounded the correct legal position, we consider that the
contention of the learned Advocate for .the applicant should
be allowed to prevail.
In the case now under consideration, it is no. doubt
true that whereas the applicant was assessed on an income
of K 26,931 for the assessment year 1946-47 relevant to
the previous year ended the 30th of September 1946, it
was assessed in India for two assessment years 1946-47
and 1947-48 for the corresponding period Ist October 1945
to 30th September 1946. However, it is entitled to the
-..::74 BURMA LAW REPORTS;
<:;.c.full amount of relief as claimed provided of course, it
1963
proves to the satisfaction of the Income-tax Officer that
~~~~~"L~~~ tax on this sum had been paid by the Bank in India. T11e
azv rTsAcENT, answer to t he question propounded to us bv the lncome-
EvAwADov "
SGo... R.yAc, tax Appellate Tribunal, Rangoon, will accordingly be in
ToR~~ro. this sense. The ap'piicant-Bank will be awarded costs of
INco~\..x this reference, Advocate's fee in this Court being assessed
APPELLATE.., at 2"0 gold ffiOhurs.
TRIBUNAL,
BURMA AND
ONE.
BURMA LAV'/ REPORTS-. 75
APPELLATE CIVIL .
Before U Sm: Mau11g, U Saw Ba Thein and U Tun Tin, JJ.
~.c.
THE INDIA WATERPROOFING A~D DYEING WORKS 1963
(APPLICANT)
Feb. z6.
v.
THE COMMISSIONER OF INCOME-TAX. BURMA
(RESPONDE~).*
Wlzea profits mrd l!ains arising out of .f{oods supplied from 011tside B11rnza be
deemed to arise within Burma.
'Where 111:\d~r a C:>'ltract signed in Rangoor.., the applicants shi pped goods
from Calcutta. to Rangoon, where after inspection only they were accepted and
payment for the goods w~r! made to the applicant's agent in Rangoon.
Held: That the entire profits and gains under the said contract arose
within the Union of Burma.
A. G. Rodriguez for the applicant.
Ba Kyaw (Government Advocate) for tke respondent.
U SAN MAUNe, J.-This reference under section 66 (z)
of the Burma Income-tax arises out of the order dated the
26th of February 1960 passed in Appeal No. 77 of 1959
of the Income-tax Appellate Tribunal, Rangoon. The
question ref~rred for the decision of the late High Court
reads:
"(1) Whether on a correct reading of the tenns and condi.
'tions set out in the contract of supply entered into with the
Director of Procurement, War Office, the entire profits and
gains under the said contract across wholly outside the Union
of But:ffia?"
Civil Referenc~ No. x6 of I g6o. Reference by the Income-ta."'t Appellate
'Tr-ibunal, Burma, with r:gard to its order, dated the z6th February 1960, in
Appeal No. 77 of 1959.
76 BURMA'AW REPORTS.
The 'facts giving rise in the present reference are hrief1y
these:-
THE INDIA
WATER.-
PROOF!:-IG
During the previous year ending the 30th of
AND September 1954, the applicant Messrs. India Waterproofing
DYEgm
WoRKs and Dyeing Works, Calcutta, entered into a contract dated
THEvCo:vx- the 7th of April 1954 for the supply of 6,230 waterproof
r~~~~~"~ covers to , the Director of Procurement, War Office,
BuRMA. Rangoon. For the period from May to September 1954
the total quantity as required by the contract was shipped
from Calcutt::~ to the Ordnance Depot, Botataung, Rangoon,
the total value being K 7,92,564. Some of these water-
proof covers were rejected as being not up to the contract
quality and only K 6,96,827 worth was accepted after due
inspection at the Depot. T-o make good the rejected
articles, another shipment was made by the applicant in
the month of May 1955 and the value of this consignment
was a subject-matter of the assessment for the year
r9ss-s6.
The -contract for the sale of waterproof covers was
obtained by the applicant after submission of its tender
from Calcutta. After the a-cceptance of the tender. the
contract of sale was signed at Rangoon between the pro-
prietor of the applicant firm, and the Director of Procure-
ment, War Office, Rangoon. After the goods were manu-
factured in India they were to be shippe<i to the Central
Ordnance Depot, Botq.taung, where final inspection was to
be made vvith a view to discover if the goods were up to
the contract quality. The sh~pment of good? to Burma
were to be on C.I.F. basis, the insura,rtce on the goods being
to cover the risk .from warehouse to warehouse. On arrival
in Rangoon they were to be cleared by the agents of the
applicant or. by the War Office, but under clause 23 of the
contract, . the goods on arrival at the Central Ordnance
Depot, Botataung1 were to he subject t~ final inspecti~.n. and
. approval by : the Director of Procurerp.ent, Vlar Office,.
BURivHt LAW REPORTS. 77
c_c.
Rangoon, before acceptance. Payments under clau~e 2I It)6J
of the contract were to be made on presentation of the T'IJ: [ Nl)IA
firm's bills supported by the firm's copy of the Inspection WATsn-
. k [>ROOFING
Note, to the Rangoon branch of Messrs. Grindlays Ban - 11-xo
Ltd., Calcutta, whiCh. would t h en remn
t
h e amount DYEING
v\;pn"-s
involved to the applicant after obtaini'ng necessary sanction THE ~.CoM-
from the Controller.
of Foreign Exchange.
Mrsszol'En oF
INcoMn-TAx,
From the above facts it is clear that the contract for B vRMA.
the supply of goods was made in Rangoon, that the
property in the goods only passed after inspection in
Rangoon, and that pJyment for the goods was made to
the applicant's agent in Rangoon. In these circumstances,
the present case is much stronger than that decided by the
Com.missioner of income-tax, Bombay South, Bombay v.
Ogali Glass \\'orks Ltd. (r). There the assessee, a non-
resident company carrying on business of manufacturing
<:ertain articles in the State of Aundh, secured some con-
tract for the supply of the articles to the Government of
India. The contract provided that "unless otherwise
agreed between the parties payment for the delivery of
the stores will be made on submission of bills in the .
precribed form in accordance with instructions given in the
.acceptance of tender by cheque on a Government Treasury
in India, or on a branch of the Reserve Bank of India or the
Imperial Bank of India transacting Government business ".
The assessee submitted the bill in th'e prescribed form and
wrote in it as follows : ,
" Kindly remit the amount by a cheque in our favour on
any bank in Bombay."
The assessee received cheques drawn on the Bombay branch
<Of the Reserve Bank of India and it endorsed the cheques in
favour of the Aundh Bank, Ogalewadi Branch, which in
turn endorsed them in favour of a Bombay Bank, which
(I) (1954) Z5 I.T.R., 529
78 BURMA LAW REPORTS.
cleared the cheques through theClearing Hquse in Bombay.
In these circumstances, it was held by the Supreme Court
THEINDlA of India that the income, profits and gains in respect of the
,WATBJ!.-
PROOFINC
sales made to the Government of India by the assessee
AND
DYBJ.'lG
were made in British India within the meaning of section
WoRKS 4 (r) (a) of the Indian- Income-tax Act, !922.
TanvCoM- For. these reasons given above, our answer to the ques-
MrssroNEROF
INcom-TAX,
'
t.ton propoun ded w1'II be m
. th e negative.
. The applicant
BuRMA. must pay costs of this reference, Advocate's fees being
assessed at 20 Gold Mohurs.
BURMA LAW REPORTS. 79
APPELLATE CIVIL
Bt!jorc U San Nlaung and U Tun Tin, JJ.
THE JOINT UNDIVIDED HINDU FAMILY KNOWN AS c.c.
I963
JAGANNATH SAGARMAL AND ONE (APPLICANTS)
jan~9 .
v.
BABU MAHADEO PRASAD TIBREWALLA AND o~E
(RESPONDENTS).*
Civil Proccdur. Code. 0. 23, R. 3-Adjustment of> suit.
Where~rth~ tim-:: of auki 1g an application for the passing of a final mort-
gage decn:~ it is alleged th.1t there was already a compromise bet\\een the
parti ~s ur.c!~r wh.ich the pl.li.Hiff had agreed to acc~pt a certain swn of money
in full sJri;fa.-tion of the d ccr:.. Held: Titatthe allt>gea compromise is an
adjust:m:nt ,f .sui t which falls to be dealt with under Order 23, Rule 3 of the
C.ivil Proc...Olm! Code.
V.lt!.R.P . .Cf~Rttiar Firm v. Hajee Mohamed Sultan and others, (19.p)
R.L.R. 774 ; Palaniappa C!uttiar v. Narayanan Chettiar, I.L.R. 59 Mad
188 (F.B.); referred to.
G. N. Banerji for the applicants.
B. K. Dadachanji for the respondent No. r.
No one for the respondent No. 2.
U SAN MAUNG, J.-ln Civil Regular Suit No. 56 of 1955
of the o riginal Side of the late High Coun the plaintiff,
Babu Mahadeo Prasad Tibrewalla who is the first respondent
in the present appeal, sued the defendant-appellant Babu
Sagarmal Tibrewalla and the defendant-respondent Babu
Gopi Kishan Tibrewalla for the recovery of a sum of
K 30,000 with interest thereon alleged to be due on the
equitable mortage of a freehold land with three-storeyed
pucca bu1lding thereon known as No. 56 in 30th Street,
Rangoon. On the 15th of February 1957, a preliminary
mo~gage decree for a sum of K 50,06783 pyas was passe<l
Civil First. Appeal No. IOI of xg6z against the decree of the late
High Court (Original Side), Rangoon , dated the 28th March 1961, in Civi'.
Regular Su it No .. s6 of I9SS
-so BURMA LAW REPORTS.
~~.
in f.avour of .the plai!ltiff wherein it is mentioned that .the
defendants may apply for and obtain a decree .for redemp-
THe . Jo~T
UNofVJDED tion of the mortgage on payment into Court _ of th~ sum
HINDU
FAMILY declated tO be due tO the plaintiff On OT before the I )th Of
~~~...~~ August 1957, failing which the plaintiff would be entitled
SAGARMAL
AND ONE
to apply for and obtain a decree for the sale of the mort-
B:~u gaged property. However, when on the r6th of Janw.ary
M;;::.: 1961, the plaintiff applied for a final decree on the ground
TIBREWALLA that the def~"ndants had failed to pav within the period
AND ONE. 11" '
mentioned in the preliminary mortgage decree the sum of
K 50,06783 pyas together with further interest due .f rom
the 15th February 1957 ti1l the r6th January 1961. the
defendant-appellant Babu Sagarmal Tibrewalla and the
defendant-respondent Babu Gopi Kishan Tibrewaila filed a
written objection that the application by the plaintiff for
the passing of a final decree was not maintainable as sub-
sequent to the passing of this decree a compromise had been
effe:cted between the parties to the suit whereby the
plaintiff agreed to. accept K 35,000 from the defendants in
full settlement of all his claim including costs and interests
; if the sum was paid on or before the 30th of September
1961. TI1e defendants therefore asked the Court that the
compromise be recorded, and the plaintiff's applicatk n for
the passing of the final decree 'dismissed. ., -
The learned trial Judge on the Original Side, however,
without making any inquiry into the matter, accepted_~he
plaintiff's 'denial that such a compromise as that alleged
by the defendants had been effected: In so doing,. the
learned Judge gave as a reason. that tpe alleg~tion rega,J;,ditig
the existence of a compr:omise Wa$ vague as no de.(init~
date had.-:J:>een given in the writteq. ~b~ection of the de~eri.d~
ants saying that th~ alleged COJ:nPr9~ise. had takeJ?. place.
T~e lear~~~ -_lu~g~ .a<:cordinglY:. p~~~~ an oroer daJid .~e
28th of March 1961, which is the-subj'ect-m'*tte:r ofr,t his
BURMA LAW REPORTS.
:ppeal, th~t the plaintiff's application for the passing pf c. c.
1963
he final decree should be allowed. THE }OINT
The defendant Babu Sagarmal Tibrewalla appealed UNDIVIDED
fliNDO
gainst the order of the learned trial judge and his appeal FAMILY
KNQWN ~S
vas dealt with as Civjl Miscellaneous Appeal No. 43 of }AGANNA'bi .
SAGAR MAL
961 of the late High Court. It remained pending when AND ONB
he present Chief Court was established on the aboliti9n v.
BABU
f the late High Court and the Supreme Court. 1\(AHADBO
PRASA.O
On the 29th of November 1962, a Bench of. this Court TJBREW-LA
ANDONB.
onsisting of the Chief Judge and U Saw Ba Thein, J.,
ccepting the plaintiff-reSp<>ndent's contention that ad
alorem court fees should have been paid by the defendant-
ppellant as the appeal should be on the footing that it
'as against the final decree, ordered the defendant-
?pellant to pay the necessary court fees. This has now
een done.
The question now for consideration is ~hether the
leged compromise is one within the ambit of Order XXIII,
ule 3 of the Civil-Procedure Code, the relevant portion of
hich reads :
" Where it is proved to the satisfaction of the Court that
a suit has been adjusted wholly or in part by any lawful
agreem~nt or compromise,. the ~ourt .$hall order such agree-
ment or. compromise to be recor.de.d, and shall either pa~s .a
decree in-accordance therewith or shall decree that all further
proceedings in the stiit shail be stayed upon the terms o{ the
agreement or compromise, ..... "
Now, in Ahmed Rahman and four others v. A.L.A.R.
1ettiar Firm (1), a Bench of the late High Court of Judica-
re held that where a mortgage decree-holder applies .for
final decree-..f~:z: sale of the mortgaged property ~cl the
dgment-debtor urges that the decree-holder had allo~ed
m an extension. of time -for payment, such an agreement
(I) 1.L.R. 6 Ran. z8s.
6
8?-, BURMA LAW REPORTS .
..__.
~
would amount to an adjus~ment of the preliminary decree
and bot as adjustment of the suit within the meaning of
i)~~!v~:;, Order XXIII, Rule 3 of the Civil Procedure Code. How-
~;~~~v ,ever, this decision has been dissented from by another
KNoWN- AS Bench of the late High Court in V.M.R.P. Chettiar Firm v.
}AGANNATH
SAoAR\tAL Hajee .(vlahomed Sultq.n and others (2). There it was held
~~1-~s that a mortgage suit does not come to an end until the
M~:'~Eo mortgaged property has been duly sold and the sale pro-
PRASAD teeds dealt with or if there is a right to a personal decree
~ oNs: under Order 3;.4. Ru1e -u
TmREWALLA "' o f t he cIVI1 Procedure cod
. e, until
that personal decree has been passed ; and that therefqre
any agreement of compromise relating to the whole of the
subject-matter of the suit whicl1 is entered into by the
parties before the conclusion of the proceedings in a mort-
. gage -suit is an adjustment of the suit which falls to be
dealt with under Order .2 3, Rule 3 of the Civil Procedure
Code and not under Order 2 I, Rule 2. The latter decision
is based on a Full Bench ruling of the Madras High Court
in Palaniappa Chettiar v. Narayanan Chettiar (3) \vhich
we have carefully studied, and we are in agreement .rith
the decision in V .M.R.P. Chettiar Firm's case (2).
It has been contended on behalf of the plaintiff-
. respondent that it was most improbable for the plaintiff
to have agreed to accept a sum of K 35,ooo on or before
the 3oth of September 1961, in full settlement of the
plaintiff's claim when by the terms of the preliminary
mortgage decree the plaintiff was entitled to a final decree
if a sum o! K so,o6783 pyas was not paid on or befo:re
the ~8th .o f August 1957 and that the defenaant's.allegati~n
of .the e;xist~nce of a compromise subsequent to the passing
of the preliminary decree was designed to delay the passing .
of the final decree. This undoulbtedly is a matt~r whkh
shquld be t;aken:into consideration. However, there is no
g<?O<lreason why the learned trial Judge should have refu~d .
. (:t) (1941) .R.L.R. 774 (3) LL.R. 59 Mad. x88 (F.B.).
BURMA LAW REPORTS: 83
to make an inquiry with a view to find out whether or not c.c.
such a compromise as alleged by the defendant-appellant 1963
had, i~ fact, taken place. THI! }OINT .
UNDIVIDBD
In the result, the appeal succeeds. The order of th~ HINDU
FAMILY
learned Judge of the Original Side of the late High Court KN~WN AS
dated the 28th of March 1961 and ~he final decree passed }AGANNATH
itAGARMAL
in pursuance thereof are set aside with costs in . favour of AND ONB
v.
the defendant-appellant Babu Sagarmal Tibrewalla: Th~ MAHAD0
case is remanded to the Original Side of this Court to pro- PRAs.u>
ceed according to law in the light o{ the remarks made TIBREWALLA
~~ . . .
. AND ONE.
.84 BURMA LAW REPORTS.
APPELLATE CIVIL
Before U San Maung, U Sazc Ba TlBiz, and U Tun Tin, JJ.
THE MOGUL LINE LIMITED (APPLICANTS)
v.
Feb. 20 THE INCOME-TAX APPELLATE TRIBUNAL, BURMA AND
ONE (RESPONDENTS}.*
. Bur~a Incotti.e.-tax Act, s. HE-Applicability-Shipping companies having
"": "agents in. the .Union.of Burma-Assessable under s. 23 withoul reference
t.o. s . .44C-Ass(!Ssm:nt made under$. 44'13-Not valid.
o ' ' ' , , ,, o ' I'
o o
'
During the accounting year 1951, the Income-tax Officer, Com-
panics ,Circle, and the applicants' agents in Burma adopted the method
indicated in section 44B of the Burma Income-tax Act, of paying advance
Incorne.tax !lt the rate of 5 per cent on the gross freights earned by the four
vessels thattcame to Burma during that year on the distinct understanding
that there would oe adjustment on submission of final retums in the
ordinarY way. When final returns were asked for by the Income-tax
Offi~~r by issue of notice und5r section 22 (2) of he Act, the agents of the
applicants informed the Officer that their principals did not intend to file
i"etums . of income for the previous year ending 31st December 1951
relevant to the assessment year I9S2-53 'File Income-tax Officer-
therefore, proceeded to assess the applicants on an income of K r ,28..8s6
under section.23 (4) of the Act, inspite of a letter from the applicants
agents to the "Income-tax Officer that their prinaipals did not intend to
.c laim anY. adju~tment under ~ection 44C of the Act. It was contended
that the assessment under section 23 (4) of the Act was ultra vires and i nvalia ,
the applicants were not liable to be assessed under the ordinary provisiom;
of the Burma In~ome-tax Act.
Held: Tf:lat ~he m~thod of C):n?utation indicated in section 44B of
the Burma lJlc:>m~-tax Act is ordinarily applicable to assessment of tax
on the ~aster of t :am:> st!a:Jl!~s a :d n">tt :> th">H shippinglines which
have regular agents within the Union of Burma from whom tax will be
recov!)rable i~ ~e follovring year, under the other provisions of the
Burma Income-tax Act .
. Held .a!so : That there had be~u no valid assessment under section
44B of t4e BW;ma Income-tax Act a"nd th~t .the Income-tax Office r
.-concerneci.has made a mistake in adopting the method jof! computation of
:advance tax on the basi s of that sect_ion. _
Held further : T hat in the circumstances of the case, the assessment
under . se.ction 23 of the Burma Incoaie-tax Act w ithout reference to
-section 44C of t he Act is valid
.. civil .M iscellaneous Application N"o. ro of I960. Reference by the
. Income-ta~. ~ppellate Tribunal , Burma, with regard t o its order, dat-ed the
2 7th Aprit"J:9S9 in Appeal No. 78_of 1958.
BURMA LAW REPORTS. ss
U Paing for the applicants. c.c.
1963
Ba Kyaw (Government Advocate) .for the respondent. THE
MocuLLINB
LIMITED
U SAN MAUNG, ] .-This reference under section 66 (2) "
of the Burma In~ome-tax Act ari~s out of the order d;tted INco~:Ti\:;:
the 27th April I9'59 p~ssed by the Income-tax Appellate ~:~;:,.~~
Tribunal. Rangoon, in Appeal No. 78 of 19~8. The BURMA ONE.
ANo
question referred for the consideration of the late High
Court is:
'.' Whether in the circumstances of the case, the assessment
under section 23 of the Burma Income-tax Act without
reference to section 44C of the Act is valid?"
The facts giving rise to the present reference are briefly
these:
The applicants, the Mogul Line Limited, are a firm
of ship .owners of Bombay and Messrs. Graham Trading
Company (India) Limited, Rangoon, were their shipping
agents in Rangoon since the year 1946. During .the
accounting y<;!ar ending the 31st December 1951, relevant
to th~ ass~ment year 1952-53 four vessels belonging to
the applicants came to Rangoon and the freight earnings
from .these vessels were assessed by the Income-tax Officer
under section 44B of the Burma Income-tax Act, and the
tax amounting to K 22,953 was paid by the applicants.
In the assessment year 1952-53 the applicants were assessed
under section 23 (4) of the Burma Income-tax Act on an
income of K .1,28,856. This was done in spite of a letter
by t~e applicants' agents to the Income-tax Officer, Com-
panies Circle, Rangoon, to the effect that the applicants
did not intend to claim any adjustment under section 44C
of the Burma Income-tax Act. Nevertheless, the Income-
tax Officer, inspite of the fact that assessment had already
. been. made by him under section 44B, opened proceedings
for the assessment of the applicants under sec.tion 23.
~86 BURMA LAW REPORTS~
The . applicants then appealed under section 30 of the
Burma Income-tax Act to the Assistant Commissioner,
THE
MoGUl. Eastern/Western Ranges, Rangoon, on the ground that the
LINE
LIMiTED assessment under section 23 (4) of the Burma Income-tax.
Th~ Act was--ultra vires, ..as the applicant Company was not
INcoME-TAX liable to Ee assessed under the ordinary provisions of the
APPELLATE '
TiunUNAL, Burma Income-tax Act. By his order dated the 22nd of
BuRMA AND
. oNE . August 1958 in Appeal No. COY-24/57-58, the Assistant
Commissioner .of Income-tax dismissed the appeal on the
ground, inter.alia, that-(r) it was the applicants who had
initiated the assessment under section 44B. (2} that there
was a distinct understanding that the tax so paid should
be treatedas advance coilection of tax, (3} that the appli-
.cants' agents were fully aware that regular assessment
. should be made when they paid the tax " subject to revi-
. sion ~:m submission of final returns ", and (4) that they had
agreed to file the returns. The applicants then appealed
to the I:n.come-tax Appellate Tribunal, Rangoon, on the
ground, t hat the assessment under section 23 (4) of the
Burma Jncorpe7tax "Act was ultra vires and invalid. The
Appellate Tribunal, however, by its order dated the 27th
of April 1959 in Appeal No. 78 of 1958 dismissed the
applicants' appeal. In so doing, the Tribunal held that
the. m(lndatory provisions of the Act for making assess-
ments under section 44B of the Burma Income-tax Act are
that . the '.Income-tax .Officer. concerned must be . fully
satisfi~cl as. provided in . section 44A, that there was no
.. agen~ }D. Bur.ma for the principal or the owner of the $hip
from ~hom .the tax would be recoverable in the..followlng
. year .under the Other provisions . of the Act, and that 'it
w~, purely through a mistake that the Income-tax .Offker
_ ,. had: . ~ade use of the provisions .of section 44B qf the
Burma Income-tax Act jn place of section r8A which:deals
tax.:.
wi,th ..the q'!lestion of the advance payment of Con-
sequently. this mistake could be rectified a~d. a proper
'
BURMA LAW REPORTS. 87
assessment made on the basis that the tax purported to ~9~3
have been ~.:ollected under section 44B was, in fact, an ThE
advance collection of tax under section r8A. The appli~ MocuL
LINE
cants then filed an application under section 66 (r) of the LIMITED
Burma Income-tax Act to the ~ncome-tax Appellate ~
1
Tribunal to refer to the High Court the question of law f.~;:'~:i
involved and on the Tribunal's refusal made an application BTRxBuNAL
URMA AND
to the late High Court under section 66 (~)with the result oNE.
that the Tribunal was ordered to refer t o the late High
Court the question mentioned above.
Now, it is clear from the orders of the Income-tax
Officer, Companies Circle, Rangoon, and of the Assistant
Commissioner of Incoll)e-tax, Eastern/Western Ranges,
which have been referred to by the Income-tax Appellate
Tribunal in its statement of the case, that the findings of
the Assistant Commissioner of Income-tax and of the
Income-tax Appellate Tribunal, Rangoon, that at the time
the advances purported to have been made under section
44B of the Act were given, there was a distinct un'der-
standing between the applicants' agents Messrs. Graham
Trading Company Limited and the Income-tax Officer
concerned, that the final returns would be submitted for
the assessment year and that necessary adjustment would
then be made. In this connection; the following passage
in the order of the Income-tax Officer should be repro-
rluced :
"The assessment proceedings against this Assessee Company
was first initiated for the assessment year 194~~7. TJle
notice unde;r section 22 (2} was issued then on th~ 29th
Nc>vember ,1946. On the 2nd March 1947, the Managing
Agents, Messrs. Turner Morrison Co. Ltd. filed the nil return
as there being no business in Burma then. The same cir
cumstances prevailed in the subsequent assessment years till
195<>-51 assesst:nent. On the 26th April 1950, the Agents
'here, Messrs. Grapams Trading Co., Ltd., in their letter
No. SDJE. II/308, intimated this office that their principal's
... ,. 88
,. ___
BURMA LAW REPORTS.
c.c. first vessel S.S. Alavi arrived on the 23rd February and sailec
1963 on the 22nd March 1950 after having loaded 4.655 tons of rice
THB In this letter they wrote 'We have not paid any advance tax
MoGUL on account of this shipping concern as we cannot give you
LINE ,.
LIMITED an estimate of yearly income, and as we have now earned
'U.
something by the S.S. Alavi we consulted you on the telephon<:
ThE
INCOME-TAX and, as suggestea we will now pay the income-tax and the
APPELLATE
TRTBUNAL,
super-tax as an individual steamer subject to adjustment on
BURMA AND . submission of the final retums for the year '. "
ONE. r
It was because of this fact that whereas, normally
when asses5ment under Chapter V-A of the Burma Income-
tax Act relating to the special provisions for certain classes
of shipping is made, the port clearance certificate is issued
by the Income-tax Officer only when the tax due on the
freights of the particular vessel was duly paid, the generar
port clearance was issued by the Income-tax Officer to the
agent of the applicant Company to cover all vessels of
the applicants. Such general port clearance is only issued
in cases where the agents will be paying the regular annual'
taxes as well as the advance taxes due under section r8A.
In the case of t~ applicants, however, because of the fact
that in the previous assessment year the assessment resulted
in no demand having been made on the applicants, the
provisions of section r8A could not be invoked by the
Income-tax Officer. At the same time, the applicants~
agents themselves could not estimate the yearly income
likely .to accrue to the applicants from the Burma trade.
This is one of the factors which goes to indicate that there
was what the Assistant Commissioner of Income-tax called
~a gentlemen's agreement" between the Inc.ome-tax
.Officer concerned, and the applicants' agents that advance
taxes . should. be paid under section 44B of the Burma
Income-tax Act, to be adjusted later on submission of the
final returns for the -relevant accounting. year.
, ,'The Assistant Commissioner of Income-tax also noted
that on every occasion the applicants' ships sailed .f rom
BURMA LAW REPORTS. 89
Rangoon, their agents wrote to the Income-tax Qfficer in
the following manner :
THE
"We trust it ,will be in order for us to pay Income-tax, on MoGUL
LINE
these. vessels' earnings in the same way as the previous LIMITED
vessels of this line. subject to revision on submission of final tf.
THE
returns." INCOME-TAX
APPELLATE
. . . c . .
It was for these reasons that the Assistant omrnlSSlOI}.er
TRIBUNAL,
BURMA AND
of Income-tax in dismissing the applicants' appeal, came ONE.
to the finding of facts which had already. been referred to
in the earlier part of this judgment.
The Appellate Tribunal in its order dated the 27th of
April 1959 quoted in extenso the provisions of sections
44A. 44B and 44C of the Burma Income-tax Act and then
went on to observe :
" In spite of these defini'te and clear provisions of the Act,
and entirely fai!ing to take into consideration the fact, that
the earnings of the regular steamers owned by the appellants
~tog ul Line Ltd. of Bombay were all along in the past assessed
to income-tax by the ordinary provisions of the Burma
Income-tax Act. through the local agent Messrs. GrC;1hams
Trading Co., Ltd., 622, Merchant Street, Rangoon, successively
every year since November 1946, the Income-tax Officer newly
posted for .the job, wrongly labelled the usual advance tax
collections made in accordance with section r8A of the Act,
as section 44B assessments."
In these circumstances the Tribunal said that it agreed
with the Assistant Commissioner of Income-tax that it
must look at the facts and substance of the order passed
by the Income-tax Officer, and not merely the number of
sections under which the assessment was said to have
been made and that accordingly there was. in fact, no real
assessment made by the Income-tax Officer under section
44B of the Act. In the opinion of the Tribunal, it was
merely a case. of wrongly labelling the assessment as having
been made under secQon 44B, and therefore there was no
'90 BURM1VtAW REPORTS.
. c.c. nece,<,;sity of annulling it. The question which now arises
x963
for consideration is whether the views of the Tribunal
THE
MoGuL should beallowed to prevail.
LlNB
Ln:,~;,so. It seems to us sufficiently clear that from the very
THE. inception both the agents of the applicants, the Mogul Line
[NCOME-TAX
APPELLATE Limited and the Income-tax Officer concerned thought thJt
B~:;,:~:"~;D -it was a convenient way of assessing and making payment
oNE. of advance tax ordinarily payable by an assessee under
section I 8A oi the Act by following the method of com-
putation indicated in section 44B of the Burma Income-
tax Act, which is ordinarily applicable to assessment of
tax from the Master of tramp steamers and not to those
shipping lines which have regular agents within the Union
of Burma from whom tax will be recoverable in the follow-
ing year, under the other provisions of the Burma Income-
tax Act. As regards the applicants, it is common ground
. that Messrs. Graham Trading Company Limited had been
thell: agents since the year 1946 and that annual return<>
had been regularly ,$Ubmitted by them, although, of course.
prior to the assessment year .1951-52 relevant to the
accounting year ending the. 31st of December 1950, there
had -been nil returns. During the accounting year 1951,
however, the Inconie-tax Officer and the applicants' agents
adopted the method indicated in section 44B, of paying
advance income-tax at the rate of 5 per cent on the gross
freights e arned by the four vessels that came to Burma
duting that year. This was on the distinct imd~rstanding
that there would be adjustment on submissi~n of the final
.returns in the ordinary way. ~t was qnly. when fi~al
returns were asked for by ~e J.iicome-tax Of,ficer by issue
of notice.. under section ..22 (2) of the Burma lncoine-tax
. Act, that the ag~ni$ of the applicants informed the officer
tna:t"i:heir principals did not intend to file .the returns of
of.
:fucoiri:e ,for the previous year ending the :sist December
1951 ~elevant to the assessment year 1952-53. This was
BURMA LAW REPORTS. 91
apparently done under legal advice that once an a!sess-
ment U!fder section 44B had been made, the option lay -THE
with the applicants for claiming in the year following that. MocuL
LIN!!
in which the payment had been made, that the tax payable LIMtTso
should be determined in accordance, with the other pro- Tt~
visions of the Act. INcoMB-TAx
APPELLATE
In these circumstances we consider that there had, in BTRIBUNAL
UR.l\olA AND
fact, been no valid assessment under section 44B of the o Ne.
Burma Income-tax Act and that the Inco'ijle-tax Officer
concerned had made a mistake in adopting the method of
computation of advance tax on the basis of that section.
It was a case of labelling the advance tax meant to be
assessed and -paid under section z8A of the Act, as that
made under-section 44B. In the result we agree with the
conclusions arrived at by the Income-tax Appellate
Tribunal, Rangoon, and answer the question referred to
us in the affirmative. The assessee must p.ay costs of this
reference, Advocate fees being assessed at twenty gold
mohurs.
' .'92-:: BURMA LAW REPORTS.
APPELLATE CIVIL
B4ore U San Maung, U Saw Ba Thein and U Tun Tin,JJ.
THE RANGOON ELECTRIC TRAMWAY AND SUPPLY
CO., LTD. (APPLICANT)
b
v.
THE COMMISSIONER OF INCOME-TAX, RANGOON
{RESPONDENT).*
Burma Income.stax Act, s. 10 (2) (vi) and s. xo (2)(via) (second part)-Dijjeren,
between. Gene;az provision and special provision, s. xo (2-) (via) (secon
part)-" Assessee who last owned and used the assets" in-Meaning of-
Depreciation/or previous year-Successor and notp redecessor who is entitle.
to-" Transfer of ownership" in-Includes also transfers by operatio
of law-" Assets" in-Includes buildings.
On the xst October 1953 the business and assets of the applicant, whos
accounting year was according to the calendar year, were acquired by th
Rangoon Electricity Board under section zS of the Electricity Supply Ac
(Act No. 69. of 1948.) For the assessment year 1954-5.5 relevant to th
previous year ending the 31st December 1953 the applicantc;:laimed,amongs
others, depreciation allowance amounting to K 12,32,9U which was rejecte
on the .ground that under section xo(z) (via) ofthe Bunlia Incoxne-tax Act, i
was.the Rangoon Electricity Board and not the applicant which was entitle<
to the slepr.e ciation!' allowance fo~; the previous year ending the 3 xs1
December 1953
Held : That clause (vi) of section 10 (2) of the Burma Income-tax Ac
envisages as ituation in which there bas been no change of ownership durin~
the course of the previous year, whereas the second part of clause (via) is ~
special provision relating t o depreciation allowance on change of ownershit
during the course of the previous year. On the maxim generalia specialibw
non derogant the general provisions regarding depreciation granted -contained
in clause {vi)-cannot detract anything from the special provisions contained in
the second part of clause(via).
Hel4 also : That the phrase "the assessee, who last owned and used the
assets". epntained in the second clause in section ro (2) (via)-of the Act mea,ns
the person succeeding and n ot the person succeeded where there has . been
only o.ne change~ oJ ow.nersl_iip and by neces.s ary implication means as if it
reads "the assessee, wh.o last owned and used the assets during the previous
ye.ar''.
Held: That it is the. .successor, the Rangoon Electricity Board and not
the. predecessor,.the aPPliCant, which was entitled to the depreciation ior the
whole of the previous year 1953.
Ci\i.lR~ference- No. 1:4 of1:957 Referencebythe Income-taxAppellate
.. Tribunal, B~rma with..regard to its order, dated the 28th February 1957 in
Appeal No. 6o of i9s6.
BURMA LAW REPORTS. 93
Where it is contended that the second part of clause (via) of the Burma C.C.
:om~-tax Act is entierly inapplicable because it envisagt's voluntary tran5- 1963
~of ownership and not such an involuntary transfer as had taken place in the THE
e now undt:r consideration. RANGOON
Held: That the words "tramfer of owner~hip" in the second part of ELECTRIC
:JS~ (via) of section~~ (2) _of the A : t incllde not onlyv" J.lntary t ransfers but r:::::;Aco~
:> transfers by operatlon oflaw. LIMITED.
Calcutta Electric Supply Coporation Limited v. Com~issioner of Income-tax, v.
:st Bengal, (1951) 19 I.T.R."4o6, dissent:d from. THE CoM-
MISSIONER
Held further : That the word " assets" us~d in the second part of sub- oF INCOME
tion (via) of section xo (2), Burma IncometlX Act inclu:l :s buildings. . TAX,
RANGOON.
C. Khoo for the .applicant.
! Kyaw (Government Advocate) for the respondent.
U SAN MAUNG, ]. -This reference under section 66 (z)
the Burma Income-tax Act arises out of the order dated
e 28th February 1957 passed in Appeal No. 6o of 1956
the Income-tax Appellate Tribunal, Rangoon. The
testions referred for the opinion of the late High Court
e these:
(1) Whether upon the facts of this case the applicant
or the Rangoon Electricity Supply Board is the
assessee, who last owned and used the assets
within the meaning of the second part of sub-
section (via) of section 10 (2)~ Burma Income- .
tax Act ?
(2) Wheth~r the word ". assets~ used in th'e second
part of sub-section (via)' of section ro (2),
Burma Income-tax Act includes-buildings?
te applicant, .Rangoon E~ectric Tramway and Supply
)mpany Limited asked the Tribunal to refer another
.estion said to. have arisen out of the TribunaFs order.
is : whether.on the facts of this case sub-section (via)
sec.tion 10 ~2) , is effective to take . away from . the
plicant .the.nght .to depreciation allowances under sub-
: tion (vi) for. assess~p.ent year 1954-55 in respect of assets
94 BURMA LAW REPORTS.
taken over by the Rangoon Electricity Supply Board on
rst :october 1953." Th'e Tribunal, however, refused to
~~~oN ;refer this question on the ground that the same was never
~LECTRJc 11: raised before it and that therefore it did not arise out of
J.t</<MW!<Y ""
SuPPl.V. eo., its order. The applicant being dissatisfied with the order
L~:TED -of the Tribunal, made an appli.c ation to the late High Court
J:~~~: under section 66 (I) of the Burma lncome-tax Act, to direct
oF INcoME- the Tribunal to refer this question also, and the late- High
TAX, .
RANGooN. Court by its. order dated the 28th August 1961 dismissed
the applicatiG>n holding that the question sought to be
raised by the appLicant was necessarily involved in question
No. 1 referred by the Tribunal. Nevertheless. the late
High Court reframed question No. 1 as follows:
"(r) whether upon the facts and circumstances of this case
' the applicant or the Rangoon Electricity Supply Board is
entitled to depreciation allowance for the plant and machinery
or other assets taken over by the Rangoon Electricity Supply
Board. for the period of nine months prior to the Ist of
October 1953, during which these assets were owned . and
used by the applicant Company?"
Tne facts giving rise to the present reference are briefly
these. For the assessment year 1954-55 in respect of the
P!evious year ending the 3 rst December 1953, the
applicant, Rangoon Electric Tramway and Supply Com-
pany Limited, showed in jts returns a profit of K 27,83,094
after claiming, amongst others, a depreciation allowance
of k 12,32,971 and an expenditure a~count of K 67,57232.
"It would appear that on the ISt October 1953 the busiriess
and assets of the applicant were acquired by the Rangoon
ElectricitySupply Board constituted under the Electricity
Supply Act of 1948 (Act No. 69 of 1948), as part of the
country's policy of nationalising :the .eletrical supply
industry. The applicant Company thep. smight for the
permissionof the Income-tax Officer to allow it.to change
its' accounting _year which was according to the calendar
BURMA LAW..REPORTS. 95
year, to a period ending. the 30th September 1953, that is c.c.
1963 ,
to say, the day prior to the acquisition of its business and THE
assets by the Rangoon Electricity Supply Board. The R&"<cooN
, f d . . h , ELECTRIC
Income-tax Officer reuse to give 1t t e necessary permis-.TRAMWAY &
sion. , He also rejected the claim for depreciation allowance sug~~T~o.,.
of K 12,,32,971 a~d expenditure accpunt of K 67,57232 THE~CoM
put forward by the Company in its returns to the Income- MissroNER
taX Department. The cla1m . f or expend'1ture f or t l1e peno
. d OF INCOME-
TAX,
the rst October 1953 till the 3 rst December 1953 is not RANcooN.
now relevant as it has since been allowed by the Income-
tax Appellate Tribunal. Regarding the claim for deprecia-
, tion allowance. however, the Income-tax Officer, Com-
panies Circle, Rangoon, rejected it on the ground that
under section ro (2) (via) of the Burma Income-tax Act,
it was the Rangoon Electricity Supply Board and not the
applicant which was entitled to depreciation for the pre-
vious year ending the 31st December 1953 . The applicant
appealed to the Assistant Commissioner of Income-tax.
After a long discussion of the merits of the appeal. in
course of which the Assistant Commissioner referred to the
relevant passage in the report of the IIfcome-tax Adminis-
trati()n Enquiry Committee as to the reason why clause
(via) o~ section ro (2) had been inserted in the Burma
Incom.e-tax Act, and agreed with the Income-tax Officer
that itwas the Rangoon Electricity Supply Board and not
the applicant which was entitled to depre<::iatiqn allowances
fo~ the ~hoi~ year whi~h included the:period rs t January
. 1953 till the 30th September 1953 for whieh depreciation
~llowance was claimed by the applicant Company. ,
, , The applicant then appealed to the J.ncome-:tax
Appellate Tribuna~ and the Tribunal concurring Wi.th the
views of the Assistant Commissioner, though without any
reference to the report of the Income-tax Administration
1nquiry. q)mmittee, dismissed . the applicant's .app~l .~
so far as ..it related to : the ..depreciation ~llow~!l,<;~
. .
9f.. ...
BURMA LAW REPORTS:
K 12132.971. The Tribunal, however, allowed the
. applicant's appeal relating to the expenditure account for
RZ:oN the period rst October 1953 to the 31st December 1953.
,!:LECTiuc& Hence the present reference to the late High Ce>urt .
.1.1<11MWAY
sui,~::;:T~o. , As it is common ground between the applicant and
v; the revenue authorities that there has been a change in the
TllE(:OM-
MISStO)fER ownership of the electricity supply business previously
OF INcOME-
TAX, owned by the Rangoon Electric Tramway and Supply Com-
R.~cooN. pany Limited, section 26 (2) of the Burma Incometax Act
is relevant. It retads :
" Where a person carrying on any business, profession or
vocation has b~n succeeded in such capacity by another
person, such person and such other person shall each be
assessed in respect of his actual share, if any, of the inconi.e;
profits and gains of the previous year."
In respect of " business ~ tax is payable by an assessee
on the profits or gains computed after rnaldng the
allowances enumerated in subsection (~) of section ro of-
the Burma Income-tax Act. Relevant clauses of this sub-
section are ,the following :
" (vi)..iii respect of depredation of such buildings,
machinery, plant or furniture being the property of the
assessee; a sum equivalent to such percentage on the original
cost thereof to the assessee as may in any case or class of
cases b.e pr~cr~bed etc. . . . . .
. ~via) Notwithstanding .that the machinery or p1ant is apd
used for the whole of the previous year the_assessee shall be
entitled 'to. fulf depreciation allowan<;e for .that year if the
machinery or phmt is used even for a portion 'of that previous
y~ar ; , an~ where :thete had ~entransfer of assets during the
. previ?us year jhe ass~se~, who last owned and. used the.
to
assets. shall he entitled .the said aHowance."
T.he .argume~t'. .t hat it was ~he .app~icant and not th~
Rangoon ,Eleetrieity' $U..p ply Board wlii~h i~ entitled to'
<lepreciati0Q. for'.t:he period rh:e rst January 1953 till the
BURMA LAW REPORTS; - 97
3oth September 1953 is best summarised in a grom;d of .~6~
appeal put forward by the applicant before the Assistant TH&
Commissioner of Income-tax. It reads: RANcooN
. ELECTRIC
"The Income-tax Officer in applying section 26 (2) was TRAMWAY &
, fi SUPPLY Co.
bound to assess separ~tely the appe11ant Company s pro ts LIXITED '
of the year in which the succession t~ok place up to the date " .
. THs CoM-
of success1on {3o1h September 1953) and not up to 31st MISSIONER
December 1953 and was, moreover, bound to com put~ such. OF INcoME-
profits after making all the allowance for depreciation under ~:~N.
clause (vi) and (via~. The Income-tax Officer was wrong to
interpret clause (via) of section 10 (2), as i~tended to take
away. appellant's right to depreciation allowances which \"-ere
obligatory under clause (vi)."
In our .opinion clause (vi) of section 10 (2) envisages a
situation in which there has been no change of ownership
during the course of the previous year, whereas the second
part of clause (via) is a special provision relating to depre-
ciation allo\y_ance on change of ownership during the
course of the previous year. On the maxim generalia
specialibus non derogant the general provision regarding
depreciation contained in clause (vi) cannot detract any-
thing from the special provision contained in the second
part of cla1,1se (via). Accordingly, it is necessary to
construe the provision of clause (via) .of section JO (2) for
a correct decision of the question involved.
Now, this clause contains two parts designed to meet
two enti~ely different situations so that it could very well
have been drafted as consisting of two clauses as follows:
. " (via) Notwithstanding that the ma~hinery or plant is:
not used for the whole of the previous year the assessee shall
be entitled lo full depreciation allowance for that year if the
machinery or plant is .used even .for a portion of that previous
year, and
(viaa) Where ther.e had been transfer of assets during ,the
previous year the assessee, who last owned and used the
assets shall be entitled to the said allqwance."
7
98:' :B''C:JRMA LA:_i\~/ REPORTS.
When split it up. in this way clause (via,- wilT cover
cases where the machinery or plant is owned by a person
TJU!
'R~.Nco~~ for the whole of ,the previous year but is only used .for
]i:I..Jl(:TR
' T.I\AMwAY & part of t hat peno'
. d'. Clause (v1aa
. } w1'1I cover cases where
.SuPPLY Co., . Jd . I d .
LiMr~to. the assets wh1ch Wei.! me u e machmery and P.lant, are
.T~~ CoM- transferred during the previous year from one owner to'
.:Ml.sSlONER h Moreover, as word s m. t he s1ngu
. far a1so me
. 1ud e
010 iNcoMe- il'not er.
Ji;.'t/td~'N. the plural vide section r2 of the Burma General Clauses
~ct, clause (viaa) will cover cases- where tfrere has been
more than one transfer of ownership during tthe course of
the previous year.
In coming to the conclusion that the phrase " the
assessee, whb last owned and used die assets"' contained
in the clause means the person succeeding amd not the
person succeeded where there has f:Jeen only one change
of ownership, the Tribunal held that by necessary implica-
tion the phrase means as if it reads the assessee, who last
owned and used the assets during the previous year ".
Vv'ith this condu~on we are entirely in agreement, and
~e consider that the words " during the previous year "
have not been repeated in order to avoid redundancy.
For these reasons we are of the opinion that during
the previous year the Ist January 1953 till the 31st
December 1953 now under consideration, the machinery
and plant .in question were owned and used by t'he
.. applicant, the Rangoon Electric Tramway and Supply Com-
pany Limited from the rs.t Janu~ry 1953 till the 30th
September 1953, and by the Rangoon . Electricity Supply
Board from the rst October 1953 till the 31st December
r'953 Accordingly it is th~ ~~ccessor, the Rangoon
Electricity Supply Board and nqt the pr-edecessor the
appllcab.t, the Rangoon Electric Tramway and Supply Com-
pany Limited which was entitled to the depreciation for
the whole of the previous year I953
BURMA LAW REPORTS.
~-
99
It has been argued that if the Rangoon Electricity c.c.
1(}63
Supply Board and not the applicant be held to be the
THB
assessee who would be entitled to the depreciation for RANcooN
the previous year 1953, the Rangoon Electricity SupplY. T:,..a;,.~;:~c &
Board would be getting depreciation .for a period of 21 SuPPLY. Co.,
L IMITED.
months in its assessment for the year 1954-55 as the - v.
T HECOM-
depreciation for nine months in 1953 during which the M t ssroNER
assets were owned and used by the applicant befon~ being oFI;:~t~
taken over by the Board, would be added to the " previous RANcoor-;.
year of the Board which ran from the rst October 1953
II
to the 30th September 1954. However, there seem to us
nothing strange in this result if the Rangoon Electricity
Supply Board would be entitled to a whole year's deprecia-
tion by owning and using the machinery and plant in ques-
tion for _only three months; it stands to reason that it
would get depreciation for 21 months by owning and using
them for a period of 15 months. Accordingly, there is no
merit in this contention of the applicant.
It has also been contended that since the "previous
year of the Rangoon Electricity Supply Board which was
II
the owner succeeding to the machinery and plant ran from
the rst October 1953 till the 30th September 1954, the
applicant w~s the only owner who owned and used these
assets during the " previous year " as its " previous year ''
must be deemed to have ended on the 30th September
1953. In our opinion, there is no merit in this contention
also. The~ previous year,'' for the purpose of the present
assessment, was from the Ist January 1953 till the 31st
December 1953, and .for this period the assessee who last
owned ari(} used the piant and machinery was the Rangoon
Electricity Supply Board and not the applicant, the
Rangoon Electric Tramway and Supply Company Limited.
The next argument of the learned Advocate for the
applicant is that clause (viaa)-as renumbered by us--of
section ro (2). is entirely inapplicable because it envisages
..tQO BURMA LAW REPORTS .
..:..~,-.. -:.!;
c ..c. -~voluntary transfers of ownership :and .riot''s uch an ~llivo-
1963
lunt~y transfer as had taken place in the cas<=: now under
T~~
RANcocN consideration. In this connection he has relied upon a
T~~~:~c & decision of the Calcutta ~Ugh Court in Calcutta Electric
SuLPP':s Co., 'Supply Corporation Limited v . Commissioner of Income-
IMITBD.
vee tax, -W est Bengal (1). There it was held that the transac-
~~~~o::; tion. by which the Government acquired the plant could
oF ~~~~- not be regarded as a sale within the meaning of section
RAN<?ooN. <fo (2J (vii)' of the Indian Income-tax Act, 1922 as the
ordinary meaning of the word " sale " is a transaction
entered into vt>luntarily between two persons known as
the buyer and the seller, by which the buyer acquires
property of .the seller for 4:1 agreed consideration known
as a price.
However, in our opink"wl, the words "transfer of
owq.ership " occurring in clause (viaa) as renumbered by
us-of section 10 (2) also include such transfers by operation
of law as anacquisition contemplated by section 28 of the
Electricity Supply Act, 1948 (Act No. 69 of 1948). If the
words "transfer of ow11ership " only include voluntary
transfers, where fol' instance. there has been a compulsory
execution of sale deed in execution of a decree for specific
performance of contract for sale of business assets includ-
ing plant and machinery, it would be the predecessor and
not the successor who would be entitled to annual depre-
ciation. This result cannot have been intended by the
legislature.
Ther~ore, in :our opiniion, the words " 'transfer of
owners.hlp .'~ in this clause inclu~e not only voluntary
transfers'but also transfers by operatiQn of law.
Regardii,Ig the second question referred to the late High
Courtby the Tribun~l, we are of the opinion that so long
as the build,ing concerned was necessary to be used for the
. .. ..
(t) (1951), 19 I.T.R., P ..o6.
BURMA LAW REPORTS. 101
purpose of the business of Rangoon Electric Tramway and c.c.
Supply Company Limited it would be .assets transferred t~
the Rangoon Electricity Supply Board within the meaning RA;;:oN
of clause (viaa) as renumbered by us of section r o (2} of E~cTRtc .
1 R4MWAY &
the Burma Incom~-tax Act. SuPPLY co.,
, LIMITeD
Accordingly, our answer to tl\e first question .as re- "
}
f ramed by t he 1ate H1g 1 Court wou }d be h . . h ' THE CoM-
t at It 1s t e :.ussroNm
=."'
Rangoon Electricity Supply Board v.:hich is entitled to or 1;,.c~Ma:
depreciation allowance for the plant and - machinery or RANcooN.
other assets taken over by the Rangoon Electricity Supply
Board for the period of nine months prior to the rst
Octob~r 1953 during which these assets were owned and
used by the applicant Company .
.Our answer to the second question will be that the
word " assets " used in the second part of sub-section (vi a)
of section 10 .(2), Burma Income-tax Act includ~ buildings.
The applicant must pay costs of this reference. Advocate's
fees being assessed at twenty gold mohurs.
102 BURMA LAW REPORTS.
APPELLATE CRIMINAL
Before U San Marmg and U Thaung Sein, JJ.
. c.c;. THE UNION OF BURMA (CHHAGANLAL LAVJI KOTAK)
, _1961
(APPLICANT)
Jan. 31.
v.
M .. V. GAD~1IA AND TWO OTHERS (RESPONDENTS).*
Hindu law-Polygamy permitud 11nder Hindu ~rriage Act {Indian Act No. z 5
of r955)-Camrot effect on Hindus in Burma-When may be recognized.
Bigamy in India-Hindu, wl1o is a citizen of Union of Burma and an Indian
citize1t-Camzot be prosemted in Burma for. Contempt of Courts Act,
ss. 2. and 3-What does not amount to c,ffence undn.
Hindu law as recognized by he Courts in Burma is the customary law
relating .to Hindus and the taw as laid down by th.e decisions of the Courts.
According to this law, a Hindu may marry again though he has a wife or wives
living as Hindu law permits polyg~my though~ it does not approve of the
practice. In India an absolute prohibition against polygamy is enact~d by
section 17 of the Hindu Marriage Act {fndia Act 25 of 1955). This being
a statute law enacted bv the I ndian L~gislature it cannot per se have any
eff,ct on the Hindus in Burma. It may be recognized, if after generations of
obedience tothis statute taw, new migrants from India come into Burma and
claim that so far as they are con~rned monoe:amy is a c.-ustom ha,ing the fo:-ce
oflaw. . Then, in so fa'l" a$ they are concem("d, monogamy may be enforoed,
the Hindu law relating to marriage having been altered by custom having the
force of law.
Tan Ma. Shwe Zi11 v. Koo Soo Clzo11g, (r939) R.L.R. 54-8, foU~wed
Ramadlzar Keto v. Ratipal Ahir, (r958) B.L.R. (H.C.) u, overruled.
A Hindu who .is a-citizen of the Union of Burma -cannot be prosecuted
. in thi,s , -country, under section 494 of the Penal Code for allege-d bigamous
marriage . which he" had contracted in India and an Indian .::itiun cannot
.. Under any circumstances be tded in Bu-rna for an offence under section 495
of the Penal Code, which was committed in India.
' By saying that the applicant and his wife should be boycotted for encoura-
ging their, son to cont~:act a bigamous marriage in India, the respon~ents
-h ave .not prejudiCed the trial of the applicant for the alleged offences of
cheating. and -criminal breach of trust as to constitute an offence ,punis\l~ble
u~der sections 2. and 3 of the Contempt of Courts Act.
King Emperor v. Ma Tin Saw and one, 6 Ran. 39, referred to.
Criminal Miscellaneous Application No. 18 of 196o.
N9-TE.-.-Due to inadvertance this judgment was nqt published in the
approprtate part of the Burma Law Reports. Ed.
BURMA LAW REPORTS. lU~i
P. Mya Maung for the applicant. c.c.
1961
Aung Min (2) for the respondents.
THE UNIO~
OF Bql\Mo\,
U SAN MAUNG, J.-In Criminal Miscellaneous Case (CHHAGAN-
LAL LAV)I
No. 40 of 1960 of the sth Additional Magistrate, Rangoon, KOTA~) : .
the applicant Chhaganlal Lavji Kotak, asked the learned J: v.
Magistrate to move the High Court to take action under ~~~~:H::.
sections 2 and 3 of the Contempt of Courts Act, against
the respondents Manila! Valabhji Gadhia, Shantilal Keshavji
Shingala and Chandulal Hansraj Thakker. His case was
that on the 19th April 1960 Lilavanti, wife of his son
Kishorlal, filed a direct complaint in the Court of the sth
Additional Magistrate and in presence thereof process was
issued against him, his son Kishorlal and his wife
Mrs. Narmada Kotak under sections 406, 420 and 495/!09
of the Penal Code in Criminal Regular Trial No. 409 o.f
1960. On the 22n'd March 1960, i.e. about a month before
Lilavanti's complaint, a vernacular paper, namely " Daily
Prachi Prakash " published a resolution dated the 16th
March 1960 purported to have been0 signed by the rst
respondent Manila} Valabhji Gadhia as President and the
2nd respondent Shantilal Keshavji Shingala as Honorcu-y
Joint Secretary of the Shree Rangoon Samasat Lohana
Marajan. In that resolution it is alleged that the
applicant's son Kishorlal contracted a second marriage in
lndia, with one Miss Champa when his marriage to '
Lilavahti was still subsisting, and that Kishorlal's marriage :
had the ~onsent of his parents. A social boycott of
Kishorlal and his family was urged therein.
.Aft~r the institution o~ the cas~ by Lila:vanti, handbills-;
purporled .to have been signed by. the rst respondent
1:fahilal Val~bhji Gadhia were djstributed calli~g attention :
to the resol_ution which ha.d been p;1s~ed a11:d informing _
Jhe member-s'. of the com~unity : that the copies. of the
resolution had been sent to India. volunteers for the '
distribu~ion of the h~ridbills in Burma .Were al;~ called.~
. BURMA LAW REPORTS.
c.c. . for: ... The .applicant therefore contends that the action of
19 1
. ~ .. the respondents tended to prejudice the trial of the case
THB U N ION
. oF -BuRMA . agamst " h'IS Wl'fe an~' 'ms
h 1m, . son and tuat
1...
act"10n shouId
,
<s~Ht~~';;- be .taken against them under sections 2 and 3 of the Con-
...ioS?'li~~>. tempt .of Courts Act ; the 3rd respondent being the editor
. - r.J.~V. : _ of. the ~' . Daily Prachi' Prakash" where the handbills bad
Gli.DH!A AND b . d f . l .
TWO_OTHERS. een pnnte Or CITCU atlOn .
. ., ,In_ consequence of the applicant Chhaganlal Lavji
l,(otak's ap.pl:ication, the 5th Additional M~gistrate made
. an e[\q_u iry _in,to the matter for necessary action under the
Contempt of Courts Act ..
: Now; the complaint by Uiavanti against Kishorlal C.
Kotak, h_is. father Chhaganlal Lavji Kotak and his mother
Mrs. Narrn~da Kotak, which was dealt with by the leai'ned
-5 th Additional Magistrate in Criminai Regular Trial
_, No. 409 of .r9-6o was for a<:tion against the accused persons
. u_nqer.sectiOJ:?.S 406 and 420 of the Penal Code and abetment
thereof, though Lilavanti incidentally mentione<l. in
._para-graph 8 of her complaint that the rst a-ccused Kishorlal
C. Kotak, her.husbatld; by contracting a bigamous marriage
inl:n:dia had .committed an offence punishable under section
495.0f tl~e P~nal Code. That Lilavanti was only tak,ing
action .a.g~inst the three af cused persons under sections
. 4o6 an<~ :420 of the Penal Code is dear from parag~aph I 2
of'her complaint. Nevertheless, the learned 5th Additi011al
. Mc:1gistrate, . ~fter the examination of LHavanti on' oath
m:dered n:on:bailable warrants to be ~ssued against accused .
Kisho.rlal C. :~otak tlilder _sectiol1S 406, 420 and 49S or-'th~ .
Pena.l .. Code. an.d: agai~st the ~wo other accused under .
settions.
:466, . '420
. .
and .49
~.
5.r~ad V\'ith section I 09 Of d1e
I
P-e_nal ,GOO.e.:. It . is Jor . this .reason that .the applita'tit
Gijh~g~n.la.l L~vji K()tak <:o~tends ~hat the publication or
. the:.res6lu_t~on constituted<:Ontenipt of Court inasmuch a~
. the :a\l~hors <?f -~he re:;;oJuti~:m '._ ~ad taken it as esta~lishe-J
BURMA LAW REPORTS. 105
l:hat Kishorlal C. Kotak had committed an offenc~ ptmish- ?9~~
ab!c under section 495 of the Penal
.
Code
and that the other -
TH UNIOI"
two accused, his parents, had committed the offence of oF BuaMA
. (CHHACAN-
abetment thereof . LAL LAvJt
K'"TAK)
Now, if the three accused persons had been properly "v.
prosecuted for offences under section 495 of the Penal Code G!!~~~No
and under sections 495/109 of the Penal Code, the three Two oTHERs.
respondents in the case will be guilty of contempt of Court
by publishing a resolution to the effect th.lt the accused
persons were guilty of the offence for which they were
standing trial. In this connection, it is only necessary to
refer to the case of King Emperor v. Ma Tin Saw and one
{1) where it was held that:
" the publication of comments on a case which is pending
trial in a Coun amounts to contempt of Court if the com-
ments are such as are likely to prejudice 'the administration
of justice in the case. A printer cannot escape liability
imposed on him by law ......."
However, in the case now under. consideration the
Magistrate who issued processes against Kishorlal C. Kotak
.and his parents, Chhaganlal Lavji Kotak and Mrs. Narmada
Kotak, had clearly overlooked the provisions of section 198
o0f the Criminal Procedure Code which enacts that no Court
shall take cognizance of an offence falling under section
495 of the Penal Code, except upon a complaint made by
th~ person .aggrieved. Lilavanti h.ad in fact never intended
to prosecute her husband and his paren~ in Burma for the
.<Offence which her husband had allegedly committed in
Jndia.
Ne)Ct, it l.s clear that no action cah. be taken against
Kishorlal C. 'Kotak for his alleged bigamous marriage in
India. No doubt, sectiqn 3 of the Penal Code enacts that
any person liable, by any law in force in the Union of
(1) 6 Rtn. 39
. 1()6 BURMA LAW REPORTS.
c.c. Burma, to be tried for an offence committed beyond the
1961
limits of the Union of Burma, shall be dealt with according
THJ! UNION
oP BuRMA
.to the prov1s1ons o f t h'1s ( ode f or any act committe. d
(CHHAGAN-
LAL LAVJI
beyond t h e umon . of Burma m . t he same manner as 1'f sueh
Ko;~') act bad been commitued within the Union of Burma.
M.V.
GADHIA AND Ho.wever, this section is limited in its operation by.
TWO OTHERS.
'Section r88 of the Criminal Procedure Code which runs:
"When a citizen of the Union of Burma commits an offence
at any place without and beyond the limits ot the Union of
Burma, he may be dealt with in respect of such offence as if
it had been committed at any place within the Union o'f Burm21
at which he may be found."
It i.s" not clear from the proceedings whether Kishorlai
C. K.Otak is a citizen of the Union of Burma. Assuming
that he is a Burmese citizen, he can only be tried for his
alleged bigamous marriage in India, if bigamy is an offence
aniongst th~ Hindus residing in the Union of Burma.
Now, section r3 (r) of the Burma Laws Act is in the
following terms :
" 13. (r) Where in any suit or other proceeding in the
Union of Burma it is necessary for the Court to deeide any
question regarding succession, inheritance, marriage or caste.
or any religious usage or institution,-
. (a) the Buddhist law in -cases where the parties are
Buddhists,
(b) the Mohammadans law in cases where 'the parties are
.Moharnmadan5, and '
(c) the Hindu law in cas~ where the. parties are. Hindus,.
'shall form the rule of decision, except in so far as such law
has by.: enactment }?een altered or abolished, or is opposed
to any cus~om hp,vin_g. the .force of law.. . ..."
Regatdi~g the meaning of 't he words " Buddhist l~w ",.
" Hinqu law " and " Moh.amm:adan law " occur:ring in this
BURMA LAW REPORTS. 107"
section, the Privy Council has in the case of Tan Ma Shwe c.c.
1961
lin v. Koo Soo Chong (~) observed as follows: THE UNION
" .... The 1aw w h.tc h 1s descn"bed m
th e st at ut e as ' the (CHHACAN-
OI' BuRMA
Buddhist law ; is like the Hindu and Mohammadan law LAL LAVJI
intended to be applied by the Court <.IS a law known to the Ko:Ax)
Court and administered by the Court of its own skill and M. V.
b f d d "d "fi d
competence. . . . . It cannot e con oun e or 1 erttl e Two oTHERS. GADHIA AND
with a foreign law which has to be proved as a matter of fact
in each case by the appropriate evidence."
As to what extent and on what condition the custom
of a persdn in his country of origin may be recognized by
Courts in th1s country, the Privy Council had this to say:
" . . . . . As observed by Sir Lawrence Jenkins delivering
the judgment of the Board in a case under the very similar
provision of section 16 of the Madr:as Civil Courts Act (III of
1873. 'In India custom plays a large part in modifying
the ordinary law' (Mohammad Ibrahim Rowther v. Sheik
Ibrahim Rowther (3). The importance of Kulacher or family
custom in the case of Hindus has given rise to a line of
decisions by British Indian Courts applicable to migrating
families. Some of these have already b\.<>en mentioned in this
judgment and Mailathi Anni v. Subbaraya Mudaliar (4) may
be added as an instance of migration from without into British
Indi~. There are, moreover, cases of Hindu converts to Islam
where it has been held that Hindu law ' had been engr:aJted
as a .custom on the Mohammadan law per Lord Dunedjn in
. KhatUbai v. Mohamed Haji Abu (5) and the effect of migration
as to these was considered by the Board in Abdurahim v.
Halimabai (6). Such matters require special consideration of
the ipdividual facts of each case as well as of the nature and
charac~er of the laws or usages of the -country of origin."
Therefore, Hindu law. as recognized by th~ <::ourts in
Burma is the customary law relating to Hindus and the
law as laid oown by the decision of the Courts. According
. ,. ; . . . .
(:l) (19.39) R.L.R 548. at s6J-and s67. (3) LL.R. 45 Mad. 308, Sl4.
(4) LL.R. 24 Mad. 6so. (s) (L922) L.R. so, I.A . ro8 at uz.
(6) (I9IS) L.R. 43 I.A. 3S. 41
108 BURMA LAW REPORTS.
c.c. to tl1is law, a Hindu may marry again though he has a
x1
wife or wives living as Hindu law pern1its polygamy though
TRI! UNION
oFBURMA it does not approve of the practice. In India an absolute
.~C,.~H..~~7,- prohibition against polygamy is enacted by section 17 of
KoTAK) the Hindu Marriage Act (India Act 25 of 1955).. This
"
M. v. being . a statute law enacted by the Indian Legislature, it
.
GADHIA AND
Two oTHF.Rs .:cannot.per se
ff
h ave any-elect l
on tne Hm. du m
. Burma. It
may .only be recognized, if after generations of obedience
to this statute law, new migrants from India come into
Burma and claim that so .far as they are concerned
monogamy is a -cus-tom having the force of law. Then, in
so far as they are concerned, monogamy may be enforced,
th Hindu law relating to marriage having been altered_by
custo-m -having the force of law .
. .This is connection, our attention has been drawn to the
observation of U Aung Khine, J. in Ramadhar Keto v.
Ratipal Ahir (7). There it was held that:
" The Indian Legislature is a competent authority to pass
Acts relating to J-Iindu Law and it is to Indian Legislature
that all Hindus must look for their protection in respect of
'Cases coming within the sphere of their personal law."
If by that observation the learned Judge means to say that
the Acts of the Indian Legislature apply per se to alter or
modify the personal law relating to Hindus in Bu.rma, we
must .with the greatest respect decline to subscribe to such
a view.
. Therefore, even assuming that Kishorla1 C. Kotak is a
-dtizen of the '()nion. ~o.f Burma, he cannot. be prosecuted
in. this countz:y, unde_r section 495 of .the Penal Code for
. the. alleged.bigamous inarriage which he had - ~ontracted in
India.
. :. . . . : .
.Needless. to.say, that if Kishorlal C. Kotak is an India.n
, citizen he cannot_underany -circumstance be trled in Burma
(7) (~958} B.L.R. I I.
BURMA LAW REPORTS. 109
for the alleged offence under section 495 of the Penal Code, ~9;;
which was committed in India. 'THE UNtoN
Consequently, although Kishorlal C. Kotak may be (~~~~
ostensibly under trial in Criminal Regular Trial No. 409 of , LAL LAVJI
.. l . R f KOTAK)
1960 of the 5th Add1t10na Magistrate, angoon, or an v.
offence under section 495 of the P~nal Code he is not GA~;'~No
properly so . . The publication of the resolution dated the Two <>THERs.
16th March 1960 cannot therefore in any way prej~dice
his trial.
Realizing that this ground is baseless, the learned
Advocate for the applicant Chhaganlal Lavji Kotak has
sought to cqntend that the publishing of the resolution
dated the 16th March 1960 has tended to prejudice the
trial of the case against him, his wife and his son for the
alleged offences under sections 406 and 420 of the Penal
Code. In this connection, he has relied upon the case of
Subrahmanyan (8). There it was held that " it may amount
to contempt of Court by abusing parties who are concerned
in causes there, or in prejudicing mankind a party before
the cause is heard, and that any publication which is
calculated to poison the minds of jurors, intimidate
witnesses or parties or to create an atmosphere in which
the administration of justice would be difficult or
impossible, amounts to contempt."
It is contended on behalf of the applicant that by
advocating social boycott of the applicant and his family,
the respondents had prejudiced mankind against him and
his family sothat they can hardly hope to get a fair trial
for the ~lleged offences under sections 406 and 420 of the
Penal Code. . In our opinion, by saying that the applicant
a~d his wife should be boycotted for encouraging their son
to contracta bigamous marriage in India, the respondents
have not prejudiced the trial of the applicant for the alleged
(8) A.I;R. (t943) Lahore 329 (F.B.)
110 BURMA LAW REPORTS.
offences .of cheating and criminal breach of trust. The
cheating alleged was that the applicant and his family had
-~:'k~:O: induced Lilavanti by false promises that Kishorlal C. Kotak
(CHaAGAN-
LAL LAVJI
will settle down in Burma, to consent to her marriaJe._,
to
KoTAK) him. The crimina 1 breach of trust alleged is that they
-M"':'v. would -not return th.e jewellery entrusted to them by her.
GADHIA AND Th .
Two oTHF.Rs. ese transact10ns are, h owever, elistmct
. f rom t h at
mentioned in the offending resolution.
For these reasons, we do not consider that any action
should be tar.en against the respondents under sections :?.
and 3 of the Contempt of Courts Act.
Let these proceedings be closed.
BURMA LAW REPORTS. 111
APPELLATE CRIMINAL
Before U K:yaw Zan U, J.
THE UNION OF BURMA {APPLICANT)
v.
u PO CHEIN {RESPONDENT).*
Criminal Procedure Code, s. 437-Furth~r inquiry ttnder-Oraet di;ecting-.
Principle g<n.erning-Exercise of power to.
The principle is where the ord~r of discharge is one \t hich cannot be said
tO be either perverse or prima facie incorrect and there is no suggestion that
any further evidence i ~ forthcoming, no further inquiry should bl' directed
under section 437 of the Code of Criminal Procedure,
Emperor\', A lam, I. L .R. 49 Al1.879, referred to.
The power to dir<!Ct further inquiry must be sparingly used and with great
caution and circumsp ~ct ion e;pecially \\here the questions involvod are mainly
matters offact.
Tin Maung (Government Advocate) for the applicant .
Nyun Han for the respondent.
. .
U KYAW ZAN U, J.-!his is an application to revise the
<>rder of discharge of the respondent who was prosecuted
under section 6 (11) of the Public Property' Protection Act
for being in unauthorized possession of government logs
along with one U Nyunt, who was also discharged in the
case, for want of evidence of abetment of the offence.
The evidence in this case is more or less the same as the
evidence in Criminal Revision No. 147B of 1962. I have
read and considered the evidence of the same witnesses in
both the cases.
It was alleged that the respondent who obtained con-
tracts .from the Government Forest Department to fell teak
trees in Peik-Thalein-Kanni Block, unlawfully sold some
Criminal R! vision N~. 148 (B) of IQ6z. Review of the order of the Special
] uqge. (II) SlAB & BSIA of Rangoon, dat~:d the 3 xst August 1962, in.Criminal
Regular Trial No. Z4 ofl961.
112 BURMA LAW RE;PORTS.
c.~. teak logs felled from the prohibited area and from areas
~ not cbvered by the permit. The prosecution relied mainly,
THE UNION
oF BuRMA to use a common - l anguage, on t he vanatlons
. . of t h e g1rt
. hs.
u Po CHEIN .of t11e logs from those of the stumps and on the entries
made in the exhibit Girdling Note Book maintained by the
Forest Department. .The identification of the logs as
deposed by B. Emanual, the then Forest Officer of
Thaye.tmyo District, was by the personal hammermarks of
the Contractor and the inspection marks of the Depart-
ment. These Jnarks are not disputed. The girths were
measured at 4' 6" from the ground. The royalties had
been paid on the logs felled by the respondent and no.
report had been made that he had unlawfully removed
logs from the place the trees were .felled. It appears that
some of 'theContractors were allowed to remove though
it was not the practice. To ascertain whether the trees
were felled at the places permitted or covered by the con-
tracts one has to see the departmental marks on the stumps.
The witness admitted that he never checked the exhibit
Girdling Note Book and could not say the entries made
therein were correct or not. He could not even say who
made those entries. U Aung Khin (PW 6) the Forest
Offi-cer, was the man who put the inspection marks on the-
logs and on the stumps after taking the measurements of
the circumference of the stun-ips and the length of the logs.
He said i& a tree produced three logs he had to number
them serially. Th~ logs were then remov:ed and stamp~
again by the .responsible Forest Officer after royalties had
been paid. He said -no Contractor was allowed to remove
the logs before he stamped them. He verified the
r-espo.ndent's c:ohtract and found that the trees felled by
him fell .within his right. U Tun Shin (PW 5) a timber
. -broker on the .o ther hand stated that the logs were stamp~d .
'only ~t the -car-g~te on the road and not at the places. they
:were .felled. .. He said they were .felled according to the .
BURMA LAW REPORTS. 113
permit. The evidence for the prosecution on this point ~f
is rather ,conflicting. Reading the evidence I find there is
.
~
THE UNION
some truth that these logs and the stumps were not stamped oF BuRMA
immedi;:~tely after ~he .trees were felled as required. .uPo vCHEJN.
The prosecution showed through U Ohn (PW 9) the
Forest Officer;. that lead tracings of both ends of the logs
were taken. .I-Je said these tracings showed _the yearly rings
and side lines. According to him each log has its own.pecu-
liar rings and lines which are never uniform, and that these
rings and the lines help to detect whether .the logs were.
lawfully cut and floated down or not. According to him
also th~ procedure is to stamp the trees and the stumps at
the .places. ~here they are felled and after removal they
have to be stamped again when the royalties are paid_
Then only they were allowed to float' down the river and.
on the way again each forest station or kin after in.spection,.
has to stamp them. U Htin Aung (PvV 2) was the expert.
who cut .and t9ok samples of the stumps and gave his
opinion. In . his \iew the lead tracings taken from the
stumps and .t:l10se taken from the logs in question differ.
This witness had only passed his Interm~diate Science from
the local University and was trained in scientific investiga-
tion in the United Kingdom for about two years, but he
never had. ~ny forestry training. He was not conferred
. with any diploma. He mostly studied the British oaks
during his training which are admittedly different from the.
Burmese teak. These lead tracings were in fact not taken
by him.- bu~ by other officers from different divisions who
. wer~ n~t wit~esses in the case. He only examined them
and gave .. his opinion afte! comparing them with those
tracings taken from the logs in question. He said though
opinions migh~ differ the yearly rings of each tree could
never be uniform. In fact he had never given such an
opinion before. His evidence no doubt was based on the
tracings which were not proved.
8
H4 .B URMA LAW REPORTS,
Qn these evidence, U Soe Thin (PW' 1) of the Bureau
THE UNION
of Special Investigation sent up the case against the res-
oF BURMA pendent. Accordjng to him the tracings on these logs in
f). .
u Po CHEJN. ~uestion tally with those taken from the st:umps in the
p'rohibited area and they bear the personal hammermarks
o{ the respondent. Since he is not an expert on the subject
it is rather hard to accept his evidence. His evidence is
secondary: The best evidence rule was ignored. lt h_ a
cardinal rule of evidence, not one of technicality, that
wherever written instruments are appointed any other
.evidence is excluded from being used either as a substitute
or to alter t.hem. On principle such written instruments
a~e in their nature and origin entitled to a much higher
;~gTee of credit than oral evidence.:_ He found that the
1ogs in question could not have been felled from the per-
mitted area as they were found to be of different sizes
from those of the 'stumps left in th~t area. He could not
say whether entries made in the exhibit Note Book were
correct or not. He could not also say who made these
entr.ies. From the re~ume of the evidence it is clear .that
the prosecution is weak in many respects. There is no
positive proof that the respondent felled the trees outside
his periuitte~ area. The only point set against the res-
pondent is that the sizes of the logs or their facial impres-
sions did not tally with the sizes and facial impressions of
the stumps. Being presumption of fact and unlike
presumption of law it is not conclusive proof. Hence it
is discretionary and not obligatory. Such presumEtion
gnnot supply deficiency in the proof . . I am. not inclined
to hold that adverse presumption should be drawn against
the respondent in the absence of p:roof of the N<;>te Book.
According to the usual procedure adopted they must have
been checked by the officers of the department all along
the route. The learned t riat Judge also came to th.e same
conclusion as I have reached.
BURMA LAW REPORTS. 115
-
_ ~_p_rip5_ip1~--j~_ -~~re _!_~__Qr_2~!_ __f__g~_c!]._~~g~is one ;9~3
which can_ll9~..b.~. s~i~--~9 be either _E_~~-~se or_PJ..Lrp.E. facie THE UNION
incorrect and there is no suggestion __tha..! ...~~y __ _f~r~her oF Buall(_.
evide~~e Ts-fo;thcoming, no fur~her._~Qgt!.i.ry___?ho~JQ_ be u Po c~ 1 N.
directed u~d~~--~~cti~n 437 of the Cod~__QL~rimil}~_Ll'.r'o- -
cedure. E.mp~i-6;-~. Alam (r). The pow~r to direct
further inquiry must be sparingly ll_?_e_~__and with great
~audon~~~~.:<i~rcumspection esJ?_ecially where th~ __g}Iestions
invol~~~-~E~~E:_ainly matters of fact. The trial Court has
discussed the .evidence carefully and has given reasons
which in my opinion are quite cogent to jUstify its conclu-
sion that th~ _evidence of the prosecution witnesses was
. insufficier.1t to support a charge. In Parashargm Bhika and
another \". : ~mperor (2) the Bench of the Bombay High
Court held that an order of discharge, made_ after hearing
of the prosecution evidence, should not be set aside unless
it can be: said that the order was perverse or manifestly
unreasonable and inconsistent with an honest appreciation-
. of the . evidence before the Court. The trial Court was
both entitled and bound to value and weigh the evidence.
T!te question in revision depends upo:tt whether it is rational
in the sense ~hat it could not be fairly described as perverse .
or manife~tly contrary .to the evidence. In the instant
case there is _n ot much to show that the order of discharge
is. perverse, unreasonable or inconsistent with an honest
appreciation of the evidence. The case is by no means
such a clear one that it can be said with any confidence
that a conviction . would be likely. The . application is
therefore dismissed.
(z) I.L.R. 49 All. 879. (z) I.L.R. 57. Bon. 430.
1.16 BURMA LAW REPORTS.
APPELLATE CIVIL.
Before U San Maung, U Saw Ba Tlzei" and U Ttm Tin, JJ.
c. c. U THARRAWADDY MAUNG MAUNG AGENCIES
1963 (APPLICANT)
Feb. 13.
v.
THE COMMISSIONER OF INCOME-TAX, BURMA
(RESPONDENT}.*
Burma Income-tax A.ct. s. z6A, Bttrmalncome-tax Rules. Rule z. Registra-
tion of firm--bzst:umerzt of partnership to be in e::istence during accounting
year.
Although there is nothing expressly laid down in the Burma Income-tax
Act to the effect that an instrument of partnership sought to be registered
must be in existence in the accounting year before registration can be
claimed, it is implicit when the relevant provisions of the Act and the
;Burma Income-tax Rules are read togeth(r.
Before section z6A of the Burma Income-tax Act was subsrituted by the
Burma Income-tax (Second Amendment) Act of 1957, with effect from the
1st October 1957, and Rule zof the Bum1a Income-tax Rules was substituted
by Notification No. 38, dated xxth S::r>tember 1956 of the Financial
Commissioner, Burma, it was necessary for the instrument of partnership
to be in existence in the course of the accounting year to enab[e that partner-
ship to beregistcs:ed- in resoect of the following asse$smetlt year.
M: Sulaiman for the applicant.
Ba Kyaw (Government Advocate) for the respondent.
U SAN MAUNG, J.-In Reference No. roof 1960 arising
but of its order dated the 2oth June 1960 passed in Appeal
No. 1 r6 of 1959, the Income-tax Appellate Tribunal,
Rangoon, has referred to the late High Court under section
66 (r.) of-the ~urma Income-tax Act the following question
of law:
" 'R~gard being had to the fact that the present section 26A,
'Bunna Inc9me-tax Act was substituted by the Burma Income-
tax (2nd Amendment) Act XLI of 1957, with effect from rst-
'Civil Reference No. 23 of 196o. Reference No ..ro ofl96o of the Income-
tax" Appellate Tribunal arising out of its order dated the 2oth June r96o in
Appeal No. u6 of 1"959
BURMA LAW REPORTS. 117
October 1957, and the present Rule 2 (a) of the Burma Income- c.c.
1 6
tax Rules was notified to have come in'to operation with 9 3
effect from 30th September 1956. whether the applica~ts' U THARRA-
WADDY
application filed on the rst June 1955 for registration of th e MAUNG
Firm the partnership deed of which was executed on the "'MAuNG
A o sNCIBS
21st June 1950, for the assessment year 1950-51 could not 0
be granted by reason of the fact that the said deed of part- 'rmrcoM-
. . . d , h f h MISSIONER OF
nersh1p was not m. eXIstence unng t e accomlt year o 't e INCOME-TAx,
firm from the xst April 1949 to the 31st March, 1950." BURMA.
The facts giving rise to the present reference are these:
For the previous year ended the 31st of March 1950,
the applicant firm Messrs. U Tharrawaddy Maung Maung
Agencies applied .for registration by producing a partner-
ship deed executed on the 21st June 1950. However,
registration was refused by the Income-tax Officer, Group
" G ". Rangoon, on the ground that there was no operative
partnership deed in existence during the accounting year,
viz., ISt April 1949 to the 31st of March 1950. On appeal
against the order of the Income-tax-Officer, the Assistant
Commissioner (U Ba Nyun) set aside the order of the
Income-tax Officer and directed that the application for
registration be allowed. The order of the Assistant Com-
missioner was, however, set aside by the Additional Com-
missioner of Income-tax under section 33 of the Burma
Income-tax A~t and the Income-tax Officer was directed
to deal with the matter afresh under section 26A. The
Income-tax Officer then passed a fresh order refusing regis-
tration on the same ground as that previously given by
him. On appeal by the firm to a new Assistant Commis-
sioner (U Tun Aung), the order of the Income-tax Officer
was confirmed arid the appeal dismissed. The applicant
fum then .appealed to the Income-tax Appellate Tribunal
-and the Tribunal by its order dated the 2oth June 1960 in
Appeal N0. I 16 of 1959 dismissed the appeal on the ground
that there were many decisions in India to the e~ect that
118 BURMA LAW REPORTS.
registration could not be given in the absence of an opera-
ti.ve partnership deed in existence during the .accounting
lT TfiARRA-
WADDY year.
~~~ In its application _to the Appellate Tribunal under
AcENciES section 66 (r) of the Burma Income-tax Act, the applicant
v.
'PHE CoM- suggested tl}at the view that there should be an operative
MISSIONBR OF d d f l ' d . h
lNcoM.a-r.\x, ee o partners 11p m existence urmg t e accountmg
.
llu-aMA. year was based on the amended rules which came into
operation with 'effect .from the 30th of September 1956
vide Financial Commissioner's Notification No. 38, dated
the IIth September 1956, and that as the application for
registration was filed in June 1955, it was governed by the
old Rules as contained in Notification No. 37 dated 2xst
of April 1939, and that consequently it was not necessary
for the <ieed of partnership to be in existence during the
relevant ac<:ounting year. Accordingly, the Appellate
Tribunal granted the application for reference of the
question of law involved to the late High Court under
section 66 (r1 of the ~urma Income-tax Act. . Now, section
26A of the Burma Income-tax Act before its amendment
in I 957 reads =
" 26A (r) Application may be made to the lhcome-tax
Officer on behalf of any finn, constituted under an insnument
of partn~rship specifying the individual shares of the partners.
for registration for the purposes of this Act; and of any other
enactment for the 'time being in force relating to income-tax
or super-tax."
After amendment by the Burma Income-tax (Second
Amendment) Act of I 9 57, 'this se~tion reads :
. "Application may be made to. the Income-tax Officer on
behalf of any firm, constituted by.. an i'nstrument of partner-
ship specifying the individual sh:ar~ 9f't.i:le ,partners, for regiS-
tration for the purposes oi ~his- Act and of any other enact-
ment for the time being in for<:e relating to income-tax or
super-tax."
[The-proviso to this sub-section is nqt reproduced.]
BURMA LAW REPORTS. 119
Whaf is significant is that the phrase "constituted
under an instrument of partnership specifying the indivi-
u THARRA-
dual shares of the partners " contained in the originai wADDY
section has been substituted by the phrase " constituted by ~:~
an instrument of partnership speCifying the individual Ac~_cJEs
shares of the partners." Tas Co:u-
MISSIONER OF
Regarding the Rules. the significant change which took IN~~~!-;Ax,
place in I956 on the publication of the Financial Commis-
sioner's Notification No. 38, dated the I rth September 19.56
is that with effect from the assessment for the year 1956-.57
application for first registration should be made before the
end of the previous year. or in the case of firm not regis-
tered under either the Partnership or the Registration Act,
within six months of the formation of the firm if that
gives an earlier date than the end of the previous year.
The application for renewal of registration under Rule 6
of any year, must also be made before the 31st of December
of that year.
The corresponding change in the'" Indian Income-tax_
Rules was made at the end of the year 1952.
Regarding the. interpretation of section 26A of the
Indian Income-tax Act which corresponded to section 26A
of the Burma Income-tax Act before its amendment in
I957, there was a divergence of views in India, on the
question whether registration should be granted in cases
where the partnership .originated in a verbal agreement
and really existed in the relevant accounting year, but the
instrument of partnership recording the earlier origin of
the firm was executed after the close of the :r:elevant
accounting year. The majority view is rejected in the
judgment of a Bench of the Calcutta High Court in R. C.
Mitter and Sons v. Commissioner of Income-tax, VIlest
Bengal (I). There Chakravartti C.}., being o( the view
(x) A.I.R. (1956) Cal., p. 303.
. L
120 . BURMA LAW REPORTS.
'C.c. that the phrase " constituted under an instrument of part-
963
. x nership specifying the individual shares of the partners "
U wADDY
THARRA- sh ould be read as. meanmg
" constitute
d by an mstrument
.
~~~~ of_ partnership specifying the individual shares of the
AcEr-;cr~ partners:" held that section 26A contemplated firms created
v.
ThB CoM- or brought into existence by a deed in writing and that
MISS~ONER OF h f f
INcoMe-TAX, .t ere :ore a deed executed at or be ore the commencement
BuRMA . of the accounting year, and remaining operative from the
date of its eKe<:ution was necessary. According1y, an
. assessee firm which was alleged to have come into existence
by' a verbal agreement in April 1948 was not entitled to
be registered under section 26A for the purpose of assess-
ment .f or 1949-50 where the instrument of partnership
was drawn up only jn September 1949 after the expiry of
the relevant previous year.
The opposite view held by the Punjab High Court and
the Bombay High Court was typified by the judgment of a
Bench of the Bombay High Court in Dwarkadas Khetan &
Co~, Bombay v. Cop1missioner of Income-tax, Bombay (2).
There. Chagla, C.J ., observed that it would be totally
opposed to any plain construction of section 26A, to suggest
that only that firm can be registered which had come into
existence by reason of.the instrument of partnership and
that if a firm came into existence at a relevant point of
time. in the accounting year, carried on business and then
the partners decided to hav.e a written partnership reciting .
the fact of the partnership having coine into existence on
a particular date, that partnership deed woufd be the
instrument of partnership under which the finn ~as con-
stituted, and accordingly that firm hould be registered
under section 26A of the Income-tax Act.
Both the opposite points of view were carefully con-
sidered by the Sup~eme Court of India jn R. C. Mitiei: and
(2) A.I.R. (1956) Born. 321
BURMA LAW REPORTS. 1.21
Sons, Calcutta v. Commissioner of Income-tax, West ~~
Bengal. Calcutta (3). !n that case two of the three learned u THAw-
Judges who composed the Bench considered that the pro MAUNG wADDY
visions of section 26A of the Indian Income-tax Act, should MAuNG
Adl!NCIES
be considered with the Income-tax Rules as they stood v.
prior to their extensive amendments at the end of the year M;::,;~RM;F
1952, and the provisions of sections 26 and 28 0f the Act.. I NcoME-TAx,
Regarding the -question now under consideration, this is BURMA.
what they said: "It is clear from what has 3een said aboYe
with reference to the relevant provisions of the Act. that
the certificate of registration has reference to a particular
assessment year, and has effect for the assessment to be
made for that particular year. In ot her words, the terms
of the partnership should appear in the instrument of
partnership in respect of the relevant accounting year. It
is equally .clear fhat the firm to be registered should b;ne
been in existence duri~g the accounting year, ' constituted
.as shown in the instrument of partnership '. The Rules.
thus, contemplate a document operative during the
.accounting .year. We are not here concerned with the
further question whether the document should be in exist-
ence atthe.very inception of the accounting year or before
the year is out."
The learned Judges then discussed the divergent views
held by the Calcutta High Court in the case of R. C. Mitter
-and Sons v . . Commissioner of Income-tax (r) and the
Bombay. High Court in Dwarkadas Khetan & Co., Bombay
v. Commissioner of Income-tax, Bombay (2). They said,
that the Calcutta High Court was not justified in construing
the phrase "constituted under an instrument of partner-
ship specifying the individual shares of the partners " as
meaning " constituted by an instrument of partnersh:ip
specifying the;individual shares of the partners", and that
{3) A.I.R. (1959) {S.C.) 868.
{t) A.I.R. (1956) Cal., p. 303. (:a) A.I.R. {1956) Bom.,.321.
122 BURMA LAW REPORTS.
therefore the Bombay view was to be preferred. They
also said that the words "constituted under" occurring in.:
UTHARRA-
wAoov .
secnon 2 6A s }1ould be construed m
. t h.e WI-der sense as.
~t&;~ including firms whic_h had been constit!Uted under a deed
Ac~.cms of partnership as w~ll as those constituted by a deed o.f
~~~~o~M;F partn_ershJp. The learned Judges then went on to differ
INcoME-TAX, from the 'dew of the Bombay High Court as to whether
. BURMA, .
or not the ins!rument of partnership should or should not
have been in existence during the accounting year hy
making the following observations :
"Section 23 (5) (a) confers a privilege upon partners whcr
may find it' more worth their while to be assessed upon their
individ~al total income than upon the total income of the
partner-Ship. It is, therefore; very important from the point
of view of the Revenue that the Department should be
apprised in time of the true constitution of the partnershiP~
the names of the true partners and the precise share of each;
of them In -the partnership profits {or loss. if any). The very
?bject of this prgvision will be defeated if the alleged partner-
ship is not genuine, or if the true const:tution of the parmer-
ship and the respective shares of the partners, are not fully
and coi-rectly placed on record as soon as possible, for the
purpose of assessment. In this connection, the provisions of
section 28 (2) of the Act are also worth noticing. That sub-
section provides that if the Income-ta>t Officer or the App-ellate
Auth,orities under the Act, are satisfied that the profits of a-
'regist-ered firm have been distributed othe1wise than irr
acc_ord.C:tnce with the shares of the partners, as shown in the
Instrument of Partnership registered under the Act. and
governing 'such distribution~ and that any partner has con-
<:ealed ~ny part of his profits, the penalty pre~Clibed therein
may be 'imposed upon such a partner. Unless the Instrument
' of _Partnership has been registered iJi. respect of the accounting
y~r and before the. asSeSSll).ent has been done, the penal
prqvisions aforesaid can~ot be enforced. It is, therefore.
essential: ill the interest of proper administration and enforce-
. n1ent of the r-elevant provisions relating to the registration
of, firms, that the firms should strictly comply with the
BURMA LAW REPORTS. 123
!'equirements of the law, and it is incumbent upon the Income-
tax Authorities to insist upon full compliance wi'th the
requirements of the law." WADDY
MAUNG
The learned Judges finally concluded t~1eir judgment with 1\lAUr\'G
AGENCIES
the following words: f),
THE CoM
"As a result of the above discussion, the conc~usio.1 is MrssroNER oF
. b . INCOME-TAX,
reasonably c lear . that un1ess t he partnersh 1p usmess was BuNMA.
carried on in accordance with the terms of an Jnstrument of
Partnership which was operative during the accounting year.
it cannot be registered in respect of the following ao;sessment
year. As in these cases, the partnership did not admittedly
function under such a deed of partnership, the Department
and the High Court were right in refusing registration. We
would. therefore, dismiss these appeals but for different
reasons to those given below."
The third Judge who constituted the Bench of the Supreme
Court doubted the correctness of the majority view,
whether the instrument sought to be registered shouldhe
in existeJ?ce in the accounting year before :egistration could
be .claimed as there was nothing in the Act which said so
specifically ; but did not actually go the extent of writing
a dissenting judgment.
We have carefully considered the views of the Calcutta
High Court and the Bombay High Court and the Supreme
Court in the cases cited above and we are of the opinion
that although there is nothing expressly laid down in the
Act to the effect that an instrument of partnership sought
to be registered must be in existence in the accounting year
before registration can be claimed, it is implicit when the
relevant provisions of the Act and the Rules are read
together. In this connection, we are in agreement with
the views of the majority of the Judges who formed the
Supreme Court Bench.
For these reasons we consider that before section 26A
of the Burma Income-tax Act was s;ubstituted by the Burma
124 BURMA LAW REP.ORTS.
c.c. II1come-tax (Second Amendment) Act of 1957 with effec1
1963
- from the rst October 1957, and Rule 2 of t he Burm<
_u J.~oA~- Income-tax Rules was substituted by Notification No. 38
MAUNa
MAUNG
dated 1 Ith September 1956 of the Financial Commissioner
AcENciEs Burma, it was nec~sary for the instrument of partnershii
THB~oM- to. be in existence in the course of the accounting year tc
~Js;~~~~AO: enable-that partnership to be registered in respect of th
B~rnMA: ' following assessment year. We would, therefore, answe1
the questim~. propounded in the affirmative. The applican1
must pay costs of this reference. Advocate fees bein~
assessed at twenty gold mohurs.
BURMA LAW REPOR:rS. 12S
APPELLATE CRUMrnNAL
Before U Kyaw Zan U, J.
J THEIN AUNG .(a) U TINT LWIN, MAUNG KYAW AND .c.c.
1963
u THIN SEIN (APPLICANTS}
Jan. z:!.
v.
u MAUNG KO (RESPONDENT).*
Stay of criminal proceedings-General rule regardi1g.
The general rule is every Court should as far as possible. dispose of the
tse on its file with the urmos! expedition and the mere fact that some of the
itnesses and the documemary evidence will be the same in both the cases
not always a ground for st:~ying one of them until the disposal of the other
The public interes:s d::m:md that the guilty should be punished without
lY delay while t~e e\cnts arc still fresh in the minds of the public and in
articular the wi<msses, and the innocent should be absolved as eatly a5
ossible.
Tm.c Ete Tail.:. v. The Union of Burma, (r96o) B.L.R. \H. C.) 78, referred to~
:yaw Myint and Hla Pe for the applicants.
>r. BaHan and Mya Shein (Government Advocate) for the
respondent.
U KYAW ZAN U, ].-These three applicatiOns by U Thein
\.ung (a) U Tint Lwin, Maung Kyaw and U Thin Sein of
J Maung Maung Gyi & Co. Ltd. arise respectively from
:riminal Regular Trials Nos. 3, 4 and 5 of I96I of the
:ourt of the District Magistrate, Rangoon, wherein they
>rosecuted the respondent Maung Ko under sections 45I
.nd 380 of the Penal Code.
In Criminal Regular Trial No. 3 the respondent was
1rosecuted on 24th August I96o under section 45i: of the
1
enal Code on the First Information Report dated 17th
\ugust I96o lodged by the First named applicant that on
3th August I96o the respondent at 9-30 a.m. committed
Criminal Revision Nos. 83B, 84B and 8sB of 1962. Review of the
rde-r of the Di~trict Magistrate, Rangoon, dated the z6th June 1962 in
:riminal Regular Nos. 3, 4 and 5 of 1961.
126 BURMA LAW REPORTS.
house~trespass and took away a Share Register from the
C0mpany's premises. In Criminal Regular Trial No. 4
U 'THEIN
AuNG the respondent WaS prosecuted On the same day for a
. (alias)
u TINT similar offence on the First Information Report lodged by
~~~d the applicant Maung Kyaw on the same day as in the
KJAT'H 1~0 previous case that~ the (respondent) at 9-30 a.m. on 15th
SsxN August 1966 (i.e. two days later) came again to the Com-
'-'
u MAuNG pany's premises and not being able to open the almirah
' Ko. where 'the. cash and acc-ount books were kept locke'd Uf
the premises. In Criminal Regular Trjal No. 5 the last
named appl1cant U Thin Sein lodged a written complaint
ab~mt two months later on 15th October 1960 for thef1
undersection 380 of the Penal Code against the respondeni
alleging that he (respondent) on 13th August 1960 (i.e. or
the same day as the first mentioned case). at about 2 p .m
came to "Dagon Kanbawza Pwe Yon" a~ No. 47
Stevenson Street, Rangoon and took away sixteen Shan
Certificates valued at K 68,ooo.
In this connection I may mention that there is a ci,i
matter pending in this Court being Civil \1iscelianeou
No: 243 of 196G \vhcrein one U Thi :\iya applied to w1n<
up U Maung Maung Gyi & Co., Ltd. on the grounds ime
alia that the Company was fraudulent from its very ince~
tion and that the first mentioned applicant U Thein Aun:
(a) U Tint Lwin forged the signatures of the 23 share
holders of the Company for fraudulently transferring thei
shares to the value of K 94,000 into the name of a rnino
Maung Kyaw Kyaw who claimed to be the son of U Maun
Iviaung Gyi (deceased). The crjmjnal case for forgery bein
Criminal Regular Trial No. 6 of 1960 has been stayed b:
~his Court'in Criminal Revision No. 13B of 1960 pendin
'final disposal of the aforesaid Civil Mjscellaneous No. 24
of 1960 of this Court the reasons being that some of tb
is'sues involved in the ci.vil case migh_t have to be decide
also in the criminal case -and that .the civil case being
BURMA LAW REPORTS. 127
miscellaneous case would not be so protracted. The Court c.c.
was also of the opinion that the matters involved in .both UTHEIN
the cases vmuld be more conveniently decided in the civil AuNc
h (alias)
case and that if both the cases were heard t e applicant u TINT
U Thein Aung (a) U Tint Lwin would be very much r-.~:'~b
embarrassed. It appears from the records
of the connected KuvA;::
1~m
AND
cases the respondent Maung Ko claimed to be the younger SEIN
brother of U Maung Maung Gyi. The trouble started when u M~lNG
U Thi Mya who made a Director by U Maung Maung Gyi Ko.
the founder of the Company before his death alleged
forgery against U Thein Aung (a) U Tint Lwin, the Manag-
ing Director for the alleged transfer of the shares in favour
of the minor Maung Kyaw Kyaw said to be the son of
U Maung Maung Gyi though the respondent Maung Ko
claimed to be the younger brother of U Maung Maung Gyi.
On 23rd February 1962 the respondent Maung Ko
applied in all the three cases now under consideration for
stay in view of the stay of Criminal Regular Trial No. 6
of 1960 by the High Court pending final disposal of Civil
Miscellaneous Case No. 243 of 1960 submitting that the
nature of the evidence and exhibits to he produced and the
V'{itnesses to be examined in these three cases would be the
same as in Criminal Regular Trial No. 6 of 1960. The
applicants denied the allegations. The learned District
Magistrate fully realized that criminal cases should be
disposed of' as speedily as possible but as he was of the
opinion that the documentary evidence and some of the
witnesses in all these cases and in the Civil Miscellaneous
Case No. 243 of 1960 might be the same he ordered the
.stay of all these three cases. Hence these Revisions.
The general rule is every Court should as far as possible
dispose of the case on its file with the utmost expedition
. and the mere fact that some of the witnesses and the
documentary evidence will be the same in both the cases
:is not always a ground for stayjng one of them until the
128 BURMA LAW REPORTS.
c.c. disposal -of the other. These three~cases have been allowed
19{)3
to hang fire for such an abnormal length of time since
.U Tm!IN
AUNG about three years ago. As a matter of fact not a single
(alias)
U TINT ~-witness. even Jor the prosecution. has yet been examined.
LWIN,
MAUNG In all these cases the accused (respondent) is the same
KYAW. AND
U . THIN
person though the complainants are not but they are all
SHIN connected. In Criminal Regular Trials Nos. 3 and 4 the
uM~uNc .accused was prosecuted under section 451 of the Penal
Ko. Code arid in the la-st case he was prosecuted under section
:sso of the sa.id Code for theft. In all these cases the
prosecution merely has to prove house-:trespass in order to
.com'triit theft, and the properties at the time of the theft
were in the premises and in the possession of the Company.
In the civil case I take it that U Thi Mya, in t:he cir-
. cumstances. has to show that it is "just and convenient''
(hat the ~ompany should be wound up. Generally
speaking civil matters, even though they are miscellaneous
matters, un1ike criminal cases, drag on for years, and it
is undesirable that a criminal prosecution should vvait till
the disposal of the civil matter which has, in substance.
no connection whatsoever with the criminal case. In the
High (now Chief) Court Civil Miscellaneous No. 234 of
1960 was instituted over two years ago on 28th November
1960 and it is still in its preliminary stage. It is not known
when it wjll end. The public interests demand that the
guilty should be punished without any delay while the
events arc:; still fresh in the minds of the public and in
particular the witnesses, and the innocent should be
absolved as early as possible. There are, of ca:urse, no
hard andfasr rules as to when a criminal procedings should
be stayed pending the decision of a civi,l suit but in the
present circumstances I am dearly of the opinion that
these threecases should proceed. The civi~ case a~d these
three criminal Ca$es are all in Rangoon and no great
:iriconvenien~ can be caused to those witnesses who are
BURMA LAV!_ REPORTS.
required to give evidence in all these cases. As regards --.c.
1963
the exhibits, photostat or certified copies could be prepared
UTHEIN
and even. if the entire books of accounts or some register.s AUNG '
(alias)
are required they co~l~ always be obtained through proper u TINT
Lwrn
channels and returned in time for t~e other Court to go on iVi.4.UN~
KYA'\V \ND
with the case or cases before it. If the parties and their UTHIN
learned
.
Advocates really have their honest desire to .dispose
of the cases as speedily as possible arrangements can always
. SEI-N
v.
U MAuNe
Ko.
be made with their aid. In the instant c~se it cannot be
said that criminal prosecutions arose directly out of the
. proceedings in the civil case. It seems it is just the
reverse. : The winding-up of the Company is on a different
. footing and an independent action taken against the Com-
pany with which the respondent has no connection what-
soever. The fact that the respondent is alleged to have
committed house-trepass and theft in respect of certain
documents of the Company is not and cannot be a ground
for winding-up of the Compa"ny in .t he civil case. The
proof required in the criminal cases is entirely different
from that in the civil case. Certain documents may be
common exhibits but it is no ground for stay of the
criminal cases pending winding-up of the Company. My
views are supported in the latest decision on the point in
Taw Eue Taik v. The Union of Burma (r) of the late High
.Court where the head note runs as follows:
" .Where the civil suit is not between the same parties and
the subject matters are not the same the finding in the civil
suit will. not finally dispose of the criminal case.. The fact
that. there is a possibility of conflicting decisions 'is not quite
a relevant factor to be taken-into consideration in deciding
whether the criminal proceedings should be stayed. The
policy of criminal law is to bring an accused to justice as
speedily as possible so that if found guilty he may pe punished
(I) (196o) B.L.R. '78.
9
130 ; "BURMA LAW :l{EPORTS.
anq if innocent he ma_y be let off as early. as possible. Stay
Qf criminal proceeding'~ shc:>ufd be aiiQWed only on spet::ia~
t1 THBJN .and justifiabie grounds:'
AU.NC .
(aliqs)
. iU TrnT For all the reasons giVr.f the order of the learned
. ~~:&. District M~gistrate of ~ango0n iS: ite'teby get aside and t
i<.v;.w A~n :. direct that all these three crimi-11a:t &a~ .shall proceed
UTHIN .
SEIN forthwith.
v.
U. fo\AUNG
Ko . .
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132 . )~:l)RMA LA'f'f. REPORTS. [i96J,
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136 --BURMA LA.W REPORTS.
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144 ;J3URMA LAW REPORTS..
Period of Tune jrom which period
Description of suit. begi11s to run .
Limitation.
~
*
24-0. For possession of im- Twelve years The date of the disposses-
moveable property sion or discontinuance.
when the plahtiff,
while in possession of
the property, has been
dispossessed or lias
discontinued . the
possession.
I44 l<or possession of im- Twelv-e years- When the possession of the--
moveable p_roperty or defendant becomes a lverse
any interest therein to the plaintifl'.
not "hereby otherwi5e
specially provide4_for.
s:tl2
.
---~
~
oonsi.nlc.ti'fe claim (ar~Wil.g from 'l"i1e acts and circumstanCes
attending the appropriation). to hold the land against. him
who was ia posseasion. (Angell, sections 390 and 398). . It
is" the intention to claim adversely accompanied by such .an
invasion of the right of the opposjte party as gives him a
cause of action whkh constitutes adverse possession." .
......
BURMA 'LAW REPORTS. 147
ORIGINAL CIVIL
Before U Maung Maung, J.
AH~ED YAc;OOB MAMSA. (PLAINTIFF) ~.c.
.1963 .
v.
M ar. I9
GULAM HUSSAIN ESOOF MAMSA AND ONE
(DEFENDANTS).*
Decl4ratory Decree-valuation for--whether payah~ ad valorem. Court
Fees Act, Art. 17, Clause 6, Schedu~ ll-suit by trustee for reCOfJery of
possessio" of trust propertiu. Civil Procedure Code, s. 92-when suit by
"trustee bad for want of Attorney-Genert.l's consent.
Th~ Pbi:-~tiff claim~ to be th~ lawful trustee of a c~rtain Waqf, and filed
a suit for a Declaratory Decr~c that he is the la'>~>ful trustee thereof, and also
prayed for a perpetual injunction restraining another person from acting as
trustee. For purposes of jurisdiction the suit was valued at K x,ooo for
the injunction, and at K I ,so,ooo for the Declaratory decree.
Tne questions oflaw which mainly arose for consideration were (.i.) whet.bl
there cannot be- one valuation for the rei ief of perpetual injunction and another
valuation for the Declaratory Decree, for purposes of jurisdiction; (2) whether
a sait for bare declaration that the plaintiff is a trustee can lie without his suing:
for possession of the trust properties; and (3) whet.ber the suit is maintainable
in law for want of consent of the Jlttomey-General. under s. 92 of the Civil
Procedure Code.
Held: (x) In a suitfor declaration coupled with a prayer for consequential
relief, the Court Fees Act requir~s the 1itigant to pay a Court Fee on the D.ecla-
ration asked for, and ad valorem fee on the value of the consequential relief
The Court is not entitled to place a valuation 'on the Declarat'ion, for by "doing
this it would be doing a sedous injustic~ to him.
Maung Nyi. Maunl! and others v. The .Ma11dalay Municipal Comm.ittee, r:z
Ran., p. 335, followed.
(2) I t is a settled prindpie than a suit brought by a trustee or manager
to remove the defendant from such office and to recover possession of trust
properties from !lim, would fall under Art. 17, Clause 6, Schedule II of thO
Court Fees Act, and that t.be right to managenient being the subject matter of
the suit, Court Fees cannot be levied ad t10lorem on the market value of the
property. ""
Khalifa M .S.A. Ganny and others v. Mohamed Ebrahim and another,
9 Ran., p, 459; Kunj Bihari v. Keshavlal Hiralal (1904), I.L.R. 28 Bom., p. s6?;
V. Ramados v. K. Hammumtlw Rao(I9JJ),I.L.R. 36 Mad.,p. 364, referred to.
Jaffar Hus~ain Khan v. Mohommed Taqi Khan and otlzus A.I.R. (1933) Oudh
p. 517; VUlya Varuthu Tlrirtha v.BalusamiAyyar, A.I.R.(1922)P.C.,p. 123;
Civil Regular Suit No. 55 of 1962 of the Original Side, Chief Court
BURMA LAW REPORTS. [~:9.~3
.
C. C. and KUJ~iu Meethyan and another v. Kunjan Maracher and others, A.I.R. (1954)
1963 Trav.-Cochin, p. 5 I, referred t o and followed.
(3) .~ the Plaintiff is only seeking to enter the office of trustee under the
.Ammo
YJ.COOB
.Deed of Waqf, and does not seek in -t he suit any of the reliefs set out i n clauses
MAMSA (a) to (h) o0f s. 9Z of the Code of Civil Procedure, the.suit is not bad for want of
v. the Attorney-General's consent.
G_qtlM
HusSAIN Kunju Mee.thyan and another v. Ku11,ian Matacker and others; and Khalila
Esool' M . <'. A. Ganny and others v. Mohamed Ebrahim arzd another (supra), referred
MAMBA AND to and distinguished.
ONE.
Banerjee for the Plaintiff.
Chaube and Myint Soe for the Defendants .
. U MAUNe MAUNe, J.-The plaintiff asks for a declara-
tory decree that he is the lawful trustee of " Ahmed Esoof
Mamsa Waq~" in terms of the deed which brought it into
_being and by which the office has, according to the plain-
tiff, devolved on him as and from 26th August I961 on
the death of his father Yacoob Ahmed Mamsa. The plain-
tiff also prays for a perpetual injunction against the second
defendant, Sulaiman Mohamed Mamsa, restraining and/or
prohibiting him from acting as a trustee of the said trust.
In paragraph 2 of the plaint the line of devolution of
the .office of trustee. as mapped out in the deed of Waqf,
is reproduced. Tqis line beginning with Ahmed Esoof
Mamsa, the Creator of the trust. runs on after his death
to Esoof, the son as sole trustee and then to two trustees,
viz .. the son of Esoof and the son of Yacoob Mamsa, the
youngest so~ of Ahmed Esoof, on the death of Esoof. From
then on there: are to be two trustees jointly managing the
irust, the llne running through the-nearest male descendent
of the predece5sor trustee: I~ paragraphs 3 and 4 of the
plaint, the l ine of descent of the trusteeship is traced to
.t he plaintiff who is a son of the late Yacoob Ahmed Mamsa.
The plaintiff is one of the sons of Yacoob Ahmed Mamsa
and.' stat-es th~t the . other son~ have all agreed that he
:sh~uld take the place of the father as the sole tnistee of
the Ahmed Esoof Mamsa trust~ The deed of Waqf has
BURMA LAW REPORTS.
been produced in its original by the plaintiff and there is c. c.
1963 .
no dispute as to its authenticity. Nor do the defendants - -
AHMED
<leny that this deed which has founded the trust lays down YAcoos_
MA&est.
the scheme by which it is to be managed and maps out tt;
GfuM
the line by which the joint trusteeship must descend. 1-it:rssAm .
"ff
. By a letter dated 7th December I 96 r t h~ p1a1~t1 m- MAMsAEsooF
AND
formed the firSt defendant .th.a t On the death Of TiiS fatherc ONE.
Yacoob Ahmed Mamsa and by an agreement between the
sons, he the plaintiff, would in terms of the qeed of \.Yaqf,
enter into the office of trustee jointly with the first defend-
ant. Instead of receiving the plaintiff as a co-trustee, the
first defendant proceeded to appoint the second defendant
as a '' trustee " of the Waqf and informed the plaintiff of
the appointment by a letter dated 15th December 1961.
Allegations are made in the letter that the plaintiff was
daiming repayment of certain loans said to be due from
the Waqf to the plaintiff and as this would constitute a
conflict of interests the plaintiff would not be a fit and
proper person to be a trustee. " I have appointed him
(Sulaiman Mohamed Mamsa, the second defendant) as
a trustee for the interim period " the first defendant wrote,
.. during which you can obtain .t he necessary direction
from the Court if you choose to do so ". }iel)ce $~ $Uit. .
As the facts are not seriously in dispute and as the de-
termination of .the suit largely depends on the reading of
the: deed of W aqf, the parties haye cho.sen to meet each '
other on the followin~ issues which they hav~ joinecl. by___
consent:
1. Is the plaint sufficiently stamped ?
2 . Is the suit maintainable in law ?
3. Did the plaintiff become a trustee of the . suit
Waqf in terms of the .deed on the death of his .
father 1
15Q BURMA. LAW
. .REPORTS
.. . -.
"..:#;.
4 Does the deed of Waqf preclude the plaintiff from
becoming a trus.tee assuming that the allega-
.AuMiiD
YACOOB . tions made in paragraph 5 of the written
MAMs.t.
statement are correct ?
Gvt.Alll
HpssAIK 5 To what,. if atJ.y, relief is the plaintiff entitled ?
ESooF
~SA- AND
ONB. In making his submissions on issue No. I, Mr. Chaube,.
l~arned Co~nsel for the defendants laid stress on the valua-
tion fixed for the purpose of injunction at K I,ooo by
the plaintiff and argues that there cannot be one valuation
for the relief of pe!petual injunction and another for the
declaratory decree for purposes of jurisdiction of which
plaintiff has valued the suit at K I,5o,ooo. It is the con-
tention of the learned Advocate that ad valor.em Court
fee must be paid -on the valuation of K I,5o,ooo.
Mr. Banerji; lear:ned C~unsel for the plaintiff, cites the
ruling in Maung Nyi Maung and others v. The Mandalay
Municipal Committee (I) in which it has been held that
under section 7, subsection (4) of the Court Fees Act in a
suit for an injuncqorr the plaintiff must value the relief
sought and the amount at wbich he values his relief is
In
left entirely to his discretion. " a suit for a declaratiO'n
coupled with a ,prayer for consequential relief 1'7 1Leach,
f held, "the Court Fees A<::Crequires the litigant 'to pay
a Court Pee , . . . on the deelaration asked for and &d
valorem fee on th~ value of the.c-onsequential relief sought
as declared by -the litigant. The Cour~ Fees Act does-not
require -a valuation of the. deciarati.on.-and the Co"\lrt is not
e~titled to place _a. valuation_ o~ ~~ To do so and to reqUire
the litigant to pay ad valorem Court fee thereon is! to my
mind, doing him a serious injustice." On that reasoni;ng
and authority i must reject the con~ention made by the
learned Counsel for the defendants 't hat ad valorem Co"urt
fees must be paid by the .plaintiff on the,K I,I5;ooo w_hich
\l) tz Ran., P 335
BURMA ' LAW REPORTS. 151
he fixed as the value of the suit for the declaratory tlecree
for puq)u~cs of jurisdiction.
AHMBD
One other question connected with the payment o~ YAcooB
Court fees was not taken up by Mr. Chaube in his other- M~~A
wise thorough and helpful arguments. The question is c1ul.AM
., ' . f HUSSAIN
whether the suit is bad for fa1lmg to ask for possessiOn o E&ooF .
. d h h 'f 1 . . k d
t h e trust propert1es an W1 et er 1 sue 1 poess1.0n 1S as_ e. MAMBA AND
om.
for ad valorem Court fees must be paid on the market
value of the properties which constitute the trust. There
is one Burma ruling in which it was held .t hat plaintiffs
who claimed that they were the lawfully appointed truste~
of a certain trust property could not ask for a bare declara-
tion of j!1junction against the defendants but must pray for
possession of the trust property as \\'ell and value the suit
accordingly. In that decision in Khalifa .\.f. S. A. Ganny
and orhers \' . .~Iohamed E~rahim and anorher (2), Carr.
]. discussed .the rulings in Kunj Bihari \. Keshavlal Hiralal
(3) and V. Ramados v. K. Hanumantha Rao (4), where con-
trary views were expressed that a suit for declaration was
mruntrunable without a prayer for possession of the :trust
prope'rties. In those cases the reasoning was th~t it would
be preposterous to require trustees to pay ad valorem Court
fees on a suit for po.ssession of temple property but Carr, f.
differing, ruled that " that see.ms to me a question for the
legislature, which could provide that in such Sl,lits fees
should be calculated on some other basis but is not done
so. The law as it s.tands is that if they did sue for posses-
sion they would have to pay the court fees on the same
basis as any private person and the consideration that it is
unreasonable to require them to do this is irrelevant to the
question whether they should join to pray fo~ possession
or not."
In view of the abovedecision by. Carr, J., i decided to
invite learned Counsel for the parties to address me furthE-r
(a) 9 Ran., p. 459 (3) (1904) I.L.R. :z8 Born., p. 567.
(4) (1911)" I.L.R. 34 Mad., p. :l64.
152 BURMA LAW REPORTS.
c.c. on the question "does a suit for bare declaration that the
'19 6 3 plaintiff is a trustee lie without his suing for possession
AHMm
YACOOB
of the trust property ? ". I have h~d the benefit of able
MAMsA assistance from Mr. Banerji for the plaintiff and U Myint
Gu~~\! Soe for the defendap.ts in seeking an answer to that
~~~~~ question. U Myint Soe invites my attention to the ruling
MAMsA .wo in Mohamed ]afar Husain Khan v. Mohammad Taqi Khan
oN. and others (5) in which a Bench had decided that a person
suing' in his personal capacity for a declaration tha.t he is
the m.utawal1i of the Waqf property is not barred from
obtaining a decree by reason of the fact that he does not
in the sari1:e suit ask for possession over the property. It
was held that if the plaintiff "is held to be mutawalli he
Will ipso facto on the pleadings of the defendants-r~spon
dents themselves be entitled :to take over the property
from them. If they refuse to give possession they will
necessarily have to assert a title adverse to the Waqf and
to set up a claim which is not consistent with their present
position." It was also pointed out that the \iVaqf property
is vested in the Almighty and not in the mutawallis who
act merely as representatives and managers. The decision
of. the Privy Council tb.at " neither the sajjadanashin nor
the mutawalli has any right in the property belonging to
the Waqf, the property is not vested in him," was also
referred to by the Bench which came to the conclusion that
the plaintiff "was not suing to recover any property in
his qwn personal right but was suing. merely to obtain a
declaration that he was entitled as mutawalli to control
and manage the property of :the Waqf on behalf of the
true owner.'! Privy Council decision is Vidya Varuthu
Thirtha v. Baliisami Ayyar .(6). In that case th~ decision
of Carr, J. in :the Ganny case was referred to and dissented
from. A l~ter decision by a Bench of the High Court of
Jrayancore-Coa:hin also settles the principl~ that a suit
{s) 'A.t.R. ~~<>33) Oudh, p. sr7: (6) A.:I.R. (19zz) P.c.: p. IZJ.
BURMA LAW REPORTS. 153
brought by a trustee or a manager to remove the defendant c.c.
1963
from such office an.d to recover possession of the trust AHMBD
properties from him would fall un der article I7, clause 6; YAcooB
MAMBA
schedule 2 of the Court Fees Act and that the right to v.
management being the subject m~tter of the suit court ~~~N
fees cannot be levied ad valorem on the market value , of M EsooF
AMSA .AND
the property. Kunju Meethyan and another v. Kun)an oNB.
Marackar and others (7).
In the light of the above decisions, issue No. I as :to
whether the plaint is sufficiently stamped must be answered
in the affirmative.
It is strenuously contended by the defendants that the
suit falls within the provisions of section 92 of the
Civil Procedure Code and is not therefore maintainable
in law for wanr of the consent in writing of the Attorney-
Genernl. To this. however. the plaintiff replies that he
is not suing in a representative character but to establish
a right of hereditary management of the trust and there-
fore the suit falls outside the mischief of section 92. This
argument of the plaintiff finds support in Kunju Meethyan
and another v. Kunjan Marackar and others (7) and also
in the Ganny case (2). These decisions which deal with
Mohammedan Waqfs, as in this suit, would seem to weigh
in favour of the . plainttiff's argument that as he is only
seeking to enter the office of tustee, as the deed of Waqf
clearly entitles him to, the suit does not seek any of the
reliefs set out in clauses (a) to (h) of section 92 of the
Code and therefore is not bad for want of the Attorney-
General's consent.
In U Pyinnya Zawta anc:l one v. U Nyanika, C.R. No. I IS
of 1960 of the late High Court, Thaung Sein, J., sit~ng
on the original side, rules that the suit filed by certain
resident Rahans of Jbayettaw Kyaungdaik for a declara-
tion that the defendant, a trustee de son tort was not a duly
(7) A.l: R (1954), P. SI
BURM"A~t:.AW RE~~RTS.
c.c. elected trustee and for a perpetual injunction against him
I963 .
restrainted him from holding any election for trustee, was
~~B barred by the provisions of section 92 sub-section (2) of the
M~~sA Code. It was held there that the suit in substance sought
GuLP~ to have the trustee de son tort removed and therefore fell
HussAIN
EsooF within the mischief of clause (d) of section 92 (r). The
MA:.~. ANo decision was appealed from and recently upheld by a Bench
<!>f the Chief Court in Civil First Appeal No. 83 of 1961
(8). I have considered very carefully whether the decisions
in the Thayettaw Kyaungdaik case would apply to the
present suit and my conclusions are that the two cases
are. distinguishabl.e. In the Thayettaw Kya.ung daik case
the scheme for the management of the Kyaungdaik was
drawn up in Civil First Appeal No. 129 of 1913 of the
then Chief. Court of Lower Burma and the suit in the
. original side of the late High Court arose from the circum-
stances where in the .absence of trustees appointed in
accordance with the scheme the defendant Sayadaw took
charge and prepared to hold elections for trus~. It w~
in that situation that the resident priests filed a suit for
declaration that the defendant Sayadaw was not legally
qualified to act as trustee or to hold elections. Here in
this suit the deed of Waqf is the foundation of the trust
and there is no doubt that by the terms of the W aqf the
office of trustee has fallen on the plaintiff on his father's
_death. He is therefore in the suit, only seeking to vindi-
cate the right and the responsibilities of trustee which
.t.he deed of Waqf bestows .upon him. In the Tllayettaw
Kyaung <iaikcase the plaintiffs who have no claim as trus-
. t~ must obviously seek consequential relief of some form
for they cannot merely stop short with having the defen-
aant,. a trustee de son tort declared incompetent. Here
in this suit, as observed in the decisions cited above, once
the.plaintiff's right to enter his office is vindicated all that
he needs to do is to join the first defendant as a co-trustee,
(8) J udgment rendered on 23rd February I 963 .
-
BURMA LAW REPORTS. l55
sharing the rights and responsibilities of the m~mage'ment
of the tr;.<st. The perpetual injunction that he has sought
against the second defendant wculd then become a relief ::'!
that he has asked for out of abundant caution. Thus I MAMsA fl,
wouid hold that section 92 of the .Civil Procedure Code HG~AM USSAlN
does not operate as a bar to this suit and would ansver EsooF
MAMSA AND
Issue .:..ro. 2 m that sense. oNE.
In regard .to issue No. 3 there is no serious contest
from the defendants. The line of devolution of the trustee-
ship is dearly mapped out in the deed of Waqf and the
defendants do not deny that on the death of Yacoob Ahmed
Mamsa. the plaintiff's father, the plaintiff is, according to
the de-ed of \\'aqf the rightful heir of the trusteeship, when
the other sons agree that he should take up that office.
Issue :\o. 3 therefore must be answered in the affirmative.
The defendants say that the plaintiff is not a fit and
proper person to. be a trustee because, they allege, there
is a conflict between his interes.ts and those of the welfare
of the trust. lt is alleged that the plaintiff has been asking
the Waqf to repay the sums of money which he says he
has loaned to the vVaqf. These allegations and counter-
allegations as to facts by the plaintiff are not, in my opi-
nion, relevant to the determination of the suit. The plain-
tiff has not yet entered the office of trustee and the allega-
tions which have been made against him do not amount
to disqualifications in terms of the deed of vVaqf. It is
premature at this stage, when the plaintiff is able to esta-
blish that by the terms of the deed, the office of trustee
has fallen uponhim. to judge whether once he has entered
the office he .would be able ~o perform his duties well or
whether the conflicts between his private interests and his
duty to promote the welfare of the .trust would prove him
to .be a trustee who is unworthy of his office.
The suit is therefore decreed as prayed for, and wjth
costs. Advocate's fees K 170.
BURMA LAW REPORTS.
CRIMINAL REVISION
Before U San Maung, J
C:C. DAW .KYU KAR (APPLICANT)
1963
v.
March12.8.
rHE UNION OF BURMA (RESPONDE1\1T). *
Foreigner-Registration of Forf.~{/ners Act, s. 4-0nus of Proof Remedy in Civl
Court- to establish status of Burmese National.
The applicant on being prosecuted under the Foreigners Registration Act
. for: failure to register as a foreigner pleaded not guilty and adduced witnesses,
who deposed that the father was an Indian national, but did not know the
nationality of the mother. Accordingly, although the applicant held a National
Registration Card, she was convicted and sentenced under s. 5 (1) of the Regis-
tration of Foreigners Act .
.On. revision, held: Under s. 4 of the Re~?istration of Foreigners Act, when
any question arises with reference to the Act or any Rt1le made thereunder,
whether any person is or is not a foreigner, the onus of proving that such
a person is not a foreigner lies upon him or her.
Even if the applicant did not have the opportunity of citing witnesses,
other than those atthe :place where she resided, it is not possible on revision to
i ,,terfere with the conviction.
Her only hope to avoid a deportation order is to establish in a Civil Court
the fact that her -status is that of a Burmese national.
Hla Nyunt for the applicant.
U Ba Than (2~ (Government Advocate) for the respondent.
U SAN MAUNG, J.-Th.is application for revision is
against the order of the learned Subdivisional Special Power
Magistrat~ of Kalewa convicting the applicant Daw Kyu
, Kar of the offence punishable under section 5 (r) of the
Registration of For.eigners Act and sentencing her to a fine
. of k .30 or one month $ simple imprisonment in default.
It would appear that the applicant was prosecuted by
U Sein Hlaing, Assis~ant Immigration Officer Kalewa of
Criminal Rev~sion No. 67(B) of 1962 in th1 Chief Court si~ting at Mandalay.
Review of. the. order of the S;.~bdivisional Ms~istrate C)I Kalev.a, dated the
21st day of September
. 1961 , passed
. . in Criminal R'!gular
. Trial No. 36 o 1961..
BURMA LAW REPORTS. 157
for the offence punishable under the aforesaid section for ~~~j
failure to register her name as a foreigner as required by DAw Kvu
Rule 6 (r) (a) of the Registration of Foreigners Rules, she , K:.R
being an Indian national. \Vhen the applicant was charged THEUNION
OF ~URMA.
by the learned Subdivisional Magistrate. she p leaded not
guilty and not only elected to give evidence on behalf of
her own defence, but adduced two witnesses, V Pu and
U Abdul (DWs 2 and 3). Although these witnesses coulQ
state that they knew the applicant since her childhood.
they did not know the nationality of the applicant's mother.
On the other hand. they knew that her father .was an
Indian national. Accordingly, and notwithstanding the
fact that the applicant was the possessor of National Regis-
tration Card KLA I B4 1. she was convicted and sentenced
as mentioned aboYe.
Now, under section 4 of the Registration of Foreigners
Act, when any question arises with reference to the Act
or any rule made thereun~er whether any person is or is
not a Joreigner, the onus of proving that such a person is
not a foreigner lie upon him or her. Therefore, it cannot
be said that under the circumstances mentioned above.
the conviction of the applicant was bad in law. The
learned Advocate for the applicant, however, has contended
that the applicant cited such witnesses as she could obtain
at Kalewa, as she could not obtain an adjournment for
the purpose o_f citing witnesses from Mingin where she
resided, tO the -effect that her mothe~ was a Burmese
nationa~. However, there is nothing to show that the
applicant diq seek to have such an adjournment and had
been refused, .the proceedings of the learned Subdivisional
Magistrate (Criminal Regular Trial No. 36 of 1961), being
destroyed by fire. Furthe:ri it would seem that ifl the
. applicant did. ask for su<;h an adjournment there seems no
reason . why the Subdivisional Magistrate should have
. refused to give it, on sufficient reason being shown.
158 . BORMA .LAW:. REPORTS.
c.c. Be that as it may, sitting as a Court of revisior. it is
1963
not possible for me to interfere with the conviction and
DAWKYU
KAR sentence on the applicant. It would seem that her only
v.
'THE UNION
hope to avoid a deportation order is to establish in a Civil
. OF B!!lRMA.
Court, the fact that her st~tus is that of a Burmese national.
For these reasons the application for revision is
.,dismissed..
BURMA LAW REPORTS. 1 5~
SPECIAL CIVIL APPEAL
Before U San Maung and U Tun Tin, :JJ.
(APPELLAN11) c.c.
1963
DAW THEIN SHWE (APPLICANT)
Aprrt ro.
v.
S. M. CHOWDHURY (RESPONDENT)
Urban Rent Control Act-bona fide requiretnlnt by landlord for purpose ol
1'e-erection of' major structural 1'epairs-Jimutntling of house still hob.itable
for xo or I! years for re-ereetion-whether requirement bonafide.
-where the owner of a house which was about 30 years old, but was still
habitable for x.o or 1;5 years, had sought to eject the tenant, on the ground that
h e required it lxnt4fld! for re-building.
Held: The owner can be said to require it bonafide for the purpose of
re-building.
~ the means possessed by the owner, on the evidence, she is
Undoubtedly in a position to raise the sum required for re-erection.
Tile fact of strained relationship betwee"n the owner and the tenant, will
not mean that .he .does not require the suit premises rea.sonably and bona fide
for the purpose of re-ft'eCtion.
Daw Daw Thi v. U Thein Maung & Co., Ltd. and one, 1954, B.L.R. 14
(H.C.); and Bhu14n Singh tmd others v. Ganendra Kumar Roy Cluxodhury,
A.I.R. 1950, Calcutt~. p. 74,, followed.
S. B. Tikava1'an v. MmmgPe Than and five others, 1959, B.L.R . 84 (H.C.),
referred to. ' '
Wan Ho'Ck for ~IJ;~ aJ??e}.!')~t/applic<:l;n~.
H]a Pe (r) for the .respondent.:
.. ~ : 1 ' ;
.
'
U SAN MAUNG,:J.- .. This .4PP~al..uader. ~on ~oraLthe
Union. judiciary Act is agctinst t.b,e judg~l\tt~nd deGI:.ee of
the ~earned si~gle .j1,1dge of ,the. la,te tldjgh. ~lllit in Civil
Hrst Appeal N0~ 47 of I9qo..w.h~r6it). tbe.rleat.ned .judge
set aside the .ju,dgment and de<;ree =in- Civil Regular Suit
No.:192 of 1958 :~ which the pl;1inUjf-appellant Daw Thein
Shwe obtained a c;lecree for the ejectnumt of the defendant-
respondent S. M. Chowdhury fr07P the premises in, suit.
Special Civil Appeal No. r of rg6z, against the decree of the Appellate
Side of the late High Court of Rangoon ~n ~ivil First Ap~~al No. 47 of 196o.
. c:c. It wQuld appearMatfuCivilR~guiM- 5.tifl:'"!~o. 192 of 1958
1963
-- the plamt1ff Daw .Them Shwe who was .the owner of a
DAW THEIN
SHwE single-storeyed h ouse b emg . No. 2 6o, Bagaya Phongy1. -Road ,
s.~~.. Myenigone, soug'htto'e)eq the defendantS. M. Chowdhury
CHown~~- from one of the>-fo-orili; in the house on the ground that he
was a tenant and that the premises were required reason-
ably and qona'~de for the purpose of re-erection or essential
jnd major stn~ctural repairs. The defence of S. M.
Chowdhury was that "the ~uit premises were not reasonably
and bona fide required by the plaintiff either for re-erection
or for major str.uctural repairs as it was in qu:i te a habitable
state. One other defence was that the notice under section
ro6 of the Transfer of Property Act was inoperative as
the plaintJ."ff had withdrawn the arrears of rent which had
been deposited by the defendant with the Controller of
Rent;s. On the pleadings the learned trial Judge framed
a number of issues of which the most important were those
relating to the question whether or not the suit premises.
were reasonably and bona fide required by the plaintiff
fb:t the purpose of re-erection or major structural. repairs
and whether the notice must be deemed to have been
waived. On the question of waiver of notit:e, the learned
Judge held that the defendant was required to vacate the
premises by the end. of February 1958, the _p laintiff had
withdrawn atr:ears of rent f:tbtn the Controller tmly up to
. the -en'd of j~nuary 1~58 ::arid tliat"acco:r:dirigly the notice
was valid in?li.W.' dDh the qtiestidn of: ~he .'bdria fide nature :
. ()fthe r.e(]:U[iretrient: of: fue~uit"premises fm tiie;purpose of
''. re-erec~ibn/:fue :leatried )udge heid that .the -suit' preini(_;es .
, were old, th~t the pla1ntiff had 'a lready-obtained permission
. to tntitd , a tWo:-S~or~yed strtitture after demolishing the
.present b~ilding, :afi:d . that the pla:intiff was financially in
a position to .e rect,such a building. He ~ccordingly decreed
the plaintiff'ssuit.. With costs. . .
BURMA LAW REPORTS. 161
Being dissatisfied with the judgment and decree of the ~;;;
trial Court, the defendant S. M. Chowdhury appealed to D.o.w ;imiN
the late High Court and the learned Judge on the Appellate SawE
Side by his judgment and decree now under appeal dis- s~~- . ..
missed the plaintiff's suit with costs. In so doing the CHoWDiroltY'.
learned Judge held that from the evidence of R. K. Dutta
{DW 3), an Assistant Engineer of the National Housing
Board, the premises in suit were still habitable for the next-
10 or 15 years and that therefore the plaintiff could not
be held to have reasonably and bona fide required the same
for the purpos.e of re-erection. In coming to this conclu-
sion the le~rned judge purported to rely on the decision
. of a Bench of the late High Court in S. B. Tikavaram v.
Maung Pe Than and five others (I).
Now, the building in suit was admittedly about 30 years
<>ld as accor9.ing to the defendant himself he first occupied
it in the year 1931 as tenant of the then owner Ram Sunda
Pandit. R. K. Dutta (DW 3), an Engineer cited by the
defendant himself admitted that the corrugated iron sheets
<>f the roof and the wall of the house were quite old. He
.also gave his opinion that the house was, however, still
habitable for the next ro or 15 years and this opinion was
probably based on the fact that it was built with pyinkadoe
posts.
The question therefore resolves to this. .Can the owner
<>f a house which is about 30 years old be said not to
require i~ reasonably and bona .fide for the purpose of
rebuiiding if it could still last for the next ro years or so,
even though its roofs and walls which are made of cor-
rugated iron are very old ? The answer in our opinion is
ln the negative.
Regarding the means possessed by the plaintiff to erect
a two-storeyed building in place of the present one, her
son Maung Myo Nyun (PW r) stated that the plaintiff has
(t) (1959) B.L.R. 84 (H.C.).
162 BURMA LAW REPORTS.
c;;. already accumulated a sum of K 15,000 required for the
~ . purpose of erecting a building according to the plan
DAW THEIN
SJ!ws apprqved by t he Mumc1pa. . l"1ty. There IS. noth"mg to con-
s.~. tradict him on thi~ point. Also there is nothing to con-
~soWDHURY. tradict his statement that his father was earning a salary
of K 500 per mensem, that he himself was getting about
K. .415 per mensem and that his three younger brother~
were also. salary earners, their salaries being K 300 and
K. 150 per mensem. They were all living together in two
of the rooms of the suit premises.
Therefore, even if ~he plaintiff has not yet accumulated.
a sum of .about K 15,000 necessary to" erect a building
according to :the approved plan, she is undoubtedly in a,
position to raise such a sum.
The defendant's contention on the other hand is that
the plaintiff was a poor lady and that when she was about
. to.. erect a new kitchen at the back of the suit premises
she had to sell -a bus and a lorry which she owned. How-
ever, even if the plaintiff did sell her bus and lorry, that
does not necessarily mean that she had to do so in order
to raise sufficient money to build the kitchen .
. The defendant has also given evidence of the straine~
relationship existing between him' and the plaintiff because
of his failure to vacate when asked to do so. He said that
the plaintiff tried to raise the standard rent by making an
application to the Rent Controller and that she failed in
her purpose. :He also said that!tlie plaintiff tried to cut
off the water supply from his rbom 'to. force him to vacate.
However, even assuming that the relationship between the
' plaintiff aJ,ld the defendant had become strained owing tOt
his failure to comply with her request to vacate.from the
room which he was occupying, this fact .aione will . -~ot
.mean that -the plaintiff did not requite the sujt premises
rea~onably and bona flde for the purpcis.e of re-erection.
The le.a rned Judge of the late High Court had relied upon
BURM~ LAW REPORTS. 163
the case of S. B. Tikavaram v. Maung Pe Than artd five ~;~3
others ',r) where the facts were quite different from the -
. DAW THEIN
present. There. the landlord who wanted to demolish the sawE
existing. dwelling houses occupied by tenants for the pur- s. M:.
pose of building a cinema in its place was refused a decree Ca~auav.
for ejectment of the tenants. There was nothing in that
case to show that the building sought to be <jemolished
was either old or dilapidated so as to make the proposed
demolition a reasonable undertaking. The decision more
in point is contained in the case of Daw Daw Thi v. U
Thein Maung & Co., Ltd. and one (2). Although it was a
case under section I I (r) (d) of the Urban Rent Control Act,
cOne of the decisions relied upon, namely, Bhulan Singh and
<Jthers v. Ganendra Kumar Roy Chowdhury (3) was under
.a provision oflaw similar to section I I (r) (e) of the Urban
Rent Control Act, I948. In that case it was observed by
Harries. C.J. "It appears to me that the premises are
bona fiqe required by the landlord for the purpose of
rebuilding, if the landlord hqnestly requires them for that
purpose. The equivalent of the phrase ' bona fide ' is
"honestly. It refers to the state of the landlord's mind.
The landlord therefore will be entitled to possession as
against the tentant if he established that he honestly
require~ this premises for re-building."
In the case now under consideration we are of the
<)pinion that the plaintiff did require the suit. premises
Teasonably and bona fide for the purpose of re-erection.
In fact if she did not carry out her avowed intention she
would be liable on the bond which she wquld have to
e:x:ecute to the effect that she . would give .effect to the
purpose of re-building a house within . a period of nine
months from the date of vacation of the premises by the
tenant. The bond which she would have to execute is
li) (1959) B;L.R. 84 (H.C.). (z) (1954) B.L.R. 14 (H.C.).
(3) A.I.R. (1950) Calcutta, p. 74
2
--
BURMA LAW ~P:G~TS-
. , ' :. .
c.c. fixed ilt K 5,000 with one surety in the like amount. As.
1963
the new building when erected-will come within the pro-
DAw THEIN
SHwE VISIOn
of M'miStry
of F'
_mance an d R
i evenue notl
l..T 'ficat10n
S~M. No. 35, date'd the r6th February 1951, the question of
CHoWD!f\JRY. reinstatement will n<?t arise. In the result (he appeal
succeeds. The judgment and decree of the High Court
are set aside .and those of the trial Court restored with
~Gndition that the bond to be executed by the plaintiff
should be as mentioned above. The plaintiff is entitled
to costs of this appeal. Advocate fees in this Court being
assesseq. at five gold mohurs.
-~BURMA LAW REPORTS.
CIVIL MISCELLANEOUS
Before U San Maung fSf U Kyaw Zan U, JJ.
H. N. SEN (H. R. SEN GUPTA) (APPLICArrr) c.c:
e963
v. April IJ.
THE ASSISTANT CONTROLLER OF RENTS, MYANAUNG
AND THREE OTHERS (RESPONDENTS).*
Writ of Certiorari-Order of Assistant Controlkr, undtr ss. 21 (4) & (?)-
Urban Rent Control Act- Finding of facts-1z0t speaking order.
The Applicant had applied for a writ of Certiorari alleging that the Respon-
dent No. 1 had act~d without jurisdict ion, as he had .not subl~t the premises
as all~~cd, lind farther cont~nded that the order alloti::g the premises to
the own-;r for hi; own occupation ~as tantamount to an evasion of tht. provisions
of ld.': r~l,,;i;-!Z !) filir-1: oi suits by l:mdl<>rdl' agair.st tenants on the g:-ound of
bo11a fi.i~ r~<;.Jir::::::r.! ior the ir O''" occupation.
H .l.:i: :'; . .: r { .;)of Crban R~nt C->nt~ol .-\.::r (196:>) l!iv..:s jurisdiction to
the Conrrt)!br or .\~istant Contro!la of R'!nts to dir<:ct the landlord to let
the premis<!S to a pcrso:1 or persons specified by him if th:- premis::s had been
occu;Jied .tfcer the zxst October t9.;<, without his permission . ln this case
the Respond~nt No. t had after due enquiry come to the conclusion that the
.t?-pplicar.~ had s~9-.letthe premises, and the proceeding~ show th~re a~e mate~ials
on which he could have come to such a finding of facts. Ther~fore his order
carinot be considered as a " Speaking Order".
Held also: S.i~ce the owner is one of the Applicants for accommodation,
tJ;tere is.nothing in ~aw to prevent.the Respor;dent No. 1 to allqt the p-remises .t_0
him, if he considers that such a course is warranted by the circumstances of
the case. The order then\f<ire c.annot be said to be made without jurisdiction.
G. N. Banerji .for. the 4pplicant.
.' J
Hlq . .Maung; (Gov:ernment Advocate) . for the Respondent
No, I.
U Tin Aye for -the-Respondent No.2.
U SAN M~tJNG, J .~.:This is an application by H. N. Sen
..., a Writ of Certiorari .to quash
for the issue of - the. -order
dated the 7th of October 1962 of the Assistant Controller
Civil Miscellan"eous Application No. 161 of 1962 against the o~der of
the Assistant Coptroller of Rents, Myanaung, in proceedings No. 14 of 1962,
dated. the 7th of October 1962.
BURMA LAW REPORTS.
c.c. of 'Rents, Myanaung, in his Proceedings No. 14 of 1962.
1963
- - By that order which was purported to have been passed
(fl: ~J:! under section 21 (1-) and (7) of the Urban Re~t Control
Gu:.TA> Act, 1960, the Assistant Controller of Rents ordered the
TKif 3rd and 4th respond~nts, Chowdhury Babu and Maung
f
AssiSTANT
CoNTROLLER Aung, to vacate rom t he premises
. .
m .
question on t he
;:{YA~~!~ ground that the applicant H. N. Sen had sub-let the same
&i 3 oTHERs. fo them without first obtaining the permission of the
Assistant Controller. These respondents were also inform-
ed thc:tt if they failed to vacate, as directed, they would be
forcibly ejected under section 23 (~) (2) of the Act. The
Assistant Controller further directed that when the
premises had been vacated they would be returned to the
owner respondent U Maung Myint for his own occupation.
In the affidavit accompanying his application H. N. Sen
alleged that the respondents Chowdhury Babu and Maung
Aung were not his sub-tenants as held by the Assistant
Controller. He said that Chowdhury Babu being his uncle
and employee was allowed to live in the premises free of
rent and that Maung Aung was also his permissive
occupant. The premises were also used by him to store
his gO()(is. Regarding the goldsmith shop, he said that it
belonged to him and that Maung Aung was merely in
charge of it.
Accordingly, the appli~ant contended that the Assistant
Controller had acted without jurisdiction in ordering
Chowdhury Babu and Maung Aung to vacate. He also
contended'that the order allo~ing the premises to the owner
U Maung Myint for his own occupation was tantamount
to an evasion of 't he proviskm~ of law relating to filing of
suit by landlords against tenants on the ground that the
premises are required bona ~de ,for his own occupation.
Now, section 21 (4) of the Urban Rent Control Act,
1960, .gives )urisdiction to the .Controller or Assistant
Controller of Rents to direcrthe landlord to let the premises
BURMA LAW REPORTS. 167
to a person or persons specified by him if the premises had
been occupied after the 21st October 1950, without his
permission. After due enquiry, the learned Assistant Con- . ~-NR.~~
troller. had come to the conclusion that both Chowdhury G uPTA)
Babu and Maung Aung were occupying these premises . "
erHE
withouthis permission ana as sub-tenants of the applicant c~~~~~~
H. N. Sen. The proceedings show that there ar~ materials .J:Y~!~~c
on which the Assistant Controller could have come tb & 3 oTHERS.
such a finding of fact. Therefore, his order now sought
to be quashed cannot be considered a " speaking order ".
Since the owner U Maung Myint is one of the applicants
for accommodation, there is nothing in law to prevent the
Assistant Controller to allot the premises to him if he
considers that such a course was warranted by the circ-
umstances of the case. The order of the Assistant
Controller cannot therefore be said to be one made without
jurisdiction.
An order under section 23 (2) of the Act is a necessary
consequence upon the failure of persons in illegal occup~
tion of the premises, to vacate .when directed to do so by
the Controller or Assistant Controller.
For. these reasons, we do not consider that any inter-
ference with the order of the Assistant Controller is called
for. The application .fails and it is dismissed with costs,
Advocate's fees being 3 Gold Mohurs.
CIVIL REFERENCE
BP;fore U San Marmg, U Saw Ba Thein & U Tun Tin,. JJ.
JIWAN RAM .RAMPARTAP (APPLICANT)
v.
Mai.S.
THE GDMMISSIONER OF INCOME-TAX, BURMA
(RESPONDENT).*
Itzcome-tax Act, s. 66 (3)-Question of Law-Question of sr(fjiciency of cause
. for the purpose of cancellation under s. 27 of the Burma Income-tax Act-
Whether question of Law .
. The assessee, the applicant in this case, was assessed under s. 23 (4) of-
tl).eincome-tu: Act as he was deemed to have failed to comply with the no:ices
under . s. 22 (4) and s. 23 (2) of the Act. An application for cancellation
was. made under s. 2i tq :the Officer making the assessment. but was
dismissed .
. .The applicant being dissatisfied with the said assessment, then a~led
to the Assistant Commission~r, mainly on the ground that unles:s aOd until
he had po~ted the entries contai0 ed in the rough day books tc tk ~me
ledgers, he would not be in a position to prepare a profit and loss acoount snd
submit the books to the Income~tax Officer for examination. The -~<i...<;tllnt
Coz:nm.i,ssioner however .took the view that the Income-tax Officer oonc~med
. had tried his best to help the applicant to compl~te the posting of accounts and
to comply with the requirements of the notice under s. 22 (4) of the Act and
. that extension after extension of t-ime was given to .the Applicant so as to enable
tl!.e apo>licant to avoid an assessment under s. 23 (4) and to qualify for an assess-
ment under s. 23 (3) of the Act. The appeal to cancel the assessment was
therefore dismissed by the A<;sistant Commissioner. The applicant then filed
a Revision Application before the Additional Commi;sioner, who, however,
IU!Jltnarily dhmi~ed the application.
. On app1ication i:o the late High Court under .s ' -66" (3) of Burma Income-tax
Act:
Held : The point for determination. is whether on the facts found by the
. Assistant Comm<>sioner in the appeai against th~ <>rdei: of the Income-tax
: Office, any question cif law aro.se for the consideration of the late High Court
. and by this C~urt. The question or" sufficiency of .cause for the p~rpose of
.. canceHatio~ ur-.d~r ~- 27 of Hwma ln~om.::-tax Act, of .an assessment madl';
under s. 23 (4) of the Act, is essentially one of fact.
P.K.N.P.R. Chettyar Firm v: . The Commissioner. of Income-tax, Burma
IV I.T.C. 87; P:k.N.P.R. Chettya1 Fi~m v. The C()lnmissioner of Income-tax:
. ll Civil.R eference.No. 2 of I9SS. against the .Order of the Additional Commis-
. sioner .of Income-tax, "Rengoon, in his Case No. AP. 32/so-sr of i:95<>-sr,
. dated 28th June I9$4
!
BURMA LAW REPORTS. 169
Burma, IV I.T.C. 340; A.K. R.PL.A. Chettyar Firm v. The C:mzmis1ioner of C.C.
Income-tax, Burma, 5 I.T.C. 182, referred to. 1962
Abdul Baree Chowdh!tTY v. The Commissioner of l'ncome-ta.--c, S I.T.C. 352; } I~K
Vith,1 lv. Commissioner of Income-tax, C.P. f!J U.P., ( t<)38), J.T.R. 264, followed, RAMPARTAP
Therefore no question of law arises. The application must be dismissed. ........._ "c
' .. ...., OM-
M JiSIONER
A. C. Rodriguez for the applicant. oP INc;c;iMt;-
TAX, BllitMA.
Ba Gyaw (Government Advocate) for the respondent.
U SAN MAUNG, }.-This application under section
-66 (3) (old) of the Burma Income-tax Act arises out of the
order of the Additional Commissioner of Income-tax,
Rangoon, dated the 28th of June 1954, refusing to refer
to the late -High Court three points of law said to have
arisen out of the order of the Assistant Commissioner of
1ncome-tax, Eastern Range, Rangoon, in his Appeal
No. CEN. 86/49-50.
The facts giving rise to the present application appear
'in the appellate order of the Assistant Commissioner dated
"the 29th of September 1950. It would appear that the
applicant who was a person engaged in the export and
internal trade in timber was assessed for the assessment
year 1948-49 by the Income-tax Officer, Central Circle,
I
Rang0on,. under section 23 (4) of the Burma Income-tax
Act on an estimated income of Rs. 1,26;024 pS the applicant
w~s deemed to have f;1iled to comply with . the notices
under sections 22 (4) and 23 (2) of' the Act. _. An applica-
tion to the. Income-tax Offic~r concerned f<;>r..the cancella-
tion of the assessment was made under section 27 of the
Act but that officer by his order dated the 18th of May
1950,' dismissed the application. The applicant then filed
an appeal to the Assistant Commissioner of Income-ta."X.011.
the following grounds :
(r) "That the Income-tax.Officer erred in treating:
th.e appellant as in default as the ?ppellant
duly produced before th~ Officer rough day
.
BURMA LAW REPORTS.
c.c. books maintained by him for )lis business and
1963
that the appellant did comply with the notice
]IWANRAM
R ..MPARTAP under section 23 (2) as he appeared on the date
f),
Tw; CoM-
fixed when he explained to the Officer that the
MISSIONER rough books had to be posted into the ledgers ;
OF INcot.fE~
TAX, BURMA. (2) That unless and until the ledgers were posted
and balanced there would be no progress in
assessment proceedings. The Income-tax
Officer granted time so as to enable the appell-
ant to post the entries in the rough book pro-
ving that the time extended was due to
essential reasons and that such an adjournment
which was granted from time to time cannot
convert what was due compliance of the notice
into a default ;
.. (3) The appellant explained that the facts mentioned
in the second paragraph of Income-tax Officer's
order under section 27 viz. that there was no
response between 31st January 1950 and 4th
February I95b were due to office error in
marking the application addressed to the
Income-tax Officer by the appellant's adviser
a~ relating to 1949-50 instead of 1948-49 The
petitio~er further added that apparently the
Income-tax Officer did. not receive the sub-
sequent letter rectifying the error before he
passed orders assessing the appell~nt under
5ection 23 (4) on the 4th Februar)r !'950."
The Assistant Commissioner of Income-tax by his order
dated the r8 th of May 1950, observ:ed. that. the applicant
was .first assessed on the 29th of Septeml?er 1:949 for the
. assessmen~ year 1948-49 under section 2.3 (.f) of the ~'urma
Income-tax Act by the Income-tax Offia:r, Gentral Circle.
as.he was deemed to have failed to comply wjth the terms
BURMA LAW REPORTS. 171
f the .riotic~ under sections 22 (2) and 22 (4) of the Act.
his assessment wassubsequently cancelle<l by the Income-
Jtw.\NRAl\t
tx Officer under section 27 of th.e Act by his order dated RAMPARTAP
41
1e 29th of November I949 A fresh assessment proceed- THEvCoM-
tgs were then open~d against the ap~licant with the issue 0~~~~:~=
f fresh notices under sections 22 (4) and 23 (2) of the Act TAx. BuRMA.
>r compliance by the r2th of December I949 On that
ate the applicant came with his Income-tax Adviser,
rr. Sitaram and asked for time to comply with the notices
tying that the account books were still in a rough stage
Jd that the applicant had not yet been able to write up a
dger based on these account books. The Income-tax
fficer accordingly granted time till the 2oth of December
H9 for writing up the accounts and for the appearance
~ the applicant. On the 2oth of December 1949, the
?Plicant's son appeared with Mr. Sitaram and asked for
1rther extension till the 9th of January 1950, as the
)Sting of the accounts had not yet been completed. This
ctension of time was granted. On the 9th of January
~50, an application was received from Mr. Sitaram asking
1r time till. the end of January to enable his client to .post
te ledger and to produce account books with the trial
tlance, etc. Three days later, namely, on the 12th of
.nuary 1950, when Mr. Sitaram explained that the delay
as due to the quarrel which. had taken place between the
'plicant and his son, Mr. Sitaram was nevertheless
.formed by. the Income-tax Officer that the adjournment
as being given .for the last time.
On the 31st of January 1950, which was the final date
<:ed for the compliance of notices under sections 22 (4)
1d 23 (2) of the Act, the Income-tax Officer fo~d that
.ere was neither appearance on the part of the applicant
his Income~tax Adviser Mr. Sitaram, nor receipt of any
mununication in the matter. He, however, waited till
.e 4th of February 1950, before making his "best of
1'72 BURMA LA'N REPORTS.
judgment" assessment under section 23 (4) of the Ac
}IWA."lltAM
In tpese circumstances, the Assistant Commissioner c
. RAMP ARTJti2 Income-tax observed that it was clear that the Income-ta
. t/.
THECciM- Officer had tried his best to help the applicant to complet
MISS~NER
.OF INCOME-
the posting of acco"lknts and to comply with the requin
:TAX, BURMf.. ments of the notice under section 22 (4) of the Act an
that extension after extension of time was given to tb
applicant so as to enable the applicant to avoid an asses:
ment under section 23 (4) and to qualify for an assessmer
under section 23 (3) of the Act. There was, therefore, n
ground whatsoever for allowing the applicanrs appe~
against the refusal on the part of the Income-tax Officer t
cancel his assessment under section 27 of the Act.
It would appear that while the Income-tax Officer We
waiting for the appearance of the applicant and his Advis~
after the adj<?ur~ment given on the 12th of January 195<
the applicant did write a letter to the Income-tax Offic~
applJ?ng for a further extension of tim~ till the roth <
February 1950, .to enable him to prepare the profit an
loss account and to submit the books for examinatim
This letter was dated, January 31/February r, 1950. B
an error on the part of the Income-tax Adviser's offio
:the letter was marked as one referring to the 1949-5
assessment instead of 1948-49 assessment year. Cm
~equently, the Assistant Commissioner of Income-tax W<
app.U.ently of the opinion that no biame could be attache
to the Income-tax Officer for not granting the applicar
further adjol,lrnment.
After the Assistant Commissioner had pa5sed his ordt
the a:ppjicant made an applfcation tq the Additional Con
rriissioner
. of .I:ricome~tax
.. to revise the order of the Assistar.
in
,.
cOmmissioner of Income-tax or the alternative to ref(
to th~ la~~ -:HighC~urt the following questions of law:
-(a) '"' Whether . the Income-tax Offl.cer's assessmer
is legal ~nd valid for the reason that the Ordt .
BURMA LAW REPORTS. 173
was made on February 4. 1950 while an <tppli- ~~;
cation explaining the delay and requesting for JrwANRA.M
a short adjournment was received by his Office ~MP:.RT.Ai>
on February I , 1950, but not put up to the ~::.?-;;,:;
Income-tax Officer for his orders ; oF INcoi.m-
rAX, BtfRMA.
(b) Whether the assessment made under section
23 (4) is valid in law after due compl1ance has.
been made by the assessee with the require-
ments of sections 22 (4) and 23 (2} and while
the Income-tax Officer adjourned the case for
essential reasons, namely that the Ledgers were
being posted ;
. (o) \Vhether the assessment made by the Income-t~x
Officer is valid in law and can be said to
constitute a best of Judgment assessment."
be Ad<litional Commissioner of Income-tax, however~ by
is order dated the 28th of Jl.!-ne 1954. su_mmarily dismissed
he application with the words: " The application is reje.ct-.
d administratively." Hence this application ~nder
~ction 66 (3) of the Burma Income-tax Act to the late High
:ourt.
In the affidavit accompanying the application to the
1te High Court the applicant stated, inter alia:
" I <;~.m advised and submit that the Notices issued by the
Income-.tax Officer under sections u (4) and 23 (.2)-were duly
complied with on December 12 . 1949 when my Adviser
appeared before the Income-tax Officer and produced for his
inspection ~ Volumes of Rough Day Books. Those were ail
. the books that I had on that . date. The Income-tax Officer
could see from the Rough Day Books that postings into a
Ledger had not been commenced bef.ore December 12, I949
The Rough Day Books and the Ledgers (the Ledgers were
being posted after December !2, I949) were produced and
my representative appeared on the adjourned date. namely
174 BURMA LAW REPORTS.
:pecember 20. 1949. On January 9, 1950, the further adjourn
ed date, an application was submitted requesting for adjourn
]IWANRAM ment til! the end of January. The Income-tax Offic~.r "ante,
RAMPART.AP
. ' ....,
v. to satisfy himself whether my submission that the Ledger
THECOM- had yet 'to be posted w as correct and the Rough Dar Book
MI&SJQNER
OF IN<!OME were produced before the Income-tax Officer on January 12
TAX~ BURMA. 1950 to satisfy him .that the postings were in progress."
lt.is clear, therefore, from this statement contained it
the appiicanF's affidavit as well as the language of the 2i:H
ground of his appeal before the Assistant Commissione
of Income-tax that the attitude taken all along by th
applicant was not that the Income-tax Officer could an<
should have assessed him on the basis of the Rou gh Da~
Books which he took with him when he appe.1red beforr
that officer, but that unless and until he had po.;;tr.d thr
entries contained in the Rough Day Books to the re-speetiv,
Ledgers he would not be in a position to prepare J profi
and loss account and submit the books to the Income-ta~
Officer for examination. The point for determination
therefore, is wh~ther, on the facts found by the Assistan
Commissioner of Income-tax in the appeal against the orde:
9f the Income-tax Officer dated the 18th of May 1950
refusing to cancel the assessment under section 27 of thr
.. Bur!lla Income-tax Act, any question of law arose for thr
consideration of the late High Court and by this Court iJ
the exercise of the powers of the late High Court.
Now, jn:P.K.N.P.R. Chettyar Firm v. The Commissione.
of Income-tax, Burma (I) a Bench of the late High Cour
, of Ndicature at Rangoon h~Id that the question of suffi
ciency of- cause under section 27 of the Income-tax Ac
involves the question whether judicial discretion has bee1
exercised in a sound and reasonable manner or has bee1
.. ~xercise.d. capriciously, arbi~arjly or in ~judicially unsoun<
. ~anner aiJ.d . that, therefore, it is a question of law withh
(1) 4 I .T.C . 87.
BURMA LAW REPORTS. 175
he meaning of section 66 (2) (old} and section 66 ()).(old) c.c.
r963
>f the Burma Income-tax Act. The same view was taken
}IWANRAM
>y another Bench of. the late High Court in P.K.N.P.R. j.AMPARTAP
~hettyar Firm v-: ]lie Commissioner of Income-tax, "
THE COM-
3urma (2). MI~ONI!R
.. . . . . OP INCOME
A contrary view, however, was expressed by yet TAX, BURMA.
mother Bench of the late High Court of judicature in
1\.KR.PL.A. Chertyar Firm v. The Commissioner Income: of
:ax, Burma (3) . In that case an application under section
~7 of the 1ncome-tax Act to cancel an assessment under
;_ection ~3 (4) .for non-production of accounts called for
Nas refused by the Income-tax Officer and by the Assistant
:ommission.er on appeal and on application under section
56 (2) (old) the Commissioner referred the question "Was
:he discretion given by section 27 properly exercised in the
:ase?" ; it was held that the sole question of law arising
)Ut of the order of the Assistant Commissioner was whether
~here was any evidence upon which he could find there
w-as no sufficient cause preventing the assessee from pro-
iucing the accounts and that the Commissioner had not
f>ropounded the question in the proper form.
The whole matter was reviewed by a Full Bench of the
late High .Court of Judicature in Abdul Baree Chowdhury
. v. The Com~issioner of Income-tax (4) and the following
passage from the judgment of Page, C.]. may be usefully
quoted. The learned Chief Justice said:
. .
."Again, with all _. deference, I fail to understand hoyv it
can. reasonably be held or ..contended 'that such an alleged
question of law as that. which I have ventured .to criticise
arises. or. can. ~ris~ out of .an order of . th~ Assistant Commis-
. sioner under section 31, dismissing an appeal from the refusal
Of the Income-tax Officer to cancel an assessment under
section 27~ Under section 27 _the issue is one essentiaily of
(2) 4 I.T.C. 340. . . (3) 5 I.T.C .. I82.
. (...) s I.T.C. 352.
c.<... 'fact, namely, whether the asses~ee 'was prevented by suff
1963 eient cause from making the ret.um required by section 2~
or that he did not receive the notice issued unde r sub-sectio:
}IWANRAM .
RA~PA~T~ (4) of section 22, cr sub-section (2) of section 23 . or that h
.v, had not a reasonable opportunity to comply or vas prevente
TaaCoM-
MISSI~NER by sufficient cause from complying with l;he terms of th
OF INC""OME- ,
last mentioned noti~es.' If he satisfies the Income-tax Office
TAX, BURMA.
that he was not in default the Income-tax Officer 'shal
cancel the assessment.' In an appeal under section 30 (r
against :the refusal of the Income-.t~x Officer to make a fresl
assessment under section 27 the only question that arises i:
the same question of fact as that which fell to be determinec
by th~ Income-tax Officer under section 27, and in such ar
appeal it is immaterial whether the assessment maGle unde!
section 23 (4J was valid or not: A.K.R.P.L.A. Chettyar Firrr
v. Commissioner of Income-tax (5).. The only question o:
raw that could arise is wheth.er there were any materials upor
whicn the .Income-tax Officer or the Assistant CommissioneJ
could find Jhat there was 110 sufficient caus~ execusing th~
assessee ft:om corp.plying with ~he requirements of la\v, a!
prescrib~d in section 27. In A.K.R:P.L.A. Cher:.\ar F!r!T! '"
Commissioner of Income-tax. Burma (6). the Court he!d that
in that case "the sole question of law that could arise was:
" Was there any evidence upon which the Assistant Com
missioner could find tha~ then~ . w:as no sufficient cause pre-
v-ennng the assessee from producing the Shan States account
on the 2oth N0vember, 1919 ?" In ' the circi.tmstances of that
case I think that what was there held to be t:he sole question
of law 'that could arise was correctly stated, but I wish to
add that, of course, in a proceed.iJilg under: section 27 the
onus lies upon the assessee, and if the asses:s~e fails to produce
any evidence in support of his application that the ass~sment
m:ade under section 23 (4) should:be cancelled,. 'that in itself
Would provide material upon which the Income-tax Officer
would be ju,stified in basing a refusal to cancer the assessment
that had b~~ made under section i3 (4). On the othe.r hmd,
if the assessee adduced evidence in su:ppol't of hiS application
tinder section 27" ~he weight to be attached to that evidence
a
is matter for the Inconie-ta")t Officer.'to determine. .
* * . * .. . * *
---~-----~~~~~------~~~~~----~-
($) s I.T.C. !87. (~) s I.T.C. x8z.
BURMA LAW REPORTS. 177
Under. section 27. howevet', the Jncome-tax Officer has to
determine whether the assessee was prevented by sufficient
cause from complying with the requirements of the law as ]IWANRAM
set out in section i7. That is essentially a question of fact. RAMPAR'l'AP
,,. ,, f.l!'.!~
and not of law. If the assessee satisfies the Income-tax THE CoM-.
0 ffi cer t hat m
' t he . cJrc~mstances
' of t he case h e was prevented 0MISSIONER
., I~coME-
by sufficient cause from complying With the requirements of TAX, IhmMA.
the law as prescribed under section 27, it is provided that
the Income-tax Officer ' shall ' cancel the asseSS\}lent. He
has no option or discretion in the matter. For these reasons.
in my opinion. the law on this subject enunciated in Commis-
sioner. C1f Income-tax v. A.R.A.N. Chettyar Firm (7).
S.P.K.A:A.M. Chettyar Firm v. The Commissioner of Income-
tax (8), P.K.N.P.R. Chettyar Firm v. The Commissioner of
lncome;tax (9) and Commissioner of Income-tax, Burma Y.
P.K.N.P.R. Chettyar Firm (xo) was incorrectly laid down, and
these cases pro tanto must be regarded as overruled.''
This view of the Rangoon High Court that the question
f sufficiency of cause for the purpose of cancellation unde:1:
~ction 27 of the Burma Income-tax Act, of an assessmen~.
1ade under section 2 3 (4) of the Act is essentially one of
act has been appro,ed by the Lahore High Co~rt _in Vithal
. Commissioner of Income-tax, C.P. & U.P. (I x).
For these reasons we consider that in the circumstances
.f this case no question of law arose out of the order of
he Assistant Commissioner of Income-tax, Ea.stern Range,
~angoon, dated the 29th of September 1950, in Appeal
~o. CEN. 86/49-50. The application is accordingly dis-
lisse<i. The applicant 11?-USt pay costs of ~ application,
~dvocate's fee being assessed at 20 (fW:~Q.t)'O gold mohurs.
(7) 2 I.T.C. 477. (9) 4 I.T.C. 87.
(8) 4. I.T.C. 182. (to) 4 I.T.C. 340.
(u) (1938) l .'I'.C. 264.
178 BURMA LAW REPORTS.
APPELLATE CIVIL
Before U San Maung and{] Tun Tin,J.J .
c.c. KO PE TA At.!D TEN OTHERS (APPELLANTS)
1963
v.
Mar.15.
. MA KAUNG MAl AND FIVE OTHERS (RESPONDENTS).*
Tribunal of limited jurisdiction-Excess of power-Whether can be challenged
Civil Court. Tranifer of Property Act, s. 53A-use as a shield to resist
suit for possession
.The plaintiffs-respondents had filed the suit against the defendants-appe
l_ants for the possession of certain immovable property alleged to have belong<
to their ancestors. It was also alleged that the same had been mortgaged abo1
49 years before the date of suit to the ancestors of some of the defendants 1:
.a n invalid deed. The original del.>t due under the mortgage had also bee
dis.c harged by Order of the Debt Settlement Board, Pakkoku, in x958. B1
the defendents had refused to give up possession.
The tdalJudge decre~d th'! s~it f~r possession coming to certain findings,
facts in favour of the plaintiffs, and also by holding that the debt had bee
discharged by the Debt Settlement Board. The District Judge upheld tl:
order of the trial Judge on ap(>eal. I n S~ond appeal to the late High Cour
the learned Judge on the Appellate Side held that h'! could not interft>re wit
the co:1curr~nt fin:iings of .facts of the two Coarts b!low, and also that he w 2
pr~duded by s. zo of th~ B 1<an A~:icalturists D!bt R~li~f Act, from goio
into tbe va~idity or otherwise of the order of the Debt Settlement Board.
On Special Appeal to the Chief Court und!r s. 20 of the Union J udciary Ac-
Held: The order of the D !bt S!ttlem ~nt Board is u!t ra t1ires as the expressio
debt" as defin~d ins. z (b) of th~ said Act doe> not include money for th
recovery of which a suit is b1rr:!:i by limitation. There is clear authority fc
the prop:>sition that where a tribunal oflimit.!d jurisdiction exceeds its powe1
its d~isiol). can be challeng~ in the C~vilCourt .
.Lach!mtan.Singh v. Natha Singh through 8arnam SU!glz and others, A.I.F
(1940,) Lab. 401, followed.
Held also: Both the District]udge and the lower. appe!Iate Judge overlook~
the fact thl\t the alleged mortgage of the su1t land was by an instrUment signee
by the mortgagor and att!sted by two -witnesses. Accordingly, the provision
ofs: S3A of the Transfer of Property Act must be taken into consid'!ratior
Therefore it can be used as a shield ~o resist the s~it for. possession.
S~cial Civil Appeal No. 4 of 1-9~0, in the Chief Court sittir>g at Man
~alay aga inl>t the decree of the si:ngle Judg<', Appellate .Side,late High Coux
atMandalay,\nCiviiSecondAppeal No' 5 of 1969,da.t ed xstSeptember 196c
If([R!MA!LAW REPORTS,
. . Howev:.:t, i.rn~e oircurnstllnoes pJ ~he .~~eil ,thC;.~~t ~qu ita~l? . o~~cr :t!:"~.t C.f:.,
.ould be passed i~ thaHhe suit for possess ton should be decreed -on the 1963
aintiff's depositing the or.idnai debt in Court. KoJ5k*'l'A
4
Babu Ram Dass " U .Mawrg Gyi and others, (1959) l3:L.R; 179 (S.~.,; ~
T':N OTHERS
1d Ko U Mar and one v. ]lifa Saw Myaing, (1930) B.L.R. So (H.C.), rcfetred to. 1-' .
M.,. KAQNG
. L. Verma for the appellant. MAIe AND
FIVE. OTHERS.
'Ja Nyvnt for therespondent.
U SAN MAUNG, J .-This appeal under section 2o of the~
nion Judiciary Act arises out of the judgment and decree
f the learned single Judge on the Appellate Side of the
.t:e I-Hgh Cotih (0 B~{ Ny.unt, J.) in Civil Second Appeal
. o. 5 of i96o. The fatts giving rise to the present appeal
e briefly th'e se:
In Civil Regillar Suit No. r6 of rC;p_S' df the Si.ibdivi-
)ll41 Court of Pakokku the plaintiifs !Vl~ Kaung Mcti and
others, who are the respondents irl tlie present: appeal
ed the defendant-appellants Ko PeT~ ~ii.a ro others for
)ssessioh of three pieces of land i~ suit 'togeth6t with the
ddy .Palms standing' thetoori. Their casewas >tliat.tli~~
oPerties bd~rrgetl;to their ahces1tors~ U Nh anti rlawTna
td that abouf 4<? years.oe~ore. the O.lclte 'o f the 'tliey suit
~re mortga~ed for a su'mof'R.i. 6so;by u.Net: ah<tt~aw
tet to u Lu tha, tb.e ahc~torof"ttfe crefentl~nts ~'6' Pelf.~:
a~:a. 'fhtina .~o xye'N'yuhr: a d:ect' Whit~ #as '-iH.~alitl
Ia:\V;. .'Ariet: the d!eairn:>r u t\ftlfH~'h~ :u.n<rcamS it\:"ti.6
e; possession' bf _;tne t'HP~e aoo\l'emehfl~neil defen~rtrs
ho rerilSea ffi : iN~upnpd'~e5sioh a1lfu5Ugh :tlleotrg~in~i
bt ~ ksh;sd_'haci'be~n 1dfs~h~r_ked b)VdrcMr oftlie Debt:
ttferRenf Bd'a~d; ~Pa:R'ol&u, in''iS';ProteedTR'g's' No. rs"of
1
.~s ..: tienc~ ' tlfe' ~~cessitY ~or fi\ihg 'd~e . kuit :how=under
5
peal in''wl:lh:h.'tli'e')cft11er d~fenC!.ihtS ha'd W~n'. addeanas
ey were tenants of Ko Pe Ta, Ma Hla Tin and Ko:Aye
i . .
iu'
~ fnb dete~~~~is . K.~:;Pe Ta, Ma tti~ tin; anq Ko .A:ye
H'ct>y tnetr. Wfit~n-stitement =&fii~ 1:i\ad:ii6 -~:uiti~nds
3
BURMA LAW REPORTS.
c.c. ana the toddy palms standing thereon belonged to U Ne
a
KoP~ TA
and. Daw Thet, ancestors of the plaintiffs as alleged b~
AND them. The defendants said that these were the propertie
TEN oTads of their ancestors U Saung and Ma Mai Tin and that OJ
tl.
MA ~UNc their death the said properties remained in the possessioJ
MAI AND
FIVB OTHERS. Of their heirS. ,
The learned trial Judge after examining witnesses cite.
by botn the parties came to the conclusion:-(r) that th
properties in suit belonged to .U Net and Daw Thet, (2) tha
they were mortgaged by U Net and Daw Thet to U Lu Th.
for Rs- 650 by an invalid ~eed, (3) that the rst, 2nd and 3r
defendants were in possession of the properties as heirs o
U Lu Tha and (4) that the debt of K 6so owing by U Nc
and Daw Thet to U Lu Tha had been discharged by orde
of th~. ,Debt Settlement Board. He ~gly gave
decree for p6$s~sion of the suit properties With coSts i
favow Qf the plaintiffs.
. ~.. . . . . . ... . . ' ~.
, Being dissatisfied with .the j:qdgment and ~ of th
'SJ.~l>di\9siqn~l Court, the def~nd~~~ appealed to.~ Distrlc
Cpurt. of. Pakokku and . the J~ru;ned District Judge by hi
order in Ciyil_Ap~a~ N~ . .6 9f J-9.59. agreed with the. finding
of .t he t~ia\ Court . an'd , dismiss~ . the defend<~.nts' appe'
w:ith cos.t s. The defendants thep filed a second appe<d t
th~ l~te High Court and (he lea~ned Judge ~n theAppellat
Si~ Qy,pis .or~er .no'Y unsJ.er ap.J?,Ciil held that he could nc
interfere with -~he , ~on<::m:re.nt ~!l~ings of fa~ts of the tw
<;:o~, below and.that he was _pre~lud~ by section zo c
th~. B~rnw f,:u.icultpristst 'Debt Relie{ A<:t ~urma A<
No: 72. of ~947}, frollf ;gop:tg in:tot,h,~ .val~dity or otherwi!
of .the. order; of. the .Debt Settlement Board. The secon
, ; , ' . I . . , , ~
appeal by the defendant~ . was accordingly. dis~S<;XI Wit
~ost:S: : . ,;' .. . . .. . . . ..
. ' Now; both the District Judge of Pakokku and tt
1~arn:ed J.U.<;lge, ~n the AP.pellate -Si.de of th~ late High Cou
ha~ o~~riOP.~e<(the f~c~ that.o;n, th~ plai~~~s~ q~ showir
BURMA 'LAW REPORttf~ 181
the alleged mortgage of the suit larids for a sum of Rs. 650 ~9f3
was by an instrument signed by the mortgagors and attested Ko p 2 TA
by two witne.sses. namely, Ko Tha Nwe and Ko Yan Baing. 1'BN~Hims
Accordingly, the provisions of section 53A of the Transfer MAKAUNC t'J.
of Property Act must be .taken into c~msideration in connec- M.u AND
FIVE OTHERS.
tion. with. the plaintiff-respondents' smt.
Regarding the order of the Debt Settlement Board relied
. upon bythe plaintiffs it is clearly ultra vires. the expres-
sion : ~ debt '' for the purpose of Burma Agriculturists'
Debt Relief Act has been defined in section 2 (d) as not
.including any money for the recovery of which a suit is
)arred by.limitation. As the alleged loan of Rs. 650 given
:o the plaintiffs' ancestors, U Net and Daw Thet by U Lu
fha was by means of an unregistered deed of mortgage,
t would ~ barred by .limitation after a lapse of three years
I.om the <late of the loan.
,.Now, . there is clear ~uthority for the proposition that
.vhere a tribunal of limited jurisdict;i.o n exceeds its powers
ts' -decision can. be challenged in a civil court. In
'..achhman Singh v. Natha Singh through Harnam Singh
m4 others(~), a Full Bench of the Lahore High Court held
hat:
"It.is well settled that the powers of a tribunal of special
jurisdiction are circumscribed by the statute under which it
.was con,stitut~. Such tribunal must act within its powers,
and so long as it does so, i~ orders-wh~ther right or wrong
--<annot be challeng~d except. In the manner and to the
~t preS,cribed inthe statute, and Courts of ordinary
jurisdiction cannot question them. . But where, and.in so far
as. 'its aCtions are in exce.Ss; or in contravention of the powers
. conferred on it, they ai ultra vires arid of no legal effect and
~ously cannot have_the same immunizy.." .
. ecti'on 20 . qf
the' Burma AgriculturistS' Debt Relief Act
( In t<? sectiOn 2 '1 of the Punjab Relief of
terms. similar
id~tedn55 Act, 1934.: Accordingly,_ ~e following
(r) A.I.R. (t94o) Lah. p. 401.
.. 182 BURMA LAW. REPORTS.
,_;_;. .
o_bs~rvation from the judgm_ent in the case mentionel above
may be usefully quoted: .
KoPETA
. AN9 " Section 2 I debars Civil Cqurts. from entertaining suits (a)
:rm O'l'HRS' to question the validity of any p:~;ocedure or the legality of
v.-
MAK.AUNG any agreement made under 'th~s .Ac~. or (b) to recover any
MAI do
Fl'VE OTHERS.
debt in respect of which an agreement has been recorded in
section 17. or (c) to recover any debt which has -been deemed
to have been duly discharged un~er sub-section (2). -of section
13. Admittedly, clauses (a) ~nd (b) are irrelevant to.. the
cases before us; clause (c)' refers .to suit,s to recover-a " de~t";
it has no ap.plicabil~ty to suits relating to 'transactj<:>n.s like a
" usufructuary mortgage " which', , as already shown, does
not create a "debt" as definedin the Act. In this coniiexion,
reference may be made'to qo I .C. 905, A.l..R. 19}8. N dy ; 203,
169 r.c. 268 and 169 I.C . .323, where-similar provisions: pfthe
G-P~ Debt Condliation,A ct.were beld,not to bar - cons~~~rapen
by ,. Civil Cout:ts of matt~rs . d~i~ by Ueb..t: CoMili~U.Ol.l
Boards, in excess, or in co~tra~n~i,on, of 'th~ pp~ers c'o.P."
fer~ on them ~y (he A~. ~~~ the foregoing .reason~, tlt~
second question must be answered m: the affirmative~ that an
order passed by the:B'o-ard;:.' 'treaarig <the anromit.sec~ed:on.a
-usufructuary mortgage as:,a .." a~.bt~' and dclaring..th~t it~
been discharged for. all: pu~poses : ~d all <><::<:asians. i~. ,ultrt~
vir.es of the Bqard, aruL th~t; Civ,il. Couns ar~. not d~harr~<3
f;ori1 entertaining the plea of the m~ngagee that his m~rtg~ge
is not affected by this order."
For .the reasons given in that ju~ent we CQP.$~.<J,e:(..that
Civil Courts have the power to consider whether !effect
should be given to t he order of the Debt Settl~ment BOard
' : . ... J.. ('. ' ol ~ ' ~ '.
iri the case now undet consideration;
' 0 :. .. : .. .... ) . : ., .. . . , 4 .. .
: T.Mpo.sition, th~~fo~e, is th~t.tge qef~~~~p.ts ~)~ Ta.
Ma H\a.Tifi;and Ko.A:ye. 'N)TU.can_, .use. the. un,r~gi~teJ;eq,;deee
. .,
.ot' mor.tga:ge by which -the~ lands :j~ ' ~uit and th~~t0dd)
palms thereon came-into the possession:' o~ :their ancestor
U;I,u Th~ . ~~! a: shif}ld ~9;. 1~~i~ :the~ .s~i~ fP~ :possessi:~m-fJ.\~
agatns~ . therp:. J~y :,t\J.e, ,plaiD:t}#~,_ . ~9W;~y;e~, < il:',.J~ :.fir
9-~ti:ln~es qP. thist:~JH~ :w.~ q~nSi4~-#lat ~F m9s~ffi~i~l~
. order that .should be passed is that the suit for .possessio~
BURMA LAW REPORTS). 183
should be decreed. ~~ ~he. se~se .tltf11{\}le plaintiffs should ~9~;
only be given possession of the suit properties on their , K 0 P T A
depositing in Court the sum of K 650 taken by U Net and AND
Daw Thet from U Lu Tha. In this connection the decision TE~ ~~RS
in the case of Ko uMar and one . Ma Saw Myaing (2) M~~K:OG
relied upon by the appellants that the plaintiffs were not Ftv.e .oTHERS.
entitled to 's6.e for possession without pa)rin:g the money ~o
the defendants and getting from them - ~ refusal to deliver
the land on such -payment, has been pro tanto overruled by
the Supr~me ~purt in Babu Ram pass v. V Mauna Gyi and
four others. (3) .
.In the result, the appeal succeeds in part. The
judgment and decree appealed against will be varied -in the
sense indicated above. As regards costs, .J;egard being had
to the fact that the plaintiffs' suit was on ;the footing that
the debt owing by U Net and Daw Thet'to U Lu Tha had
been cance}.led and that a mere suit for possession cou~d
be filed hy them againSt the defendants K:e Fe Ta, Ma Hla
Tin arid. Ko Aye Nyu, we consider that ip.e mosn~q'llira:bte
order.- to pass would be for each party ,to. be~r . its a-Wn
c~~ ~hroughmrt.
(a) {1"9s~ B.L.R. So '(H1C.~. (j) (1959} -B.Y:~i~; :'Jr!-9 (S.G~).
BURMA LAW REPORT$::
ORIGINAL CIVIL
B~fore U Maung Maung, J.
c. c. MA I<HYAING (PLAINTIFF)
1963 . v.
.April 30.
MA OHN K.,Yl AND FOUR OTHERS (DEFENDANTS)_.*
Burmese Buddhist Ldw-Keittima Adoption after tst April, I94I~Registrtit.ion
ofKeittima Ai"Option~ Act-Adoption by deed of adoption ,under. .the said
Act-whether . invalid because not attended by pu':JlicitY. and fi.O~oriety...-o;
. wMt11.er deed of adoj>tio11 by itselj, su.f]ident to prove ~option. '
Where the plaintiff had applied for letters of administrati~ as kdttlmd
~<!opted daughter of the deceased under a registe~ed d~d of adopt-ion in.-1954,
: ~d1:he. defendants, as close relations of the deceased had ob)e~:ted to the issue of
letters to the plaintiff, mainly on the ground. that the adoption was a pole and
corner affit'i~ ~and the absence of pubfic"ity and notoriety' had rendered the deed
Of, idop.ti:On. in'ii-alic;l", _or luld rec;iuced its valu~ "so' much, that py itself, it wa s
iJ.!~ufficrlr,n.t tq ~ro~ adopti9n . . . . . . . .
, ."Held: The ~1,1stomary lJI.W relating to keittima adoption has.now been crys-
"oriee
t:ali2:ecf.iri'ttie Act, arid a deed "of lkloption, duly"execut~ , attested, and
regi~tered un~~r the Actis prod(lcetf/ tlie f~ct ofkeiaima adoption is established,
an<l that isthe enA of the matter. This is because the intention"ofthe Act is
clc,atl~;' h:f Clea~a\(,ay th~ d~uds bf doubt and U:ncertainty that often "SUITound
fariiily matters in. Burntese:clistomacy law, such as.kettima adoption;
The R'!gistration of Keittima Adoptions Act embo4i~ "all the elom~nts
that were required by the customary law. Th:: definition eontains all the
ingredients which formerly had to be ;>roved by some conduct. The require-
ments prescribed for the execation of the deed and the registration also fulfil
the need for publicity. The visit to the Registration Offict:is in itself a matter of
solemnity which for most Burmese people, would be even more solemn and
serious than a ceremony in the hoas'!. Th~ attestation of the d e-ed by at leas
two witnesses also involves so~em lity and p:.tblicity and t)le registration of
the deed in the books of thE public offi::e is, in fact, a pcoclan\ation to all those
who may be interested to know about the adoption . Whena deed of adoption
is executed a.nd registered in compliance with the Act, then the deed itself is
a clear and sufficient proof of the adoption.
The expression " according t~ the Burmese Buddhist La\'/" appeari~ in
s. 4 of the Ao::t does not mean that the deed by itsdf would not establish the
adoption and that the other req\lir ements of the Bunuese Buddhist Law, such
as p,uhticity and notoriety mcst also be satisfied. The correct interpretation is
"that the expression qualifies the inheritance rather than the adoption.
Mti Pu v. DdtiJ Aye Mya and others, (1948) B.L.R., p. I9; and Lim chin
So v. Lim Geoksoo, (l9S6) B.L .R., p. 248 (H.C.), referred to and followed.
'. 'r',.<f.i~-i"i;~ig~~ S~i-t, N~- &o~of "19~it:~~ the Q~~~aJ...Sid'!. :
BURMA :LAW REPORU. 185
Cllan Eu Ghee v. Mrs. Iris Mg;Sein and two othrers, 1953 B.L.R., p. 294 C. C.
:H.C.); Mil Y1cet v. Ma Me and one, S L.B.R. (t909to), p . n8; Ma Me Gale '963
v. Ma Sa Yi, 4 L.B.R. (I907o~), p. 172; and ~1-!g. B o Pe and a11otheF v. MA ~ING
Mg. Slttoe Ba, 6 Ran,. p, szo, ~eferred to and distinguisthed. r v.
MAOHNKYI
AND
Ba Han for the plaintiff. Foull,;,onums.
Mon San Hlaing for the defendants.
U MAUNG 'MAUNG, J.-This suit has arisen uut of th t'!
application of. the plaintiff Daw Kyaing for letters of admi-
nistration for the est_ate of Daw Yin, deceased, whose
k~Ittima daughter she says she is.
The appliciatj~~..was .:opposed by U Soe . Hlaing and
others who deny that Daw. Kyaing was ever adopted by
Daw Yin. The objectors, who are the nephews and nieces
of Daw Yin being of the family of Daw Yin's
cousin~s (siste~) .claim that they alone are the rightful
heirs to the estate under Burmese customary law. The
qbjectors, however, do not apply .for letters themselves,
being content., presumably, to challenge the status of Daw
Kyaing and to wait for the es~te to devolve upon them by
~aw ).f they should s~.cc~.
The fo~lowing issues were framed by co~ent :
. .
BURM(l. LAW REPORTS.
ioes not provide for. testa.te succession. It is also. Cl.fgued ~9
that Daw Kyaing bein~ an adult of 40 years or more at the MA ~\"... l!{G
time of the alleged adoptionJ
.
the adoption
. '
is jnvalid
. .
under MA0HNKY1
v. '
Bur:mese custoQJary law. AND !
FOU~ 'O'I'HERS.
'several facts emerge from the i'ecc>I:ds. One is that
Daw Kyaing was received into the home of Daw Yin a few
years after the Sec6nd World War- and she was .;.vith Daw
Y"in till the latter's death on 8th AuguSt: 1956. D~w Yin
was .a w.idow with no children of her own and at the time
~he plaintiff came into ber home there were a f'<!W ofher
;>eople such as Ko 11fiein Maung, a relative, and M~ Aye,Kyi
lis wife. Al\0t~ person who lived with Daw Yin was
VIa Tin Oo. . who. was not .related. ;Ko Thein Maung ~nd
vta 'AyeKyi left the home later on and died before the suit
:.im.e to be ta:ied. M~ Tin Qo left.soinetime later so :t9at
:he plaintiff .was, f.or several years alone 'to look after and
H!lp Daw Yin, B~fore the war Daw Y~n ran a stQJ;e in
fheingyi Zay hut after the war she limited her business
:o what she coul.d manage_at :hr hpme and .to money-
ending. The plamtiff sah in her evidence that she was a.
telper in that Busiriess also, though .r;>aw Yin kept the keys
o t'h.e safe. . E~hibit " A " ..produced by tlre -plaintiff is a
1oak of ".On Derii~ltld " .agreements which!Daw Yail !Used
nJier money..Ien~iQg. :business and: the :plaihn.iff. sta~es tbat
he had to :write tll~ agreem~nts som-etirn5., while ma.w Yin
voulc;l write 'hellse\f .sometimes. 'fhe .e\l,tcles '~ I~aw Yirr
nd .daughtet. ,Ma l~yaing" as tihe.desoription e>f the lender
n ~Jribit ,c;)~1.. ~o ~ ~6, .were: aacording,to the .Pl:rlntiff~
vrttten by n~w Yin ;herself.
:~e was treate<t'the plaintiff says, as a member of'th~
unily. She ate tog~thet' With baw Yin!sometimes or ai:e
Idne when she felt'\1'ike it. W:Jl~h gUeSts E:anre.:sh'e W0U:ld
r~t them as a member of the family.. The:.pl<iirttiff also
:ept a be>ok of _.acc.qlints ,J3Xhibit c .4il' :whieb: she entered
~e ; varioQs'l:tems' df. dmnestk .e~enditure. Thus; 'Fj~hiQit
1~8 B'U RMA LAW REP~RTS.
~~ c-2 relates to a donation of K 50 for the purchase of oii
for the feeding of the sanghas on the 2,5ooth anniversary
M,. KYAI~
v. of the Buddhist era and Exhibit c -I is a donation toward~
uA~ KYI bus fares for the feeding of monks at the Wuluwu n mon
fi'OUR oTHms. astery. The latter item of expenditure is also covered by
a receipt Exhibit ro.
One <kt.y; the plaintiff states, Daw Yin told her that they
must go to. the office of the Registrar of .Deeds be<t:au.sc:
Daw Yin would adopt the plaintiff and wished to exe~utt
and -registera deed of adoption. Daw Yin and the plah1tifl
proceeded' to the office, joined by U Khin Myoe {PW ~} .or
the way and 'they we.re met at the Registration Office b.)
U Tin Mating (PW 2) who had the deed ready, and Da:~
Yin. and the plaintiff read it together before they fixed thei1
signatUres. U -Tin' Maung and two other:s attested as .wit
nesses to the ~eed 0f adoption' Exhibit ~~ .1 ..
When Daw Yin died obituary noti(]:es were put in: :th(
newspapers and Exhibit 0- I and 0-2 are specimen~
of the notices. In Exhibit 0 -I the name of the plaintif
is not included among those who are described as dos(
relatives of the deceased,. such as U Soe Hlaing and tht
other O.efendants. In Exhibit 0-2 the deceased: . i~
described as :the mother of the plaintiff and the aunt o:
Ma Tin Oo andi Nwe Nwe.' The obituary notices:. Exhibit:
10-1 and 10 ~2: appeal' in the same column, one on 'tot=
-of the otber,:asdo the notices in Exhibits ro-I; an.d:. . ~-2
'Similarly' Exhibits e-I and ~2 are obituary riqticesr, ir
th~ . Rangooh-Daily hut .they appear on different =pages
Daw Kyaing says that she never .kriew 'how it .liappene<
that !the .obit;uary l;lOtices carne out d.iff~rently. S;he _ha<
:giverr her. o.w~ .not;.c~s to q Soe Hl~ip.g for plac<:n:1:en~ in.th'
pa.pers and, When'(). ~e. Hlaii:lg asked:for:K 2r.o . ~s charges
Exhibit ~, she paid . . ,, . . .. .
i. The eros5~xamilaation : .of Daw Kyaing-sought in - ~h~
first place.
, th t~ake .ou.tthe execution of th~ adoptiondect
BURMA LAW REPORTS. 189
; a hole and corner affair. Daw Kyaing repeats that she ~9~3
id not know before Daw Yin took her to the Registration M A -K YAING
iffice that she was going to be adopted. She repeats that ' o. K
. MAOHN 'II
taw Yin and 'herself left her home, went to the High Coun AND
, , tb d FOUR ~THEllS,
) fetch U Khin Myoe who was working ere an pro-
ceded to the Registration Office where U Tin Maung
raited with the deed ready for execution. The plaintiff,
1ys under cross-examination that her father and Daw Yin
rere related, and therefore she was a niece of the late
taw Yin. The ct~ss.:examination aloo sought to test the
Ate of health of Daw Yin at the relevant time and the
laintiff states that Daw Yin suffered .from high blood
ressure but was:able to move about around the time of
1~ adoption. Daw Yih was receiving medical attention
t that ~e. I>ut . she was -n ot-continuously bed-ridden. It
ras only: in November i955 that Daw Yin had .to go as
1-patient-ia the.Ghandi Memorial Hospital for treatment
f cancer. . 1 as~ed .by prolonged.stay in ?the :hospital Daw
in retUrned : liqme, . received treatment_. for about.,nine-
lonths, and; then, &he ,'died. . .
Twe impOrtant witnesses are iprooiiG:~if by the plaintiff
tho gave-theitevidenee on the,exeQtttion"of the deed 0cf
dbption by. Daw'Yin. u ,kbinMy0e (FW 3), who had
eeil a ;tenant of -Daw Yi:it~ 1-entirtgi'~ms on thergrourid
oor of-'N o. :7'!, Fhong}ri :Streetr where ~ IDaw Yin-and the
laifitiff ha<:t!tbcit,liome,' knew tlte f.amily .wen. tHe--says
1at: -Daw Yin spoke :to him-:rooe day about her wish to
ti*'th'e :plaihtifft~nd'Je~etut-e :a d~ed to-'effect the :adop-
. ~-~' t1 ~m"Myoe saggested that u ,ltin:Maung){PW'i)
oouid be asked:ro take care of theidt~ifting a~d the forin~
ties and asked U Tin Maulig:.to ;goand'see 'Bttw Yih. U
. :hin Myoe; was ;P,Qt pxese~t; at; lt'~e m~pQg)>.~.tween U. Tin
1~WJ:g and Paw: );';in b~t :vy.h~ni u. Tin :M~~.mg..~ame qpWI:J.~
:airs after: the..mee~ing .he s,qjd that J)aw Yill w.ant;ed him
.
~ .'draft ).an aQ.opti.qn d_eed ~:;~ :~h~, ~wa;nte4 ,t o. adopt .;th~-
~tf pl'G1iii.tiff as her keittimi-1 daughter. U Tin Maung brougr
a draft deed ahd kfti i~ ufor ;a- few .days With Daw "tit
3
-
MA KYATNG .
. v . ..... After he had re-ceivi=back the draft deed he. told th
..
. M..(O.tfNKYI
Xl'fo
. Witness t h at .D
. aw 11vut h. a.d..made some ch anges.. Ex h'b'
"FouR _oTHERs. ~- is the di'ia:'ft decl}:.w hkh U Tin Maung s~owecJ.f:li~.
1 :
day ,w-as then appqint.ed , ~qr, the e.xecut~on of..the deeq;- .a,n
. )ts registration anq Paw Yin and Paw Kyaiq.g.came to f~~c
him and .U Khin Myoe . w.ent along with thCl to ~h
Registration Qfike, where U Tin Maung wa~ted with th
deed. Both U Tin Ma.ung and the Registrar of Deeds rea
out the <::Qnt<Ca.ts -of the ~deed and it was quty execute(
atteste<l:$.<:1 r.yg-istered.
U Khi'R Myoe :is also ab1e .,t o say .that Daw Yin spok
~9 several =pebple such asu .& Tun (PW 4); :U :Ba :Kya
(PW 5) and U 'Tun Al!lng:{PW ~to whom sfi.e gave :d.om
tions, e.g. Exhihft m for a '. donation of K so towards bu
. fares in the =feed.iJhg:of:nidi:J.ks -Cl't WcduW.un =mo~stezy:tp-2
.. sh~ ha~l -:adopt6d ithe pl:aidtiff a:5-ker owh daughter and-so
w6uld '~like the elders to .reoogitize the .splailititf-.as sud
U Khin Myoe also remembers tHat w'lme U)aw -Ki.yain
stiffer::ed rom ,_high :.b~ :tn:ess.ure.Jler ~~ WM nc
&sp6J;;~te.il\ 1953.and l954 She was~ treatmen
but'. she w.~s able to .niov.~- ::tbout. ft ~ canter :whic
kiilttd her, the witn~ss s~y~, bur she .was .only tPC(hnd<4e
for ab~Ut ;tWO rn$:>ntbs }>efor~ \her dea.tft, and it W~S
. . . t \
ool:
foc:abP~t t~n. ,da,.ys ~fofe that~ .that she ~ollld,. ;n.P.t ~l
u ~<bin. MyOe. also k!'9ws th~tJn. the ~me s-treet-:tebiijvE
of-D.aw :YhLlived .flrtEl ,he.,~ees nOt :reme_m~r :lt~r s.ayi~~ t
. them or wi.ttun their :heari~g ~ she .haq :ad'$ed:i~
.P.l~~n:tUf.. ln .~he presen~:e 0~ ~~gers, however~ 'W~n;
says,JDaw Yih1 spo~~t0f ~her~p.tion .
. . u Tin :Ma:u'ng (PW . 2i :had 'known Daw 'Yin since h
. was at sdioot ::..Fie'ifirstliea:r<t6fDaw Y,'in'swi~hf--to em~ut
an'ado.ptljon deed 'ft.Om ,u 'K~fn Myoe ana:.ori~ gomg to::se
. D"awYih,. she
~ .
:'.to1{!.. Jiim~ rthdt <k t'he<piairitiff
. . .
-rlfad'
.
1to&ke
. 191
.BURMA LAW REP.GR:YS;.
'ter her and h~lped jn .t he ~anagement of her hu~iness she ~9~3
anted tQ adont.
he.r.as
1:" ,.
a
keittima daughter. U Tin Maung - .-
MA KYAtNO
epared the draf~ Exhibit ~ Exhibits ~-r, ~-2 and v.
show ch.anges made in the draft by Daw Yin herself. ::v~~~Kvt
5
fter that U Tin Maung prepared Exhibit the Adoption 1'0 t:R oT.I!ERs.
. ' .
eerl, and Daw Yin approved it and fixed a day, some two
ays later, to go to the Registration Office. On the
?pointed day Daw Yin, the plaintiff and U Kqin Myoe.
:nne to the office where the witness waited with the
eed ready and it was duly executed and registered. At
1e time of the execution Daw Yin was in good health.
U Ba TUn (PW 4), U Ba Kyar (PW 5) and U Tun Aung
>W 6) ~pc~;d(of occasions, in the early part of 1956, when
~:ey Went: to collect donations .from Daw Yin arid on which
he t_<>Jd them that sh_e had adopted the plaintiff as her
eitti~ ~iighrer. Daw i<.hln Ei .(PW 7) who held Daw
'in~ ~:_Of attorney EXhioit o .t o col1ect rents dUe o:n
heUtter's a~rultural Iands iii Dooaye also states, under
:ros5-examiilati<ID, that Daw Yin spoke to her about the
.~pn0n, aBd she had also, the witness says.- on being
tuestiimerl bythe Court, observed from their' conduct in
he nonje th~t ffiw Yin had talCen the plaintiff as ah ad6p't~
d 'dat:lgirter:
_ ~~~:~P~\:~~r~~~~~~ -~~uJ4:~~e~~:F.9...?:~~~cf?ni~ {~ -w~s
~~.~:. y;, ~~7:.:~~~: 9f a<l<?~tl9P. . ~np., JP..~ ~ e':;idxn.c~. of. lJ ~~.e
-n~l~~- ~~01ptr~ws :9n tryi~g ,to si+~vy. ;~at f;b.~~~ .wat> _a
~ol_e ant~?f'Ii~,~ ~a~~lr, 4~dt~~t b:.y)9~ Rf.':f;Xw W~S::~~Q.
:ld~~~.l~-- ~e~l~ -P~v:~.. .even With,Qu: ~~~~~'lfer. .o f sPrecJi;for
;?. ~~~X m~nt~fr1 so. t~fi~ ~~~- sto,r.ws ..,~<i>ld :P;Y; ~1:}~ plaj~~s
.y~~ ~n~t n_~;y..:ni?: ~P<?~e tP.JN!~_f\bou~ t4~ - ~~RP.t~9~
~o.Yl~~n?l)\~~e B~ez:t. ~~e ... P,.Wr~9tiWff~i~p;~WI}t0f .q Sp_e
1~~'f-rt'f~ ~~~~ r~f~Y~ }Ft h~!-w ~.Y~i~jltf 4:(fr:~.I~o:;t .fi~e:cy
~ ~~t:. ?f., ~,J?~!l1Q~JP,et:Wr~J~I},. IQ~~ ..a1nrl.ApQI rgc4 wl)~~
h'ewas in He .. zacti in"the 'B\ir~~ rrr r.tr l'!t . "ce. "~ .
t~. 9'~1p ~qa~ tj~1 ~~~-. {9~~~$1, }~ :~.~ c~~dJt~f ~~~~~tl'~~
'
192 ~URMA ~W REPORTS.
~3 affa~rs such as in writing the On-Demand notes in he
M~ KvAxNc money-lending business. From 1950 Daw Yin was suffe
v. ,.,.
M A O HN..._Yl
ing from.
high blood pressure
-
and had to receive medic
AND care. Her health gradually declined and she could n
FOUR OTHERS.
longergo about as f~eely as before and had to restrict ht
business and other activities. U Soe Hlaing says that whe
the On-Demand agreements were filled in, the lender
'name was usually kept blank and that was designed t
escape income-tax. If the need arose later on to tak
legal proceedings the blank would he filled in U Soe Hlain
<lid not think" Daw Yin and daughter Ma Kyaing ,, appea!
ing on the On-Demand counterfoils Exhibits m .I t
m-7 were in the handwriting of Daw Yin. Neither ht
U Soe Hlaing says, nor the other nephews and nieces wer
informed .by Daw Yin of the adoption of the plaintiff as
keittima daughter, and he would have thought.tha~ if sue
an adoption. did take place Daw Yin would have spok"et:;
It was .o nly on the death of Daw Yin that the plaint:D
came forward and revealed that the adoption had take~
place. There was a dispute as to how the obituary notice
should be worded and U Soe Hlaing intervened to mak
peace and drafted the exhibit obituary notices to satisf:
the p~rties. He received payment from the plaintiff tl
settle the advertisement bills but he says the money caD;l
out of. a S'!Jm of K 5,000 which Daw Yin had set aside ani
donated for her funeral expenses and for charitable an~
religious. PurPoses before she died. U Soe. Hl~ing say
that a year or so before Daw Yin died the plaintitf'.ha<.
e:Xpressed to .him the fear that she would be alone ~n<
unprovided for af~er Paw Yin haa gone. .He had theJ
tried to set the plaintiff's anxiety at rest bytelling her.tha
:he and the other relatives of Daw Yin would not abando1
. her. For eight or nine months before she dierl, U ~ sa
. Hlaing says, Daw Yin was in such a state that she ro-ul<
. notopen-her mouth to take in food and had to he fed b)
BURMA LAW REPORTS. 193
: .
-moving some
. of her fron t teeth \\hile she was put under C.6C.3 .
19
oaesthesia. Several doctors were n::~med as those
who -
MA KYAINC
ttended her during this time: and those who admm1stered v.
. .
1e operanons . h rna d c .n poss1.b}e to f eed l1er w1t
w}11c . h out MAOHNKn
" VND
er being able to open her mouth. None of the doctors FOUR oTHl!.RS.
owever, is produ ced as .1 witness a!1d while it is possible
1at Da'vV Yin did sink into that desperate and painfui state
1ere is ' no eddencc that this happened in the early part
f 1956 or that it continued till the end.
The lone wimess produced by the defendants is U Tun
c {D\V I) wbo says that he knew Daw Yin for a long time
nd was a frequent visitor in her home. Witness says that
>aw Yinnever confided to him as he would expect her to,
eing on terms of close friendship, that she wished to adopt
daughter, herself being childless. The witness .did not
now that Ma Kyaing was adopted. His wife was a niece
f Daw Yin. The memory of the witness was. a litt~e
mcertain about the events that took place :before .Daw
ms death for he states that Daw Yin was admitted into
tospital j.n 1953 and died ~ithin a .sho~ t~e after ,4~~
dm~~m in hospital.
.U M9n San Hlaing, lecunedAd:vocate f0r the defendants,
.ttacks the deed of adoption as invalid in law because.. it
vas not attended by the necessary publicity and notoriety,
>ut he 'does not seriously contend that- the deed is .not
tuthentic. Nor 9oes he persist in the objection that the
tdoption is invalid because the plaintiff, the adoptee, was
tn adult at the time of the adoption. Bux:rnese customary
aw recognizes the adoption of adult persons, the learned
\dvocate concedes, and the fact of the plaintiff being. an
tdult at the time of the adoption does not in itself render
:he adoption invalid. (See Chan Eu Ghee v. Mrs_. Iris
\.1aung Sein and two others {I).] .It is also suggested in the
Jbjection of.the defend,ants that .th~ adoption amounted to
(1) (1953) B.L.R., p. S94 (H.C.).
'l'
a:G.
1963
an evasion by Daw Yin of the BiidnH~ custt>hi:ary la"r it
leaving her est~te to the plaintiff by adoption which wa
.MA ~~~~~G iil effect a wilL This line of argument too is not to<
M ... ~!: ~~ deeply pursue~ by U 'Mon. San Hlaing, and there is wisdon
~ouRoT_!IERS. in his restraint for keittima adoption is an institutic1
recogn~ed by Burm~e customary law and if it is estab
lished that such an: . adoption did take place, it is not fo
the Court~ tb qu:estion its m<>tive or to investigate whethe
the adoption was de~i..gned ~s a way to testate succession
What 0 Mon San Hl':iing stren:uotisly and ably argues i
i:nat the lack. of pub1ieity either rerniers the deed of adof
tion invalid or redu-tes 'its valiie so muth that by itself i
is iiistiffident:tb prove'ad6pti6n: It . ~s ~l~ charged by th
deiM'Q:anistn. .the ~leadings dia t thedeed of,ado-ption wa
extr~H~d 'from oa\V Yiitbythe pM:mtiff:by use of und1,t
iiittben~ out tms chatge also is ncit too strenuo-tist
-ptffib~. Nor wouia 'the eVidthk:e susta~n suen a charg~
i'or' ~n~l~i'ns cfear th~t Daw Yiitteated: th'e pfaintiff wei
-t:NmJi~;',.h~r- ilit& confldente giVi~g 'her' the keys someti.me
ln~ :al'!owi:'tlg h~t to k'e~p the lXx>ks df acci5unts; th
evidence does not reveal that the plaintiff.ever attained.
p.ooid0n , of d~niiB.anee~ The deed of a<ieption w~
executed jnSt~te~r . r:9s.~ an.d .it was neru.tly two :yea1
l~.tet ..that! Daw:Yia cS!ied. Duringt:hat time; her nepheVI
.and ,nieces, who lived. a' few doorS away on the sam
street, were visjting..her aJ<most everyday and if'Daw Yi
bad executed the deed un'det some compulsion ex~rdse
~y the plaintiffrthere was nothing. ~o -preveht Daw Yi
f rom speaking out to her 'relathres and: from:renouncir
. "the ~eed .
.. , . . ~~ ,A,:,. ~ ..... ' " If{ 0 1 ~ \ ' ' .:, O ( '
0
.; "l"t; ( ,- - O O
0
Refefriiig''to e~her de&ions anlf th'elearneu tteMis<
U Mon san: I-ffain'g t:fi.eret6r~ ttles to convince the Coil
t:}?.~r. p~~ifdtj ari~-.~<)t:6~~o/. ~i-e 'i~dis~~sa~fe efeme11ts 1
e$~T:)l1Sh a k~fttiina. adopti:m1. H~ ~ei'~r~ to ruiings. ;
which it has been poiiited out th~t the Burmese being
BURMA LAW REPORTS . 195
.!nerous people, rea'd y to take into the home relativ~ far ~~j
nd near, and call them sons or daughters and treat them -
MA KYAINO
indly as such, the courts must ms1st upon strict proof J' v. ,
.
rhen these reIanves come f orward rnaki ng cla1ms
. as h eus
. MAOBNKYI
AND
.y keittima adoption. The requi.r ements of Burmese rouP.-OTHEIII.
ustomary law to establish keittima adoption are 'clear.
'he consent of the natural parents, jf the adoptee is a
ninor, and the consent of the adoptee if he or she is ar1
dult, and the taking of the adoptee by the adoptor, with
he intention that the adoptee shall inherit must be proved .
o establish a keittima adoption . Neither ceremony nor
vritten document is required to constitute a keittima adop-
ion under Burmese customary law. The taking of the
hild in adoption may happen on a distinct and specified
ccasion on which the intention of the adoption parents
o take the child as a keittima son or daughter may be
!early expressed. Or, if there is no such taking, the
:eittima adoption may be inferred .from a course of con-
.uct which is inconsistent with any other supposition.
'here must be some publicity when the intention of the
doptive parents to take the child as an heir is expressed
nd if the intention has to be inferred from conduct there
1ust be more publicity and st~icter proof of facts which
1J1St combine to prove that Jhe r~lation,ship c~nnot be
nything other than that of .l,ceit~ima ~doption~ [See M a
'wet v. Ma lyle and one (~); Ma .Me Gale v. Ma Sa Yi (3);
.faung Ba Pe and- another v, Maung Shwe Ba (4)-] .
In Chan Eu Ghee v. Mrs. Iris Maung Sein and two
thers (1), the learned Advocate for the defendants points
ut, it has been held " that an adoption deed does not by
:self confer the status of an adoption son or create any
)terest in the property of the adoptiv.e father. The deed
; just one piece of evidence to be considered along with
(z) 5 L.B.R. (J909Io), p. u8. (J) 4 L.B.R. (tso7-o8), p. t?z.
(4) 6 Ran., p. szo. 5 (1) (1953)'B.L.R., p. 294 (H.C.).
4
196i
c:c. .other .evidence . .to test whether the keittima adoption i
z"96:f
established." . In that case, however, the adoption was
MA Kvi\ING . - ,
""' , supposed to have been made by the w1fe of her husband s
MA OHNJ(")r!'r nep.hew " as a son to her husband ", eleven. days after the
AND
FouRon:.:ms. husband.had died. Th.e adoption, thus made posthumously
. for the husband, was said to have been made by means of
a registered deed which had disappeared and was not avail-
a:Ole for the trial Court to see. Also, a deed of release was
executed a few years later by the adoptive son in which
.. he released :all claims to the estate of the deceased. Thus
the adoption itself was not satisfactorily established and
in any case posthumous adoption is not known to Burmese
customary law. Added to that, there was the release deed
which operated to cancel the adoption.
Dr. Ba Han, learned counsel for the plaintiff, points
out that the .suit is to be determined in the light of The
Registration of Keittima Adoptions Act which had been in
force since the rst of April 1941. The Act applies to
keittima adoptions by persons to whom Burmese Buddhist
Law applies and defined keittima son or daughter as " one
who is adopted with the express intention that he or she
shall inherit according to the Burmese Buddhist Law."
Section 5 of the Act reads :
"No dispute as to the right of any person to inherit as
or 'through a Keittima son or daughter shall be entertained
by any Court unless the fact of the adoption, it was effe{:ted
after the ISt AprU i941, is evidenced by ~n instrument :
{i) executed by .the person making the adoption and (a)
by the person who is adopted if not less than r8
years of age at the time of such execution aforesaid.
or (b) if less than that age, then by .'the person . or
. persons, "if any, . whose consent to ~e adoption is
required by the Burmese Buddhist. Law, .and
(ii) attested by at least two witnesses, .ari.d.
{iii) registered in Book 4 of the books referred . to in sub-
section (r) of section 5r of the ~egiStratio~ Act."
' .. . , ~ --~ . .
BURMA LAW REPORTS.
Dr. Ba Han argues that the c'ustm~ary law relating to c.c.
1963
eittima adoption has now been crystallized in the :A.ct MA K;;.rNo .
nee the deed of adoption duly executed, attested, and MAOHNKYl 'v.
!gistered under the Act is produced, the fact of keittima AND .
FOUR~
ioption is established and that "is the end of the matter
1 disputes like this. There is great force in the argument,
>r the intention of the Act is, cle:arly, to dear away" the.
oU<~.s of doubt and uncertainty that often surround family
.atters in Bl)rmese
:
customary law such as keittima adop-
.
on. The. Act which is in force today was preceded by
1e. Burma, Registration of Adoptions Act 1926 which
~ovided substantially for the same thing but was never
~ought into force. The Act of 1926 was described as
ae " to provide .for the compulsory registration of keittima
loptions in Burma." (Burma Act No. 2 of 1926. See
1rma Gazette, 6th November 1926.) The Act"which is
)W in force and the Act of ~926 seem to have resulted
om studies and attempts to codify those subjects of
nrnese customary law which may be ripe for codification.
1e attempts have not been too Si>lccessful as noted by
r. R F. Dunkley, as he then was in his memorandum
hich appears in the report of the Civil Justice Committee,
124-25:
* "Some of the witnesses were of opinion that Buddhist
Law .generally could be codified; but I think the majority of
the.witnesses agreed that general codification would be im-
. possible.. This is my opinion. Buddhist Law~ ~though to
a large extent now settled by judicial decision, continually
. brings forward fresh poin.ts that have not come before the
courts preViously, and is continualiy .changing in the changing
customs of the people. . Brit. it was generally agreed that in
some particular matters .:the interference of tl).e Legislature
was desirable ; for instance, as regards making a registered
* ~eport . of the civil Justice Committee (1924-25) Appendix I,
cutta, p. sr. .
198 BURMA LAW REPORTS.
c.c. deed necessary for adoptions and partitions of immoveable
1963 . property, where, in the latter case, the property is of more
MA KYAUfG than rupees one hundred in value."
v.
MAOHNKYI
AND The Registration of Keittima Adoptions Act, as Dr. Ba
FOUR OTl'liRS.
Han points out, embodies aII t h e elements t hat were
required by customary law. The definition contains all
th~ ingred,ients which formely have to be proved by some
~onduct. 'It includes the taking in adoption and the express
intention 'that the keittima son or daughter shall
inherit according to Burmese Buddhist Law. The require~
ments which are described for the execution of the deed
of adoption and the registration also fulfil the need for
publicity. [The visit to the Registration Office is in itself a
matter of solemnity which for most Burmese people, would
be even more solemn and serious than a cermoriy in the
home. The attestation of the deed by at least two wit
nesses also involves solemnity and publicity and the regis
tration of the deed in the books of the public office is. in
fact, a proclamation to all those who may be interested
to know about the adoption. When a deed of adoption
is ~xecuted a nd registered jn compliance with the Act
then the deed itself is a clear and sufficient proof of thE
adoption.] The only way that may be open to those whc
wish to challenge the adoption will be ~o assail the deed it
self, e.g. that the deed is not authentic, that it w~s force(
by undue influence, produced by fraud or forgery, that :tht
executor was incom'l>etent. .
U Mon San Hlaing, referring to the .defi:nition in sectior
4 ofthe Act, argues that the expression " According t<
the Burmese Buddhist Law " means that the deed by itsel
:_ would not establish the fact of'keittima. adoption but tha
the other requirements of th~ Burmes~ Buddhist Law sud
as publicity al;ld noto;ri~ty mu11t.also be satisfied. Thi: .
mte!Pretatjon would, however., deprive the Act of it .
meaning and purpose. The correct .:IDterpretation, to m~
BURMA LAW REPORTS. 199
mind, is that the expression qualifies the inheritance r ather
than the adoption .
~ K YAING
The above reading of the statutory law relating to
. . . . MAOHNKYI
keittima adoption finds support m Ma Pu v. Daw Aye Mya AND
and others. (g), in which E Maung,' J., himself an author Foul oTHERS
-of several classic studies on Burmese Buddhist Law,
observed that once the genuineness of the deed of. adoptiop
in established there is an end of the case. Tbe execution
of a deed of.adoptioa in the presence of se,eral persons
would be sufficient to establish the status of the keittima
child. The R:egi:;rr;nion of Keittima Adoption Act dici not
apply to the fact!> of tllat case, the adoption having been
made by a document before April 1941, but the observation
of tne !earned Judge would have applied even more force-
fully if it did.
The obsenations of San Maung, J., in his concurring
note in Lim Chin So v. Lim Geoksoo (6) also emphasised
the change brought about by the Act:
"According to the Bmmese Buddhist Law as it stood prior
to the coming into force of the Registration of Keittima
Adoptions Act the fact of keittima adoption can either be
proved as having taken place on a distinct and specified
occa.sion, or may be inferred from a course of conduct which
is inconsistent with any other supposition. This rule of
Buddhist .Law is, however, altered by the statutory provisions
contained in section 4 of the Registration of Keittima Adop-
tions Act which enacts that a keittima son or daughter is one
who is adopted with the express intention that he or she
shall inherit according to the Burmese Buddhist Law."
Quoting section 5 of the Act, the learned Judge
remarked that the law would be that:
" Even when a person has been adopted with the express
intention that he or she shall inherit the fact of such an
adoption cannot be proved unless it is evidence by a registered
(s) (r948) B.L .R., p. 19.
.
(6) (1956) B.L.R., p . 248. ( H .G') .
200 BURMA ...LAW REPORTS.
instrument conforming to the requirements of section 5 o1
the Registration of Keittima Adoptions Act.''
MA KYA1~C
MAO~ ~v~ In this suit the deed of adoption is couched in cleaJ
AND
FOUR o1'HERS.
language and its authenticity and validity cannot aiso bE
doubted. The deed therefore establishes the status of thE
plaintiff as the keittima adopted daughter of the 1ate DaYI
Yin. Leeters of administration will therefore be issue(
to the plaintiff/on her payment of the requisite Court fee~
and on her f~rnishing security satisfactory to the Court
The defendants will bear the costs of her application an(
Advocate's fee is assessed at K 170.
BURtfA LAW REPORTS.
APPELLATE CIVIL
Before U San Maung, J.
MA TIN MAY (APPELLANT)
v.
. c.c.
1963
Mar. 29.
u PO MIN (RESPONDENT).*
Limitation Act, ~4.rt. 49-suit for reccn>ery of pouusio11 of property entrusted-
time ruus from date of refusal to return propert,.
Plaintiff!__appellant in the suit fil<'d by her all ~gcd that ~lw wa~ rhc j oint
owner of a car together w ith her deceasl'd husb2nd and that a f.:w d~y,; after
his death the said car w:1~ entrusted with the defendant-respond~n ;. The
defendant-respondent however failed to deliver the car to her when requested.
Hence th~ su i ~ .
The trill ! j :.tdge acc: pted the story of the plaintiff. He however dismissed
the suit. hold ing that the suit for possession of the car or the val1.1e thereof was
beyond t he period oflimitation prescribed by Art. 49 of the Limitation Act.
on a pp<.!al, Held: The defendant-respondent's possession of the car became
wrongful o nly when he refused to deliver it to plaintiff-appellant, and this
demand was made only a few months before the suit was fil~d. Therefore,
under Art. 49 of the Limitation Act, limitation would begin to run only from
the date of such refusal.
Ma !.:Cary v. Ma Hla Win, I.L.R. 2 Ran., p . 555, followed.
Gopalasami Ayyar v. Subramania Sastri, I.L.R. 35 Mad., p. 636;
Kalyan Mal and another v. Kishan Chand, I.L.R. 41 All., p. 643; and Laddo
Begam v. Jamal-ud-din, I.L.R. 42 All., p. 45, referred to.
Hla Nyun for the appellant.
No one for the respondent.
U SAN MAUNG, J.-ln Civil Regular Suit No. 3 of 1961
of the Additional District Court of Shwebo, the plain~
Ma Tin May who is the appellant in the present appear
sued her father-in-law the defen~ant-respondent U Po Min
for the recovery of a Dodge Jeep car No. R.C. 3170 on the
groun<l that it had been entrusted to him a few days after
e Civi ll':irst Appeal No. 14 of 1962 of the Chief Court sitting at Mandalay;
against the decree of the Additional District.Court of Shw.!bo in Civil Regular
Suit No.3 of 1961.
.202 BURMA LAW REPORJ;S;
c.c. the de1th of her husband Maung Ba Kyi and that the defend-
1963 ant had failed to return it on demand. According to the
MM.'f~N- plaintiff, Maung Ba Kyi .died on the r..:}th lasan of tVodaw
UP;MtN. I3I4 B.E. (5th December 1957) and the entrustmen7 (if the
car was made a few dq.ys after his death. The defendant-
respondent by his vvritten statement while admitting that
Ma Tin MaTwas the wife of his son Maung Ba :<:.yi con-
tended that there had been a divorce between f'.'!a Ti~ ~vlay
and Maung Ba Kyi sometime before the latter's de2 ~h and
. that Maung Ba Kyi had taken another wife, Ma Tin Kywe
. who alone inherited Maung Ba Kyi's property on his death.
He also contended that Ma Tin Kywe had, after t he death
of Maung Ba .J(yi gi,'en the car to him on his undertaking
to pay the debts incurred on account of Maung Ba Kyi's
, funeral expenses and a1so the debts incurred on account
of the purchase of :the car in dispute.
: On the pleadings the learned trial Judge framed issues
.. as to whether or not the plaintiff Ma Tin May had been
divorced from Maung Ba Kyi sometime before his death
and if not, whether the suit car was a joint property qf
:Maung Ba Kyi and Ma Tin May. He also framed an issue
as .to whether or not the car was given to U Po Min by
Ma Tin Kywe on his undertaking to pay the debts incurred
in connection 'vvith Maung Ba Kyi's funeral and in connec-
tion with the purchase of the car.
After examining witnesses cited by both the parties the
learned :trial Judge accepted the plai_ntiff's story that the
Car was the joint property of Maul?-g Ba Kyi and Ma Tin.
May at thetim~ of Maung Ba Kyi's 'd eath. He also accept- .
.ed. the plaintiff's story regarding :the. entrustment of the
car to :the defendant a few days after .Maung Ba Kyi died.
Theo'learned .trial J.udge, howe~er, holding that the suit
:for possession .of the .car or for the yalue thereof was be- . .
. yond: the period of limitation prescribed by Article 49 of
the Limitation Ac't dismisse9. the plaintiff's suilt-.
BURMA LAW REPORTS. 203
c. c.
Now, I have no doubt whatsoever that the conclusions '1963
1rrhed at by the learned trial Judge on the facts of the MA TtN
~y
:ase are correct. . Whereas the defendant U Po Min al- v.
eged that there had been a divorce between \ fa Tin May U Po M IN.
md Maung Ba Kyi by mutual conseht on account of the
}Uarrel ensuing between them as a result of .1ccusation
nade by Maung Ba Kyi that Ma Tin May had beeR unfaith~
ul to him. \Ia Tin May's story .-:as to th~ effect that her
elations!1ip ,,ith Maung Ba Kyi became strained only be-
:ause he took a lesser wife in t:1e person 0{. \/,1 Ti:1 :<:.:we
tnd that .at the time of Maung Ba Kyi's death she was
iving \"'i6 her father U Po Shin (PVv 1) because of his
1ersuasion that it was safer to stay at T abayin than in
indein Yan ,illage because the latter region was infested
Y Communist insurgents. Maung Ba Kyi died on the
6th of December 1956, and not on the 5th December
957, as claimed by the plaintiff and the death took place
1ecause of an encounter with the Government forces who
J.istook ?. !aung Ba Kyi and his companions to be lusoes.
~a Tin May. v.:as probably not present at the funeral of
1aung Ba Kyi because of the strained relationship between
er and her husband and not because of the. illness of her
hi]d as .she had sought to explain. However, she was
ndoubtedly- present at the time of the Soon-thut cerem-
ny which took place at the house of the defendant U Po
fin's daugther Ma Htay Kyi at Tindein Yan village. On
1at day, U Po Min advised Ma Tin May to leave the car
rith him for fear of being requisitioned by the .Govern-
lent, and Ma Tin May agreed. That this was. the case
supported by the evidence not only of her father U Po
:lin (PW 1) but also by the testimony of U Hla Din (PW 2)
ho was not related to either party, and U Po Kauhg
'W 3) whose deceased wife. was a younger sister of U Po
1in. The d~fendant's version of the story that Ma Tin
[aywas already divorcedfrorn Maung Ba Kyi is supported
204 BURMA
..
,.~
LAW REPORTS.
c.c. . :by the evidence of U Pavv Nyein (DW r), son of U Po r\1ir
1963
cousin Daw Pwa Hlaing and U Po Htay (D\V 2 ) who
MATIN
MA..,.. not related :to either party. However, whereas U Po M
v.
u Po MrN. said that no document whatsoever was executed at tl
time of the divorce and consequent partition of the pr
perty between Ma Ti n May and. Maung Ba Kyi, .t he tv
~other witnesses V Paw Nyein and V Po Htay were em ph
tic in. that a docu ment signed by the parties and attest
by them was in fact executed. Ma Tin Kywe {DvV 4) al
tried to support this part of the story by saying that tl
document remained in the custody of Maung Ba Kyi a1
that she tore it up after Maung Ba Kyi's death. Tht
there is a Conflict of testimony relating to a very irnporta
aspect of the case, as to whether or not there was a diver
between Ma Tin May and Maung Ba Kyi. Furthermoz
the story told by Ma Tin Kywe.that she tore up the doc
: ment a few days after Maung Ba Kyi's death is a me
incredible one, as, if such a document as alleged had exi!
ed, Maung Ba Kyi's death would be an occasion to preser
it in case Ma Tin May might make a further claim <
Maung Ba Kyi's property. Therefore, in my opinion, tl
learned trial Judge was quite justified in rejecting the d
fendant U Po Min's story that there had been a diver
betwec:n Ma Tin May and Maung Ba Kyi before Maung 1
Kyi's death.
In this connection, the evidence of Daw Pu (DW 5) .
Witnes~ Cited by the defendant himself, is most ilhimiric
ing. This witness spoke. of Ma Tin: May being th~ eld .
wife of Mai.Ing Ba Kyi, and of M~ Tin Kywe whd resid
at her house a5 a tenant, as a lesser wife. Another a
parently iridep~ndent witness U Hla Maw (PW 4) a. Pc
., Master of Tabayin, only knew: about Ma Tin Kywe beil
a lesser wife of Maung Ba Ky.i. It would seem from tl
eVidence of this witness~ :t:hat ..a few mQnths ~fore ~am .
Ba Kyi's death Ma Tin . . May. chased
.
ivfa Tin Kyvye with
~BURMA LAW REPORTS.
view to assault her, and Ma Tin Kyv.:e ran into tha Post
c.c.
1963
Jffice for refuge. Then only did U Hla Maw come to MATlN
mow that Maung Ba Kyi had a lesser wife in the person , MAY
~.
)f Ma Tin Kywe. U Po MIN.
Now, regarding the story of the alleged surrender of
the car by Ma Tin Kywe to the defendant U Po Min, on
his undertaking to pay the abovementioned debts, the vet-
;;ion told by U Po Min is most improbable. He said that
when Maung Ba Kyi purchased the car he took a loan of
K I.?oo from U Po Shin, father of Ma Tin May and
K t:oo from :vraung Mya Maung, U Po Min's own son.
!v!aung, Ba Kyi then borrowed a sum of K 2,500 from one
U Aye (now deceased) to pay off these debts. After the
:leath of Maung Ba Kyi it was one of the conditions of the
mrrender of- the car to him that he should repay the debt
)Wing by Maung Ba Kyi to U Aye ; and this he had since
:lone.
U Aye, being dead cannot, of course, be cited as a
witness. However, if U Po Min did pay up the debt of
K 2,500 owing to U Aye by Maung Ba Kyi it should not
have been difficult for him to adduce evidence to that
effect. This had not been done. In consequence the story
told by U Po Shin, father of Ma Tin May that the debt of
K I,700 was discharged by instalments during the life-
time of Maung Ba Kyi is a much more probable one.
Now, as already observed, the plaintiff's suit was dis-
missed by .t he learned trial Judge on the ground that it was.
barred by limitation under Article 49 of the Limitation
Act. Ma Tin May at first filed the suit on the r4th of
June r96o in the Court of the Subdivisional Judge of Ye-U,
being-Civil Regular Suit No. r of 1960 of that Court. This:
was about three years and six . months after the death of
\.1aung Ba Kyi. In that suit, the plaint was returned on
BURMA LAW REPORTS
the 24th of March r 960 for presentation in a Court havin.
jurisdiction, as the cJr was valued at K 6.ooo which wa
beyond the pecuniary jurisdiction of a subdivisional Cour1
v.
.U Po MIN. It is an admitted f2ct that about two months after the ca
was entrusted to U Fo Min he plied it bt>t\\een. Ye-U an<
Tindein Yan. The learned trial Judge took the date 01
which tqe defend;mt U Po Min beg~m to ply this car a
that from which l i !'l.:~tation shou ld he~in to run. How
ever, Ma Tin \fay said that U Po ~1in had been grvm;
her some subsic;tence allowance with the proceeds fron
the running of rhe car. and there is nothing to contradic
her on this point. Consequently, the defendant's posses
sion of the car only became wrongful when he refusec
t o return it . to i\.1a Tin May on demand. This deman<
was made only a few months before Ma Tin \-fay filed tht
present suit against U Po Min before the Suhdivisiona
Court of Ye-U.
In Ma Mary v. Ma Hia 1Nin (r) it was hC'Id by a ~end
of the late High Court of Judicature at Rangorn tl1at \'\her
the original possession of pr~perty had been permissive
a bare allegation on the part of the posse<;sor .of her owr
-ownership -of the property did not change the characte1
of her possession into an unlawful one, but that her posses
sian became unlawful on her refusal to comply vvith c
formal demand for the return of the property and, t'here-
fore, under Article 49 of the Limitation Act, limitatior
would begin to run only from the date of such refusal
. {see also Gopalasan:zi Ayyar v. Subramania Sa.stri (2).
Kalyan Mal and another v. Kishan Chand (3} and Laddc
Eegam v. Jamal-ud-din (4)].
For these reasons I consider that the plaintiff's suit
was within the period of limitation prescribe~ by Arti~le
49-of .the Limitation Act. -
. (1) I.L.R. z Ran. 555 (3) I.L.R. 4I All. 64-3
.
(a) I.L.R. 35 -Mad. 636. (4) I.L.R. - <4-2 A l. 45;
BURMA LAW REPOR'J1S. 207
In the result the appeal succeeds. The judgment and c .c.
1963
ecree of the District Court of Shwebo are set aside and
MA TIN
he plaintiff's suit for possession of the Dodge Jeep car ~AY
r recovery of ii:s value K 6,ooo decreed with costs tl.
U Po MII'f.
lroughout, Advocate's fee in .this Courl being assessed
t 5 (five) gold mohurs.
.~:-:. BURMA LAW REPORTS.
SPECIAL CIVIL APPEAL
B"!for" U S .1n 1\daung and U Kyaw Zan U, JJ.
c.c. MAUNG MAUNG THA.UNG (APPELLANT)
1963
___. y.
April 25.
U HLA GYI A:-;o DAW AYE KYI (RESPONDENTS).*
E>Ji:lm~J A:! s . -~~. 'II l '. 6 ~-prim~ry evidPz~~-~~t~df'Jr productiotz of docu-
ment itself.
The a')p !llant h1:! fihd a suit for ej~ctm~:-~,t against the respondents as
;~es.P.~~~~~.!.~~~~~~~~~~.no..;! 1~1,1~ ~Jls theJ,7gal9;v.~
~ft~;.la.;~,ln. !!.lso:.t~~_.~j~ .~~~~~ely..,e_r:o~~~~ a~ tl}e__tria.l: ~- r_::giste_r~
~~-~..,._~s. ~~~. D: ::!_,.;.~t.l '> t~n t]}.;.,.orl;$~11al d~!Z_.d~~~-tn hts posscss~on. __ Acs~
din~lv, th e mal co:.1rt a:d th~ A?P~llate courts h eld that he had fatled to prove
his pt:7hm a:td tid,: to the la:td in dispute. On Special Appeal-
="'-H;J,d_:}-!nd~r ~~~!J~E~i<!e~A..;.!~~?_;~~!IJY~J..l'JJ'J'?v~~.r.
~~W .ev;~,f~.;~:!.e,t..\~ th~ ~es21J.rt~~~[.t~~;.at~J..Act;=bu_t
no exc:;nions w:re piead :d by the A?p~llant, and no rc".sons were given for
withholding the original deed.
Without proof of the original Sale D~ed , it is impossible to hold that the
sale in~ lf wa; nlid in law. Und~r s. 62 of th ! ,id~nce Act, ' p rim ary
evid!nC!" rn !a.n th~ docu:l.l!ntits:lf pro:luc!d for the insp~ct ion oftr.~ Court.
'hen the b!st evidtnce rule is not observed and only inf~rior evidence is
produ"C.ed, su::h omis;ion will go against the withholder. A party ought not to
be allow ~d to d !feat his o;>ponent on the strength of a document which he has in
his possession and will not produce.
Maung Thein'sZan and one v. The Unien of Burma; (1956) B.L.R. 303 (H.C.),
followed.
A. Cassim for the appellant.
Ba Swe for the. respondents.
U KYAW ZAN U, ].-The appellant Maung Maung
Thaung instituted a suit, being Civil Regular Suit No. 17 of
1956 of the Township .Court of Prome, against the res-
pon~ents, who are husband and wife, as trespassers for
. ejectment from and for possession of an area of land
measuring 003 of an _acre on which they have built a house
~md. a kitchen, as shown in the certified copy of the map
Ciyii-Special Appeal No. roof 1.961 against the decree of the Appellate
. Side of the Late High Court afRangoon in Civil Second Appeal' No. 37 of ~959.
BURMA LAW REPORTS.'
!ed with the plaint, which forms a part of Holding No .r 12 ~9~j
f 1955-56 of Medical Block No. 8 of Prome. measuring MAUNe
30 of an acre alleging that he is the owner of the same ~:uNc
'I nrtue. of h1s 1
. purchase f rom one 1v'"faung ~1.1aung f or THAUNG
v.
1,500 as per certified copy (Exhibit ~) of a registered sale u ~~ Gvr
~eddated 29th :'I:'IJ.rch 1954 being registered deed 0Jo. 65 DAKY!:YB
( I954 . Ti:l<f resr.cindents contenc).ed inter alia that the
.nd in dispute originally belong~d to U Po San wlro on his
~ath ~eft b..::>ind three heirs, including the appeJ ;Jnt. and
1:1t l (:e i.1:1d is now in occupation not only of the res-
> n ~:~:::.:-, ben Jlso of Ko Aung Sein and Ma Pwa Khin.
=~ ~) Jc.~ i ~.~d the alleged sale by Maung Thaung to the
)pciL:;::t .:md stated that they themselves bought it about
~ year<: 2go from one Ponnaya \Vho first bought it from
Po San. After answering the preliminary issues on the
aluation of the suit for the purpose of jurisdiction and
n the applicability of the Land Nationalization Act, 1953,
nd the Urban Rent Control Act, 1948, to the suit on the
vidence adduced by the parties, the trial Court framed
uee more issues for the determination of the suit of
rhich the first issue quoted below is most important for
1e purpose of this appeal :
.After hearing the appellant's agent Sultan and his two
iitnesses and the respondent U Hla Gyi and his witness,
1e trial Court dismissed the suit with costs on the ground
1at the appellant by merely relying upon the certified copy
!xhibit ;;,) of the alleged registered sale deed has failed to
rmre his purchase and title to the land in dispute. On
ppeal to the District Court the judgment and decree were
::mfirmed with costs throughout. The appellant preferred
is second app~l, being Civil Second Appeal No. 37 of
959, to the lat~. High Court but he was again unsuccessful.
zto BURMA LAW REPORTS.
-~~:.~~ . - :~:.
c.c. The learned single Judge of the Appellate Side (U Tur
1963
Tin, J.) however, declared on"]th July 1961 under sectior
MAUNG
MAmw 20 of the Union Judiciary Act before its amendment tha
T.HAUNG
v. it was a fit case for appeal ; hence this special appeal.
u ~ GY.I . The main point fqr determination is whether the appel
DA~Ytn larit has proved his title to the land in dispute by merel)
-relying upon the certified copy (Exhibit <)J. of the regis
tered sale deed. The issue was whether his purchase wa!
valid in law. He wanted a decree for ejectment and posses
sion of the ground that he got a title to the land as owneJ
by virtue of his purchase by a registered sale deed frorr
Maung Maung Thaung and his learned Advocate frank!)
. admitted that the burden was on him to prove the aiiegec-
sale to him. The consideration being K 1,500 the salt
could be :made only by a registered instrument". unde1
.section 54 bf the Transfer of Property Act, and unde1
section 64 of the Evidence Act this instrument must bt:
.proved by primary evidence except in the cases mentionec
in section 6 5 of the said Act but no exceptions '} \ven
pleaded by the appellant, whose agent Sultan on the other
. hand clearly admitted in his evidence that the original sale
deed was in his possession. No reasons whatsoever were
given why he was withholding the original deed. It will
be seen that the (Exhibit <.~ ) document does not show that
Maung Thaung ever signed the deed as the vendor. NonE
. . of the attesting witnesses to the deed gave evidence. Kc
Than (PW. r); -a petitiop writer, deposed that the original
.. Q.eed was kept behind. for filing a ~imilar suit against thE
. ' other trespassers but he admitted that .no suit .had been
. filed against them. Since the appellant did not show that
. h~ Was entitled to give secondary evidence,.the fact. of. thE
;. alleged sale was not relevant at all. . Without proof of ;the
o.riginal::sale .deed it is impossible .to hold that the ~ale
. itself was valid in lavy. U.nder secti~n 6~ -of,the.Evidence
BURMA LAW REP6RTS.
t " Primary Evidence " means the document itself pro-
:ed for the inspection of the Court. The rule that the
M".wNG
t evidence must be given of which the nature of the MAUNo
e permits has often been regarded as expressing the TH;~c
at fundamental principle upon ~hich the law of u ~~~ Gvx
dence depends. .When the best evidence rule is not DAw .-lYE
KYI.
;erved and only inferior evrdence is produccG, such
ission will go against the withholder. A party ought
: to be allowed to defeat his opponent on the strength
:t document which he has in his possession and will not
duce. In }vfauny Thein Zan and one v. The
ion of Burma (r) it was held that the original letter not
ing been produced and proved the photographed copy
that original letter could not be admitted as secondary
ience.
In the result, the appeal fails and it is dismissed with
ts througho11t.
(1) (1956) B.L.R., 30.3 (H.C.).
5
212 BURMA LAW REPORTS.
CIVIL REFERENCE
Before U San Marmg, U Saw Ba Thein &J U Tun Tin, Y.J.
c.c. MESSRS. A. S. ALLADEEN & Co. (APPLICANT)
1963
v.
Apl. 20.
THE ~NCOME-T/0( APPELLATE TRIBUNAL AND ONE
(RESPONDENTS).*
Brmna Income-tax Act, s. 66 (z)-Refusal of Appellate Tribunal to refer case
High Court-question of law-determination as to whether a statnner.t ,
accormt ftlrnished by assessee is i1tcompkte and f,audulent-question of fc
Computation of gross profit at fiat rate--no question of law evolved.
The .-\ppl icant had contended before the Appellate Tribunal that there wt
sufficient materials before the Income-tax Officer and that the rejection
.:he A;:>plicant's accounts, and assessment on the estimate, was made withe
sufficient reason. It was also contended that the estimate of gross profits
a cer:ain percentage on the estimated turnover was illegal and arbitrary.
The Appellate Tribunal had refused to refer a case to the High Court .
the ground that the above contentions contained no question of law.
H~ld: There is enough material on which the Income-tax Officer could ha
come tQ the finding that the returns submitted by the assessee finn relati
to its income was unreliable. Once the judgment has been exercised by t
Officer against the assessee, it cannot be assailed unless it cs.n be demonstrat
that the action was not" judicial'' but" capricious". Accordingly no questi
of law arises on this score.
Chan Law Chwa1: v. The Commissione1 of l11cOme-tax, l.L.R. 7 Ran. 2
(FB); Gtmda Suhhayyav. Commissioner of Income-tax, Mad1as, (1939) 7 I.T.
21 (FB); Seth Gwmukh Singh ~nd anotlze v . Commis1ioner of lncome-tc
Pw,jab, (1944) 12 I.T.R. 393 (FB); and Glza11shyamdas Permanand v. Co;
mis.io11er of Income-tax, C .P. _and Berm, (r952) 21 I.T.R., p. 79, referred '
Regarding the adoption of the fiat rate for computing the gross pro!
the. lnc~me-ta."X Offi~r had given sufficient reasons for coming to the conclusi
that thi"s was a fair esti.m ate of the gross profit. .No question of law arises
this score also.
Wan Hock .for the applicant.
Ba Kyaw (Government Advocate) for the respondent.
civ1'1M'1scell aneous App1'1cat1on
N o. 22 of 196 I aga1nst
- of t
decree
-
. . order
Income-taX AppeUate Tribunal of R,angoon in its Reference No. x of 196r.
BURMA LAW REPORTS. 213
U SAN MAUNG, J.- This application under section 66 (2)
of the Burma Incometax Act arises out of the order of the
Incometru<; Appellate Tribunal, Rangoon, dated the 31st _r~~t
of March 1961, in its Reference No. I of I96I, wherein Co.
"
the Tribunal refused to refer to the <late High Court certain INCOME-TAX
z.- TH
questions of law said to have arisen out of its appellate APPELLATE
judgment in Appeal No. rrr of 1959. The f~cts giving ~r::~
rise to the present application are briefly these: '
For the assessment year 1953-54, the applicant firm
Messrs. A. S. Alladeen & Co. returned an income of
Rs. 14,7631 I as. and produced its books of account. The
Incometax Officer rejected the accounts 'for the folloV\ring
reasons:
(r) the. names and addresses of persons to whom
retail sales had been made were not shown so
that no verification could be made ;
(2) no regular Stock Book was maintained and the
opening and closing stocks were supported
only by inventories which from their very
nature were unreliable as there was no means
of verifying the amounts and values of stocks
shown therein ;
(3) the Ledger did not contain quantity columns
showing purchases and sales ;
(4} the.rate of gross profit as disclosed by the books.
was found to be unduly low .
. ~n these circumstances the Incometax Officer rejected
the accotmts and proceeded to assess the firm on the basis:
of his own estimates. The turnover was practically
acc:epted though it was rounded up to 472 lakhs as com-
pared with K 4,45,482 as shown in the accounts. Instead.
of a gross profit of 9 2 per cent shown by the assessee firm
the Inco!lle-tax Officer adopted a flat rate of 13 per cent
and assessed the applicant accordingly. Being dissatisfied
214. BURMA LAW REPORTS.
1 :::'!
~. ..
c.c.. . with the order of the Income-tax Officer the app~icant
appeal~d to the Assistant Commissioner of Income-tax and
1963
=!'!~~ then, to the -Income-tax Appellate Tribunal, Rangoon, bur
Co.
v. to no avail. The applicant then asked the Tribunal to
THB . refer to -the .late High Court. the. following questions said
lNCOME-TRx o
.APPELI;.!\.TE to have arisen out of its appellate judgment:
T.RIBUNAL
A:t:room. (I) Whether there are materials before the Income-
. tax Officer to reject the applicants' account
and make an assessment on an estimate
without sufficient reasons ..
(2) Whether in estimating the rate of gross profit at
I 3 per cent on the estimated turnover of
:4,50,ooo by the Income-tax Officer was illegal
and arbitrary without any valid reason and
proper exercise of judicial discretion.
(3) Whether the assessment is contrary to law and
.is against the weight of evidence and probabil-
ities of the case.
The Appellate Tribunal, however, held that no question
of law was involved and refused to refer the case to the
late High Court. Hence the present -application.
Now, in Chan Low Chwan v. The Commissioner of
Income-tax (I), it was held that whether a statement of
accounts furnished by an assessee is incomplete and fraudu-
. lent or not is a questiop of fact for the determination of
-the Income-tax authorities and not for the Court. It was
. also held that if the statement of accounts furnished by
_the assessee was found to be not gem1ine by the incom_e-
tax officer the latter is. entitled to adopt whatever method
he-thinks best a.nd the assessee who does not choose to
furnish an honest statement: cannot complain if a random
assessment is made upon him by the CroWn.
(r) I.t.R. 7 Ran .. .2S1 (FB)..
BURMA LAW 'REPORTS.
The ratio decidendi in Chan Low Chwan's case was ~9~3
disapproved by the Madras High Court in Gunda Subbayya M L -
-=RS.A.S.
v. Commissioner of Income-tax, Madras (2) but was ALLAD.E.E::-t &
approved of by Din Mohammad, J., who wrote the majority e ~~
judgment in Seth Gurmukh Sinah dnd another v. Commis- INc~~-TAX
sioner of Income~tax, PunJab (3). There it was held that APTPELLATE.
. !UBUNAL
while proceeding under sub-section (3} of section 2 3, tg.e At-.-o oNs.
Income-tax Officer is not bound to rely on such evidence
produced by the assessee as he considers to be false but
that if he proposes to make an estimate in disregard of the
evidence, oral or documentary, led by the assessee, he
should in fairness disclose to the assessee the material on
whkh ~e is going to found that estimate and that it is not
open to the High Court in a reference under section 66, to
declare the finding of fact arrived at by the Income-tax
authorities as altogether vitiated, if there is any admissible
m~terial to support the finding quite apart from the result
of the confidential inquiries made by the Income-tax Officer
and not communicated to the assessee.
Ghanshyamdas Permanand v. Commissioner of Income-
tax, C.P. .and Berar (4) a Bench of the Nagpur High Court
held that the sufficiency of the accounts for the purpose
of deducing the profits or gains therefrom is left by the
proviso to section i3 of the Indian Income-tax Act, 1922,
to the judgment of the Income-tax Officer. Once the
judgment ha~ been exercised by the officer against the.
assessee,it cannot be assailed unless it can be demonstrated
that the action was not "judicial" but "capricious." In
this connection the following observation of the learned
Judges may be usefully quoted:
"Thus, though the officer is not e:ltpected to lead evidence
in refutation of the books his action should have some
foundatipn. It is impossible to say as a matter of law what
(2) (1939) 7 I.T.R. 21 (FB). (3) (1944) 12 I.T.R. 393 (FB).
(4) (IQS2) 2 I I.T.R. p. 79
BURMA LAW REPORTS.
should be the 'material' on whith the officer would be
entitled to apply the proviso to an assessee, regard being had
. MESSRS.~ S. to the infinite variety of cases likely to come up for decision.
Al.LADilEN &
Co. Ordinarily, if there is any 'material,' that is to say, good
:;~.
ground for such action, the application of the proviso cannot
TH&.
INCOME-TAX be questioned."
APPELLATE
TRIBUNAL
' 'J \NDONE. In the case now under consideration there seems to
l:ie enough. material on which the Income-tax Officer could
have come to the finding which he did that the return
submitted by the assessee firm relating to its income was
unreliable. Accordingly no question of law arises on this
score.
Regarding the adoption of a flat rate of r3 per cent
the Income-tax Officer has given sufficient reasons for
coming to the conclusion that this was a fair estimate of
the gross profit. We do not consider that any question of
law arises on this point also.
For these reasons the application under section 66 (2)
of the Burma Income-tax Act is dismissed with costs,
Advocate's fee being assessed at 20 (twenty) gold mohurs.
BURMA LAW REPORTS. 217
ORIGINAL CIVIL
Before Dr. Marmg Nlarmg. J.
TET TOE RIC~ AND OIL MILES (PLAINTIFF)
V.
THE INLAND WATER TRANSPORT BOARD
{DEFENDANT).*
Negligence-res ipsa loquitor-Doctriue of-application in a collision case.
Th~ doctrine of res ipsa loquitor is simply a rule of evidence which fixes
e burde.1 of !)roof. Th~ eu'> .ltial co:1dition for the doctrine to come into
ay is that the facts must speak out so loud and clear that no other conclusion
n be drawn from them exc~pt that the D ~fendant had been negligent.
U Hla P~ v . Union of Burma Airu:a;ys, (1951) B.L.R. 347; M. Clwwdlmr;y v.
dian Airlinl'$ Corporalion, A.I.R. (196z) Cal., p. 554, referred to.
Wh:r~ :h: ?la::-otiff's vessel collided with the defendant's vessel and the
1intiff!s vessel was sunk about z4o feet from the right bank of the river.
Held : If the plaintiff's vessel had sunk or run aground close to the right bank,
en perhaps the doctrine of res ipsa loquitor might be invoked, for, it would
ow that t:1~ pbi:1tiff's vessel was k;:ping close to its right bank and was
:uck and sunk whil ~doing so. The facts of the case, however, do not warrant
e operation of the doctrine.
Held also, on th~ facts of the case, that th~ allegations made in the plaint
d the stories of tb~ key witnes3es given in evidence are conflicting, and thus
e burd'!n of proving mgligence had not b:en discharged by the plaintiff.
Inland Steam Vessels Manrtal~ referred to .
. A. Soorma for the plaintiff.
yaw Khin for the defendant.
DR. -MAUNe MAUNe, J.-In the early hours of the morn-
.g of the rst May 1958, a collision took place between a
totor launch " Tet Toe " which was proceeding from
angoon ~owards Maubin and motor launch " Bayin
aung" ~longing to a fleet operated by the defendant-
)ard which .was steaming down from the opposite direc-
)n. As a result of the collision "Tet Toe" sank and
Civil R:gular Suit No. 43 of 1959, Chief Court.
-Zl8 [19,1
c.c. several lives and some cargo were lost while " Bay
1963
Naung" suffered only sl~ght ~a.p1~ge to its bull aJ
ThT T oE
Rr:\tAN-o machinery. The plaintiff-firm which owns "Tet. Toe
OIL
v. ILLs now sues the defendant-Board for a sum of Kyats Thr
THE INu.'lo Lakhs, the. value it fixes for "Tet Toe " which was a COl
W:.TER
TR.L"\sPoRT plete loss, and K 72,ooo as estimated loss of earnin
9
:j3 ARD. from the operation of the motor launch for one yec
_Paragraph 12 of the plaint set out in some detail on tl
part of " Bayin Naung " particulars of negligence as
direct result of which the plaintiff alleged the motor launc
"Tet Toe " was sunk. The defendant deny the charg
of negligence and allege that it was because "Tet Toe
turned and crossed its path without notice and against t1
rules of the sea that "Bayin Naung" ran into "Tet Toe
From the pleading the following issues were joined l
consent of the learned Advocates :
r. Was the collision between m.l. "Tet Toe " ar
m.L " Bayin Naung " caused by the nc:gligenc
of the m.l. " Bayin Naung " as stated by tl
plaintiff and more particularly set out :
. paragraph 12 of the plaint?
2. Is it .correct that the collision wa<; caused as
result of the negligence on the part of the m
" Tet Toe " as alleged by the defendant?
3 What is the amoun~ . d:ue and payable to tl
plaintiff, if at all, as a resu~t of the foss ar.
sinking of m.l. " Tet Toe "?
1 Js ,t~.~ RRti.c:::~ gi;v,en by U ;Ky<jt}'V -1\~yi~:J..t de~cti'
. .S.~Ct~qn 8.o. of the Code of Civll Proc;edm
u:m. ier )
a~ ~lle~~<} by the def~ndant or at a)). If so,
.tn~ sq.h mqin~mab~e in raw?
5 To.
ih;:~.,t ;e~ief, ff ;;my, js t~epla,iiltP:f .entitle,<;!?
. , fs~t?-e :Np. ~
jf) q~e,dyr:tJ.a..~ k~y.stone on w~oh the .su
of .the- p;Lain~ re$~~ GnJo;' ii the.te is an
affi.rm~tive fine
ing on the issue wo1.,1ld the qthers become relevant. Whi:
BUR:N!A LA'vV REPORTS. .21~
an issue is not joined as to whether the facts as prqved by
the plaintiff would bring the doctrine of res ipsa loquitor TT,Toe
into play, thereby shifting the burden of proof as to negli- Pj,je AMo
gence to the defendant, Mr. C. A. Soorma, learned counsel OtL v~LLS
for the plaintiff. argues that the question should be con- T~:W!~~Nl)
sidered as it is one of law and inference. If it is held that TRANsPoRT
that doctrine applies to the facts of the case the presump- J3oARo.
tion of negligence on the part of the defendant would ar~.se
and -it fall on the defendant to disprove negligence.
The doctrine of res ipsa loquitor is simply a rule of
evidence 'vhich fixes the burden of proof on one party or
the other.. If the facts as proved so clearly speak for
themselves as to fix the blame for a certain event on the
defendant then ir becomes the defendant's duty to prove,
if he can. that he \vas not negligent and therefore not liable.
The essential condition for the doctrine to come into play
is that the facts must speak out so loud and clear that no
other conclusion can be drawn from them except that the
defendant had been negligent. Thus for example, if a bag
of rice falls out of a \.cindmv arid hits a pedestrian walking
in the street .below, the pedestrian can say vvith fairness
that the people who live in the houses above have been
guilty or .ne~ligenc~ for .a b<1;g ,of ric;~ : dqe~ not jump out
of a window by itself. Two jUustr.ations of how the
doctrine operates may be looked at. In U Hla Pe v. The
.U!!ion .of. Buqna Airways (:r) the plainijff SfW.-t.he .defen.<i-
an.t Jor d?mages for the loss of his wife who WfiS killed ip.
an air crash while tr.ayelling as a P4S$_enger of the defend
ant-Board. It was alleged that the very fact that the
aircraft crashed. would speak for itself and put :the burden
of disproving negligence on :the defendant. There U Bo Gyi,
J., as he then was, ruled that th~ doctrine did not apply.
The aircraft had taken off from Mingaladon at 8 a.m. and
(j) (~9sx) B.L.R., p. 3.47
220 BURMA LAW REPOR:TS.
?9~3 ~as due at Moulmein at 8-45 a.m. The aircraft transmit-
TBT.. TOll
ted messages at 8-ro a.m., then again at 8-27 a.m. and if
Rxca ~-'II> all had gone well it v,:ould have reached its destination.
OIL Mzu.s
.,_ Instead however, it crashed into the sea and "there is no
THE INLAND
WATF;.~ evtdence as to how t 1.1e olane crashed into the sea and
TRANSPORT
BoARD. t h eref ore, .I d.o not t h'mk 1t ~ ble to examme
. - wou Id be prohta .
the theo!ies ..(as to how the crash came about or was
caused) in detail. The circumstances in which the plane
. crashed ~nto the sea \viii probably remain shrouded in my-
stery forever " .
Iq M . Ch_owdhury v. Indian Airlines Corporation (2)
the facts we~e different. There the plane belonging to
the defendant-Corporation crashed immediately after its
.. ~a~~-off and the learned Judge decided that the doctrine
of. res ip~a loqpitor applied. An aircraft is supposed to fly
not to fall to the earth immediately after it has taken to
the \ving. .Thus when as in tha.t case an aircraft crashed
immedia.tely after rising the presumption of negligence on
. the paq of the defendant arose and it became the duty of
the defendant to prove if it could that it had not been
negligent.
In the present suit, only a few facts stand out undis-
. puted. The fact that collision took place at about 3-30
a.m. on rst May 1958, at a point between Thongwa and
Hta11i villages on the river is one of those facts. That
there are bends in the river approaching the point of colli-
sion and_at .t he river is wide, by Havigation standards,
at tpe. point of collision and several miles approad).ing
it f:r;om ei~her direction are also undisputed facts. That
there was ~dull or near-full inoop. and good visibility, that
.b oth '~ Bayin .Naung " and " Tet Toe " carried proper navi--
g~tioJi.' lights :are also admitted facts. Beyond these admit-
.ted.facts, ~owever, ~ies a wide area of sharp controversy.
(2) A.I.R. (z962) Cal., p. 554
BURMA LAW REPORTS. 221
Where, for example, the collision took place js a ~9~3
renuously disputed question. The plaintiff's case is that TaT T.Y
Tet Toe" was steariring up the river keeping close to the RtcrANo
OIL MILLS
mk on its right. The estimate of the distance from its v.
arboardto the right bank, accord\ng to the plaintiff's Taw~l\"l>
itnesses, 'was about 30 feet. It is the plaintiff's story TRANSPORT
BOARD.
tat "Bayili. Naung" steamed down midstream at great
>eed and despite the blast of warning given out 'by " Tet.
oe " ran straight at it and hit it about the middle of its
Jrt-side at s-uch great force that it sank within a few
linutes. This would fix the point of collision at about
J feet from the right bank, looking up-river from "Tet
oe ' '. It is also in the evidence produced by the plaintiff
1at the river was shallow near the right bank and when
Tet Toe " sank people on it who jumped off found them-
!lves only neck-deep in the water and could wade ashore.
: therefore the collision took place in such shallow water
nd so close to the bank, then the force and momentum of
1e collision would probably have driven "Tet Toe" even
loser to the right bank and perhaps run it aground. This
owever, did not happen and the sinking of "Tet Toe"
ctually took place according to the map Ex. " C " which
ras made by U Pain, a surveyor (PW 4) at a point 240
eet from the right bank where the waters are so deep
hat " Tei Toe " has never been seen after the sinking.
'his incidentally agrees with the map Ex. (2) which was
repared by Saw Tun Lwe (DW 2) who was the comman-
.er of " Bayin Naung " on the trip, which also shows the
oint where {'T et Toe" sank at 240 feet from the right
ank.
If "Tet Toe" had sunk or run aground close to the
ight ban~. then perhaps the doctrine of res ipsa Joquitor
night be invoked by the plaintiff, for here would be a
notor vessel which was keeping. close to its right bank and
vas obviously st;ruck in the l'l)iddle and sunk while doing
222 BURMA LAW REPORTS.
c~c. so . . The burden of proving, if such was a case, that it h.
1963
not been negligent would then have shifted to "Bay
;J.,~T ToE
RI~ AND Naung " . . The facts however, do not warrant the opel
v~Ilu
O IL
. ..s tion .of doctrine. The burden therefore lies on the plaint
THW{~!':ND to furnish such proQf as to yield an affirmative and favot
TRANsPoRT able answer to Issue No. r.
BOARD.
The decision of the issue depends on the facts as tht
are put' forward by the plaintiff and by the defendan
Tile versions are of course entirely different and evidenc
marshalled in support of each version is not free of co:
flicts and inconsistencies within itself. Out of these tl
Court must decide which is the most probable story .
Abdul Subhan (PW r) is one of the key witnesses f<
the plaintiff, because he was the serang of " Tet Toe " c
its fatal tr~p.. He says that "Tet Toe " was steaming u
the riyer with the tide when " Bayin Naung " was sightc
about half a mile away.. The .distance between the sta
board of his launch and the right bank was about 25 fee
and the " Bayin Naung " came down midstream in a sian
ing direction towards "Tet Toe". The witness gave
short blast of warning and when "Bayin Naung" we.
about 30q yards away he reduced speed of his launch, bu
the other launch came straight on and struck " Tet Toe
on its port~side with such great force that " Tet Toe
heeled over on the right side and water rushed in quickly
sinking the launch within a few minutes after the colli.sion
"Tet Toe" .sank at the point of collision. As the banl
was only 20 or 25 feet a\vay the witness could swim ;
little and tllen wade ashore as other people did. The wif,
of the sepior clerk of the launch and her. four children
. however, were drowned, as were the brother of the junio:.
clerk and the brother of the sukarni.. .
. . Anothe:r; important witness of the plaintiff is Jaba
Hussain (PW :!), the sukarni Of " Tet Toe " who was on it:
, last trip . . He, gives substantially the same story as Abdu:
BD'RMA LAW REPORTS. 223'
)han and puts the distance between the Starboard of !he
.nch from the right bank at about 20 or 25 feet. He says
TET TeL
tt " Bayin Naung " was sighted when it was about half a RicE~
ie away-and this is a fact on which witnesses on both OrL MILLS tJ.
~s agree- and the collision took pl(\ce because " Bayin THE IN._....,o
ung .. swerved an d came stra1g. h t at " Tet Toe .. . Tl1e TRANSPORT
WATER
lision was of such force that the steering of " Tet Toe BoARD.
ke and, whirling round, struck and injured the witness
the forehead. The witness then found that his launch
s sinking and he jumped into the river, and the water
s so shallow that he touched the ground and waded
ore, wbere he fell down and lost consciousness because
his bleeding- wound. The sukarni also states that the
ayio Na.ung came down midstream and altered its
trSe when it was about 300 yards from " Tet Toe " and
s hit the latter while s.t eaming down at great speed.
~ Bayin Naung .. had gone on midstream without chang-
its course, there would not have been any accident for
istance of about r 50 or 200 yards lay between the path
" Bayin Naung and " Tet Toe ". This statement
ies materially from what is said in the plaint.
In paragraph r 2 of the plaint one of the particulars
negligence attributed to "Bayin Naung " , is that she
not alter her course at any time, though it should and
ld have done so by proceeding towards her right bank
:ead of cpming straight at " Tet Toe " . Abdul Subhan
( r), also differently from Jabal Hussain (PW 2), stated
t_" Bayin Naung" did not swerve its course as expected
him after he had sounded a short blast of warning but
ead of altering its course it headed straight at ." Tet
. : ". The conflicting stories of the two key wjtnesses
also of the allegation made in the plaint cannot be
tly brushed aside as small matters of detail.
Maung Ba Aye (PW 3), is a police constable and he was
the "Ba0n Naung" at the. time of the collision. He
; that at about the time " Bayin Naung " passed Htani
suRMA" LAW~:REPORTS.
C. C- v-il101ge, he felt the launch shudder and when he lookc
196 3
. '1~-r- ToE .
up he saw something large and white across the path of tJ
Rxcg-AND launch. Then the launch ran into "Tet Toe", who
.OtL !'_fzLJ.s name he discovered from people only after it had sun
Ttm ~Nli.;\ND The witness would nut the time that lapsed between tl
WATER ~
' TMNsPORT collision and the sinking of "Tet Toe " as not more th<
BOARD.. .five mmutes. . passengers and cargo f rom t }1e sunken sh
floated .up on the surface and villagers from Htani ar
Thongwa came out as rescue parties. " Bayin Naung
-later crossed over to Thongwa and turned its search ligh
on .to the waters. The crew of" Bayin Naung" ask<
. the people. from " Tet Toe " who had found their We
ashore or been rescued, if they would like to get a lift :
Rangoon, and no one took the offer. Witness was certa'
. that " Bayin Naung" shuddered first as if it was reversir
its course, immediately before the two launches collide
Maung .Ba Aye also saw a man wearing a white unifor:
and a police officer rush down from the deck of " Bay
Naung " after the collision had taken place. He could n<
-tell however, who the man in white uniform was and wh;
kind of official he might be. This line of questioning ;
.to themysterious man in white uniform is relevant becaw
the plaintiff tried to fix negligence on " Bayin Naung " 1:
saying her commander (who would presumably wear
white uniform) was relaxing up on deck at the critic;
moment and was therefore powerless to prevent the coil
sion. . This line of questionin_g was not, however, pursue
and the :man in the white uniform does not m:ake his a]
pearance in the record again.
. : :The witness, Maung Ba Aye, could not say which l~unc
was .in t'Q.e wrong in taking the collision course-.but h
:estimate of the distance of " _Bayin Naung" from its le:
bank :a nd.- of "Tet Toe" from the same bank would l
8o.'to: 100 yards and 6o yards respectively. Th~s~ a~cor<
ing to , him; -the "Bayin Naung" was steaming down nc
BURMA LAW .REPORTS7 225
quite midstream but a little closer to the bank on i6 left, ~~6';
nor was "Tet Toe" as close to .t hat bank as the previous __ "7.-
'I'Jiof""Tos .
witnesses had stated. RICE AND
OIL MILLS
The map, Ex. "C ",in which the collision was recon- TH 8 ~~
structed by U Pain (PW 4), surveyor, was made up from WATER
TRANSPORT
information that he received from villagers of Htam and BoARD.
Thongwa several months after the incident. .vVhen h.e
went to make the map, no trace of "Tet Toe" could be
seen, only a buoy marked its watery grave.
The bigge~t difficulty that the plaintiff has to get over
is the evidence examined so far is, to explain why if "Tet
Toe " .had been going close to the bank on its right, only
20 or 25 feet . 3\.,.ay from it, and if it was hit by "Bayin
0iaung ,. so near the bank and where waters were so
shallow, "Tet Toe,. did not sink and run aground at the
point of collision. The key-witnesses have said that the
sinking took place almost immediately after the collision
and at the spot where the collision took place. Now " Tet
Toe" was a fair-sized motor launch of 140 tons and a
double-decker:. "Bayin Naung" from the evidence, the
model tha.t vyas put up as an exhibit, and from the photo-
graph: of it, Ex. "M-(r)" in the directory issued by the
l.W.T. Bo.ard; Ex. "M ", is clearly a bigger and a heavier
vesseL Thus, it is inconceivable that "Tet Toe" which
was heavy and " Bayin Naung " which was heavier could
have collided only a few feet from the bank where tile
waters were less than six feet deep without "Tet Toe"
being driven aground. Witnesses have stated that water
rushed:' in iinmediately after .the collision which must have
broken opep. the port-side of" Tet Toe" in its middle, and
that would render it even more probable, if the stozy told
by.the witnesses was correct that" Tet Toe" would have
sunk or been driven aground at the place where it was hit.
Instead however, " Tet Toe " sank, according to the
maps produced, at. about 24~ fee~ from the right bank
.226~ . IHJRMA LAW REPORTS.
c.c. and the fact that nobody ever saw traces of " Tef Toe "
1963
- after she had sunk would seem to support the maps and
TET~B
- RicE AND also int!l.icate. that the point of collision was some 2oo or
L r:_n.r..s 240 feet away from the right bank.
01
This would then
Tir!~~o disprove the plaintiff's fi>.t ory that "Tet Toe" was keeping
TRANsPoRT close to the right bank and that "Bayin Naung" which
BOARD. came down m1'dstream swerved and }11t . 1t
. at sueh great
sp~ed that there was nothing that the crew of" Tet Toe"
could do to avoid the collision.
A few witnesses produced later by the plaintiff gave
stories which possibly are belated attempts on the part of
the plaintiff to explain away the faq: that " Tet Toe "
san:k some 240 feet on the right bank These witnesses
say that after the collision the two motor launches were
entangled and "Bayin Naung" dragged "Tet Toe" away
.from the point of collision towards midstream where " Tet
Toe" sank.
Ko Than Aung (PW s). who worked in the engine room
of " Tet Toe " says that before the collision the engine
room received orders from the commander to reverse and
soon after the order was complied with, he heard a crash-
ing sound and the collision took place with so much force
that he was. flung to .the ffoor. The witness went up on
deck: as waters had started to rush into the engine room
and jumped of[ The water was only neck deep and he
waded ashore. On turning round to look before reaching
the shore, the witness saw "Tet Toe" half sunk and
. entangled. with " Bayiri' Natmg " which dragg~d it away
till about midstream. Looking back again from the shore
the' Witness , could no longer s.e e " Tet Toe" for it had.
already .sunk. This version is very different from the
.evidehce' given by the earlier pl_aintiff:witilesses including
. Abdul Stibh.an., and Jabal Hussain, who were up on deck
~d at the steering wheel ctt .t he ti:ri.i.e of the collision and
were very definite that" Tet Toe" sank immediately after.
the:coUision and at' the very spot it was struck~
BURMA LAW REPORTS. 227
In cross-examination Ko Than Aung says that it was ~
.n}y 10 or 15 feet away from the right bank where he TET ToB
1mped off and since the waters were not deep if "Tet RrcB AND
'oe " had sunk where it was hit it would have stuck out OIL~
.f the waters where it lay. In cross-examination the T~~~AND
fitness says that he saw the two launches entangle but TRANsPoRT
i d not see " Baym . Naung ' ' drag away .. Tet 'roe , to. BOARD.
ridstream.
Ko Han Lin (PW 7) and Ko Po Thi (PW 8) are villagers
f Htani and Thongwa. Ko Han Lin, says tha..t on the
10rning of the accident, he heard a crashing sound and
'ent down to the bank to look. There, he saw two motor
tunches entangled.
The hull of "Tet Toe" had almost run ashore but
Bayin Naung" reversed and diagged "Te~ Toe" away,
nd at a distance out in the river "Tet Toe" sank. The
ritness then returned home and in the morning going
Jwn to the bank again he saw the mark left by the hull
f "Tet Toe" on the sands. He did not, however, see
~ople from the launch on the shore. This story varies
ren more sharply from those told by the sukarni of" Tet
oe ", Abdul Subhan. It al~o varies materially with the
ory told by Ko Ba Aye, who was definite fuat die colli-
on took place about 6o yards from :the right bank and
tat " Te): Toe " sank within a few minutes after the .com..
::m.
Ko Po Thi {PW 8), a villager of Tliongwa, says that
! heard a sound of collision and on going down to look,
! saw the launch which w;~s comj.ng downstream drag
vay the la1.1nch which was coming up. In the morning
itness wen.t down to the shore and saw people busy
ying to fish out zinc sheefs and other cargo belonging
the sunken ~aU)lch. 1'hi$ witness again varies materially
Jm the very. d~jte statement m~de by the earller
ifnesses as to the point. where the collision took place
.d as to how "Te~ Toe" sank.
6
...... ~- -
"::'228 BURMA J.,AV{ REPORTS~
. ' ., ~.
c.c. It \s conceded by both parties that the river is wide
~
TETYoB
at the place where the collision took place and that by
Rics wo the accepted rules of navigation vessels could take their
OIL ~~ts own convenient courses keeping to the left or to the right
THBWINLAND or near midstream, so"long as the courses that they chose
A'I'ER
T1Wm'oRT were not collision courses. In other words, the river being
BoARD. \}'ide enough there is ample room for manoeuvre, and
vessels are free to pick ou_t; their own courses though they
must notJ of course, cross the paths of vessels coming
from behind or from the opposite direction. In narrow
channels however, "every steam or motor-vessels meeting
or likely to meet another steam or motor-vessel shall, when
it. is safe and practicable, keep to that side of the fairway
or mid-channel which lies on her own starboard side."
(Extracts from the Inland Steam-Vessels Act Manual
published by the Irrawaddy Flotilla Co. Ltd., 1927, page
!00.)
Pie rule which applies to two steam or motor-vessels
meeting end-on, or nearly end-on may be found in para
graph 12 at page 94 of the Manual. When two vessels
meet end-on or nearly end-on so as to involve risk of colli-
sion each shall alter her course to starboard so that each
m;ty pass on the pprt-side of the other. This rule however,
d9es not apply when the risk of collision is absent and
if the two vessels keeping to their respective courses may
pass clear of each other. These rules are accepted by
the plaintiff's counsel and the evidence also indicates tha1
if '' Bayiri. Naurigr'and " Tet Toe" had kept to their res
p~ctive courses, the collision would not have occurred
Thus~ the fad _that ' Bayin Naung " was steaming dowr
n:iidStr-eam does not by itself establish its negligence. k
th~ river is wide " Bayin Naung " was fre~ u nder th<
Rules of Navigation _to takea deal: course neai midstream
especially when it was coming round the bend for natural
ly,.'by taking a midstream course " Bayin Naung" woul<
enjoy .better visibility coming through the bends.
.; f"l :'
B{)RMA LAW REPORTS. 229
To sum up the plaintiff's evidence then, it mu~t be c.c.
~J)f3
found that there are wide and important divergencies be-
TET Toa
tween the case as made out by the plaint and the evidence RICE AND
of the plaintiff's witnesses. In the ~laint, the main allega- Or~ ~ILLS
tion was that " Bayin Naung '' steamed down midstream THE INLAND
without altering course and ran into " Tet Toe ". This ~~:;~RT
could not have happened if" Tet Toe" was keeping with- BoARD.
in 2o feet of the bank on its right. The earlier plaintiff-
witnesses state that" Bayin Naung" came straight at" Tet
foe" striking her while it was hugging the right bank
md that" Tet Toe" sank where it was hit a few minutes
liter the collision. This again is not borne out by the
!vidence which put the depth of the river at t he point
)f collision about 20 feet or less from the bank at less
:han a man's height or roughly about 5 feet. Considering
hat the witnesses state that " Tet Toe " sank where it
vas hit and then disappeared from sight altoge~er the
!vidence of these witnesses would seem to erase them-
elves and the story they tel_l. As regards the story told
>y later witnesses produced by the plaintif:f that " Tet
~oe " was dragged away towards the middle of the river
Y " Bayin Naung " before it sunk this allegation is not
nade in the plaint nor in the evidence of Abdul Subhan
nd jabal Hussain, who being at the steering wheel at the
ime of the collision, were in a better position tp_know.
ne 'evidence of the villagers who stat~ that they. saw the
wo vessels entangled cannot be _considered to be Pu.st-
v~rthy. The villagers .state .that they were woke~ up
t the sound o~ ~ heavy crash in the river and when they
,rent down _to the bank they saw two vessels locked _in
mbr~ce, before .the bigger x.esseJ ~agged the smaller one_
way 'towards midStream. One of the witnesses even
tates that the smailer vessel " Tet Toe " was run ashore
nd..after :that the big'ge~ v~sel dragged it away. Against .
ll these there is the undeniable fact tha.t " Tef Toe " sank .
f a point at <!-bou_t ~~, f~t from ~~ right b~.; Thk
I ..... . . .
BURMA LAW REPORTS.
~~~ fact is established by the exhibit maps, Ex. "C" being
- produced by the plaintiff and Ex. " 2 " being produced by
TBT .AND the cornmander of " Baym
Rii::B TOE . N aung " m. h"1s statement. The
OJL ~~L~ . two maps vary in theirversions of how the collision took
THEwbrLANo
ATI!R
place,
.
but agree on where "Tet Toe" sank. The fact
TRANsPORT j:hat "Tet Toe" sank about 240 feet from the bank or,
BOARD. near midstream, iS alSO further SUppOrted by the evidence
of. the plaintiff-witnesses a nd also of the defendant-wit-
n~sses which agree that a few minutes after the collision
"Tet Toe" wen:t down and completely disappeared from
sight. This could not have happened if the waters were
shallow at the poini where the vessel sank. The time
that the collision happened was rst of May, at the height
of the dry season, and it is in the evidence of the defend..
arit-witnesses that there were sand banks on the Thongwa
side running many feet into the water, and there is also
evidence on the plaintiff's side that the bank on the right
that is, on the Htani side was not free from sand banks
of which the waters were shallow. Thus, the probability
is that a collisioi}. took place midstream or near midstream
arid not close. to the right bank as the plaintiff would
make out.
The conflicts in the eviaence produced by the plaintiff
and the variance between the evidence and the case as
made out in the plaint therefore leave the plaintiff's charge
of negligence on the part of the " Bayin Naung " unproved.
AS" ~ayin Nau~g" was coming down midstream in com-
pliance with, or at least as permitted by, the _Rules of
NaVigation, and also as the collision took place near mid-
stream. the s~ory told by the defendant that it was "Tet
Toe;, which cros.sed the path of "Bayin Nating" so sud-
deD.ly that " Bayj.n: Naung " could not effectively reverse
jts.. ~otrrse o:r: turn -to avoid a ~ollision would seem ~o be
the more probab~e or .a~ leas'f an equally probabl!-'! story.
.):'~~story t<?l<;l_by Saw Tun Lwe <PW r) is. th.at "Tet
1qe was coming up, keeping close to the bank on
BURMA LAW REPORTS. 231
Thongwa side but steering clear off the sands when " Bayin ~6~
Naung " came down the river along a midstream course. TsT-To
Visibility was good and both t.h~ vessels had their light ~~M.~
on. Entering the bend, Saw Tun Lwe says, "Bayin Tss ~LAND
Naung " gave the usual blast, bu.tt he could not hear the ~ RAN<>rORT WA:!;R
other vessel give any blast, short or long. There was in BoARo.
fact no need for a short blast of warning because the two
vessels could see each other under the full moon when
they were about half a mile apart. If each vessel had
taken its own course a good I oo feet would have divided
their courses and they would have steamed past each
other clear \Vithout any risk of collision, but " Tet Toe "
suddenly turned when it was only about 300 feet away
and crossed the path of " Bayin Naung " so that even
though Sa\\. Tun Lwe ordered the engines to be reversed
collision could not be avoided. There was no entangle-
ment of the two vessels, Saw Tun Lwe says under cross-
examination; and "Tet Toe" sank after moving 4 to 10
feet from the point of collision, partly because it _was
-loaded up heavily with cargo. The commander also says
that at the time of the collision he was a~ his po~ and
the sukarni .M;aung Aye Saing (DW 5), was also by his
side. After the collision Saw Tun Lwe and the engineer
~xamined the laun,ch i;o see if it could still go, and later
on, turning the search. lights on to the waters, they .found
,that "Tet Toe", had disappeared. On the Htani side of
the bank there were people and ." Bayin Naung" crossed
.over to .V1at side to find if any assistance .could be rendered
~o people from the sunken vessel. It was from the people
...
that tl-Je name of the .vessel.
\. . was. discovered and ai5o the
j;t~t, the_witn~ alleges, that,Abdul Subhan, ~e serang wap
_n ot in ~!1~ ~ess~l W~en it W,C;lS hit a~<\,SID}}). . . ltjs il)t;esting
.~o not' ,~at in ~e.. ch_ge ,and ~ounter.-cl1arge of neglig~n~
.\)9th " !~t T8e ~ and ~ )3~yi-q .N~~pg " trl..~d t!) n;take o~t
~~~t :~~e ~as.~~! o~..~lte .c;rth~ i'{~~eJ: .~ . n~honJ)O~d,.~
232 BURMA LAW REPORTS.
. c c. the time of the;colljs!on. The plaintiff's evidence had
1963
made a feeble attempt to prove that Saw Tun Lwe, the
TBTjTox . comman
lb::E"t.ND . .. th e man m the wh'1te uniform, was
der .or master,
OIL Mrx:Ls on the upper deck and not at the controls when the colli-
"LlD sion occurred. This line of proof of negligence was how-
THE lN.
'f~=~T ever .al::>andoned. Similarly, .the defendant's evidence tries
BoARD. . to make out that Abdul Subhan, the serang was not on
, board at a)l at the time on the trip but this charge is not
. borne out by the evidence.
Saw Tun Lwe's story seems to be supported by the
ev.idence of Maung Ba Aye (PW 3), the pollee constable,
who was aboard the " Bayin Naung " and who said that
..he felt the " Bayin Naung " shudder violently just before
the <;ollision .occurred. This would seem to agree with
. saw Tun. Lwe's statement that he ordered .the engin~s
o.f "Bayin Naung" to be reversed when he saw that the
other, vessel was suddenly turning across its path. The
place where" Tet Toe" sank would itself also add support
to his story because if the collision occurred midstream
and " Tet Toe " moved on by her own momentum and
perhaps by the force of the collision for another 4 to ro
._feet before sinking, the point where she sank should be
about 240 feet from the right bank.
One of. the villagers who was cited by the plaintiff,
U Bon (PW 6) has stated that at about 8 or 9 a.m. on the
morning of the collision he had gone down to the bank
;o n:Htani side. and found a fresh mark on the sands which
he thoughtwas left by .the belly of tile. moto~ launch or
..asamp~. He attributed the mark to the collision. This
stcitement however, may lend s~ppoti to what Saw Tun
Lwe says that after the colli'sion " Bayin Naung " had.
.aosse<l"over' to Htani bank and . anchored awhile to get
some' information ~bout the sunken vessel and also to
-~ ii there were people who' might like fo get a lift to
Rangoon. The eVidence of U Bon does not in any. way
t ~:
BORMA tAW 'R;EPORTS.
support the plaintiff's 'case which is that "Tet Toe" was c.c . .
1963
hit and sunk but not driven ashore. Tlrr To
Saw Tun Lwe's story finds support in the evidence of .~<:r.~~~
U Hla Tin (DW 3), Police Inspector who was aboard tl.
"Bayin Naung ", U Han Shin (Dv\; 4) who was on duty Tw!~o
in the engine room of "Bayin Naung" at the time the ~.:=~~T
collision took place and states that he received orders from
the commander to reverse the engines, and Maung Aye
Saing (DW 5), who was the sukarni of " Bayin Naung "
on the trip. There is no need however, to examine the
evidence of these witnesses in detail, because on the mater-
ials so far examined I. am answering Issue No. I as to
whether the negligence of " Bayin Naung " had caused
the collision in the negative, and would refrain from deal-
ing with the other issues.
In the result, it must be held that the plaintiff has failed
to establish that the collision between "Tet Toe" and
.. Bayin Naung " was caused by the negligence of the
latter vessel. The suit is therefore dismissed with costs.
BURMA LAW REPORTS
: . . .. . . . ~
CIVIL RE.FERENCE
Before U San Maung, U Saw Ba Thein and U Tun Tin, Y:/.
c.c. THE BURMA STARCH PRODUCTS LTD. (APPLICANT)
9,63
.M~.~ v.
THE INCOME-TAX APPELLATE TRIBUNAL, BURMA
AND ONE {RESPONDENTS).*
Burma Income-t.ax Act, s. 66 (2)- Registratior. of Assessee under s. 26A, Burvu.
. IncoTilP."ta.x Act and Rules-Registration on basis of Partnership Deed ana
Partnership Agreement.
On r1lt):l J~ 1947., 3 persons entered into partnershiptocarryonbusine$~
under the name of" H. Rookmanund R.B." at Moulmein, and" Ra i BahadUJ
.Rookrnanund. Bagla and Company" at Rangoon. ',I'he Partnership wa*
allowed to. en~r into partnership transactions with.other firms or persons and
the partners w~re allowed to sign all papers relating to the Partnership busi~es*
for and on behalf of, and in the name of the firm.
On 22Jld January 1948, the Applicant Company entered into an agreement
.to carry on busines~ in partnership with the said partnership firm of H. Rook
rnanund R:B, of Moulmein. The Agreemen't was signed by the Secretary ol
.the-Applic=t,Company, and by a partner-of the-said partnership firm.
pn 26t!:t Sep.temb~r ~ 949, another Agreement was !JX~9!Jted between ~heAp~li
cant'Compab.y and a1I-the three partners of the s~id' partnership fimi, and 't n(
.previousagreementof22nd January 1948 was recited therein. This Agreement
was. again signed by the same partner who signed the previous agreement, f01
and on behalf of the said partnership firm, and by one of the Directors of thE
Applicant Company.
On reference to the Chief Court because of the refusal of the Income-ta:x
a4thorities to register the new firm evidenced by the said Agreements, it wa!
contended on behalf of the Applicant Company that the Agreement datec
26th September 1949 was a valid one and should be registered, and if insufficient.
it should be read in conjunction with the earlier agreement dated 22nd January
1948. .
Held: Wha.t the partnership deed dated z8th June I947 contemplated, wa~
for. the fii:ql of H. Rookrnanund of Moulmein, as such, to enterinto partner
.shipwith other firms or persons. I tdid nota~thorizetheindividuals composint
~he said firm to enter into a fresh partnership with other firms or ,persons
.Therefore. ~~en if the p_a rtner who signed the two Agreements can b1nd thE
p~nership with other firms or individuals, he ~d no power to bind the.ind-i.
viduals composing his partnership firm, by entering into a fresh partnershir
with other firms or perso~s.
Civii'Miscellaneous. Appiication No. 8 of 1960, against the order of:tht
Income-tax Appellate .Tribunal of Rangoon in its Appeal No. 72 of 1958,
dated 24th March 1959
BURMA LAW REPORTS. 235
Heldfr~rther: There can be no que>tion of tatification in the present case. C.C.
rh~ ap~lication for registration was not put forvrard even by the partner who 1
963
igned the deed, but was put forward by his agent who was manage of the THJi''BVRMA
artnershi p firm. Sl'ARCH Pao-
Ramlal Mur:lidhar v. The Commissione1 of lncometax, Bengal, (1933) V. DUCT.S .LTD.
v.
.T.C. 150, referred to and distinguished. THE
FirmBrij Kishore RamSarup v. Sheo Charan Lal, A.I.R. (1938) All. 69, lNcoME-'JAX
. . APP.,BLLATB
eferred to. TRIBUNAL,
O!liter: As to the qa:stion whether th'! application for registration itself was BURMA AND
tcompetent as it was not signed by a partner as required by the Rules but by om.
1 agent of th~ partner, there is suffi::ient authority for the proposition that it
ould n'ot comply with the statutory rules prescribing the manner in whic[t
te registration is' to be effected.
1. C. Rodriyuez for the applicant.
a Gyaw (Government Advocate) for the respondents.
U SAN MAUNG, J.-This reference under section 66 (i)
:the Burma Income-tax Act arises out of the order dated
1e 24th March 1959 passed in Appeal No. '72 of .1958 of
e Income-tax Appellate Tribunal, Rangoon. The question
law which ,was referred for the decision of t~e l~te High
mrt is as follows :
" Whether in the circumstances of this case the assessee is
entitled to regiStration under the Burma Incom~ Act and
Rules on the basis of the partnership deed dated the 26th
September 1949, .0r, on the basis of the said partnership deed
read :with the .earlier agr,f!ement dated th~. 7.2n9 January 194~.
m relation . tc(i948-49 asse5sinent?" . ' - . .
. .
.
The facts giving rise to the present reference are briefly
!Se. In the c6urse of the ~ssessment'of the ~pplicant
n, the Burma Starch Product$' Limited, Moulmein
m~h, Moulmein, for the ass~ment year 1948-49.
. B. L.. Bag~a. M~n~ger of -~~s5_!S., Hardeo~a~-Ru~ap.u~<J
:'. B<i'lhidur' firm! stibmitt~d :.t(j tne;'lncome'-t~X'~ Oftic~t,
ulifiein, an.applic~tion under seCtion 26A<of' the Burnl:a
ome~tax Act . for t4e r~~tration o{ fp.~; Jfrtn ... .'The
. r " I ' l ,\
lication was ' a~cpmpa~i.:1_' by . a: deea, ,qf )artp.-etslrip
. . . . -:~ . : . . . : .. ;, ~
236 BURMA LAW REPORTS.
.
dated the 26th September 1949, in original, which
.
pm
ported to be a partnership between Burma Starch Product
~~!u~- Limited and (a) Mr. Ramniwas Bagla, (b) Mr. Rameshwarlz
vucz;.LTI>. Bagla and , (c) Mr. Kashi Pershad Prahladka all of whor
~
lNCOMf!-TAX were members of a firm known as Messrs. Hardeodas Ru'k
t
APPELLATE manund Rai Bahadur firm of Moulmein. The Income-ta:
TiuiiUNAL,
BURMA AND Officer refused registration on several grounds, inter alic
ONE.
(I) that the document showed that it was a partnershi~
between Mr. Ramniwas as representative of the firm an
the Burma Starch Products Limited, and not between th
members of the firm individually with the company, an
(2) that the application for registration was made b:
Mr: , B. L Bagla, Manager of Messrs. H. Rukmanund R2
Bahadur firm, as agent of Mr. Ramniwas Bagla, one o
the partners- of the firm and that accordingly applicatio1
for registration made by an agent of the partner was no
adequate.
The applicant firm appealed to the Assistant Commi~
sioner of Income-tax against the order of the Income-ta:
Officer, Moulmein, refusing to register the firm unde
section: 26A: The Assistant Commissioner in rejectin;
the ap~al observed, inter alia, that the partnership wa
purported to be between the registered firm of Hardeoda
Rukmanund Rai Bahadur firm of Moulmein and the Burm:
. Starch Products Limited of Rangoon, sharing profits in th
propo!tion of 40 per cent and 6o per cent respectively
that the .seq:md. partnership deed drawn up before th
compl~tion of the assessment, aJthough purportin-g to l>
. between. the.Burma Starch Product~ Limited' on the on .
,hand . and -the three partner-s of ~he firm .of M~sn
Hard~as Ruklnanund Rai Ba4adur tinn on.. the other
was really between the firm and the company and tha
. therefore such a partnership was I!fvai.~d in law. Th
Assistant: Commissioner .however ignotoo one of .. th
,ground~'_: of appeal that jx:t~ission for applying . to th
-.
BURMA LAW::REPORTS. 237
ncome-tax Officer for registration _o f the firm mig~t be 1~6~
ranted under Rule 2 (c) before orders were passed on the THs ~MA
Ppeal ' if the Assistant Commissioner concurred with the STARcH
DUCTS LTD.
PRo
ncome-tax Officer that the partnership deed dated the 26th v.
eptember 1949 was mva . fid . , THE
JNcoiiiB-TAX
. fir f
The apphcant m then pre erre a second appeal t o
d APPELLATE
TluauNAL,
he Income-tax Appellate Tribunal, Rangoon, against the BuRMA ANo
ONE.
rder o.f the Assistant Commissioner of Income-tax. con-.
rming the Income-tax Officer's order under section 26
f the Burma Income-tax Act, refusing to register the firm
::>r the assessment year 1948-49. In course of the appeal
he applicant relied upon the decision of the Bombay High
:ourt in Chotalal Devchand v. Commissioner of Income-
1X, Bombay City (II) (1) for the proposition that where
y a partnership deed an agreeme~t of partnership was
rrived at between three parties, namely, two firms and
n individual it was the constituent members of the firm
nd not the two firms as entities, that had entered into a
artnership with the individual and th.at therefore, the
artnership so constituted was a valid one. The Income-
:tx Appellate Tribunal, however, distinguished the Bombay
ase by sajing that in the deed of partnership in that case,
1e names of the partners and the firms were recited and
hat the .partnership deed was signed by all the seven
artners, namely, four, who were partners in the first firm,
lVO, who were partners in the second firm and lastly, by
1e individual. The Income-tax Appellate Tribunal went
1rther and ~aid that in any case, the deed of partnership
ate'd the 26th S~ptember 1949 co\}ld not have retrospec-
.ve effect and that what was required was a deed of part-
ership which was in force during the accounting year
1 respect of .whichthe , assessment was made. For this
onclusion the Tri~unal re'iied upon the. observations of
handarl. C_.J.,:i;n ~he.Jlecis.ion of the P.unjab.High Court in
(i) (i9s8) 3 I.L.R. 3s~:
BURMA LAW REPORTS
. :-- .
'-'~-
:Ig6J
R1filiji Dass Rikhi Ram v. Commissioner ~~ Inco~e-t"tr'
Punjab, Pepsu H.P., and Bilaspur, Simla (2) and those
THB - BURMA
STARCH P.ao- Falshaw, ]; m Padam Parshad Rattan Chand v. Comm.
nvcTs"~To. sioner of Income-tax, Delhi (3).
THIS
INCOME-TAX The applicant firm then filed an application und
APJ?]ii.LATE
TRIBUNAL, section 66 (r) of tlte Burma Income-tax Act, asking tl
BVRMA AND
ONE. Income-tax Appellate Tribunal to refer to the late Hi!
Court {our questions of law which were subsequent
condensed into only one question. The Tribunal rejectt
the application, but the late High Court by its order datt
the. nth September r96r in an application to it und
. section 66 (2} of fhe Burma Income-tax Act, directed tl
Tribunal to refer the question of law involved. Hence, tl
present reference.
Now, on the r8th June 1947 a partnership was co:
. stituted between '(r) Rameshwarlal Bagla, son of late Bal:
Radhakissen Bagla of Calcutta, (2) Ramniwas Bagla, son<
late Rai Bahadur Rukmanund Bagla of Moulmein and (.
Kashipersad Prahladka, son of .late Babu Baboolal Prahla<l.k
of Moulmein. They were to carry on business in partne
ship under the names and styles of "H. Rookmanund I
B. " at Moui~ein and "Rai.Bahaq'u r Rookmanund Bagl~
Company " at Rangoon in the sam.e terms as in indentw
of partnership dated the . i3th August 1941 between (1
Babu Radhakissen Bagla, ~ather of Rameshwarlal Bagla, (i
Ramniwas. Bagla . and (c) ~~shipersad Prahladka. It
provided inter alia that .. the par~~ership may al~o el}~e
into-partnership trallS?Ctions with. o~her firms or persor
., on such: ferro~ ap,d conditions as :t;nay ~ agr~d on by ih
. p~rties t~er~to ",and that: eac~ of the parties hereto-sP.~
'ha.ve :t he. r~ght to sigri al.l voucl,lers ~nd pap'~s . r~lating 'i
t.he .pii.r.tnership business for arid .on. beh~lf ofand in th
na_m e 'df. the: fum . . .. .~a do all. thiQgs ~ec~ar
fpt'tile':.Proper managemeiJ.t
. : .. . . . :. . . . . . .
: .
~' . .P.ru:tn~rshlp
of. the .. .b~si~ess::~
; ' : , ,.
(2) (x9s8') 34 I.T.R. 48,3. {3)' (t9s4) ~s I.T.R: 335
. .:
BURMA LAW REPORTS. 239
On the 22nd J~uary 1948 an agreement was made be- ,c{.
. . d c
reeri Burma Starch Products L1m1te , a ompany mcor- T -
. 9 3
>rated under the Burma Companies Act and having its s~~u~
. . 1 place of busmess
1nc1pa . at Rangoon, an d t11e fi rm of DUCTS~ LTD.
essrs. Hardeodas Rukmanund of Moulmein which ex- INco~TAx
ession means and includes the partners in the said firm APTRIBUNAL,
PEL:t.ATE
Messrs. Hardeodas Rukmanund of Moulmeih. The BuRMA AND
trpose of the agreement was for the firm and the com- oNE.
my jointly and in association to carry on the business of
tr'chase or sale of rice, rice products, paddy, etc., timber,
.bber, mineral ores. etc. The net profits of the business
ere to be divided between the firm and the company in
.e proportion of 40% to the firm and 6o% to the com-
my and it was provided that neither party should carry
1 in the town of Moulmein or in the Districts of Amherst
Thaton, business of the nature carried on by the parties
. association which is likely to compete with the said
Isiness. This agreement was signed by Ramniwas Bagla
a partner of Uie firm of Hardeodas Rukmanund of
oulmein and by S. M. Karnani, Secretary of ihe Burma
:arch Products Limited.
On the 26th September 1949 another agreement was
{ecuted between Burma Starch Products Limited, a Com-
my incorporated under the Burma Companies Act and
:wing i~ principal place of business in Rangoon on the
ne part and (I) Ramr1iwas Bagla, son of Rukmanund Bagl~,
:) Rameshwarlal Bagla, son of Radhakissen Bagla and (3)
ashipershad Prahladka, son of Babula! Prahladka, all of
hom were carrying on business in co-partnership in the
arne and style of " Hardeodas Rukmanun'd " of Moulmeiu.
his agreement recited the existence of the previous agree-
tent dated the 22nd..January I948 and said that whereas
y that agreement the business was to continue for' a term
f one year from the I 5th December I947, by a memo-
mdum dated the 14th December 1948, the partie~ had
240
c. c. agreed to carry on the business in partnership for a furthe1
1963
period of one year from the 15th of December 1948. 11
THE BURMA
STARcH PRo- was also recited that the parties to the agreement of tht
nuc:r;. L:w. 26th September I 949 agreed to carry on the samebusines~
THf - in partnership, from'the date of the present agreement
INCOME-TAX
APPELLATE upon the terms and conditions of the agreement dated tht
ThmUNAL,
BtffiMAAND 22nd January 1948 except in so far as they have been
ONE. modified. by the present agreement. It was furthel
provided that profits of the partnership business should bE
divided between the firm and the Company in the propor
tion of 40 per cent to the firm and 6o per cent to thE
Company, ana that the partnership in like proportions_
should bear all losses, including loss of capital. This agree-
. ment of the 26th September 1949 was signed by Ramniwa~
Bagla, .partner for and on behalf of the firm of Hardeoda~
Rukmanund and by U Ba Win, one of the Directors of thE
Burma Starch Products Limited. The contention of thE
learned Advocate for the applicant Burma Starch Product~
Limited is that the partnership as evidenced by this second
agreement dated the 26th September 1949 is a valid onE
and should have been registered and that if this agreement
is by itself insufficient, it should be read in conjunction
with the earlier agreement dated the 22nd January 1948.
The question is whether this contention of the learned
Advqcate should be allowed to prevail.
In support of his contention, the learned Advocate .has
cited the .case of Ramlal Murlidhar v. The Commissioner
of jncome-t<.?X, Bengal (4). In that case there was a~
instrument of partnership signed by three persons, the
. executants who stated that they -togetherwjth t4e mother
. of one of thein were carrying on a business iii pa~tpership
and that they had agreed .that the -partner~hip business
should on~ue~ the p:~;pfj.ts and._ lp~~;_: to .. "!:>:e. _divided i n
to
. certai:p.- shares,and that-the laay was haveoiie'.t\y~ntietb
BURMA .LAW REPORTS.
1are. Based on that agreement, an application to register 1';6~
1e partRership was made under section 2 (r4) of the -
THE BuRMA
1come-tax.Act. It was refused by the Income-tax Officer STARCH PRo-
n the ground that the instrument not having been executed DucTs _LTo.
y the lady, was not one contemplated under that section. INc~TAx
In a reference, it was held by the High Court of Calcutta APPELLATe
TRIBUNAL,
1at if the instrument had been assented to by the lady_ Buma AND
nd had been put forward by her along with the partners oNE.
x registration, it was admissible for registration under
~ction 2 (r4) of the Act and that section 2 (r4) of the Act
nd the Rules thereunder did not imply that a complete
1strument only was valid for registration, that is to say,
n instrument not requiring supplementation by other
vidence but solely operating and containing in itself the
omplete agreement constituting the partnership.
Another case relied upon by the learned Advocate is
irm Brij Kishore Ram Sarl}p v. Sheo Charan La1 (5). There
: was held that a . firm is only an association of persons
rho have no corporate capacity, and that if a partnership
; in f~ct entered into and all the partners of the firm are
onsenting parties to the agreement of partnership or are
epresented by a duly authorized person, when the contract
f partnership is concluded between the firm and others or
ubsequently ratify it, a partnership will come into
xistence tpough it will not be regarded as a partnership
,f which a firm, as such, is a partner.
Relying on these two decisions, the learned Advocate
rgues that in the case now under consideration by the
erms of the agreement dateq the r8th June 1947 each of
Ii.~. partners . of the finn o f Hardeodas Rukmanund of
lloulmein was authorized to represent each of the other
1artners of that firm in entering into a new partnership. .
Vith other firms or persons, and that, accordingly, the _
.greement dated the ~6th September 1949 :was a valid o~e,
(s) 1\.I.R. (1938) All.,69
. ~42 .
c.<::. although it was only signed by Ramniwas Bagla for and
1963
on behalf of the partners of the firm of Hardeodas Ruk-
.'I'Htl BURMA f 1 . I . 1
STARcH Pao- manund o Mou mem. n our opmon, t111s contention
DucT~.J;,TD. cannot be allowed to prevail. What the partnership deed
lNc~~TAX of the r8th June 1947 contemplated was for the firm of
~~=~~~ f!ardeoda~ Rukmanund of Moulmein, as such, to enter
BuRMA AIIIID into partnership with other firms or persons. It did not
ONE.
authorize the individuals composing the firm of Hardeodas
Rukrnanund, to enter into a fresh partnership with other
firms or: .persons. Therefore, even assuming for the sake
.tOf argument that Ramniwas Bagla, as a partner of the firtn
:Of Hardeodas Rukmanund of Moulmein, can bind the firm
in a partnership with other firms or individuals, be had
..no power t;o bind individuals composing the firm of
.Hardeodas Rukmanund of Moulmein, by entering into a
fresh partnership with other firms or persons.
'I)lere can be no question of. any .raR.fi.ca!lo~" :iJ?. the
pres:e nt C.ase, whereas in RamiOJ. Murlidhc;tr :V. T/le Comll)is-
;sioner of In..come-tax, Eengal (4} relied upon by the learned
Advoca~e, it was SPecificallypointed out that to be a~mis
:sible for registration under section 2 (r4t?f ~pe Act, the
lady inqqestion must not only pave assented to the instru-
ment, but must have put it forward along with other
partn~rs for registrati0n. Til me case now under consi-
deration, .the applicatipn for registr~tion was not put for~
w~d even by ~~E.~pmner who signed tlre deed, nimrely,
RaimU:was ,:. Bag~a~ , I~ wa$ put ~orward by his agent
Mr~ wad
B.. L.: Bagla wli9:. ,.;:,. ; matiager
",J' . . - . ; . . .
o~ Messr:;. Haraeoda~
Rukriia.mtnd Raj Bahadilr firm..
~. . Con~~~~c;:p:~;; ~~ ~ur opinion the partnership deed
.q..tjed ,~e>th s~,pte~br. ' ,!949 either by .itselfor _when
...rea~l.in
_ . ,
conjunction wJ:tii th~. earlier
~:. . . agreement dated the
(4) ,(1933) V.I.T.C. ~ISO
. .
BURMA .LAW REPORTS. 24-3
.2nd january 1948, cannot be made the basis of registra- c. c.
1963
ion under the Burma Jncome-tax Act and Rules there- -
. THE BuRMA
mder. STARcH PRo-
oucrs To.
In these circumstances it is not necessary to consider v.
'!':HI!
vhether the. application for registration itself was incom- INCOME-TAX
etent, as it was signed not by a partner as required by APPELLATE
TRIBUNAL,
he Rules but by an agent of the partner. Had it beeQ. BuRMA AND
ON!!.
ecessary to decide on this point, we would have been
1clined to. say that the case of C.T.A.C.T. Nachiappa
'hettiyar v. Secretary of State and another (6) is sufficient
uthority for the proposition that an application for the
~gistration. of a firm made by an agent of the partners,
ould not . comply with the statutory rules prescribing
1e manner in which the registration is to be effected.
:>r these reasons our ans"er to the question referred to
; by the inco me-tax .-\ppellate Tribunal will be in the
~ative. The applicant must pay costs of this reference.
dvocate fees being assessed at twenty gold mohurs .
. {6) ( I93J) I. I.T.R. 330.
7
244 BURM~LAW REPORTS.
CRIMINAL REVISION
Before U Kyaw Zan U, J.
THE UNION, OF BURMA (APPLICANT)
v.
Mar. 26.
MAUNG TUN KYI (RESPONDENT).*
Withdrawal of Criminal case-Code of Criminal Procedure, s.494-Magistrat~
to exercise jitdicial discretion-Powers of Puhlic Prosecrttor to withdraw a case.
Where the Public Prosecutor had applied for withdrawal of a pending case
under s. 30 (a) of the Excise Act and the trial court allowed the withdrawal
and acquitted the accused (respondent).
Held: The :\hgistrate had failed to exerci>e his judicial discretion if he
granted pcm1ission t.o withdraw the case without gi\'ing any rea~ons. With
drawal of a case is an executive act. When th e leamed Public ProsecL:tot
hims~lfwas no: in charge of the case, he cottld not withdraw the case on his owr
motion.
Union of Burma v. U Chit Swe, (1950) B.L.R., p. 278 (H. C.), followed.
No one for the Applicant and the Respondent.
U KYAW ZAN U, J.-The respondent was prosecute(
under section 30 (a) of the Excise Act and after hearin!
the witnesseS for both the prosecution and the defence
the trial Court, i.e., the sth Additional Magistrate o
Thayetmyo, fixed a date for orders in his Criminal Regula
Trial No. 63 of 1962 but on that day the learned Pre
secutor applied for withdrawal of the case under sectiOJ
494 of the Code of Criminal Procedure on the groun
that the respondent was merely a bona fide custodia:
of the alleged contraband liquors relying upon Ma Pi '
King-Emperor (1) and the trial Court by its order in tb
diary allowed the withdrawal ;3.hd acquitted the resp01
dent.
Criminal Revision No. 70 (B) of 1963. Review of the order of the 5
Additional Magistrate of Thayctmy~, datt:d tho 8th day of March, 19t
passed in Criminal Regular Trial No. 63 of i962, a~ recommande.d by t
District Magis~rate of Thayetmyo in .Crin:inal Revision No. 1 of 1963.
('I) 2L.B.R., p. IJ6. . . .. .
B'dRMA LAW REPORTS. 245
The learned District Magistrate nov..- recommend .to set C.C
1963
aside the order of acquittal and to order a retrial of the -
- TliE UNION
respondent on the folloWing grounds : - oF BuRMA
(1) that U Aye Maung who was said to be a Town- MAu:~ Tw
ship Officer of the B.E.D.C. (DW 2) directed the ~YI.
learned Public Prosecutor to withdra'vv the case
without having any power to do so ;
(2) that the learned Public Prosecutor without ob._
taining the concurrence of the learned District
Magisrrate applied to the Court to withdraw
the c..1se thus failing in his duties;
(3) that the trial Court failed to consider whether
there were reasons for withdrawal or not.
: fully agree with the learned District Magistrate. In the
Jnion of Burma Y. U Chit Swe (2) it was held that the
\1agistrate had failed to exercise his judicial discretion
f he granted permission to withdraw the case without
!iving any .reasons. Withdrawal of a case is an executive
1ct. When the learned Public Prosecutor himself was
tot in charge of the case he could not withdraw the case
m his own motion. In such a case where the prosecution
s launched by the State it is often proper for the learned
>ublic Prosecutor to consult the District Magistrate or
>ther authorities before he applies for withdrawal. There
s nothing to show that U Aye Maung of the B.E.D.C. has
my authority to instruct rhe learned Public Prosecutor
o withdraw the case. The respondent was prosecuted
or selling liquors without a licence and it was stated that
.e had also a previous conviction for a similar offence.
The order of' withdrawal is therefore .set aside and it
; ordered that the respondent be re-tried by a competent
:ourt other than the sth Additional Magistrate of Thayet-
1YO .(U Ba Htay) as the learned'Distdct Ma~istrate may
irect.
(z) (1950) B.L.R., p. z78. (H.C.J.
246. :. BURMA LAyY RErQRJS.
~:~. .
CRIMINAL MISCELLANEOUS
B:fore U Kyuw Zan U, :J.
U OH~ MYINT (APPLICA?\T)
Mar. 30.
v.
THE UNION OF BURMA (RESPONDENT).*
Bail~granting of-by Chi~f Court. Criminal Procedure Code,s. 498-Applica
tion against ordgr of rem-:znding magistra.te-.,hether fresh application beforl
trial Court mcessary before applying to Chief Court.
The A:;>Dlicant who had been arrested under s. 3 (3) of the Printers and
Puolishers R ~-<istration Act, had applied for bail before the Remanding Magis
trate, but bai I was refused. He then applied for bail to the Chief Court unde 1
s. '498 of the Criminal Procedure Code. In the meantime, the case had beer
sent up to the Court for inquiry and trial, and it was contended on behalf ol
the Government that the application before the Chief Court was no longeJ
eff~tive, and the proper course was to file a fr~;h application before the tria
Court.
Held: As the case has now been sent up before the Court, the matteJ
ought to be presented b:fore that Court under s. 497 of the Criminal Procedure
Code. Under ' s, 498 of the said Cod:, the Chief Court and the Court o
S:ssions 'have concurrent jurisdiction in the matter, but ordi.nar il~ the Chie
Court will not ent'ertain a p~tition under s. 498 unless a subordinate Court 01
concurrent jurisdiction has been approached in the first instanCe.
Sayad Pir MJhi-ud-Din L:d Badshah v. Bm~or .\.l.R. (r<n8) L1h. -;62.
referred to.
Vasant Vinayak Bh!lgtllat v. State, A.I.R.(I9SI), M.adhyaBiu:raT , 104; an1
Indar Dass v. State, C.L.J., (I95Z), p. z8o, followed.
Obiter: It is a sound practice that ifsimilar rdiefs could be obtained in th
l ower Courts, the Chief Court sho;lld not b! ov :rburd ~n :;i with applications fo:
such reliefs.
Nyun Han for the applicant.
Ba Ky~ing (Gov.ernment Advocate} for the responden~.
'U KYAW ZAN U, J.-tbis is an application unde:
section 498. of the Code of Criminal Procedure for releas1
On bail. The applicant is the Chief Editor and Publishe
Criminal Misc ~llaneous Application No. 30 of 1963.. Review of the orcie
.of the ~nd :A-:Iditioaal M~gist~te, R~ngoon, dat~d the 15th March . 196:
passed in Remand c~se No . .So of .r963.
BURMA LAW REPORTS. 247
of the Reporter which is a daily newspaper and is said to
be drawing a salary of K r ,ooo per montlt .
u OHN
It \Vas alleged that he was arrested u~cl~r section 3 (3) M~~.:sT
of the Printer and . Publishers Regist/J.t ion .-\ct, 1962 (Act T~ UNioN
No. 26 of 1962) f or ch angmg . rcj pace
. t h e reg1:-;r~ ]
of prmt-
. OF BURMA.
ing or publishing from No. I96/I98 . s9th Street. Rangoon
to No. 132, 31st Street, Rangoon. for his ! ssu~s of the
papers dated 19th February 1963 t 0 9h :--.-farch r963.
punishable under section 16 of the .said .~c t \Yith imprison-
ment for a term not exceeding three years or with fine not
exceeding K .2,ooo, or with both. It \Vas submitted that
when he was on tour a fire broke out in the registered
premises and. four printing presses were destroyed neces-
sit'ating the applicant to print and publish for the time
being at No. 132, 31st Street, to enable the staff to continue
the work arid to serve the public by the supply of the
papers \\ithout interruption. I do not want to make any
comments at this stage in view of the order I am going to
pass.
When the applicaqqn was filed on r8th March 1963
the case against the applicant had not been sent up before
any Court for inquiry and trial. He applied for bail before
the remanding Magistrate but it was refused on the opposi-
tion made by the Court Prosecuting Police Officer_on the
ground that the prosecution feared that if bail \vas granted
there. would be great difficulty to obtain oral or. -docu-
menta~y evidence to prove the case against the app~jcant.
There is, however, no spe~ifk; finding in the -order;.dated
15th -March l963 of the reJ:T!anding Magistrate that the
applicant would tamper with the evidence. Only ~n cases
where reasonable ounds a ear for believin that an
a_cclJse person has been. guilty of an offence punishable
with death or transportation for. life it is imperative under
>ection 497 (r) of the Code of Criminal Procedure that he
5liall not bereleased on baiL : " _
248 B.$.MA LAW REPORTS.
c. c. The learned Counsel for the applicant argued on the
1963
merits of the application but the learned Government
u OHN .
MYINT Advocate raised a preliminary objection that since fhe
THE u~roN case had been sent up before the Court for inquiry and
oF BuRMA. trial on the day the arguments were heard the order of
the remanding Magistrate against which the present appli-
cation was filed was no longer effective and that the proper
- ~ourse w;s to file a fresh application before the tria 1- Court
relying upon . Sayad Pir Mohi-ud-Din Lal Badshah_ v.
Emperor (1) where it is stated, " Although there is no hard
and fast rule, it is desirable when the Sessions Court and
High Court have concurrent jurisdiction that the ordinary
practice should certainly be that the lower Court should
first be moved and this is particularly desirable in a bail
application where the appropriate Court to deal with the
matter is the -Court which is going to try the case ". Since
the case has now been sent up before the Court_I agree
with the learned Government Advocate that the matter
.ought to . be . pn~sented before that Court under section 497
of the Cod~ .of Criminal Procedure. Under section 498
. of the said Code the Chief Court and the Court of Sessions
have concurrent jurisdiction in the matter but ordinarily
the Chief Court will not entertain a petition under section
498 unless a subordinate Court of concurrent jurisdiction
has been approached in the first instance. Vasant \/inayak
Bhaywat v. Srare {2). Again in lndar Dass v. State (3) it
was. held " Though the. power of High Court of granting
bail under section 498 is entirely unfettered by any condi- . .
tion, it is. only in exceptional cirCJlmSt~nces that an appli~
cation for bail should ~ - made direct in the High Court.
In -~uch a case the applicant must show that there are
. special circumstances which justify his not moving -~he
lower Courts and his appliCation will not be entertained
. in High Court if such special circurristarices are proved to
.. -(I) A.I.R.. (1938) Lah. '7()z. (z) A.I.R. (I95x) Madhya Bharat, 104.
(3) C.L.J. (1952), p. z8o.
BURMA LAW REPORTS.
exist." Upon the analogy of other applications su.ch as
applications for revision in which the Chief Court has
u OHN
concurrent jurisdiction the practice is that the lower Court MvrnT
should be moved first. It.is a sound practice that if similar THB UNrok
reliefs couid be obtained in the l~wer Courts the Chief ol'll:BURMA.
Court should not be overburdened with applications for
such reliefs.
In the result the application is dismissed with die
.advice that the applicant should take up the matter in the
Court below under section 497 and. if necessary. under
section 498 o f the Code of Criminal Procedure if he so
wishes.
,_:2 50 BURMA I:.AW
.......;..,RBPORTS:
-.. -~
CIVIL MISCELLANEOUS
Before U San Nfaung and U Tun Tin, JJ.
u
THIN HNYAR (APPELLANT)
v.
Mar. x6.
MA NGWE SAING (RESPO>iDE:-.JT).*
Burmese Buddhist La~G,ant of Letters of Administration-Competition
hetween elder b1other of deceased and you11ger half-sister.
The appellant, as elder brother of the deceased, had applied for Letters of
Administration to her estate. The respondent, who is the younger half-
sister of the deceased, contested ~he application.
The b~arned District Judge held as settled law under Burmes~ Buddhist
Law that younger brothers and sisters exclude the elders as heirs to a d~ceased.
brother and sister; and as equally settled law that for purposes of inheritance,
.half-blood is equal to the full-blood. The appellant was therefore considered.
as not entitled to inherit the estate of the deceased. On appeal:-
Held: (inter alia) the order of the District Judge is unsustainable. Among-
relations of the same degree of relationship to the deceased, the full-blood
relations should be preferred to the half-hood relations. Tne rule that inherit-
ance shquld not a.~cend when it can descend does not operate in a competition
between relations of the full-blood and those of the half-blood of the same
degree of relationship to the deceased.
Marmg Tun Zan v. A1aung Tun Zan Gyi and arzotlter , A.I.R. (1933) Ran.
317; Mrs. Kirkwood (alias) Ma Tlzei11 and others v. Ma;mg Sin and other~
.A.I.R. (1938) Ran. 74; MaGalay and onev. MaE i\lfya and others , 8 Ran. 27,
followed.
P. K. Bose for the appellant.
Hla Nyunt for the respondent .
. U TUN TIN, J.~This is an appeal against the judgment
and decree of the learned D~strict J11dge, Shwebo, in CivH
Miscellaneous Application No. 2 "of 1960, whereby the
applicq.tion.of appellant under section 218 of the Succession
Act .f or Letters of Administration to the estate of one Daw
Kay Thi (a) Daw Mai Thi was <Usmissed.
, Civil Miscellaneous Appeal No.8 of 1960 of. the Chief Court sitting at
Mandalay, again~t the degree of the District Court of Shwebo in Civil
Regular Suit No ..z ofz96o, dated the 15th June xg6o.
BURMA 'LAW REPORftrS. 251
According to applicant the late Daw Kay Thi (a) c.c.
1963
)aw :0ai Thi, a Burh1ese Buddhist spinster, died at Shwebo
u THIN
m the 13th March 1959. leaving surviving her the HNYAR
v.
.ppellant-applicant. who is her elder brother and the res- MA New
5.-w:-;c-.
ondent Ma Ngwe Saing, a younger half-sister, born of the
arne father but of different mothers. It is submitted that
he late Daw. Mai Thi died possessed of a house and site at
'ansodan Quarter, Shwebo, v3lued at K I5,oo6 and as"
.ppellant being the legal heir entitied to her estat~. prays
hat letters of administration mJy be issued to him.
The respondent whilst admitting her relationship to
he deceased as contended to by appell~mt, however denied
he properties in question belong to fhe late Daw Kay Thi
lone. The learned District Judge, thereupon framed the
ollowing two issues for consideration.
~ 11
GO:>::DGsT
IL
Gm::3 (GQT) GsT~o5::3e) roG~o~ a:>:>Oq>~:~1:>:
6 L~
o1~Jl
~C::.
U
(' A; (' (' OC' ~
o:>2tJ?t9J ro~~cOOG:;o:~co o:>ro:>:ll
'T' Q( "(") "('
j II G81 Gffio:> GQI G81 ~().)O)C:U
C'G_<:: o C'OC' ('
SdG~qro:>:l ~oro.p:9f S':lG~OOf:
OC'
(' (' (' (' 0 ('
q>?rom~o:>Ga:J~ ?mro:>:o:lo:>29ap>o:>ro?: u
lut at the time of hearing as it was conceded to by the
earned counsels that enquiry into the first iss~e: in the
aid proceedings was incompetent, the same was dropped.
Vith regard to the second issue, the learned District Judge
elying on the ruling of Maung Tu v. Ma Chit (r) pointed
ut that it has been held as a ~ettled law that among
lurman Buddhist, younger. brothers artd sisters exclude
he elder as heirs to a deceased brother or sister. He
urther observed, and it is equally settl~ law that for the
urpose of inheritance and sw::cession, .half~bl.ood is ~qual
) the full-blood. Accordingly he hel~ ~at the appellant:
pplicant ~s not entitled to inherit the ~t~t!e. ofth:e decease~
nd.dismissed the ,application. Hence th~ .present appeal.
.(l). 4 .!tan. p. 6z.
2sz BURMA LAW REPORTS.
in ~hich the appellant took exception to the l atter obseJ .
-. vation of the learned judge, to the effect, that it is equall:
u THIN
HNYAR settled law that for the purpose of inheritance ai).d succe~
v.
MA NGWE sion half-blood is equal to the full-blood, to be untenabl
SAif,G. in law. Foe it is snbmitted that the said proposition o
law is entirely unsupported and directly contradict th
accepte4 principles of the Burmese Buddhist Law respectin;
-it.. In support, reliance is placed on the ruling in the cas'
of Maung Tun Zan v. Maung Tun Zan Gyi and another (2
wherein it is pointed out:
"Among relations of the same degree of relationship t
the deceased, the full-blood should b~ preferred to the haif
blood."
So. too, in the case of Mrs. Kirkwood (a) Ma Thein am
others:v. Maung Sin and others (3) it is observed as follows:
" Among relations of the same degree of relationship t<
the d~eased the full-blood relations should be preferred t<
the half-blood relations. The rule that inheritance shoulc
not ascend when it can descend does not operate in a com
petition between relations of the fuU-blood and those of th<
half-blood of the same degree of relationship to the deceased.'
Then'there is a case of Ma Galay and one v. MaE My(
and others (4). The headnote of which reads:
" Held that a brother or sister of the half-blood stands ir.
the same degree of relationship for the purposes of successior
as a nephew or niece of the fuP.-blood and would share
equally.
. Semble :. a brother of the 'f~ll-blood would exclude brothela
of the half-b.l69<1 for inheritance.:'
. Hence, in theface of the pronounced decisions given in
the rulings.: referre~ _to . above an~ in the absence of any
: authority: to the contrary, learned counsel for the r~spond
e_n t could not h~lp. but accede that he is unable to support
. . '
.(2) A.I,R:(I933) R,~.,p. JI7. (3) A.I.R. (1938) Ran.,:p: 7.4
(4} 8 Ran p. 2'7.
BURMA LAW REPORTS.- 253
:he judgment and decree of the lower Court. VIe cannot c. c.
1963
:herefore but hold the order of the learned District Judge
u T H IN
:omplained against to be unsustJinable, in law and the H N YAR
;arne will have to be set aside. '[1.
MA NGwE
~INC.
In the result this appeal is allowed. The judgment and
jecree passed in Civil Regular Suit 'No. 2 of 1960 of the
:ourt of the District Judge, Shwebo, is hereby set.aside an~
that the appellant-applicant will be granted letters of
administration to the estate of the late Daw Kay Thi (a)
Daw Mai Thi as applied for, on his furnishing security to
the extent of K 15,ooo to the satisfaction of the lower
Court, with costs throughout.
Advocate fees K 34 allowed.
..
254 . J;-.i\W RERRTS.
BURM:A::o; . ~:.
APPELLATE CIVIL
BPjore U Sfm J!laung and [T Trw Tin, JJ.
c.c. u YE 'MYINT (APPELLANT)
1963
Mar. 6. v.
THE CENTRAL COMMERCIAL BANK OF BURMA LTD.
AND ONE (RESPONDENT).*
Tranifer of Property Act, s. 43-0P1!1'ation of-Mortgage ofproperty without goo
title-subseque11t acquisition of good title.-Effect of proviso to the section-
question of good faith and notice.
The rst Respondent (Plaintiff) Bank had filed a mortgage suit against th
.znd Respondent in respect of the suit property, and had joined in the Appellar
also, as he had bought the suit property from the znd Respondent during th
subsiste~ce of the mortgage.
The main facts briefly were that the suit property had been bought by th
znd Respondent from one M, who purported to "act:on behalf of her mine
daughter, on 7th Decemb(r 1956. Atthattime l\1 had no legal authority to se
on behalf of her minor daughter.
The znd R~spondent then executed a mortgage by r<!gistered deed of tb
suit property in favour of the rst Respondent on rst February 1957-
Then on z8th February 1957, thezndRespondentsoldthesuitpropertyt
the Appellant, during the subsistence of the mortgage.
On zoh December 1957, M, who had in the m~a:1time been appointed b
the Court as guardian of her minor daughter, executed a fresh registered{dee
of sale in favour oft he znd Respondent, in respect of the sui tproperty. ltwf
specifically mentioned in that deed that it was to legalize the former deed date
7th December 1956, which M had execut<>d before in favour of the znd Re~
pondent before she had been appointed guardian by the Court .
. The trial J udgc gave a preliminary mortgage decree in favour of the 11
Respondent as prayed for,giving liberty to theAppdlantto red~em the mortgag.
Held, on Appeal: As poi nted out by the learned trial ] udge, the 2nd Rel
pou'dent had no valid title to thesuitproperty at the time it executed themortga~
iil favour of the xst R'!Spondent (Plaintiff). This was because the sale made b
. M; as mother of her minor daughter who owned the property, was made befo1
she was appointed guardian by the E:ourt. That sale was void ab initio.
C.T.V.E. Vyravan Chett:yar v. Ma Saw Mwe and_. others, I.L.R. I
Ran. 47; Antov. Reoti Kaurandothers (t937)All.r95; and AjU{lhiqPrasa
and another v. Chandan Lal and another, A .I.R. (1937) Ail. 6xo0 followed .
* Civil First Appeal No. 76 of 1961, again~t the decree of the Original Sic
of the late High Court of 'Rangoon in Civil Regular Suit No. xr of 1960.
BURMA LAVv -~PORTS. 255
How~ver, wheh on zoth D~cember t95i, as legally appointed guardian, c.c. .
vi, executed a fresh deed of sale in faVO\lr of the znd Respo:1dent, the znd 1963
~espondem obra!ned a valid t.itle thereto. UYB
Also, as the znd Resppndent had represented to the ut Respondent (Plain- MYINT
iff) at the time of ~he mortga!fe and in the recital of the mortgage defd, th11t
TH!
t was authorised to make a valid mortgage, s. 43 of the Transfer of Property CENTRAL
\.ct came into operation in favour of the xst Rf;pondent (Plaintiff) Bank. COMMERCiAL
BANK OF
Held further: Regarding the ap11l ication of the proviso to s. 43 of the
BURMA LTD.,
rransfcr of Property Act, the circumstances were such that the Appellant AND ONE.
.hould have been on his guard before purchasing the property outright. In
iew of.the nature of his past dealings with the znd Respondent, he-should ha~
1een m;)re .than ordinarily diligent. He must be deemed to have notice of
he existence of the mortgage in favour of the 1St Respondent (plaintiff) Bank
md cannot be given the benefit of the proviso.
R. Vas v. Muni Singh, A.I.R. {1929) Ran., p. 34, referred to.
S. 43 of the Transfer of Prop~rty Act is also applicable to mortgages.
EslwJ Lal and. another v. Dulla, A.I.R. (1930) All., p. 115; and ,'\.1alladeo
Srngh , .. Har B11ksh Dt~bt: . A.I.R. (19z~) OuJh, 13, ref.:rred to.
Tnc: Appeal must th::r.:forc be disnl l$~cd.
)a\r Taik. Leong, Aye Maung and Ba Soe for the appellant.
~han .4.ung for the respondents.
U SAN MAUNG, j.-In Civil Regular Suit No. II of
I 960 of the Original Side of the late High Court, the
plaintiff, the Central Commercial Bank of Burma Limited
which is the 1st respondent in the present appeal sued the
iefendant-respondent, the International Agencies Limited,
a company registered under the Burma Companies Act,
for the recovery of K 1,74,46754 due on a registered deed
::>f mortgage dated the Ist February 1957 The defendant
U Ye Myint who is the appellant in the present appeal was
impleaded in the suit as one interested in the redemption of
the mortgaged property, being the person to whom the
defendant, the International Agencies Limited had sold the
mortgaged property subsequent to the mortgage. In all,
the plaintiff claimed that the sums of K 1,19,65067 on
account of cheques drawn by the defendant Company as
overdraft, K . 10,19651 as commisSIOn, premium on
insurance, etc., paid on behalf of the defendant Company
BURMA .LAW REPORTS~
c.c. and interest K 52,15156 less K 7.53120 already realised
1963
were due from the Company. This totalled K 1;74,467-54
UYE .t d
MYINT The rst de1en ant-respondent, the International
T'tE Agencies Limited did not appear to defend the suit. The
CENTilAL 2nd defendant-appellant U Ye Myint, however, by his
COMMERCIAl.
BANK oF
wntten statement contended t hat even 1"f the allegations
B::_:~~~o., made by the plaintiff Bank were true, the Bank did not
have a Valid mortgage over the property in suit as the
property which originally belonged to a minor, Ma Yin
Yin Myint was not validly transferred to the defendant,
the International Agencies Limited at the time of the
mortgage relied upon by the plaintiff. Daw Mi Mi Gyi.
the mother of Ma Yin Yin Myint, executed the registered
sale deed dated the 7th December 1956 in favour of the
defendant Company without having any legal authority
to do so. On the other.hand, the sale by the International
Agencies Limited to this defendant on the 2oth December
1957, being subsequent to the transfer of the suit property
to the Company under a registered deed of sale bearing
the same date, by. Daw Mi Mi Gyi after she had been
appointed guardian of her minor daughter Ma Yin Yin
Myint under the Guardians and Wards Act, conferred valid
title upon this defendant. This defendant also contended
that as a transferee in good faith for consideration without
notice of the existence of the encumbr-ance in favour of
the plaintiff Bank, his title to the suit property was
absolu.te. On the pleadingS' the learned trial .Judge framed
the .foil owing issues::
. i. Was there a mortgage in favour or" the piai~tiff by the- .
1st defenc!al\t i.n z:espect of the pr~per.tie$ .mentioned
iri paragraph 4. 9f the piaint? .
2. Whether the mortgage in. favour of the -plaintiff is void
on the. fa<;:~ of -the same as .the minor being unable
to contract can-hot transfer her property up.less she
;. is :repres.ented: fqr the purpose by duly appointed
gtiardan .u nder the Guardian$ and Wards .A<;t.?
BURMA LAW REPORTS. 257
3 Whether the 2nd defendant is a person interested in the c.c.
1963
equity of redemption, or is he a bona fide purchaser of
the suit property for consideration? UYE
MYI NT
4 Is section 43 of the Transfer of Property Act applicable v.
to the facts of this case? THE
CE~TRAL
CoMMERClAL.
After examining witnesses cited by the parties, the Bu!~~KL~~ ..
~arned trial Judge came to the conclusion that tpere was. AND oNe.
mortgage in favour of the plaintiff by the Ist defendant
s alleged in the plaint. Regarding the other issues. the
~arned Judge held that the sale of the suit property by
)aw Mi Mi Gyi. acting for her minor daughter, on the
th December 1956 was void and that therefore at the
ime of the mortgage in favour of the plaintiff, the 1st
lefendant could not validly transfer the suit propeny !0
he plaintiff. Ho,,e,er, when the rst defendant's title to
he suit property became perfect on the execution of a
ubsequent deed of sale by Daw Mi Mi Gyi in her capacity
IS guardian of her minor daughter Ma Yin Yin Myint
mder the Guardians and Wards Act, the provisions of
;ection 43 of the Transfer of Property Act came into.
)peration and the plaintiff Bank had the option to operate.
)n the interest which the defendant Company had
Kquired 011 the property subsequent tO the mortgage . in
its favour: Accordingly, the defendant-appellant U Ye.
\1yint as a person interested in the equity of redemption
had been properly joined as a party defendant to the plain-.
tiff's suit.
In the result the learned trial Judge gave a preliminary
mortgage decree in favour of the plaintiff-respondent'
against the rst defendant-respondent as prayed for giving
liberty to the defendant-appellan.t to redeem the mortgage.
Being dissatisfied with the judgment and decree of the
late Hig~ c~urt, the 2nd defendant . U Ye Myint filed the
present appeal.
258 BIJR:MA LAW:. REPORTS.
Now, in order to understand the case 'properly, a fe'
.dates which appear in the various exhibits filed by th
UYE
MYINT pla.intiff B;mk and by the defendant U Ye Myint should b
1 :;;8 borne in mind. On the 25th January I957, the defendant
CsN~AL the International Age.ncies Limited by its Chairman of th1
'COMMERCIAL .
BANK oF Board of Directors U Mya Aung, exec~ted a promisson
.BAu~"'o~:.O note forK 8o,ooo in favour of the defendant U Ye Myint
BeJow tlte promissory note is endorsed the fact that ant
plan for a nyc-storeyed building and one registered sal<
. de~d dated ~e 7th December I956 executed by Daw M
Mi Gyi on behalf of the minor Ma Yin Yin Myint in favou;
Q~ Messrs. International Agencies Limited, were depositec
as collateral security.
.On the 27th January 1957, U Mya Aung gave a note
under his signature to U Ye Myint that he had taken the
abo.ve-mentioned registered deed of sale for inspection.
On the 29th January 1957, the International Agencies
Limited by its Chairman of the Board of Directors U Mya
Aung, executed a prom,issory note forK r,2o,ooo in favour
of the plaintiff Banl<.
.. On. the rst February 1957, the International Agencies
Limite~ as represented by its Chairman of the Board of
Directors U Mya Aung, executed a registered deed of
mortgage for K r ,2o,ooo in favour of the plaintiff Bank.
The prope~ty mortgaged is a piece of land, which is the
S!!bject-m~tt.er of the present suit, together with a wooden
~ungalow thereon known as No. 27, Inya Myaing Road,
Rangoq~. The registered deed of sale dated the 7th
Decen~beJ: -~956 in respect of the suit property executed
by D,aw MiMi Gyi as mother and gu~rdian of Ma Yin Yin
Myhit was also deposited with the Bank.
On t}le 28th February 1957, Messrs . . International
Ag~cies Limited by its Chairman of th.e Board. of Direc-
tors. U Mya Aung executed an agreement for sale of the
s~it . property. to U Ye Myint 'for a consideration of
'BVRMA l--Aw REPORTS.
1
259
K =92:5~0. )t is: mentioned in tliat agreement that the c. c.
Cdinp~y wou.ld convey to U Ye M)rint by a registered
1963
:lebi, th~ property described in the sChedule, immediately !iv";~
:tfte! the sale deed dated the 7th December 1956 which iv~t
had been executed by Daw Mi Mi. Gyi on behalf of the c OM~U!RClAL
C,l!NTRAL
minor Ma Yin Yin Myint in favour of the Company had BANK oF
)et;n remedied, perfected and legalised by Daw Mi Mi Gyi. B~~~!;,-r:'
in the schedule it is mentioned that there was situated on
the suit land one two-storyed pucca dwelling house, be-
;ides one single-storeyed timber dwelling house known as
'-Jo. 27, Inya Myaing Road. Rangoon.
On the 2oth December 1957, Daw Mi Mi Gyi in her
:apacity as guardian of her minor daughter Ma Yin Yin
v1yint appointed under the Guardians and Wards Act
!Xecuted a fresh registered sale deed in respect of the suit
Jroperty in favour of the International Agencies Limited.
:t is! specifically mentioned in that deed that it was to
egalise the former deed which Daw Mi Mi Gyi had
:xecuted before she had been appointed a guardian under
he Guardians and Wards Act. This deed is in the posses-
.ion of the defendant U Ye Myint.
.. On the evidence before him, the learned trial Judge
:arne to the conclusion, firstly, that the mortgage executed
1y the defendant Company in favour of the plaintiff Bank
V.~: .for consideration and that ~herefore it was valid,
:xcept that .at the time' of its execution the property in
uit could not have been effected, as the mortgagor, the
nternational Agencies Limited, had at that .time no valid
itle
,, thereto. .
~condly, the learned tJial Judge also held that the sale
f t'lle suit property by the defendant Company to U Ye
(yjpt by the registered deed of sale dated the 2oth
?e~C::~l?er 1957 was also for consideration, part of the
i:>ns.ideration being the pld d~bt for K 8o,ooo as evidenced
.y' the promiss.ozy note dated .the 25th January 1957. 1\s
8
--~~0 BURMA LAW REPORTS. ,
c.c. this sale was effected after Daw Mi Mi Gy{had executed a
1963
- fresh sale deed in favour of the Company after she had
UYa
MYJN-r been appointed guardian of her minor daughter Ma Yin
T:tt Yin Myint, the sale of the s'u it property by the defendant
co~L Company to U Ye Myint conferred a valid title on him.
BANK OF
BuRMA LTD., Thirdly, since the International Agencies Limited by
AND ON.
. .
its Chairman of the Board of Directors had erroneously
represented to the plaintiff Bank that it was authorised to
tnmsfer the suit property by way of mortgage, section 43
' of the Transfer of Property Act came into operation in
favour of the plaintiff Bank.
Fourthly, although the defendant U Ye Myint was a
transferee.of the suit property in good faith for considera-
tion, he niust be deemed to have notice of the existence
of the preVious mortgage, as it was effected by a registered
deed, and, no person of ordinary prudence would have
failed to discover this fact which could easily have been
found out by examination of the index maintained in the
Sub-Registrar's Office.
In -this appeal it must be taken as established that both
the mortgage of the suit property by the defendant Com
pany to the plaintiff Bank vide the registered deed oJ
mortgage (Exhibit :;!), dated the 30th january 1957
and the sale of the suit property by the Company to U Y<:
Myint by a registered deed of sale dated the 2otJ::
December I957 ~e for consideration. However, a~
pointed out by the learned trial Judge, a~ the time tht
defendant Company executed the registered deed o:
mortgage in favo.t ir of the plaintiff Bank, it had no valic
title tb the suit property as Daw :Mi Mi Gyi, mother o:
'the minor Ma Yin Yin Myint who owned the property ha<
not yet been ~ppointed guardian of her daughter unde;
the Guardians and Wards Act. That sale was void . al
BURMA LAW REPORTs: 261
initio, vide C. T. V. E. Vyravaii Chettyar v. Ma Saw Mwe c.c.
1963
and others (I); Anto v. Reoti Kaur and others (2) and u YE
Ajudhia Prasad and ci~other v. Chandan Lal and another MYINT
(3). However, in our opinion, when on the 2oth Decem- ~
ber 1957 Daw Mi Mi Gyi in her capacity as guardian of co~~AL
her minor daughter Ma Yin Yin Myint under the Guardians BANKLoF
BURMA TD
and Wards Act, exe91ted a fresh deed of sale in favour AND om:.
of the defendant Company, that Company obtained a
valid title thereto. At the time of the mortgage to the
plaintiff Bank, the defendant Company had erroneously
represented o~ally through its Chairman of the Board of
Directors U Mya Aung, and also by its recital in the
registered deed of mortgage, that it was authorised to make
a valid mortgage of the suit property. Therefore in our
opinion, section 43 of the Transfer of Property Act came
into operation in favour of the plaintiff Bank.
In this connection, it is contended by the learned
Advocate for the defendant-appellant U Ye Myint that U
Thein . (PW I), General Manager of the plaintiff Bank,
admitted that he knew that the owner of the property
was a minor Ma Yin Yin Myint represented by her
511ardian-mot:1?-er Daw Mi Mi Gyi. Therefore, the learned
Advocate contends the plaintiff could not have been misled
by any representation made by U Mya Aung that the
iefendant Company was in a position to transfer the pro-
perty in suit. The answer to this contention is that being
1 l(lyman, U Thein could not have any suspicion of the
validity of the deed of sale (Exhibit ro) dated the 7th
~ember 1956, considering that it was attested by no
.ess a person than U Aye Maut:tg, an Advocate of the High
:ourt. Therefore, it cat).not be said that he was not
rusled into thinking Ul:;tt the <lefendant Company was
mthorised to trapsfer the property in suit.
--------------------------------------------
Ran.
(1) 12 -+7 (z) All. (1937) 195.
(3) A.f.R. (1 937AI p. 6xo.
262 ~<BUR:MA.._:{,~W REPORTS.
.c.c. Regarding the proviso to section 43 of the Transfer of
H!)6j
Property Act it reads :
U.Ys
MYINT "Nothing in this section shall hnp~ir the right of trans-
v.
THE ferees in good faith for consideration: without notice of the
CBNUII.L existence of the sai<1 option."
CoM?.!ERcrAL
BANK OF
ButtMA Vro., The question is whether the defendant U Ye Myint
AND ONB.
on be gi~en the benefit of this proviso. It has been held
by the learned trial Judge that he had acted in good faith
hi purchasing the suit property and that there was
adequate consideration for the sale. However, the
circumstanc~s are such that U Ye Myint should have been
on' his"guard before purchasing the property outright from
the International Agencies Limited as represented by its
Chairman of the Board of Directors, U Mya Aung.
According to U Ye Myint's own story, after borrowing a
sum of K 8o,ooo on the 25th January 1957 by executing a
pro-ndte (Exh~bit 2) and depositing the registered deed
of' sale (Exhibit m) dated the 7th December 1956. U
Mya Aung took away from him two days later. the
registered deed of sale on the gr6und that he was in search
of: a buyer' 'for .the sui.t property. This deed was not
returned to him on the 28th February 1957 when U Mya
Aung on behalf of the defendant Company executed th
agreement of sale (Exhibit 5). It was not returned to hirri
at any .time prior to the 20th December 1957, when th
n!gistei:ed sa1e deed in his favour was executed by U My::
Aurig. Thet:efore, if ordinary prudence would requin
that before a.. person buys any imm@veable property ht
sliou1d. make a diligent search at the -Registration Office tc
see 'whether it had been encmrtbered in any way, u y,
.Myint should have been more than ordinarily diligent it
.this respect, irr view of U Mya Aurig's..conduct in no
. returning to''him ,the previous registered deed of sale date<
'the 27th January . 1957 :which he had taken away on th1
~
BURmA.LAW REPORTS. 26.3.
pretext that he was in search of a buyer for the suit pro-
perty. Accordingly;, the case. of R:' Vas v. Muni Singh (4)
UYs
relied by the learned trial Judge is most apposite and the MvrNT]
defendant U Ye Myint must be deemed to have notice of T~
the existence of the
..
mortgage in favour of the plaintiff c ~NTRAt.
OMi\,ERClAL
Bank. He cannot therefore be given the benefit of the BliNK .oF
proVlso . 43 of the Tran sfer o f property A ct.
. to sectJ.on nuRMA LTo.,
AND oNF.. -
I
Regarding the applkability of section '43 of the Trans-
fer .<?f Property Act .to mortgages, the ca~es of Eshaq Lal
and another v. Dulla (5) and Mahadeo Singh v. Har Buksh
Dube (6) are sufficient authorities.
For these !easons we consider that th'e learned Judge
on _the .Original Side of the late High Court was right in
the conclusion-arrived at by him. In the result, the appeal
fails and is dismissed with costs. Advocate's fees being
assessed at ten gold mohurs.
(-4) -A.I.R. (1929) Ran., p. 34 (s) A.I.R. (1930) All. , p. us.
(6) A.I.R. (1928) Oudh, 13.
BURMA LAW REPORiS:c:
APPELLATE CIVIL
B~fore U San !11mmg, J .
c.c: YIN LOT AND THREE OTHERS (APPELLANTS)
1963
Apl. 20.
v.
MA HLA YIN (RESPONDENT).*
.Urba11 R ent Co,trol Act (1948), s. 11 (r) (c)-eviction-~vlzether tenant ca.n be
evi.;ted.for sflle of illicit liquor by employees at the premises--offence rtnder
s. 30 (b) of tire Burma -P.xcise Act.
Where an employee of t!;e tenant had been convicted under s. 30 (b) of
the Bum1a Excise Act for the sale ofillicritliquor and the question in issue was
'~hether th~ decree for ejectment obtained by the landlord based upon such
<:~:mvictiOlJ <X!Ufd ~Supported in law.
Held: It is clear from the proceedings that the illicit liquor was sold in
the shop premises maintained by the d<.fendants. Some of the beer was
stored in the ice chest belonging to the defendants, ~nd it was openly consumed
in the shop itself . Therefore, at the vc;y least, the defendants must have
connived at the offence committed by their employc.s. Consequently, they
are liable for ejectment under s. I I (r) (c) of the Urban Rent Control Act, 1948.
Hla Nyunt for the appellants.
S. L. Verma for the respondent.
U SAN MAUNG, J.-This appeal under section 100 of the
Civil Procedure Code and under section 18 of the Urban
Rent Control Act is against the judgment and 'decree of the
District Court of Mandalay in Ciyil Appeal No. 9 of 1960
wherein the .learned District Judge dismissed the appeal of.
the present appellant _Yin Lot and three others against the
judgment and dea:ee of the Subdivisional Court of
Mandalay in its Civil Regular Suit No. 18 of I959 In that
suit :the plaintiff-respc)ndent Ma Hla Yin sought to eject
her- tenants the defendant-appellant Yin Lot an'd others on
the ground ~hat they had been guilty of a conduct which
*.Civil Second A91>ealNo. 25 of:z96o of the ChbfCourtsitting at Ma~dala;i,
:.gainst thf. decr.:c of the District CourtofMandalay in C'iviiAppeaI No.9 of 1960.
BURMA.LAw REPORTS. 265
was a nuisance to adjoining occupiers and that their em- c,;.
ployee had been convicted of having used the premises for ~
an illegal purpo~e. The plaintiff also alleged that a notice Y~~~AND
under section 106 of the Transfer of.Property Act terminat- ~T~
ing the tenancy had been served upon the defendants vide MA Hu YIN.
Exhibit " A ". The defence put up by Yin Lot and others
wag that they were not guilty of any con<iuct wqich wasp.
nuisanceto adjoining occupiers as the kaukswe shop from
which the smell of cooking was said to emanate was opened
by them .at the premises in suit with the consent of the
ptaintiff. Regarding the conviction of their employee
Maung Tun Ya under section 30 (b) of the Burma Excise
Act in Criminal Summary Trial No. 983 of 1958 of the 8th
Additional Magistrate, Mandalay, the defendants contended
that they were not responsible for the conduct of Maung
Tun Ya and that therefore the present suit for ejectment
based upon Maung Tun Ya's conviction should be dis-
missed. The learned trial Judge after framing suitable
issues came to the conclusion that the suit for ejectment
should be decreed as the defendant must be deemed to have
connived at the conduct of their employee Maung Tun Ya
who was convicted .for having sold jllicit liquor inside the
kaukswe shop maintained by the defendants. The issue
regarding thealleged nuisance being waived by the plaintiff,
was not answered. Notice terminating the tenancy was
also .held to be valid. ;
The decree for ejectment was passed on the 26th
December 1959 after the Urban Rent Control Act, 1948
1ad expired by efflux. of time on the 8th October 1959.
Accordingly, when the defendants appealed to the District
Court of Mandalay, the only point which the learned
District Judge had to consider was regarding the validity
)f the notice terminating the tenancy. Holding that thjs
1otice was valid in law, the learned District Judge dis-
nissed the defendants' appeal.
266.
c.c. The pr~sent appeal under se<::tion. roo of the.Civi1 Pro-
1963 cedure Code and section ,r 8 0f'the new urban Rent Control
Y~~AND Act, r96o was filed on the 24th :tv1ay r96o and .becau~e ~[
o-r~ns the provisions of section 44, clatJs.e {b~ o.f th~ new .'\ct?. it
;MA HLA YJN. is necessary to consider vv:hether the ~ecree for eject,l?l~n~
based upon thtt conviction of the .defendants' employee
Maung Tu.n Ya under section .30 (b) of ~he Bur.ma Ex;ci~e.
Act: can be. supponecl in-: law ..: . . .. '
~ . ..;
NO\V, from the proceedings it is dear that Maung Tun
Ya was convicted for selling illict liquor inside the pren1i~e.s
in suit which was a kauksyve shop . maintained by -the
defendants. The evidence in the case shows that some
of the bottles of beer were . stored inside the ice ches..t
. belonging tO the defendants. The be~r :vyas :Openly C~~
sumed b-y th~ perscn,s who, ;patrpnised. the defenda~ts
kaukswe shop. Therefore at the very least, the off~I\Ce
committed by Maung Tun Ya must have been connived
at by the defendants. Consequently, the defendants were
liable to beejected. under the provisions of-section r r (r) (c)
of the Urban Rent Control Act.
As the learned Advocate f-or the d~fe.ndant-appeH~:nts
has not contended that the notice termina~ng the te_nan,cy
is not valid in law, this point does not arise for consid~ra
tion.
In the result the appeal fails and it is. dismissed with
-costs. Advocate's fees being assessed at three gold
mohurs.
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pardon and has been examined un<ler sub-section (2), th(
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Magistrate before whom the proceedings are pending shall
BURMf.. LAW REPORTS: 26'9
. commit. him for trial to the Court of Session or
High Court as the case may be . . . . . "
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"The tendering of conditional pardons to, and the accept-
ance thereof by, the approvers, and their subsequent examina-
tion came substantially within, and bl'ought into operation
the provisions of section 337, s~b-secti6n 2-A of the Criminal
Pro~dure Code . ., . . . . and the trial of the appellant by
(t) (I93S) b.dian Appeals (Privy Council), Yol. 65, p. 38'8.
"BURMA .,LAW ,.REPOR1S,.
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273
(3) No sea-policy shall be valid unless it specifies the
particular risk or adventure. or the time, for which it
is made, the names of 'the subscribers or underwriters, on:~n:
c
oc
and the amount or amounts insured.
..
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No Cpurt can enforce as valid, that which competent enact-
ments have declared shall not be valid, nor is obedience to
such an enactment a thing from which a Court can be dis-
pensed by the consent of the parties, or by a failure to plead-
or to argue the point at the outset . . . . The enactment is
prohibitory. It is not confined to affording a party a protec-
tion of which he may avail himself or not as he pleases. It
is not framed solely for the protection of the revenue and to
be enforced solely at the instance of the revenue officials, nor
i.'> the prohibition limited to cases, for which a penalty is
eXigible. The expression of an agreement for sea insurance,
otherwise than in a policy, is a thing forbidden in the public
interest, and the statutory insistence on a policy is no mere
collateral requirement or prescription of the proper way of
making. such an agreement. To allow the suit to proceed in
defiance of S. z would defeat the provisions of the law laid
down therein.
* * *
* * *
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. .~REPO:&.TS.
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BURMA LAW REPORTS: 305
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.306 BURMA LAW REPORTS . [19?.:3
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{,;')~081 o19)l Dr. W. Friedmann o.:>~l Neto York v . U.S.A . (3)
{t) (1950) I.K.B. 18 (2) (1947) 2 All. E.R. 376
(J) 326 U.S. 572 (1945)
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.B~A LAW REPORTS. 307
;)fc~g, ~G'=l&rot m~:~~Ga:>~oiJI<SI a:x:p:~t!.3:
Douglas, J. ~-~oS
~:>~~JoS~ Law. and Social Change in Contemporary _Britain (' 0 ('
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A State's project is as much a legitimate governmental ,J-?rocrl
activity whether it is traditional, ox: akin to private enterprise, oot:-:1>d;
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or conducted for profit _. . . . What might have been viewed :;,{;
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in an earlier day as an improvident or even dangerous exteJ1,- 0 ~:::n"P::'):
sion of State activities may today be deemed indispensable. ~tm~.J~
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At . present many functions are exercised by .public
authority which are not a substitute for private enterprise
but the . outcome of new conceptions of social responsibility.
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.A Crown servant making a contract for the Crown is nc
more liable than any other agent making a contract for hi!
principal. But for 'facilitating the conduct of business it i1
extremely convenjent that the CroWn. should establish official!
or corporations who can speedily sue and be sued in respec1
of business e.ngagements without the formal~ties of the pro
cedure necessary when a subject is seeking .redress from hi!
Sovereign.
BURMA .LAw :RE.PORTS: 309
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BURMA LAW REPORTS; 317
(I), Are Ko San Maung and Ma Khin Tin necessary patties
in die.snit as all~ged in par~gr~ph 8 of first defendant's
. wntten statemel1t?:
(2) (a) Is the suit u11der~valued as alleged in ~ragraph 9 of
. . . .
i\Vfftien
( h
the fitst . .d&ed~:lli~s,.J;,, . $ .
fsiateinent :1
..:. .~ ....... ..:i .. :.. t .
(b) If sp, what is 'the pr~r Co~rt fet?
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BURMA LAW REPORTS . . 319
. r ~ o o~ ~ ~ r:- o ~~ ~ ~ .. ~ 'T'
~a~l O{Jdel~~21 ~31J ~ ~UJ[ :OC9J oo;p:~:T.>JCoO{:~~IJ. OQ@~GOI
'a:>:>:~ ~~{~~=:9~:u~ 11
~ ~ ~0 ~
~[g:OJOS~~~ (Final Order)
~ ~ ~ ~ ~-~ ('
mp;
-'IJ~.)'):l)"J 02:~n:9f~G0~211 CJC:~<:~J~Co OOO~C"09J G~"Jo:>CO"JI
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O[l:ll 02-:>~G~Gf~~ro O{~~f.'P Sdtj:OJOO Sdl,l~!9l>G~-:>c:~
(Waryan Singh and others v. H aranam S ingh and (another) f(l)
'Q ~ o o ~ o c- o ~ 1 r.:~ c-
4>9:;::o::~ m::n-:>:G::oOJ:nn ~G~"J a:pd~<J"J o:>~:Jd~~c r: ~tjiO~Jm
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a:>?:G:x>-:>;;e_p~tp:~ll oo;,rG::op:n::o:>:~~ o~?~ G~f~:rq:
ro:>::))t(Arumugam Chctti v. Raja Jagaveera Rama Venkateswara
Ettappa) (2) 1~ (Abdul Qavi Khan and others v. Bholan Khan
and others) (3) ~,~~:;,)p:~-=>o:>ci:r o:>~Sd~ Sd~SdOJ~G-:>~:
~ c- ~ c-
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~mp;<J:nJ :.CX?:~e~~ c;or r~:2oG~ J? m91 Q)J'f'J:))~Sd<:>t."'ul :~p ~tl:
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Rahman _v. D. K. Cassim & Sons) ( 4) ~~51c:roc :~-:> Gm-:>~ol
OC" C" C' ~ 0 C" 0 0 C"
~~c: 9~ar=tl~:n"J::))~~ G9.?~9~w:))2 11
" An Order of an Appellate Court is not a " final order"
within section 109 (a) of the Code of Civil Procedure, 1908.
relating "to appeals to His Majesty in Council, unless it finally
disposes of the rights of the parties in relation to the whole
suit. Consequently, an appeal does not lie from an order
under Order XLI, rule 23, reversing a decree which dismissed
a suit upon a preliminary point and remanding the suit for
trial.
The above principle involves no practical },lardship as, in a
proper case, the Appellate Court can specially certi.fy under
section 109 (c) that the case is a fit one for appeal."
c oc (") 0 c
(1) oe:>~ ~4>1 10~1~1~? 'l I ~II 4>~J~? ~JII
(2) I.L.R. 28, Madras, p. 444 (3) A.J.R. (1943) Oudh, p. 274
(4) II Ran . p. sS.
13
320 BURMA LAW -REPORTS. ....J:I96
0 . C' C' C' C' <' ' C' C'
::leG? . ~qmt o:>~wi~c ~ropmro'J:~ mc~c:~x~ Gcqp~'J'i
r .c c G c c c r- 1 c c c c
9
ei~IO?C
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:.6 oc C' o
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C' o
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Goi~
l 0 o Jo o'. It L
0 . C' c C' 0 C' C' 0 C'
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e Ol J ll
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02':l1jG~Gfe:J: ~0)3'dtJID G~ ~p ffiJ<> :::00)'10):::0~ ''
. -:ci.-.No. 37. H.C.R., IS- u-6.t.-t,soo + xs-Mono~Lino .(IX)>..
BURMA LAW REPORTS. 321
CIVJL MISCELLANEOUS
Before U San 1\!armg, U Saw Ba Thein and U Tun TinjJ.
COMMISSIONER OF INCOME-TAX, BURMA (APPLICANT)
c.c.
1963
v. May x8.
MESSRS. E. C. MADHA BROTHERS (RESPONDENT).*
Income-tax Act, s. 66 (x), s. 66 (2)-Application by Commissioner against arder
of Income-tax Appellate Tribunal-question of sufficiency of accounts-
not question of law.
Where the Commissioner of Income-tax had applied under s. 66. (1) of
the Income-tax Act for reference to the Chief Court certain quest ion oflaw,
being dissatisfied ~ith the order of the Income-tax Tribunal which accepted
the accounts of the assessee.
Held: It has been held over and over again by this Court as well as by
the late High Court that sufficiency of the accounts for the purpose of deducing
profits and gains therefrom is left by the proviso to section x3 of the Income-
tax Act, 1922, to the judgment of the Income-tax Officer and that once the
judgment had been exercised by the officer against the assessee, it cannot be
assailed unless it can be demonstrated to be not" judicial" but" capricious".
M.P.R.M. 1T!llandi Mudalier and Sons v. The Commissioner of Income-tax,
Burma, Civi I Miscellaneous Application No. 40 of 1959; MesSIs. A. S. Alladeen
and Company v. The Income-tax Appellate Tribunal, Burma and one, Civil
Miscellaneous Application No. 22 of 1961; Chan Low Chwan v. Commissioner. of
Income-tax, ?,Rangoon, 281; NekiDevi v. Commissioner of Income-tax, Punjab,
(1934), II I.T.R. 365; Diwan Chand v. Commissioner of Income-tdx, Pubjab
(1934), Ill.T.R. 382; Maharajadhiraja of Darbhanga_ v. Commissioner of Income
tax (1930), 9 Patna 240; Ganga Ram Balmokand v. Ccrmmissioner of Income
tax, Punjab (1937), V I.T.R. 464, referred to.
However, the decision of the Income-tax Officer regarding the sufficiency
of accounts and deduction of profits therefrom, is not final and it is open to
correction by the Appellate Assistant Commissioner and the Income-tax
Appellate Tribunal as the case may be. ', .
Commissioner of Income-tax v. MacMillan ~nd co:; (1959), XXXIIIl.T.R.
182 at 19~, referred to.
I n the cas: und~r comideration, the Income-tax Appellate Tribunal bas
gi:v.m its reasoh3 f.or accepti~g th~ accounts, and.without constitUting itself as an
.. Civil Miscellaneous Application No. x8 of 1962 against the order of the
Income-tax Appallate Tribunal of Rangoon in its Reference No. 14 of 1<)61,
dated II September 1961.
322 . -:BURMA LAW REPORTS.
c.c. .
Appel1ate authority, this Court caru1ot COt1!~ider whether the reasons given by
1963 the Income-tax Appell ate Tribunal are or are r,ot sound.
CoMMIS E. lW. Chettyar Firm v. The Commissioner of Income-tax , Burma, 1929-30,
SteNBR OF Vol. IV, Reports of Income-tax Cases, 464, referred to ..
INcoME-TAX
BURMA
Accordingly, no quest ion of Ia>~ arises.
. ""
M~~-:E.C; Ba K.yaw (Government Advocate) for Applicant.
ovUUJHA
BROTHERS.
.U Pa.ing for Respondent.
U SAN MAUNe, J.-This application under section 66(2)
of the Burma Income-tax Act is against the order of the
Income-tax Appellate Tribunal, Rangoon, in its Reference
No. 14 of r96r wherein the Tribunal refused to refer to
this Court a question of law said to have arisen out of its
order dated the 3rd May 1961 in Appeal No. 75 of r96o.
The facts giving rise to the present application which
have been .fully set out in the application of the Commis-
sioner of Income-tax, Burma, are briefly these. The res-
pondents Messrs. E. C. Madha Brothers are a firm of well-
known manufacturers of soap and umbrellas. For the pur-
pose of 1957-58 assessment year corresponding to the ac-
counting year ending .the 31st December 1956, the respon-
dents filed the return of income declaring therein a total
income of K 2,28,789.40. Then in response to a notice
under section 22(4} of the Burma Income-tax Act, the res-
pondents produced their books of accounts which did not
however include stock books of raw materials used and
' books relating to the manufacturing ac~ount. The Income-
tax Officer concerned after having the accounts examined
an'd after hearing the Managing ,Partner of the firm rejected
the accountS und~r the proviso t<? section 13 of tlle ;Burma
Jncome-tax Act. He then assessed the respondents under
section 23 (3') of th:e Act on an estimated income
of K 7,ob,312. The reasons given for this assessment
were (a) that the disclosed turnover of K 54,4I,159 and
the disclosed g;oss profit of K 3, 62,212 were low
BURMA LAW REPORTS. 323
compared to the figures for the previous year and to the
figures of similar manufacturers; (b} that in the absence of CoMl\ns-
stock books of raw materials it was.difficult to know what sioNBR o
INCOME-TAX
were the quantities of raw material~ consumed during the ilUllMA
year of account; and (c) that in the absence of manufactur- MESS:;. E.C.
ing account it was not possible to verify the correctness of BMAoHA
ROTH EllS.
the production figure given by the respondents.
Regarding the umbrella business, the Income-tax Officer
gave the following reasons :
(a) The disclosed turnover of K 38,25,086 an'd the
. gross profit of K 5,20,077 were low co~pared
to the figures for the previous years.
(b) In the absence of stock books of raw materials
used, it was difficult to know what were the
quantities of raw materials which had been
consumed in the manufacturing process.
(c) In the absence of manufacturing account it was
difficult to verify the correctness of the
production figure given by .the respondents.
The respondents being dissatisfied with the assessment
madeby the Income-tax Officer, appealed to the Assistant
Commissioner of Income-tax who however confirmed the
rejection of accounts by the Income-tax Officer, but
reduced the total assessed income from K 7,00,312 to
K 6,24,471. The respondents made a further appeal to
the Income-tax Appellate Tribunal and the Tribunal by its
oraer dated the 3rd May !961 in Appeal No. 75 of 1960
accepted the accounts produced by the respondents
and reduced the assessable income from K 6,24-.471 to
K 2,32,8r6. Inso doing, the Tribunal said that the res-
pondents seemed to have made an honest disclosure of the
increased turnover of K 5,85,848 and that unlike other
assessees who showed a loss, the _respondents had honestly
disclosed a profit of K 2,28,789. The Tribunal also said
324 BURMA LAW REPORTS.
c.c. that the accounted trading results were quite reasonable
1963
and that they should be accepted as basis of assessment .
.CoMMIS-
SIO~BR OF Lastly. the Tribunal said that during the course of lengthy
INcoME-TAX
BURM,t examination of the Managing Partner, nothing could be
f).
MEssRS. E.C. elicited to show that he was not telling the truth, and that
MAD~A there was no reason why the true income could not be
;BROTHERS.
.
assessed for the year in question without the production of
stock books when similar assessments had been made in
tbe previous years when no stock books were maintained
by the assessees.
The Commissioner of Income-tax being dissatisfied with
the o:rder of the Income-tax Appellate Tribunal made an
application under section 66 (r) of the Act for reference to
.this Court of ~he following questions of law said to have
arisen out of the Tribunal Appellate order :
"(1) Whether in the circumstances of the case there
was no material for the finding of tbe Income~
tax Officer that the income, profits and gains
of the assessees cannot properly be deduced
.f rom tile accounts produced ;
(2) Whether in the circumstances of the case there
was sufficient material and evidence for the
Income-tax Appellate Tribunal to arrive
at the finding that the accounted trading
results should be accepted for the basis 0f
assessment."
The Tribunal having refused to refer these questions
to this .Court, the present application under section 66 (2)
of );he Burma Income-tax Act was filed by the Com~is
sioner of Income-tax, Burma.
Now, it bas been held over and over again by .this
Court as well as by the late Hjgh Court that sufficiency.of
the accounts {or the purpose of deducing profits and gains
BURMA LAW REPORTS.
therefrom is left by the proviso to section 13 of the Income-
tax Act. 1922 to the judgment of the Income-tax Officer
. , d b h . COMMIS-
and that once the Judgment had been exercise y t e stoNER oP
.
offi cer agamst t he assessee, 1t
. canno.t be assai'}ed un less 1t INCOME-TAX
BURMA
can be demonstrated to be not " judicial " but " capri- Me~s:~. E.C:
cious." See the cases of M.P.R.M. Irulandi Mudalier & M'ADHA
BROTHilllS,
Sons v. The Commissioner of Income-tax, Burma (I') and
Messrs. A. S. Alladeen & Company v. The Income-tax
Appellate Tribunal, Burma and one (2). See also the cases
of Chan Low Chwan v. The Commissioner of [ncome-tax
(3), Neki Devi v. Commissioner of Income-tax. Pun.iab (4),
Diwan Chand v. Commissioner of Income-tax, Punjab (5),
Maharaiadhiraia of Darbhanga v. Commissioner of lP~come-
tax (6) zmd Ganga Ram Balmokand v. Commissioner of
Income-tax, Punjab (7). However, although ~nder the
proviso to section I 3 of the Burma Income-tax Act it is
initially the duty of the Income-tax Officer concerned to
come to a decision, whether or not the method of account-
ing employed by the assessee is such that income, profits
and gains can properly be deduced therefrom, his decision
in this respect is not final. It is open to correction by the
Ap,pellate Assistant Commissioner of lnco.me-tax and hy
the Income-tax Appellate Tribunal as the case may be. In
this connection, the following observation of Das, J. who
delivered the majority judgment in the case of Commis-
sioner of Income-tax v. McMilla!J. & Co. (8)1may be usefully
quoted :
"The words ' in the opinion of the Income-tax Officer'
are not to be construed in the sense of a mere discretionary
power; but in the context of the words used in the proviso to
section 13 they impose a statutory duty <:>n the Income-tax
(1) Civil Miscellaneous Application No . .;c of1959
(2) Civil M.iscellaneousApplication No. 22 of 1961.
(3) 7 RMgoon 2 z. (6) (1939) 9 Patna 240.
(4) (1934), II I.T.R. 365. (7) (1937), V I.T.R. 464.
(S) ( 1n4}, II I.T.R. 382. (8) (1958), XXXIII I.T.R. 182 at 191.
~26 BURMA LAW REPORTS.
c.c. Officer to examine in every case the method of accounting
1963 and to see (i) whether or not it is regularly employed, and
.C O!IfW.S (ii) to determine whether the income, profits and gains can
&lONER OF
INcoME-TAX
properly be deduced therefrom. Section 30 of the Act gives
. BURMA the assessee a right. of appeal in respect of certain orders
~ including an order of assessment made under section 23.
~-E. C.
MAnHA Section 31 deals with the hearing of an appeal and powers of
~ROTHBRS.
the Appellate Assistant Commissioner. Before disposing of
the appeal, the Appellate Assistant Commissioner may, if he
thinks fit, make a further enquiry himself or cause it to be
made by the Income-tax Officer, and in disposing of the appeal
he may in the case of an order of assessment, confirm, reduce,
enhance or annul the assessment ; he may set it aside and
order a fresh assessment. There is nothing in the language
or section 3 r of the Act which imposes any restriction on the
powers of an Appellate Assistant Commissioner so as to
prevent him from eJter:cising the power under the proviso t()
section 13. The restriction, if any, must be inferred from
the language of the proviso itself. It is .contended that the
use of the words ' in the opinion of the Income-tax Officer '
in the second part of the proviso to section 13 suggests a
complete elimination of the Appellate Assistant Commis-
sioner's jurisdiction to decide for the first time that the
method of accounting is such that the income, profits and
gains cannot be properly deduced therefrom. It is true that
the decisjon as to the method of accounting is to be arrived
at first by the Income-tax Officer after a careful scrutiny of
the accounts whether they are simple or complicated,
and the power is to be reasonably and judicially exercised,
which excludes any subjective or arbitrary decision by the
Income-tax Officer. It cannot, however, be said that a power
so eJtercised is clothed with finality and would be excluded
from review by the Appellate Assistant Commissioner ; and
in reviewfng the order the appellate authority can exercise
the .same powers which the Income-tax Officer could
. . ,,
exerciSe. . . . . . .
In the case now under ~orisideration, the Income-tax
Appellate Tribunal had given reasons for coming to the
conclusion that the accounts submitted by the respondents
Messrs. E. C. Madha Brothers are r:~liable and that these
BURMA LAW REPORTS. 327
accounts should .form the basis of assessment for the year
1957-58. Without constituting itself as an appellate
COMMIS-
authority, this Court cannot consider whether the reasons stoNER oF
given by the Income-tax Appellate 'f.ribunal are or are not IN~~~!AX
sound. In this connection, the observations of Carr. ]. in M~~:E.C.
E. M. Chettyar Firm v. The Commissioner of Income-tax, MADHA
Burma (9) are not- m
. apposite.
. The Iearned 1udge sa1'd : BROTHERS.
" The Court has no jurisdiction to consider the findings of
fact arrived at by an Income.tax authority and it is im-
material whether the grounds stated for those findings are
sound or unsound."
For these reasons we consider that no question of law
has arisen out of the appellate order of the Income-tax
Appellate Tribunal in its Appeal No. 75 of 196o. The
present application fails and it is dismissed \vith no order
.as to costs.
(9) 19:19-30, Vol. V I, Reports of Income-tax Cases, 464.
32'8 BURMA 'LAW RE.PORTS.
APPELLATE CIVIL
Before U Bo Cyi, C.J. and U San Maung, J.
DA w '.YIN PU (APPELLANT)
--
May r6. v.
u OHN KHIN AND ONE (RESPONDENTS).*
Mortgage lfY Conditional Sale and Sale-oral ur.derstandir.g of right to re-turchase
-no stipulati01z in the deed-pro'Viso to s. 58 (c) T1ansfer of PropErty Act-
statutory bar to being construed as a mortgage-inadmissibility of oral evi-
dence-s. 92 Eoidence Act.
V\lnere th,.re was Registered Deed of Sale of certain immoveable property
and the Buyer had admitted that she- had verbally promissed to allow rede.mption~
out such a promise was not embodied in the Deed; and it was contended that
the doeument embodied a mox:tgage by Conditional Sale.
Held: The proviso to s. s8 (c) of the Transfer of Property Act is a statutory
bar to the Deed of Sale in question being construed as a transaction evidencing
a mortgage by Conditior..al Sale, notwitb~tan.ding the verbal agreement to
return the property on payment of the pllrchase price.
MaungAungThitlandone v. Bisnath Singh and one, (195S.) B.L.R. 314
(H.C.), referred to and distinguished.
Also, where a registered insttum<.nt cleariy shows a transaction between
the parties to be a Sale, oral evidence to show that it was intended to be a
mortgage is inadmissible under s. gz of the Evider.ce Act.
Moung Shwe Phoo and 8 others v. Maung Tun Shin and 3 others, I.L.R.
5, Ran. 644, referred to and followed.
Kyaw Htoon for the Appellant.
Ba Thaw for the Respondent.
U SAN MAUNG, J.-Ih Civil Regular Suit No. 13 of
195'9 (}f : the District Cour.t of Amherst the plaintiffs,.
U Ohn Khin and Daw Khin Gyi who are the respondents.
' in the present appeal sued the defendant-appellant DaW
Kyin Pu ~or a declaration that a salt field me~uring
4977 acres with godowns and factories standing t hereon
belonged to their judgment-debtors U Thi Chan and Daw
C1vll
F"1rst Appea1 N o. 1 6 o f 196 I agatnst decree o f t he D 1stnct
the order
Court of Amherst in Civil Regular Suit No. 13 of (1959), dated. I!,
Febru!U":Y 1961.
BURMA 'LA.W REPORTS. 329:
Than May, who wete the 2nd and 3rd defendants in the
suit. The plaintiffs' case was that in Civil Regular Suit
DAw Kvm
No 4 of 1956 of the District Court of Amherst they' ob- Pu
tained a decree against U Thi Chat! and Daw Than May u OH:KHm
for a sum of K I4,ooowith costs thereon. In execution A:1D om.
of this decree they attached the properties now in suit
in Civil Execution Case No. 2 of 1957 of the same Court.
Thereafter. the defendant Daw Kyin Pu filed an apf.>lka-
tion for remo,al of attachment of the properties on the
ground that they had been transferred to her by U Thi
Chan and Daw Than May for a consideration of K 5,000
by means of a registered deed of sale dated the sth of
. September .1953 Daw Kyin Pu's application was enquir-
ed into by the Court in Civil Miscellaneous Case No. 20
of 1957 and the attachment was removed. Hence the
necessity for filing a suit under Order XXI, Rule 63 of
the Chil Procedure Code.
The suit was contested by Daw Kyin Pu alone as the
other defendants U Thi Chan and Daw Than May did
not appear although summonses had been duly served
on them. In the written statement field by her Daw
Than May said that the properties attached by U Ohn
Khin and Daw Khin Gyi as belonging to their judgment-
debtors U Thi Chan and Daw Than May in fact belonged
~o her in view of the registered deed of sale dated the
st~ of September 1953. She also contended that these
defendants had merely a right of repurchase which they
had since forfeited.
The defendant U Thi Chan, however, died during the
pendency of the suit and his wife Daw Than May and
his son Mg Moon Saing were added in an amended plaint
as his heirs and legal representatives. On the pleadings
the most important issue framed was whether or not the
properties in suit had been purchased outright by Daw
Kyin Pu or whether the transaction between her and
330 . BURMA LAW REPORTS.-
?~~; U Thi Chan and Daw Than May was a mortgage by con-
DAW KYIN
ditional sale. The learned trial Judge after examining
Pu witnesses cited by both the parties came to the condu-.
v.
u OHN KHIN sion . that it was a mQrtgage and he accordingly decreed
AND ofE. the plaintiff's suit with costs.. Hence this appeal.
Now, from the registered deed of sale, exhibit Hm "
date.<} tQ.e 5th of September 1953, it is clear that the
.. . transaction was a sale of the suit-properties by U Thi
Chan and Daw Than May to Daw Kyin Pu for a considera-
tion of K 5,000. By an agreement, exhibit " ;;, " ex-
ecuted on the. same day the properties were leased out
by . Dnw Kyin Pu to U Thi Chan and Daw Than May
. at a rental of K 300 per mensem. As explained by Daw
Kyin Pu the salt factory was workable only for five
. months in a year so that the yearly r-ental was only
K r ,500 and not K 3,6oo.
In course of her cross-examination Daw Kyin Pu ad:..
mitte~ that at the time of the sale of the properties to
her she had promised U Thi Chan and Daw Than May
to allow redemption on payment of K 5,000 only. In
re-examination she explained that there was no stipula-
tion as to the period of time within which U Thi Chan
: and. Daw Than May could have the properties returned
to them on payment of K 5,000 .
. In view of these statements, the learned trial Judge .
.-h eld. that -the . transaction between Daw Kyin Pu on the
, . one .)1aJ?.d and U Thi Chan and Daw Than May on the
... other~ was a mortgage and that therefore the properties
were .liable to attachment and sale iii execution of the
.decree'. obtained against U Thi Chan and Daw .T han May
. by the plaintiffs U Ohil Khin and Daw Khin Gyi.
In .coming. to this conclusion the learned trial Judge
had entirely ignored the proviso to clause (c) of section
58 .o the Transfer .of Property :Act which was inserted
BURMA LAW REPORTS. 331
by the Amending Act 20 of 1929. Section 58 (t-) in so
far as it is relevant for the present .purpose reads:
DAW KYIN
" Wlfere the mortgagor ostensibly sells the mortgaged ~
property on condition that on payment of mortgagemoney UOBNKHIN
being made, the buyer shall transf'er the property to the ANP ONE.
seller the transaction is called a mortgage by conditional
sale; provided that no such transaction shall be deemed to
be a mortgage, unless the condition is embodied in the
document which effects or purports to effect the sale."
Thus, there is a statutory bar to the registered deed
-of sale, exhibit " m " being construed as a transaction
evidencing a mortgage by conditional sale notwithstand-
ing the admission made by Daw Kyin Pu in her examina-
tion that she was willing to return the property on pay-
ment of K 5,000.
The learned trial judge who had relied upon the de-
dsion in Maung Aung Thin and one v. Bisnath Singh and
one (1) had obviously not understood it properly. There
it was held that even if the transaction effecting or pur-
porting to effect a sale, and a condition of repurchase
.are embodied in one document, it is a matter for con-
struction whether the transaction was a mortgage by con-
<litional sale or a sale with an option to repurchase the
property.
In view of the fact that in the document exhibit
ro " there is no condition regarding repurchase the
ruling in the case of Maung Aung Thin and one v. Bisnath
Singh and one (r) is entirely irrelevant.
A case more in point is Maung Shwe Phoo and 8
others v. Maung Tun Shin and 3 others (2). There it was
held that where a registered instrument clearly shows a
transaction between the parties to be a sale, oral evidence
(x) (1958) B.L.R. 314 (H.C.) (2) I.L.R. 5 Ran. 644.
332 BURMA ~-:AW REPORTS.
c. c. to show that it was intenckd to be a mortgage is inadmis-
.I963 sible in evidence because of section 92 of the Evidence
DAw KYIN . Act.
Pu
v. In the result, the appeal succeeds. The judgment and
u ~~ ~~ decree of the District Court of Amherst appealed against
are set aside and the plaintiff-respondent's suit dismissed
with costs, Advocate's fees being assessed at 5 (five) gold
mohur!S.-
BURMA LAW REPORTS. 333
CIVIL MISCELLANEOUS
Before U San Maung, U Kyau Zan U, JJ.
DAW SHWE MYA U (APPLICANT)
v.
I. ASSISfANT CONTROLLER OF RENTS, INSEIN AND
2. u KYAw SEIN (RESPONDENTS) .*
U rban Rent Control Act, s. 13 (1)-Isme of permit as a ruult of collusion with
.. outgoing tenan~ agaimt whom tjectment <kcree has bee11 passed-no notice
issued to {(ll;d/ord-s. 2S, Urban Rent Control Act- " Speaking Order"-
to be quashed by zcri: of ~rtiorari.
The Applicao_t bd eob;:ainod a dcc:ree for ejectment against her tenant from
certain p~ces and t~ the 2ad ~ponckr.t applied hcfore the 1st
Respondent for issue of a permit to occupy the said premises under s. 13 (1) of
~ u~ Rent Co~ltrol :\ct, on the ground that he had been in occupation of
til~ same. for" the past se,en days". The penn it v.-as issued by the Ist Res-
ponden.~. wi.thout the issue of any notice to the Applicant as req1:ired under
s. z8 of the Act.
Held: ;>rim{Ljacie there is ample ground for the contention that the applica-
t ion of the znd Respondent for issue of a permit under s. 13 (x) of the Act
w as a result of the collusion between him and the outgoing tenant.
Apart fro.m the mandatory provision of s. z8 of the Act, common prudence
would dictate that. the Appl icant should be given an opportunity to contest
the. app lication of the znd Respondent. I n these circumstances, the order of
t he xst R espondent.g ranting t he permit to the znd Respond ent is a " Speaking
O rder" and must b e quashed.
Bci Gyaw for Applicant.
Ria Maung:<Government Advocale) ~or ther st Respondent.
M aung Maung for the 2nd Respondent.
U SAN MAUNG, J.-This is an application by Daw Shwe
Mya U fm: writ of certiorari to quash the order of the
Assistant . Controller of Rents, Insein, in his Revenue Pro-
ceedings No. 34/13R of 1962-63 wherein he ordered the
issue of a permit to the respondent U Kyaw Sein under
section _13 (r) of the Act allowing him to continue to reside
* Civil M iscellaneous Application No. 170 of 1962.
334 BURMA LAW REPORTS~
c.c.
J9b3 .
in the premises belonging to the applicant. The f acts as
DAwSawE
MYA u they appear in the affidavit accompanying Daw Shwe Mya
1 . Ass~~TANT U's. application and i~ the proceedings referred to by her
CONTROLLER are these :
OF ~TS,
lNSRIN.
A ND In Civ,il .Regular Suit No. 2 of 1962 of the Additional
2. U .KYAW
SBIN. District Court of Insein, Daw Shwe Mya U obtained a
decree against her tenant Daw Khin Nyunt for her eject~
ment from the premises known as No. 55, Prome Road,
Kamayut, the suit being one under section 12 (r) (a) of
the Urban Rent Control Act, 1960. On an application
being made by Daw Khin Nyunt under section 15 of the
. Act. ,th e learned Additional District Judge ordered that
the .decree for ejectment should be rescinded on Daw Khin
Nyunt paying the arrears of rent in four monthly instal-
ments, beginning from the rsth September 1962. In the
. meantime Daw Khin Nyunt filed an application before the
Assistant Controller of Rents for the fixation of the
standard rent. After several adjournments the case was
fixed by the . Assistant Controller for hearing on the 6th
August 1962. On that date adjournment was given till
the 5th of September 1962 because of indisposition of
Daw Shwe Mya U's Advocate. On the 5th of September
another adjournment was given as Daw Shwe Mya U was
in hospital and the case was fixed for hearing on the roth
of October 1962.
On the .roth September 1962, however, the present
. respondent U Kyaw Sein filed an application before the
Assjstant Controller for the issu~ of a permit under section
13 .(r) . of. the Urban Rent Control Act., 1960, on the ground.
tha.t he had been in occupation of the premises belonging
to the applicant Daw Shwe Mya U since the past seven
days. The Assistant Controller of Rents without issuing
any notice to .Daw Shwe Mya U as required by section 28
of the Act, immediately passed an order for the issue of
the p~rmit under section 13 (r) to U Kyaw Sein on his
BURMA LAW REPORTS. 335
undertaking to pay the standard rent which was being
fixed on the ap. plication of Daw Khin Nyunt in Proceedings DAWSHWB
No. 173/13R of r96r-62. A copy of the order, which MvA u
was however dated the r.2th September I 962, was served 1. As:XsTANT
COMoTROLLBR
on the applicant Daw.Shwe Mya U. oF RENTs,
. . !NSEIN.
In the affidavit in support of the present application AND
z.U KYAW
for a writ of certiorari, Daw Shwe Mya U contended that ssrN.
in the circumstances o~ the case the applic~tion of
U Kyaw Sein to the Assistant Controller of Rents for the
issue of .a permit under section 13 (z) of the Urban Rent
Control Act, 1960 was the result of a collusion benveen
Daw Khin 0iyunt and U Kyaw Sein. Prima facie there is
ample ground for this contention. On the failure of Daw
Khin :\yuni to pay the instalments fixed by the Court,
proceedings for her ejectment were taken in Civil Execu-
tion Case No. 4 of 1962 of the Additional District Court
of Insein. The application for execution w,;~.s made on
the 4th October 1962 and on .the r8th October 1962 a
warrant for the ejectment of Daw Khin Nyunt was issued.
On the 21st October 1962 when the Bailiff of the Court
went to ejec.t Daw Khin Nyunt, he found the present re-
spondent U Kyaw Sein in possession and U Kyaw Sein who
was then armed with a permit under section 13 (z) of the
Urban Rent Control Act refused to vacate. This matter
was .reported .to the Additional District Judge who on the
25th October1 1962 heard the matter. U Kyaw Sein him-
' self was present in Court to contend that being the holder
of a permit granted by the Assistant Controller of Rents
under section I 3 (z) of the Act, he should not be ejected
in.execution of the decree against Daw Khin Nyunt. The
learned Additional District Judge, however, did no.t accept
his objection and ordered that he should also be ejected.
Accordingly, a fresh warrant dated the rst November 1962
was issu~d, bu~ it was stayed by this Court in connect;ion
with the connected application for a writ of certiorari by
:336 BURMA LAW REPORTS.
U Kyaw Sein to quash the order of the learned Additional
District Judge. It is Civil Miscellaneous Application
0
M~~5Hu No. 152 of 1962.
8
l. ~~TANT Now, under section 36 of the Urban Rent Control Act,
-CoN~~~R 1960, if a tenant against whom a legal order or decree to
OF """"TS,
lNsBIN. vacate has been given continues to occupy the premises,
AND
.2 u KvAw notwithstanding such legal order or decree, he must be
Ssm. deemed to have committed the offence of criminal trespass
as defined in sections 441 and 442 of the Penal Code.
Accordingly in the case now under consideration, apart
from the fact that a notice to Daw Shwe Mya U regarding
the application of U Kyaw Sein was mandatory under
section 28 of the Act, common prudence would dictate
that Daw Shwe Mya U should be given an opportunity
to contest the application of U Kyaw Sein on the ground
that he was really in collusion with Daw Khin Nyunt and
could not therefore be considered to require the premises
bona fide f~r tlie purpose of his own occupaq9n within
the meaning of section 13 (r) of the Urban Rent Control
Act, 1960. In these circumstances, the order of the
'Assistant Controller of Rents granting a permit to the re-
spondent U Kyaw Sein under section 13 (r) is a" speaking
order, " and it must be quashed.
In the result the application succeeds and the order of
the Assistant Controller of Rents mentioned above will be
quashed. There will be no order as to costs of this ap..
plica~on .
BURMA- LAW REPORT;S:: 337
SPECIAL CIVIL APPEAL
Before U San Maung, U Kyaw Zan U, JJ.
DAW THEIN MAY (A4f>PELLANT) c.c.
IJ963
v. May 3
MOHAMED FSOOF AND ONE (RESPONDENT).*
Licence of State land-whether can eject a trapasser-difference ~ett~:tt>tl lease
a11d licence-Lower Burma Town and Village Lands Act and Rules.
Where the question in issue was whether a person could succeed in a suit for
ejectment of a trespa~ser on the basis of a I icence iss\;ed by the Government to
occupy the land.
Held:. Under the Lower Burma Town and Village Lands Act anti Rules,
there is very little difference between a lease and a licence so far as it concerns
tQe I icence or th~ I ic~nsee him~~lf, regarding the right to occupy and use State
land. One of the major differences between a lease and licence .granted by
the Government is that whereas a lease is heritable and transferable, a licence is
not. .
A suit for possession of ~tate Land by a licensee thereof against a mere
~respasser is maintainable in law.
U Tun iliizand one v. Daw Sein, (1959) B.J.,.R. (,a.c.tp. 9S,'followed;
U Aye Maung and one v. Daw Nu, Civil Second Appeal 'No. 46 of (1959) of
High Court, distinguished and disented from.
Molwmed Esoof v. Maung TheinHla, (1953) }l.-L.R...274, referred to and
approved.
Manbalml Rai and others v. Ram Glmlam.Pandey, A.I.R. (~9-z?) Allahabad
633, and Chinnan {Jnd other.s 'v, Ranjithaim11al, A..I.R: (1<)3}) .' Mad. 216:,-dis"
tinguished.
!vf. Cassim for ,~e Appe~~t.
Non~ for
.
tJ:te Re5pondent.
~ .:
. .U SAN Mi\.UNG, J.-This appeal under section 20 of the
Union Judiciary Act is against t:he'judgment a:O:d decree of
the learned Judge on the Appellate Side of the late 'High
Court in Civirsecond Appeal No. 65 of 1959, wherein ~he
learned Judge.:set aside the Judgment and decree of the
..gp!cia~ <;:iy~l Appeal.NC? .2 .of ~961 agai,nst tl}e decree of th~ App~llate
~ideo~ thdate_High Court ofRatigoon iri'. Ci.vil Appbal._No,-65 of.r959;~ated
zoth January 1961.
2
BURM:PcLAW. EEJ>O:&TS.
c.c. Additional District Cour"t of Pegu in. Civil Appeal No. 28
1963
- of 1957
DAW TliEJ]I(
:rvLw The fads giving rise to the present appeal are briefly
Mo~MED these. In Civil Regular Suit No. 21 of r956 of the Town-
EsooF A~"D ship Cour~ of Nyaung!ebin, th~ plaintiff Daw Thein May
ONE.
who is the appellant in the present appeal sued the
defendant-respondent Mohamed Esoof and his wife Ma
Khati foJ.;. their ejectment from -o88~ acre of land, being
Holding No. I I of 1955-56 in Myoma Oksu No. 16 of
Nyaunglebin Town. Her case was that she was the
owner of the land and that the defendants had trespassed
upon a portion of it and would not vacate, although due
notice' had been given :to them. The defendants, on the
other hand, by their written statement contended that they.=
had been in occupation of the land.since about 1941 with
the permission of Mrs. A. Marrow who evacuated from
Burma for good and that they had been paying up till
now the land revenue assessed in the name of Marrow.
The learned trial Judge decreed the plaintiff's suit on the
ground that. she had succeeded in proving her title thereto.
The defendants being dissatisfied with the judgment and
decree of the trial Court preferred an appeal and the same
was dealt with in Civil Appeal No. 28 of 1957 of the
Additipnal District Court, Pegu. While the appeal was
being heard the plaintiff so~ght the permission of the
Additional District Court to admit as exhibit a licence
issued to her by the Deputy Commissioner, Pegu to occupy
the suit land till :the 31s.t De<;ember 1958. This licence
which is dated the 27th June i9.55 now appears in the
proceedings as exhibit ... ro ". The learned Additional
.pistrict Judge then refused to admit' it in evidence on tlie
ground that the plaintiff had never produced it in the trial
on
Court an.d:that her suit which had f>een based title had
been decreed without the necessity for relyfng upon it.
La~~r, however, the learned Additional. District Judge
BURMA -LAW REPOR:fS.; 339
seemed to have relented, for by an order dated the rst c.c.
1963
August 1958 he rema'nded the suit to the trial Court for
the trial of the issue framed by him, namely, " Whether DA~~~
the plaintiff has any right .to eject the defendants from Mo:~M-m
the suit land?" . In so doing, tlie learned Additional ~oF AND
ONB.
District Judge observed that since the suit land belonged
to the State, nobody but the State could have owned it.
. The .licence in question was then admitted in ..evidence
by the learned trial judge who recorded further evidence
adduced by both the parties to the suit. When the case
was resubmitted to the Additional District Court, the
appeal was . heard by the successor of the learned
Additional District Judge who had remanded the' suit.
Then, by an order dated the 9th of June 1959 the learned
Additional Di~trict Judge decreed the plaintiff's suit on
the ground that the plaintiff as a licensee from the
Government could eject the defendants who were no
better than mere trespassers on the suit land, although
they might originally have occupied ..Pt of it with the
permission of Mrs. Marrow. The defendants then
appealed to the late High Court and the learned Judge on
the Appell.ate Side allowed .the appeal on the ground that
a licensre of State land cannot file a suit to eject any
per:5on from the land. In so doing, the learned Judge
relied upon ,the decision of U Aung Khine, J. in U Aye
Mauna and o ne v. Daw Nu ( r) wherein that learned Judge
following the decisions of the Allahabad and the Madras
High Cou.i-ts held that as a lic~nce passes no interest ~
immoveable property to the licensee, t~e licensee cannot
maintain a suit for eJectment agaiD.st an alleged trespasser.
Now, t4e facts in ,the case show that the plaintiff-
appellant had no sub~isting title ~o the suit land. ~t
originally belonged to Mr ~ .and Mrs. Marrow, an Anglo-
,Indi~n. . ~ouple, one of whose . children . wa.s . Chari~?
. . . . .
(1). Civil Seco;tJ Appeal No. 46 of 1959 of High Court.
34Q ~V,RMA LAW RE~ORTS.
1~6~ M~rrow y.rhose wife Daw Th~in May -claimed 'to be.
- According ro her after the -death of 'Mr. Marrow,
~~ --THEIN . l . I d . h. . .
',. ~!' Mrs. Matro~v gave t 1e smt an -to er son Charles
Mo:~o . Marrow and this gift was confirmed by Mrs. Marrow after
Jtso~~~o the death. of her son Charles Marrow. However, Daw
Thein' May could not prove what title Mr. and Mrs.
Marrow had on the suit land ; if it had been leased to
them w'b.ether the lease was still subsisting. Moreover,
Daw Thein May could not show whether the alleged gift
by Mrs. Marrow to Charles Marrow whose wife she
claimed to be was a valid one.
In these circumstances, Daw Thein May's suit for the
ejectment of the defendants Mohamed Esoof and Ma Khati
on the basis of her alleged title was bound to fail. The
question is, can the plaintiff-appellant succeed in her suit
o n the basis of the licence,. eXhibit " (f) ". which was
admitted in evidence on the 3rd November 1958, that is,
about two :months before the date of its expiry.,
Now, the lieence.had 'been issued 1.mder:Rules 33, 34.
37 and 39 of the Rules under the Lower -Burma-Town and
Village Lands Act, 1898. Under section x6 of 't he Act,
land at the disposal of ~he Government may be disposed of,
'(a) by grant or lease, conferring such interests therein
a nd on such conditions as .t he Government may by rule
}n:escribe; or (b) by licence of the Revenue Officer.
Und~r Rule 6 of the Rules under the Lower Burma Town
and vmage Lands Act, ~-898, lesses of land at the disposal
of Government may be made for building, residential :or
-indu~trial -purpos..es . . Und~r Rule 7 a._ le~se - of land for. the
: .J?l:ITP.~e. of' er~~~- ~,substantial buil~~~- .thereon sJ;q.~l
JlOt o~dinarily.. be for .a. ~ort~r period tha11. .thirty years
-.~nd
.. .
. sb:ci,h
...1 .
proYi~~
.
for ".renewal.
.
~P tci-
.
q..' ~axini:um .peyjod.?f
iPJ:l~cy y~aw,:. Jlnder_ E.uJ~ :z~. ,Jel~_ting to . lic~~ces, the
!kputy coirlm~siorier'i:iiay issue.:a. licence to occupy land
it.:the:~~s~sal~D,f .GoYernmen(.~~r_ Jmildin.g. r~~d~n,tial 6~-
BURMA LAW REPORTS.
industrial purposes ~.:il cases where the applicant proposes <;;;;
to occupy the land for a temporary period or in cases ~ .
. , 0 AW J.HEJN'
where for any other reason the issue of a lease for ten M.~
years.is:undesirable. .Under Rule 34, licences issued must Mo~Eo'
be expre:ssea SO aS tO expire On a Certain datC nOt more ~~~.AND
than three years from the date of issue.
Under. Rule 17 relating to leases and under Rule 36
relating to licences, rent is payable by the !c"Ssc-c- or the
licensee . as .t he case may be for the r ight to occupy
Government land.
B}' the. defirlirion or licence" it is clear rhat under
the '. I.:.ower BurmJ Town .1nd Village Lands Ace. i t is a
licencej n writing to use and occupy State land granted by
a Revenue Officer authorized to grant the same.
Consequently, there is very little difference between a
lease and a licence so far as it concerns the lessee or tli~
licensee himself, regarding the right to occupy and use
State land. One of the major differences between a lease
and licence granted by Governrilent iS that whereas ~
lease is heritable and transferable, :f licence is not.
In U Tun Hla and on~ v~ Daw Sein (2) it was h~id by,
a Bench of th.e late High Co~t that a suit .for posses_sion
of State land by a licensee thereof aga_inst, a mere tres-
paSser is maintainable in law. F~r this reason given:,
.above, we consider that the law has been correctly lald:'
down in U Tun Hla's case.
. In .U-A.ye .Maung and one v . Daw Nu (I) which was
relied .upon by the learned Judge on the Appellate Side ,d(
the .late High Court, U Aung Khine, J. had cited with
approval the cases of Manbahal. Rai and others v. Ram
Ghulam Pandev (3) and Chinnan and others v. Ranjitham-
mal (4). Both these cases proceeded on the basis of Indian
(x}' Ci~j J Seeond Appeal No.::w :
of '959 of High: Court,
(z) (1959) B .L.'R.. p . 95 (H.C).
3"4.2 BURMA tA.wLREI?-ORTS.
c.c. . Easements Act of r882 which is not applicable to this
1963
- country. Accordingly, it would be unsafe to rely upon
DAW THEIN . h d .. h . .
MAY ~ ese eciSions as aut ontat1ve.
Mo~ In Mohamed Esoofv. Maung Thein Hla (5) it was held
Eso~~~ND by U. Aung Khine, J. that a licence is not assignable and
a transfer does not create any interest in the property to
which it. relates in favour of the transferee. With this
. pronouncement we see no reason for disagreement ; but
when U Aung Khine, J. went so far as to hold in U Aye
. Maung and one v. Daw Nu (r) that a licensee of a State
, land cannot maintain a suit for ejectment as against a
mere trespasser thereon, we must respectfully disagree.
Accordingly, had the plaintiff-appellant Daw Thein
May originally based her suit for ejectment not on the
alleged title but upon the licence, exhibit m ", dated
the 27th June 1955, her suit co-qld have been decreed.
As it is she had wrongly been allow<!d to change the basis
of her suit and given a decree ~m the 9th June I 959 on
the strength- of her licence, long after it had expired on
the 31st December 1958. The decree of the learned
Additional District Judge appealed against cannot there-
fore be supported. Accordingly, the judgment and decree
of :the learned Judge on the Appellate Side of the late
High Court dismissing the plaintiff-appellant's suit must
be confirmed; though for reasons different from those
given by the learned Judge himself.
. In .the result the appeal fails an,d it is dismissed with
no order ,as_~o costs, ~e _;respon,dents U<?t: h~ving appear
~~ore this. Cour.t .
.,
(I) Civil Second Appeal No. 46 of 1959 of High Court.
(S) (}954) B.L.R, ~74. (H:C)..
BURMA LAW REPORTS. 343
APPELLATE CIVIL.
B efore U Kya-.c Z an U, J.
;:.c.c.
H. A.. SAMUEL (APPELLANT) lt63
v. May2s
THE coNTROLLER OF RENTS, RANGOON AND ONE
(RESPONDENT).*
Urban Rett.J Control Acr, s. :;oA-Ba1 to suits against R ent Controller for thi11g
done in good faith-aUegeJ eviction by Rent Gontroller without complying
with the'prOtJisions of s. x6AA (.f) (a), (b) and (c) of the Act-wlzetl~r Sftit
against Colltrollct maintainable.
Vvnere the Appellant, had filed a suit against the Controlltr of Rents for
a declaration that the orders of eviction passed against him were illegal as they
did not comply with the provisions of s. x6AA (4) (a) (b) and (c), and the Lower
Court had dismissed the s~it without taking evidence or hearing arguments
on the points raised relying on s. 30A of the Urban Rent Control Act.
Held: It was for the Controller to show that what he did was "in good
faith in ex~rcise of his powers" in complying with the provisions of s. x6AA
(4) (a) (b) and (c) of the Act. Without taking evidence to prove his. alleged
compliance and his act in good faith, the trial Court was wrong in dismissing
the suit.
Civil Cour.s have jurisdiction to examine into cases where the provisions
of the Urba~ 'Rent Control Act have not been complied v.ith,
'.B. S.:. M.oliam~d Eusoof v. Bakridi and anpther, .(1952) B.L.R. 248 (S.C.),
r~ferred and followed.
Kyaw Htoon for the Appellant.
Mya Shein (Government Advocate) for the Respondents.
U KYAW ZAN U, J.-In CiVil Regular Suit No. 982 of
rgg8 of : the City. Civil Cou.rt, .. Rangoon, the appellant
prayed fot . a declaration tha~ .. the eviction orders dated
:r6th June T9S5 and 14th November 1956 passed against
him in Proceedings No. 7AA of 1955 by the Controller of
Rents, Rangoon (Respondent .No. I) are illegal,.2-and .for
. .. . .. . . .
* Civil First Appeal No: 70 of 196x, against thJ: decree of Ra~oon City
Civil Court in Civil R~gular S:.rit No. 982 of 1958 on 13th Jt;ly 196!~
BURMA 'LAW REPORTS.
c.c. perpetual injunction restraining the Controller from en-
1963 forcing his orders. He is the monthly tenant of the 2nd
H.A.~~Et. Respon<ient since 1947. It was alleged that on the applica-
TRB;, tion of Maung Maungwho was the 2nd Defendant in :the
c~~~"':~ suit under section 16AA (4) (a) of the Urban Rent Control
!:0~~~. 'Act; 1948 that the Appellant was sub-letting his premises
irr question to one U Saing, the Controller acting under
section i6AA (4) (d) of the Act called upon the Appellant
by a notice dated 5th July I9S~ 'to surrender possession
of the premises to the landlord (2nd Respondent), who was
to let ~he same to Maung Maung, but over three monthS
later pii 17th October 1956 Maung- Maung applied for
cancellation of the order, and the Controller accordingly
cai:lcelled it, the appellant remaining as tenant of the 2nd
respondent all the time.. It was. further alleged that about
a month after the cancellation, however, the Controller
again issued' a warrant of eviction on r4th November 1956
directing the police to forcibly evict the appellant without
complying with the provisions of Section r6AA (4) (a) (b)
and (c) of the Act.
~ The 2nd respondent made no appearance though served
with the notice and :the appellant abandoned his .appeal
against Maung Maung the 2nd defendant in the suit. The
real contest is between the appellant and the Controller,
who, in his written statement while admitting the other
allegations contended inter alia that there was no relation-
ship of . landlord and tenant between the appellant an.d
the tnd rci;pondent as the:latter could not rent out as he
wislu~d, and denied that he failed .to comply with the pro-
visions o(Section r6AA (4) (b) and (c) of the Act. What
the' Controller wanted to say was :that he as the Controller
and not the 'landlord .(re5pondent No. 2) could sub-let the
preiliises'. . He fmther :contended that there was no cause
f:~ction ~ali(~: n,o.~ ~uit Jay agcrinsthtru .under ~tion 30A.
6f the;Act. 'f.l:ie CQur~ framed. two, pielimJn~ry is~u~s bUt
BURMA LAW REPORTS. 345
for:.the purpose of J his appeal only the first issue quoted c.c.
l 963
below is relevant : . H.A.SAMti ~
" I. Whether the suit is maintainable :~~ai nst the Defendant v.
T!iB
No. I (Controller of Rents)." CONTJtOLLR
OF k ENTS,
RANOOOr-;
After .hearing the arguments of the learned Advocates for AND ONE.
the parties the Court answered the issue in the negative
relying upon Section 30A of the Act, and dismissed the
suit with c.bsts " for all three Defendants". Hence this
appeal.
Under Section I6AA (4) (a) of the Act the Controller
may with the advice of the Advisory Board direct the
landlor-d to let the premises to the person specified in the
direction if the premises are about to be vacant, but under
clause (b) such direction rn"Qst be served upon the land-
lord by a written notice and under clause (c) if ~he Con-
troller cannot procure a suitable tenant for allotment he
shall s<:> inform the landlord and the landlord may let such
premises to any tenant. The appellant's case is that
neither n:otice nor information as required was given to
him, and the Court without taking any evidence or refer-
ring to any documents on these points, dismissed ~he suit
relying upon Section 30A of the Act, which says that no
sui~ shall lie against the C~ntroller for anything done in
good faith in exercise of his powers under the Act. In
the first place it was for the Controller to show what he
~id w~s ~ in good faith in exercise of. his powers " in com-
plying with the provisio~ of Secti<;>n I6AA (4) (b) and (c)
of .the Act. . He m~st show . that he had complied wi~
t~e~e,;provisions. Without taking .any evidence to prove:
~.alJeged compliance and his act in good faith in exercise
or 1his powers .under t~e Act the irial Court was wrong
in <lisnussing the suit. Some issues were even suggested
by the. learned Cquns~i for the appellant on the P?ints.
':346 BUR:MA LAW REPORTS .
.,;9;3 (See page !.9 of the record) In B.S. Mohamed Eusoof v.
" -;:- Bakridi ,and another (r) one of the points raised before the
H.A. "
l:>AMU}lL }
ate Supreme. Court. was w h eth er t h e cIVI'} Courts h ave
coJ:::u.ER jurisdictio~ to decla~e the order of the Controller null
~~ and void an4 it was held that a defiance of or non-com-
i\ND oNE. pliance with the essentials of procedure will give ground
for q.ue~tioni.ng the proceedings in a Court of Law, and
Civil. Courts will have jurisdiction to examine into cases
where the provisions of the Act (Urban Rent Control Act)
. hav~ not been complied with. The learned Government
Advocq.te, for the Controller submitted that the appellant
should have applied for review of the order .to the Con-
troller under Section 2IA of the Act or for directions in
the nafu.te of a writ of certiorari to the Supreme Court.
but in '-iew ,9f the attitude and the stand taken by the
. COntroller in his written statement the application for re-
vj~w was bo!-!nd to fail and the appellant would have been
b~ed from going.up on appeal against .the said order, and
<1$ for tl,le writ of certiorari it must be remembered that
o~e . of t4e conditions for the issue of such a writ is that
the applica.J:lt must have no other adequate legal remedy.
It cannot be said with certainty that the appellant had no
other adequ~~e legal remedy for the Civil Courts, as point-
ed out above. have jurisdiction to declare the order of the
Gontroller null a,nd v.oid if the essentials of procedure are
not compJied . with by him. In B.S. Mohamed Eusoof v.
Bakridi. and .ano.~h~r referred to above Bakridi, who was
. .~ tenant,. g~ve I!Otice to his sub-tenant Ahmed to vacate
im{tile latter applied to the Controller under Section r6A
ofl ~e: Act which applied to non-residential premises, for
.:Permission to strb"let the preniises to Eusoof, and the Con-
. tr6lle:r granted t~e application without issuing notice to
. .Bakridi as required by Section I9A .c:i:r of the Act.. Baldi
~pplied.
. for. - review
.. of the order
.
but he failed
. . , :so he filed
:.
BURMA LAW REPORTS. 347
a suit to declare the order of the Controller null and void c.c.
963
and he obtained a decree against Ahmed and Eusoof, who r
also failed t~ set aside the decree in the High Court. While H.A.!.AMI.isL
upholding the decree the Supreme Court observed " The co~--~~~LER
legal position will be.' the same as if this Court has quashed ~.RENTs,
~NGOON
the proceedings of the Controller by directions in the na- AND ol\
ture of a writ of certiorari. As a matter of fact Bakridi
would have obtained the same relief much quiclCer if he
had applied to this Court for :the said directions instead
of first applying to the Controller for review of his own
Order and then filing the suit for declaration that the order
is null and void." It is clear from these observations that
the appellant was not wound to apply for directions in the
nature of a writ of certiorari even if he could apply for
-such directions.
: In the result the judgment and decree of the trial Court
.'are set ~side with cqsts with the direction that the suit be
restor~d. the issue in question and other issues that may
arise out of the pleadings be tried and the suit de~errnined
~q::<?rding to law. The rst respondent (Controlter) shall
:bear the costs of this appeal.
34'8, BURMA LAW REPORTS.
CRIMINAL REVISION
B efore U KyafiJ Zan U , J.
'
INDU BHAI (APPLICANT)
Ju11e 3 . v.
THE UNION OF BURMA (RESPONDENT).*
For.dgncrs' R egist.ration Act, s. 5 (r)-plosecution and convicticn tlt!del'-f;Jroof of
citizenship to be conside,ed at trial.
In a prosecu~ion under s. 5 (r) of the Foreigners' Registration Act, the
accused had ra is~d the defence that she was a citizen of the Union. The trial
Judge convicted her, holding that once. she held a certificate, she must obey
the law and renew it annually. He further held that the question of citizenship
was..a matter for .the Ministry of Judicial Affairs, and did not consider the
evidt>nce.led.
H,eld: According to the evidence, the Applicant and her parents were hom in
Burma, and her g~ndparents had lived, and, like her parents, died in Bunna.
She has therefore complied with the provisions of s. +(2) of tile Union Citizen-
ship Act, and accordingly it must be deemed that s.1e is a citizen of the Union of
.B urma, and as such, there_is no necessity for her to renew her certificate.
. Bislma Lal v . The Union of Burma, (1959) B.L.R. 3 (H.C.) ; and Tein Nu
Han v. The President of the Union of Bu,ma and one, (1953) B.L.R. 47 (S.C.);
referred to.
U I\.YAW ZAN U, J.-The applicant Indu Bhai of
Bauktaw, Rangoon, daughter of Veera Raghavelu (deceased)
was prosecuted under section 5 {r) 10f the Foreigners~
Registration Act for failure to renew her Foreigner's Certi-
ficate -No. RN 959157, which expired on 16th February
I9QO, and the learned 3rd Additional Magistrate of
Rangoon in his Criminal Regular Trial No. H97 of 1962
convicted and sentenced her to pay a fine of K 30 or in
d~fault.to suffer.nvo months rigorous imprisoilmentholding
that .once she lias held the said certificate she must obey
the .Jaw and renew. Jt annually.
Cdminl!l Revision No. 93 (B) of 1963. Review of the order of the 3rd
.Additional Magisil:ate (S.P.) of Rangoon, dated r8th March 1963, passed in
Crimin~l Regular .Trial No. I497 of 1962.
BURMA LAW REPORTS. 349
Her defence was that she is a citizen of" the Union cf
Burma, but the trial Court said that it was a matter for
I~DV BHAl
the Ministry of Judicial Affairs of the Revolutionary v.
TH'eUN1oN
Government to decide whether she was a citizen or not, OP BURMA.
and not for the Court. It did n@t even consider the
evidence le'd by the applicant to s11ow that she is a citizen
of the Union of Burma. A holder of a foreigner's certi-
ficate does not necessarily become a foreigner. A citizen
who has obtained the certificate in ignorance or under a
mistaken belief or for protection in case the authorities
entertain some doubts as to his citizenship, and did not
renew it on having better evidence to prove that he is a
citizen does not commit the offence if he can prove that he
is a citizen of the Union. Bishna Lal v. The Union of
Burma (r). A citizen remains a citizen even if he has
taken out a foreigner's registration certificate. Tein Yu
Han v. The President of the Union of Burma and one {2).
The point for determination is therefore whether the
applicant can be deemed to be a citizen or not. The law
is laid down in section 4 (2) of tbe Union Citizenship Act.
It says,-
According to the evidence of Thiron Maraya, Karappa and
Maranthu (DWs 2, 3 and 4) the applicant and her parents
were born in Burma and her grandparents had lived, and,
like her parents, died in Burma. There is nothing on
record to disbelieve them. The trial Court itself says in
(1) (1959) B.L.R. 3 H.C. (z) (1953) B.L.R. 47 S.C.
350 BU'RMA tAW REPORTS.
its judgment that evfd.ence has been adduced by the 'appli-
cant that she and her parents were born in Burma and that
INDU BHAI
(1. her parents had also died in Burma. She has comrHeci
THE UNION
OF BURMA. with the requirements of the law and accordingly it must
be deemed that she is"a citizen of the Union of Burma, and
. as such there is no necessity for her to renew her <;erti-
1icate. The- Exhibits :>l, o and ro show that the
applical)-t has applied for Union Citizenship Certificate to
the Ministry of Immigration and ?'Jational Registration
.claiming that she is entitled to be ,1 citizen under section
6 (2) rea<:l with section 4 (21) of the Union Citizenship Act
and has surrendered her Foreigner's Registration Certificate.
In the result the conviction and sentence are set aside
and the applicant is acquitted. The fine paid shall be
refunded to her.
BURMA .LAW REPORTS. 351
APPELLATE CIVIL
Before U Sau.o//armg,J.
MA HAZARA KHATU (APPELLANT)
v. J ttne6,
MAUNG THA AUNG (RESPONDENT).*
Mohammedan Law- divorce-Khula divoru-signi11g of document by wife
recitin:: receipt of dower-when binding.
Unde; ::VIohammedan Law, the wife is atl iberty to release her husband from
l>ayment of the do\HY promised her, when divorce i s obtained at her own
instanc.:.
As the dhorct: obrained by the Appellant/Plaintiff was klnda as it resulted
from her propos:ti, it is inunaterial whether the dowry was received or not.
It was th.., Plai:1:itf who consented to sign an acknowledgment of receipt as a
conditio~ tf a kll!lla <.ii\orce ; it is therefore binding on her.
Auny Gyi for the appellant.
Mauna Mauna Khin for the respondent.
U SAN MAUNG, J.-In Civil Regular Suit No. r of 1960
of the Subdivisional Court of Akyab the plaintiff Ma-
Hazara Khatu, who is the appellant in the present appeal,
sued the defendant-respondent Maung Tha Aung. for the
recovery. of K r,o4875 p.yas comprised of the value of
four tolas and five annas weight of gold which had been
promised her by the defendant as dowry and K roo as:
value of the materials of her house which he had demol-
ished and taken away. The defence of Maung Tha Aung
was that the aowry had been paid before the divorce
between him and the plaintiff took place as is evidencea by
the acknowledgment of receipt on the reverse of the
" kabinama " Exhibit r. Plaintiff in reply, however, said
that her signature on the back of Exhibit I had been
obtained under duress and that she had not yet received.
from the defendant the dowry which he had promised her~
Civil Second Appeat No. 38 of 1962 against the decree of the District
Court 9f Akyab in C ivil Ap'peal .N o.
13 of 1961. dated 15th Januarir IQ6z.
!352. BURMA LAW REPORTS.
On the pleadings the most important issue raised was
whether or not the plaintiff had received the' dowry which
MA HAZARA
KmTu she had been promised and if not, whether the signature
MAu:~ THA of the plaintiff at the back of Exhibit I under an endorse-
Au~c . ment recording the "fact of having received the dowry,
had been obtained under circumstances stated by the plain-
tiff.
On. this issue the learned trial Judge held that the
plaintiff had exaggerated when she said that she was in fear
of bodily. injury at the time she was compelled to sign on
the reverse of Exhibit I. The learned trial Judge however
said that as the defendant refused to give a :divorce unless
the ]?laintiff signed an acknowledgment to the effect that .
._the dowry had been paid, the plaintiff must be said to
have acted under undue influence so that her acknmvl-
edgment on the reverse of Exhibit I was void. In the
result, the learned trial Judge gave a decree for K 948-75
pyas as equivalent cash yalue of four tolas and five annas
weight of gold. He gave no decree for the value cf the
materials of the house alleged to have been demolished
by the defendant:
~ ,Being dissatisfied ~with the judgment and decree of the
trial Court the defendant appealed and the learned Dic;trict
Judge of Akyab by his judgment and decree in Civil Appeal
No. I3 of 1961 dismissed the plaintiff's suit on the ground
~hat under Mohammedan law the wife is at liberty to
release :her husband fro~ payment of the dowry promised
her,.;where _diVOl'Cei-s~ obtained.at her.:'own instance:.'. _:In
these . circumstances, he said, the qvestion of undue
. -influ.en<:e did not arise.
Now, the evidence in the c~se shows: tha~ the plaintiff
.. was not a~ spinster at the time she marrieef the defendant
.Maung_ Tha Aung. ~ Sne:had a.grown up son bya previous
rnarrtage.' - The tharriage between, th~ . plain~iff . and .the .
.d.efen~ant: Maung Tha. Aung also did . not appear. to tse
J
BURMA LAW REPORTS~
uneventful_. - Frequent quarrels led to a divorce between c.c.
1963
them and tq a re-union t11ereafter. At the time of the
MA HAz.\M
re-union, Exh.ibit r was executed by the def endant by KHAn;
which he acknowledged that he would have to pay her M.W:~ THA
four tolas, five anhas weight of gold as dowry and value AUNa.
of the materials of the house which he had demolished.
After this re-union a fresh quarrel seems to have broken
out between the plaintiff and the defendant over tl'l.e matter
of loss of gold which the defendant alleged had been stolen
by the plaintiff's son for the purpose of paying his own
dowry on a proposed marriage with a girl of his choice.
The theft 9f this gold was reported by both the plntiff
and the d~fendant to U Sein Hla (OW r), Sub-Inspector of
Police, but U Sein Hla thought that this was merely a
family squ~bble which should be settled before the elders.
He did not record a First Information Report.
One of the plaintiff's own witnesses Aung Kyaw (PW 4)
said that when. the talk for divorce took place the defendai).t
said that he would only consent to divorce the plaintiff if
it is recorded on the reverse of Exhibit I that the gold
which he had paid her as dowry had been stolen by her
son. J"he plaintiff agreed. However, this fact does not
appear on the reverse of Exhibit I and according to the
writer of the endorsement Abou Karshein (a) Maung Tha
Zan (PW 6),_all that the defendant then insisted upon was
that i~ should be recorded on the reverse of Exhibit I that
the 'dowry had been paid.
Be that as it may, the plaintiff's own witnesses did not
support. her story that the reverse of Exhibit I was blank
at the time she signed it. They said that the endorsement
was made and read over to the plaintiff before she affixed
her signature.
Now,. under Mohammedan - law a Khula divorce is effect-
ed by an o~er from _the wife ~o compensate the husband if
3
35.4 BUruM:A lAw .REP0R:TS.
,.
~~ he releases her .from his marital rights, and acceptance by
the husband of'the offer. On the other hand, a mubara'at
~.:!~ divor.ce unlike the khuia takes place when the aversion
~u:~ 'f.HA between the couple is. mutual and both the sides desire a
~U!::fG. separation. In a mubara'at divorce the offer may proceed
either from the wife or from the husband. Once divorce
is accepted, however, the dissolution is complete and if
operatesas a Talak~i-bain as in the case of khula.
" Unless it js otherwise provided by the contr-act, a
divorce effected by khula or mubara'at operates as a release
by the wife of her dower ....." See sections 319 and
320 o.f Principles of Mohammedan Law by D. F. Mulla, r4th
Edition}.
Applying' the principles of law above enunciated to the
facts of the present case it is clear that the divorce obtained
by the plaintiff from the defendant Maung Tha Aung was
khnla inasmuch as it resulted from her proposal. The
acceptance of the proposal by Maung Tha Aung was subject
to her signfug an acknowledgment to the effect that the
dowry had been received. It is a moot point whether the
dowry had been given to the plaintiff by the defendant
and had since been stolen by her son, or whether it had not
yet'been paid at all. In any event, whatever may be the
truth of the matter since the plaintiff who was anxious to
divorce her husband consented to sign an acknowledgment
of receipt as a condition of a khula divorce it is binding on
her.
For these reasons I consider tha~ the learned Judge of
the District Court of Akyab was right in the conclusion
arrived at byhim. In the result the appeal fails and it is
dismis~ed with-costs, Adv.ocate's fee 3 gold moh:urs.
--a
BURMA LAW REPORTS. 355
CIVlL .REVISION
BejOTI' u Kyo2D Zon u~ J.
MAZADA MOHAMED KHAN '(APPLICANT)
v.
MAUNG MAUNG GYI (a) ALFRED MAUNG GYJ .~ND o~E
(RESPONDENTS).*
Wjll-burtlm . of prt~u/-onus probandi on person who proJK~tmd ti.~ W/1 -
Succession Act, s. 63-Evidence Act 68.
\\'h<:rc th.: Court had placed the burden of proof on the Appli cant . who v. :&.
th~.huhimd ~f the d eceased, as to whether the Will of h i~ wife had been t>XN:Iltc:d
hy h -:-r under undue influence, merely because the Applicnnt had -wTittc-n to
the Cou<t from. India, that he would respect the Will.
Held : Where a Will is propounded, the onus probandi is on the parry
who propounds the Will. It is for him to show that the Will was duly executed .
. Mrs. Cecilia King and two others v. Arthur Abrett and two others, (JOOJ)
5 L.B.R. 141; G. H. Paul v. T. Thomson, (1920) 13 Bur. L.T. 8o; E.aoqf
Ahmed Semav. Is"!ailAhmed Sema and others, A.I.R. (1938) Ran. :!22, refened
to and followed.
Under s. 93 of the Succession Act, the Will must be attested by two or
more witnesses; and under s. 68 of the Evidence Act, at least one attesting
witness must be called to prove execution.
The 011.u s is n?t shifted by the qualified admission that the signature on the
wm is that of the testator.
Kesheo v. Vithal and others, A.I.R. {1925) Nag. 427, referred to.
In ordinary cases, testamentary capacity will be presumed. But the
mom~nt it is called in question, the or.us lies on those propounding to affirm
positively tite testamentary capacity.
Lachho Bibi v. Gopi Narain and others, I.L.R. 23 AU. 472, referred to.
When the propounder of the Will has discharged the omts, the burden of
p~~vin.g .~hat it was executed under undue infiuence is on the party who alleges it.
Mt. G~mtib~i v. Kanchhedilal and othus, A.I.R. (1949) (P.C.) 272 ; and
Boysev. Rossborough, (r8s6-s?) 6 H.L.C. z at page 48, followed.
Po Tha for the Applicant. .
S.A.A. Pillay for the Respondents.
Civj 1 Revision No. 57 of 1962, against the order of District Judge,
zs of 196o-.
Amherst, in CiviJMiscellaneous- Preceedings No.
BURMA LAW .REPO~TS..
C.C: U KYAW ZAN U, J-In Civil Regular Suit No. r6 of
IQ63
1962 of the Distr\c:.t,~ Col.).rt. o{, A:fllherst the respondents
MAzADA Maung Maung Gyi (a) Alfred Maung Gyi and Daw Daisy
MOHAMED
K~ (a) claiming to be the adopted son arid younger sister and
MA~c the execut;o:r and the executrix of the deceased Mrs . Gracie
MA~~?YI Khan, a 'Burmese Christian', applied for the grant ofprobate
ALFIUID of the will of the deceased, and M. M. Khan a retired in-
M:::~N~~r come-tax Officer of Burma the husband of the deceased
now residing in India raised objections that he as the
husband of the deceased is the only legal heir and the
rightful 'claimant of the estate of the deceased. He also
denied the execution of the will by the deceased and
sta~d that even if the execution was proved the will was
not to be acted upon as it was not executed by free con-
sent of the deceased bu.t under undue influence of the
respondents as the. deceased was then ill with blood pres-
sure anc;l heart trouble. The respondents denied and stated
that the appliCant (M. M. Khan) deserted the deceased since
1951 when he retired from service and left for India. Two
.issues were framed in this form by the Court :
"I. Whether the will dated the 29th April 1960
was executed and registered by Mrs. Gracie
Khan as her last Will and testament with her
free consent?
(Or)
Whether it was executed by her under und~e in-
fl.uence by the plaintiffs?
2: Whether the plaintiffs are en.titled .t o the Probate
of xb.e Will?
The first issue is not happily framed; The words "with
her free consent" appear to beredundant . ~d the ~lt~r
native .issue should hav.e .'be~n:. numbered . as issue No. .i
:andthe exis.ting issve No. 2 asis-sue.'I'fo.3 After .framing
tli~: iS'sues tli~.J:~)'~,ti(on, .Ipth... bctober 1.962 :made ;m entry
BURMA. LAW REPORTS.
in the cijary placing the burden of proof on lhe applicant' ;9~3
in respect of the second part of the issue No. 1 relying .
- MAzADA
upon a lette:r dated 29th July 1960 supposed to have been MoHAMED
written by the applicant from India to the learned trial K~
judge ,that he would respect the wiii. I am at a loss to MA~~GYI
understand how this letter could turn .t he scale against (alias)
the applicant. This letter in handwriting with the name MA~! avr
2
and address of :the applicant printed on :the top addressed AND om.
to ")be District Judge, Moulmein and signed by
II
"M.' M. Khan is filed in the process file of the record.
II
It is not known how this letter came to be filed in the
record.tas there is no entry in the diary. In the first place
the learned Judge should have ignored the letter altogether.
Paragraph 29 of the Courts Manual instructs the Judges
and Magistrates not to file or act on letters addressed by
the parties to the Court. Courts are concerned only with
pleadings, evidence and arguments before it and not with
private or personal communications on the matters in the
suit before it.
. . Now as regards the burden of proof where a will is
propo.unded, th~ onus probandi is on the party who prcr
pounds the will. Mrs. Cecilia King and two others v.,
Arthur. Abr~ and two others (I) G. H. Paul v. T. Thompso~.
. (2): Eusoof Ahmed Sema v. Ismail Ahmed Serna and
others (3). It is for him to show that it was the act of
the testator and the first poirit to be ascertained is whether
the will was duly executed. Under Section 63 of the.
Succession Act .the will in question required to be attested
by two or more witnesses and under Section 68 of the
Evidence Act it cannot be used as evidence until at least"
one attesting witness has been called for :the puwose of
proving its 'execution. Irrespective of whetl;ler the execu-.
tion of a Wil:~ is admitted or denied, it ~ the duty of th~
{1) {1909) S L.B.R. 141.. . (2) (19io) 13 Bur. L.T. 8o.
(3) A.I.R: (Iil38) Ran. 322. .
3-58 . BURMA L.A.W REPORTS.
party propounding the Will to call at least one attesting
witness. The burden, in the first instance, is on the res-
r~~'::o pondents to prove the alleged execution of the wilL . The
KHAN onus is not shifted to the opponent by his qualified admis-
v.
MAu~~ sion that the signature on the Will is that of the testator.
MA.{;[~s)GYr Kesheo v. Vithal and others (4) Following the English
l/J.~"tYI authorities it was held by the Bench of the Allahabad
ANo o~"B. High Cqurt in La.chho Bibi v. Gopi Narain and others '( s)
that the on-u.s is thrown upon the opponents to prove
fraud or undue influence only after the applicants have
. discharged their burden of proving affirmatively that the
testator knew and approved the contents of the will and
th~t. .~'-C are no circumstances which will excite any
suspicion. In ordinary cases, if there is no suggestion to
the contrary, -any man who is shown to have executed
a Will in ordinary form will be presumed to have testa-
.mentary capacity, but the moment the capacity is called
in question, as in the present case, then at once the onus
lies on thos~ propounding (respondents) to affirm PQSi.tively
the fest?mentary capacity. The point is settled in
Mt. Go.m.tibai. v. Kanchhedilal and others (6) where the
Privy Cop.neil quoting Boyse v. Rossborough (7) held that
where once it has been proved that a Will has been execut-
ed _w ith due solemnities by a person of competent under-
standing and apparently a free agent-that is. when the
propounder of the_Will has rischarged the onus the burden
of.proviD:g that it was executed under undue influence was
. .on the party who alleged it. The Privy Council continued
.to say .. It follows from what has been said that respon-
dent, I, in order to discharge the burden lying. on him,
should show that the testator executed the Will in his
right mind and wjth disposing mental capacity, and :then,
.in <;>rder to succeed, the appellant will have to . establish
that the Will was executed under undue influenc;e."
.(4) .A..I.R. (1925) N.ag. 427. (5) l.L.R. 23 AlL 472.
(6) A.l.R.' (x949) P,C. 272. (7) (r.8s6S7) 6 H.L.C. 2 at page -48.
BURMA LAW REPORTS.
It seems the trial Court gave its verbal order on 30th
August 1962 that the appiiC'ant Should begin and this
order was confirmed in its written order dated 16th October M~~=o
.
1962 in the diary. Since the trial Court has acted upon KHAN
a private letter addressed to the C6urt and not upon the Ilbtrna
~
.
p1eadmgs, . ord er wrongty p1acmg
and .t h at l,ts . t h e burden MAUNG
(alias)GYI
of proof upon the applicant i$ not sustainable in law the M~aEgYt
is
said order hereby set aside with costs. Advoc~te's fees AND oNE.
three Gold Mohurs.
BURMA LAW REPORTS.
APPELLATE CIVIL
Before U Bo Gyi, C.J. and U San Maung, J,
C.C.
.1963.
.MESSRS. TI-IE BURMFs ECONOMIC BANK, LTD.
(PEOPLE'S BANK No . .Io) (APPELLANT/APPLICANT)
June 4
v.
DA.w TIN MAY AND ONE ~SPONDENT). *
:{.imitation Act, ss. 5 and I4-PUrsuing wrong remedy-uhetlzer time spent can be
excluded.
A decree had been passed against the Appellant Bank in a summary suit on
Nego.tiaMe Instruments under o.37 of the Civil Procedure Code, on sth
August 't959
. Instead of appealing against the.decree, the Appellant filed an application
under 0.37, X: 4, ~f the Civil Precedure Code, to set aside the decree and the
applicati()n was dismissed on z9th August 196o. The Appellant then appealed
under s .. zo of the Union Judiary Act and the Appeal was dismissed on xoth
January x96z. The.Appellant then realized that the proper course would be to
appeal against the decree dated 5 August 1959
Accordingly, an appeal was filed, and it was contended that the time occupied
in m.aki.ng the application under 0.37, r. 4, of the Civil Procedure Code and in
the appeal resulting therefrom, should be excluded under s. 5 read with s. 14 of
the L~itation A1.
Held: The Application under o.37, r. 4, which was dismissed by the learned
Judge of the Original Side, was dismissed not for wantofjurisdiction, but on
th~ merits: . Therefore the time spentin prosecuting the said application cannot
be excluded under s. 5, read with s. 14 of the Limitation Act.
Moreover, if t_he Appellant was dissatisfied with the order dismissing the
saicl applicatio~, tpe proper course would be to file an application for special
leave to app~al under s. 6 of the Union Judiciary Act, and not an appeal under
. s. zo of the U:ni9n Judiciary Act, when such an appeal was bound to be dis-
missed in view of several Bench decisions on the point.
Maganf,a{ Pranjuvan Mehta v. Mrs. Champakunvar Ratilal Mehta and
.others,(x952),B.L.R. 192 (H.C.); T.C. Leong and one v. U Po Thein, (1953)
B.L.R I (H.C.), referred to.
Ba Han for ~e appellant ana applicant.
..Ba. Shun and Kyaw Myint for ij}e respoliaenfs.
. Civil First Appeal No. 14 of 1962, againstthedecreeofthe Original Side,
late HigP,. Court of Rangoon in Civil Regular Suit No. 95 of z9s.9 , dated s August
I959
BURMA LAW REPORTS. 361
U SAN MAUNG, J .-This appeal is by Messrs. The c.c.
1963
Burmese Economic Bank Ltd. against the judgment and
decree dated the .)th of August 1959 passed by the M!SSRS. THE
Original Side of the late High Court in its Civil Regular EcoNOMIC
BURMESE
Suit No. 95 of 1959, which was a summary suit on BAMK, LTD.
(PEOPLB'S
negotiable instruments under Order 37 of the Civil Pro- BANK
No. xo)
cedure Code. As the period of limitation prescribed for o.
such an appeal is 20 days this appeal which was .filed on TINDAW _MAY
the 2nd of.February 1962, was 892 days beyond the period AND ONE.
allowed by law. However, the appellant bank claimed
extension of the period of limitation under section 5 read
with section 14 of the Limitation Act on the ground that
it had been prosecuting in good faith an application under
Rule 4 of Order 37 to set aside the decree and that when
that application was dismissed by the learned Judge on
the Original Side of the late High Court (U Shu Maung. J.)
on the i9th of August 1960, an appeal was preferred
against the order of the learned Judge under section 20
of the Union Judiciary Act and that appeal was only
dismissed on the roth of January 1962. It was only when
the Appell~te Bench of the late High Court had observed
in its judgment in Civil Miscellaneous Appeal No. 41 of
1960 that the bank's application under Rule 3 of Order
37 of the Civil Procedure Code was in time that the
appellant-bank realized that a wrong remedy had been
pursued and that the proper course would have been to
have appealed against the decree dated the sth of August
1959. In these circumstances, the appellant-bank con-
tended that the time occupied in making an application
under Order 37, Rule 4 of the Civil Procedure Code and.
in the appeal resulting therefrom should be excluded
under section 5 read with section 14 of the Limitation Act..
Now, in order to understand this case properly it is.
necessary to recall briefly the history which had been fully
set out in the jti~gment of the late High Court in Civil .
362 BU~A LAW REPORTS.
Miscellaneous Appeal No. 41 of 1960. In Civil Regular
Suit No. 95 of 1959 aforesaid, Daw Tin May, \.vho is thf?
MESsRS.
THE rst respondent iri the present appeal sued the appellant,
BURMESE
Ecc>NOMIC the Burmese Economic Barrk Ltd. and its co-defendant Daw
BANK, bro.
(PEOPLE'S
Dwe May who js the 2nd respondent in the present appeaL
.!3At-:K
No. 10)
for the recovery of a sum of K r,ro,ooo alleged to be
. . t.. due on a promissory note in her favour executed by the .
DAW
TIN MAY. defenda11t Daw Dwe May and a Managing Director of the
AND ONE. Burmese Economic Bank Ltd. Summonses were served on
the defendant-bank on the 13th of July 1959 in Form 4
of Appendix B of the Civil Procedure Code. On the 22nd
of.July, r959, the learned 2nd Deputy Registrar of the.
. late High Court recorded an order in the diary of the
proceedings that the case should be submitted to the Judge
for orders under sub-rule (2) of Rule 2 of Order 37, Civil
Procedure Code that the plaintiff Daw 'fin May was
. entitled .to a decree on the basis that the allegations in
the plaint were deemed to have been admitted. On the
next day, that is, 23rd of July 1959, the defendantwbank
filed an application supported 'b y an affidavit for permis-
sion to defend the suit. It was contended by the
defendant~bank that its learned Counsel appeared on the
22nd of JU'ly 1959 to file his appearance but that he was
unable . to contact the 2nd Deputy Registrar of the late
High Court as she was not present in her office room at
the time of his visit. U Nyun Han, the lea'fned Advocate
for the .defendant-bank also filed an affidavit to the effect
that as he found the 2nd Deputy Registrar away from :her
oiiice on the :22nd of July he had to 'file the application for.
. leave to defe;nd we Suit only bn the follQwing day. 'Th~
ind Peputy Registrar of.the late High Court, however,
refused to <rccept the.applitation under Order 37, Rule 3
of.the cWi1 Proceclul'e far leave t'0 .defend. the suit a nd
submitted. die. t(fse to 'tihe leam:ed Judge {)n the Original
Side: for ri:ecessary.i(,rde~ .. The. Jear.ned j11dge {U Thau:ng
. .
SURMA LAW 'REPORTS. 363 -:--
Sein, J.) however came to the conclusion that as the ro c.c.
1963
day limit fixed by Order 37, Rtale 2. of the Civil Procedure MESSRS .
Code expired on the 22nd of July 1959, the one day's THll
BURMESE
delay in the filing of an application for leave to defend EcONOMIC
the suit could not be condoned~ The learned Judge B~x. Vro.
(PEOPL!i'S
accordingly by his order dated 4th of August 195.9 dis- BAN!(
No. 10)
missed the application and on the next day a decree for v.
DAW
the amount claimed by the plaintiff was given. . TIN M .w
AND ONE.
The defendant-bank then filed an application under
Order 37, Rule -t of the Civil Procedure Code. This rule
reads:
" After decree the Court may, under special circumstances,
set aside the decree and if necessary stay or set aside execu-
tion, and may give leave to the defendant to appear to the
summons and to defend the suit etc . . . "
This application which came before U Shu Maung, ] ., was
dismissed by the learned judge on the ground that no
special circumstances as required by ,the rule had been
shown as the .application had been made on virtually the
same ground as that which led to the order of U Th.aung
Sein, ]., dated the 4th of August 1959, refusing leave to
defend the Sllit. The defendant-bank appealed to a Bench
of the late High .Court under section 20 of the Union
judiciary Act but the appeal was dismissed on the ground
that the order of U Shu Maung, J., dated the 29th of
August 196o was not a judgment within the purview of
'that section. The appellate judgment of the late High
Court was. passed on the xoth of January 1962, and the
present appeal was filed oR the 2nd of February, 19.6 2.
At the very outset .tb,e learned Advocate for the
defendant-appellant bank contends that in coming to a
decision whether ~re is s-uffl.cien.t cause for J;l.ot preferr:
ing the appeal within :the period of limitation so as to
warrant an extension of time under section 5 of the
BURMA.. LAW: RI;.PORTS.
c ..c. . Limitation, Act the principles underlying section 14 of the.
. 1963
~~=
Act can be taken into consideration. In this connection-
he has cited .t he case of Kunwar Rajendra Bahadur Singh
l~c~~~~;c . v. Rai Rajeshwar Balj and others (r) where the Privy
BANK, L-;::o.
(PI!oPLB's
Counc1'} observed :
BANK
No. zo) ~ The question of negligence being out of the way, their
v. ~ordships are of opinion that the facts of the present case
DAW
TIN MAY disclo::;e sufficient -cause within the meaning of section s.
AND ONE.
Limitation .. Act. They are of opinion that in applying
. section 5 to such a case as the present, the analogy of section
14 rwhich applies only to suits) is an argument of consider-
. able weight. Mistaken advice given by a legal practitioner
m~y in . the circumstances of a particular case give rise to
. sufficient cause within the section though there i.s certainly
no . general doctrine which saves parties from the results of
wrong advi~e::
Another case relied upon is Sunderbai and another v.
The Collector of Belgaum and others (2) There, an appeal
which lay to the District Court was presented under com-
petent legal advice, to the High Court; the memorandum.
was returned for presentation in the District Court. At
the time of presentation to the District Court the appeal
was time barred bu.t at the time of presentation to the
High Court it was in .time. The District Judge on ail'
ex parte application, admitted the appeal without prejudice
to the question of limitation. The appeal was afterwardS~
transferred to the HighCourt, which made an order under
section .5 of .the Indian Limitation Act, that there was
.. s'ufficient cause, for the delay. It was held by theJ
Privy.Council that the order.had beenrightly m~de. i
Another case in po int is that.Ma Tin U v. U Shwe Kyu
and -four others (3): In that case t he Court of . the
AssistaiJ,t ' Judge was first
..
created
.
by the: Act. qf I945 and:
. . .
(z) A.I.R. (i937) P.C . 276. (2). ~6 I.A. 15.
' (3) (I9S8) B.L.R. IZS (SC): :
BURMA LAW REPORTS::' 365
in 1946 an appeal was by mistake filed in the Dis.trict
Court, when it should have been filed in the High Court.
MESSRS.
as the relevant enactments were not available to the TH .
BVRMESE
m~inbers of the Bar and the litigatillg public. The appeal ECONOMIC
B~K,LTD.
was heard and allowed by the District judge. On appeal (PEOPLE's
BANK
:to the ;High Court against the judgment of the District No. to)
~urt, i~ was set aside by the High Court on the g'round
f).
n ...w
that no appeal lay to the District Court. The respondent TIN M"v
AND ONB.
then filed an appeal to the High Court and prayed under
section 5 of the Limitation Act, to excuse the delay in
_presenting the appeal and the High Court excused the
delay and entertained the appeal. It was subsequently
held by the Supreme Court that the delay could have been
excused by the High Court under section 5 of the Limita-
tion Act.
In view of these decisions we are of the opinion that
'there is considerable weight in the argument of the
'learned Advocate for the defendant-appellant bank that
the principles underlying section 14 of the limitation Act
should be taken into consideration in connection with an
application for extension of time under section 5 of the
limitation Act.
Now, section 14 of the Limitation Act in so far as it
is relevant for the present purpose reads :
" In computing the period of limitation prescribed for any
suit, the time during which the plaintiff has been prosecuting
with due diligence another cjvil proceeding, whether in a
Court of first instance or in a Court of appeal, against the
defendant, shall be excluded, where the proceeding is founded
upon the same cause of action and is prosecuted in good faith
iD. a Court which, from defect of jurisdiction, or other cause
of a like nature, is unable to entertain it."
In connection with this section the followjng deGisions
may be. noticed. '
;;;BlJRMA. LAW REPORTS:
J"''
c:c. In Lal Bihari Lall and another v. Bani Madhava Khatri
19{13
and: others (1} it was. held that in a suit under Order 21.
MBSSRS.
THE Rule 63 of the Civil Procedure Code the plaintiffs were
BURMIISE
ECONOMIC entitled under section 14 (r). Limitation Act to the deduc-
B.(NK, Li'D. rion of time spent in: prosecuting in good faith and with
1
(PI!O'P.L5 8
BANK due diligence, an abortive civil revision filed under a bona
No. 10)
f). fide mistak~ of law or procedure, before the High Court
DAW
TlN MAY against the adverse order passed under Order 2r, Rule 53~
AND ONE.
Civil Procedure Code.
. 1n Mathura Singh v. Bhawani Singh and others (5) it
was h~ld that. where the inability of the Court to entertain
the former suit arose from misjoinder of plaintiffs and
causes of a~on and there was on the plaintiff's part in
the. former suit no want of good faith or due diligence.
the plaintiff. \Vas entitled to the benefit of the time during
which he was prosecuting the former suit, that is, from
the time, when the plaint in that suit was filed until the
time when it was returned for amendment.
In Subbarau Nayudu v. Yagana Pantulu and another
(6) a suit was instituted in 1892 in the Presidency Court
of Small Causes against clefendants not resident within
the jurisdic~on, the leave of the Registrar of the Court
haying ~en first obtained. Subsequently it was ruled that
the Registrar was n0.t emp0wered to give such leave and.
the suit was dismissed. A similar suit was then instituted
the leav.e of the Court having been first obtained and it
w~s held. th<i;t the time during which the first suit was
, pending should be deducted . in :the mmputation of the
. period of linritat:ion applicable to t4e second suit.
Iii Etasseri Munootta Mangalath Illath Kesavan
Nambudti and another v. Puthu~seri The-va Amma and
oth_ers (7) a person preferred appeals to the sub-Court and
. f~om .the decision therein to the High Cour.t against an
(4) A:.I.R. (1949) Pat. 293 (FB). (s) I.L.R. XXII, All. 248 (FB).
(6) i.L.R. XIX Mad. 90. (7) A.I.R. (1938) Mad. 41.
nURMA LAW REPORTS.
order of the executing Court on a claim preferred under c.c.
1963
Order 21, Rule 58 of the Civil. P10cedure Code and on the
MssRS.
High Court holding in appeal that the claimant's remedy THE
BURMEIIB
was by a suit filed under Order 2I,. Rule 63 for setting EcoNOMIC
BANt:,LTD.
aside the' order of the executing Court, he sought to (PEOPLE'S
exclude the time taken by him in prosecuting these two .BANK
No, xo)
appeals in computing the period of limitation of one year ; v.
DAW
it was held that in view of a former decision of th.e High TIN MAY
AND ON1!.
Court subsequently overruled that the claimant's remedy
was by an application under section 47 and not by a
separate suit, the person was prosecuting the appeals bona
fide in good faith and the failure of :the appeals was
accordingly " due to a cause of like nature " with want
of jurisdiction within the meaning of section 14 of the
Limitation Act.
In our opinion, however, none of these decisions art
of any assistance to the defendant-appellant bank. When
an application was made by: the bank on the I 7th of
August I959 to set aside the decree passed on the 5th of
August 1.959, ~he High Court had undoubted jurisdiction
to entertain such an application under Order 37, Rule 1
of the Civil Procedure Code provided, of course, tbat the
defendant-bank could set. out ~he special circumstances
warranting the setting aside of the decree. This applica-
tion of the bank w.as dismissed by U Shu Maung, J., not
on the ground of want of, jurisdiction to entertain it, but
on the merits. Therefore we fail to understand how the
time spent by the defendant-appellant bank in prosecuting
the application uRder Order 37, Rule 4 of the Civil Pro-
cedure Code can be excluded under section 5 of the Limita-
tion Act read with section 14 thereof.
Moreover, if the appellant-bank was dissatisfied with
the order of U Shu Maung, J., under Order 37, Rule 4 of
the Civil Procedure Code its proper course was to have
filed before :the then Supreme Court an application for
368 BURMA LAW. REPO&I:S
.
. . ~~~
special leave to appeal against it under section 6 of. the
Union Judiciary Act. Instead, the appellant-bank filed an
MESSRs.
THE appeal purporting to be under section 20 of the Union
BUllMllsE
EcoNOMic Judiciary Act before a Bench of the late High Court, when
BANK, LTD.
(PEOPLE'S s1,1ch an appeal was bound to be dismissed in view of the
BANK
No. xo) Bench decisions in Maganlal Pranjivan Mehta v. Mrs.
v.
Diw Champakunvar Ratilal Mehta and others (8) and T . C.
TIN MAY
AND ONE.
Leong ~d one v. U Po Thein (9) to the effect that the
word "judgment" in section 20 of the Union Judiciary
Act should not be accorded a wider meaning than under
the corresponding clause 13 of the Rangoon Letters Patent,
and should not therefore include a final order.
Lastly, even if the period from the 17th of August
1959, which was the date of the filing of the application
under Order 37, Rule 4 of the Civil Procedure Code, till
roth ot: January 1962, which was the da~ of the appellate
judgment in Civil Miscellaneous Appea1 No. 41 of 1960,
be excluded. the period of limitation would expire on the
r8th of January 1962. Allowing ro days for obtaining
copies of judgment and decree the appeal should have
been presented on the 29th of January 1962, the 28th
being a Sunday. The appeal was in fact presented on the
2nd February 196i and no explanation 9f the delay has
been given for these four days. As observed by a Bench
of the Lahore High Court in Kanhava Lalsardha Ram v.
Baldeo Das and others (ro) in an application under section
5 of the Limi~ation Act, it is for the applicant to justify
every day beyond the time allowed by law.
For these reasons we are unable to accede to the
application of :the det:endant-appellant ban~ for admission
of the appeal by extending the period of limitation. The
{8) (1952) B.L.R. 192 (H.C). (9) ( 1953) B.L.R. I (H.C).
(to) I.L.R. 14 Lahore, 6s6 .
appeal is accorilingly 'di~ini.ssed as barred by time. TI1e c .c.
1963
rst respondent Daw Tin May who had appeared to contest
MI!SSRS.
the application under section 5 of the Limitation Act, will TRH
B ORMBOB
be awarded costS of tlte application, Advocates fees being ECONOJ\tiC
assessed at 5 (five) gol~ mohurs. BANK, LTD,
(~OPLI!'S
BANK
No. 10)
v.
DAW
Tm MAY
AND ONB.
3J,Q.
:.;-
BURMA
. LAW REPORTS.
' .
.AJ-PE~l4,\TE CIVIL
Before U San Ma.untf dnd U Kyaw Zan U, JJ.
RAM NATH SIN~H (APPELLANT)
v;
..CHANDRIKA PRASAD AND ONE, SHEOSHANKAR PRASAD
. AND ONE, BISNATH AND ONE, u. K. BARUA AND ONE, RAM
.. GOVIND. AND ONE, RAGHU NANDAN PRASAD AND ONE,
RAM KISHORE SINGH AND ONE (RESPONDENTS).*
Garde11 land--meaning of-Land Nationalisation Act, s.3 (h)-" agJzcultural
-land"-excludes house site which is withir~ a town o1 village.
:When-in -a n ejectment suit it was alleged that th<'Plaintiffjlandlord become
the owner ofthe-suit land by virtue of a Sale which was illegal as the land in
question was " garden land '', which was not transf<~rablc under s. 4 of the Land
Nationalisation Act; and consequently the suit was not maintainable.
Held: . Under s. 3 (h) of the Land Nationalisation Act, the term" agricul-
tural. land " includes garden land, but does not include a house site which is
within a town or village.
Though-the suit land is termed" garden land", there is clear evidence to
show that it was never occupied or was ordinadly utilised or leased for agricuJ..
turarpurposes or purposes subservient to agriculture. The suit land is moTe
. or less in a town, if not a big village. Moreover, there i~~; <inn'"""'Gta.ry
evidence.. to show that the Distri::t Land Co!T'.mittec has dt:d!Dt:d to cl2s:sit}
the suit hnd as agricultural land under s. 39 of the Land>National~tion .~.
as it is a human d"\1..-elling place.
The suit landis therefore not an agricultural lar:d as cdintd ins. 3 (b) of
the Land Nationalisation Act.
Aunglandaw Ko Khin Sein and 4 others v. U lo!aung Gale, Civil Revision
No. 89/1961, referred to and followed.
Kyaw Myint and Ba Shun for the appellant.
Ba Han and Khin Maung for the respondents.
"U KYAW .ZAN \], J.-This is an appeal by special leave
under ~tion: 20 of the Union Judiciary 'Act-before it was
amended by Act No. XLI of 1962 against the judgment and
decree
. .
of the Smgle Judge
.
(U Kyaw.
Tun,
.
J~ of the late
.
Civil:Spe..:ial Appeal Nos. z,J,4,s,6,7, and 8/62, against the decree : of
the late HighCourt of Rangoon, (U Kyaw Tun, J.) in Civil zn<i AppealsNos,
70. to 76 of 1962, 4ated the. 26th March, 1962..
BURMA LAW REPORTS. -371
-;~.
High Court who set aside the judgment and decrees of both ~9~3
the trial and the first appellate Courts which gave a decree RAM NATH
to the appellant for ejectment of the first respondent from S1Ncu
v.
the suit land and for possession of the same. CuANnRIKA
~SAD
The facts put in a nutshell are that V.T. Mohamed Ab- ANo oN,
.
dulla (smce . represented by t h e second respon d- SHEOSHAKAR
deceased),, PRAsAD
ents, as his legal representative was the original owner of A;x~No:~
the suit land, and the first respondent was his monthiy u~N~.~~u"
tenant, who was permitted by him to erect a building ANo oNE,
thereon for residence. The appellant, who is a Burmese ~oGo~w
Citizen, purchased the land forK 8,500 from the owner as !:'~f.':u~~
per exhibit registered sale-deed dated 27th June 1957. The R.':~oK~~
land is termed "'[G!'. (garden-land) in the deed. .The uo.RE SxNcH
tenant failed to pay land rents due in. sp1te . of th e Jega} AND ONE. ..
notice informing him that the appellant had purchased the
land, The notice also asked the tenant to quit as the
appellant was desirous of erecting a new building on the
land but to no avail. The appellant, therefore, filed a suit
for ejectment, and for possession in the Subdivisional Court
of Pyu. . The original owner, who was impleaded in the
suit as a defendant, .confessed that the xst respondent was
his tenant when he sold the land to the appellant, but the
xst respondent though he admitted the r.eceipt.of the notice
denied the arrears of land rents due, and contended on the
main that the sale by the original owner to the appellant
was illegal under the Land Nationalisation Act inasmuch as
the land was a garden land.
Now, stripped of all the unnecessary details, for the
purpose of this appeal, the trial Court, after hearing the
evidence adduced by the appellant, the defence having
declined to , adduc~ any, decreed the suit as prayed for with
costs on contes.ted scale against the Ist respondent andon
uncontested -scale against the original owner (2nd respond-
ent). On appeal, the District Court of Toungoo upholding
the findings o( the trial Court that the appell~int is :t he
312 BURMA. ;LAW RE~Q:RTS ,
~
~.;;
ownet by virtue. of his purchase as per exhibit registered
sale-deed and that there have been arrears of rents due since
RAMiNATH
swoH the exec~tion of the sale-deed, confirmed the judgment and
t!.
CHI.'.NDRIKA decree of the trial Court, but on second appeal t:o the late
.!.:A~~~. High Court, the judgments and decrees of the two lower
SHEOsHAKAR Courts were set aside and the suit was dismissed with costs
PRASAD
AND .oNil, throughtout on the main ground raised ther=ein that the suit
BISNATH
AND oNB,
1
.an d b ~"..mg
. . 1tural 1and Wlt
an agncu h'm t he meanmg. of.
U;.!~J:~A section 3 (b) of the Land Nationalisation Act the sale was
RA...MG.ooNl!vl!(o void ab initio under section. 4 of the said Act, and c0nse-
N')- l ,
RAGau NAN- quently the appellant had no locus standi to file the suit
DAN PliiASAD
ANooNs, for ejectment for non-payment of the rents.
RAMKis-
Ho.R&SINGH . The main or rather the only point canvassed before us
AJ>ro,oNs. is that though the suit land is classified as " U-2, , i.e.
garden land; it is exempt from the operation of the tand
Nationalisation Act under: section 3 (b) of the said Act.
Now, under section 4 of the Act, no agricultural land is
permitted to be partitioned or transferred in any way con-
trary to the provisions of the Act or the rules framed there-
under. The point for consideration therefore is whether
the suit land 'is agricultural land or not. An .. agricultural
land " as defined in section 3 (b) of the Act means waste-
land, paddy land, Yah, Kaing, island or garden land. which
is, occupied, or is ordinarily utilised, or has been leased,
the
for purposes of agriculture for livelihood or for pur-
poses subservient to agriculture and includes building or
house-site on such land ; but does not include house-site
which is within a town or village. It is true the suit land
is 'termed "(3G" (garden-land). in the exhibit register-
ed sale-deed and classified as "U.-2'" in the certified copy
of th~ map filed by the appellant, but there is clear evidence
on record to. show that it was never 'occupied, or was or-
dinarily- utilised or leased fo;r purposes of agr.iculttue for
livelihood or for the purposes subservie~t to agriculture.
Th~re is also e~dence to show: that there <tl:e residenti~l
.. 373
BURMA.1.AW REPORTS.
buildings of the appellant's tenants standing on the suit c.c.
196:;
land which is in Zeyawaddy. lt is more or less a town if RAI'.iNATH
not a big village. Ram Asray Prasad, the agent of the swcH
appellant and the holder of the Union Citizenship Certi- CH~;RIKA
ficate like his principal deposed that before the purchase of ~~.
the suit land by his principal, from the second respondent s~~:~AR
as per exhibit registered sale-deed dated 27th June ~N<;.':;
1957, the 1st respondent and other tenants of the appellant M'D oNE,
u. K . DARUA
leased- their respective plots from the 2nd respondent and om.
ANI>
erected buildings on the 1and with the permission of the ~~~~
second respondent, but after the purchase these tenants !"~~~
including the Ist resp0ndent, refused to pay the land t ents AND o:-~E,
RAMKIS-
due to the appellant in spite of the demands. According to aoRE SINes
him, the suit land is residential land situated within four AND oNE.
furlongs from the southern boundary and about a mile
from the northern boundary of Zeyawaddy with the trunk
road on the east close to railway yard and sugar factory.
The land is only four furlongs from western boundary of
the village. There are also houses on the north and south
of tP,e hind as shown in exhibit may for the years 1936-37
to 1942-43. He gave his age as 32 years and deposed that
he has never seen the land being used for agriculture since
his birth in Zeyawaddy. Confirming the evidence of this
agent, Saya Pu f?W 1), the attesting witness to the sale-
deed stated that the suit land is to the south of his house
and there are about 15 houses in between. Ma Kyin May
(?W 2), a woman trader of 57 years of age deposed that
she was born in Zeyawaddy and has lived dose to the suit
land, which is surrounded by residential buildings, but she
said, she haa never seen the suit land being used as an
agricultur~ land. Since there is no rebutting evidence
th~ ~vidence must be accepted and the suit land must be
held to have been excluded from the definition of .. agricul-
tural land." Section 4 of the Act has therefore no appli-
cation. Section 3 (b) of the Act specifically excludes an
.374 .. BURMA~ LAvV REPORTS..
c.c.- . agricultural land used for dwelling purposes within a town
l96J
.. -. - . or village. The same view was held in Aunglandaw Ko
RAM NATH Kh . s .
sr~ca . m em an d t our ot hers v. u M. . aung caze, bemg
. cIVIr
CHA~ai!CA Revision No. 89/r96:.C of this Court. Over and avove the
. P~.sAo oral evidence adduced by the appellant, there is also a
AND ONE,
SHBosrfAI<AR piece of documentary evidence (Exhibit "'\"' ) to show
py h
AND o"NB, t at t e
ASAD h T n L
oungoo 1stnct an d c of
omm1ttee, cons1stmg
~No~~~ the Deputy Commissioner and the Superintendent of ~and
~.BARu.A. Records; a mongst others, has declined to classify the. suit
u.AND ONll, .
RAM GoviNo land as an agricultural land under section 39 of the Act as
~~::Uo~!k- itis a human dwelling place. The evidence shows the suit
oA;.~~~~~ land has all along been a residential area not only at the
RA~ ~~s- , time of the purchase, but also before the sale. Under the
MORE ::ilNGH .
AND oNB: circumstances, we agree that the suit land is not an agri~ul-
tural land as defined in section 3 (b) of the Land Nationali-
sation Act and uphold the findings of the trial Court and
the -first appellate Court. There js in fact no necessity to
claim from the authority concerned the benefit of the
. exemption when the definition under section 3 (b) of the
Act itself exempts the land from being classified as an
agricultural land.
There have also been concurrent findings of facts on
pther issues by both the trjal and the first appellate Courts
whi~h. rightly held on evidence that the land belongs to
. the . app~llant, who t1as derived his title under .the previous
. owner (second respondent), and his tenants including the
first respondent have failed- to pay him the req.ts due~
These findings must be accepted. .
.. In the resuit, the appear is allowed,. and the judgment
cind.decreeof the late f-Iigh -court out of which t.h is Spechil
Appeal arisesare set aside and the judgments .a nd decree$
.ofthe tda~ an<i the first appellate CourtS are.re~tored ~tli
costs throughout. . . . . . .
BURMA LA.w REPditis.
ORIGINAL CIVIL
Before U Kyaw Zan U, j .
STATE COMMERCIAL BANK (PLAINTIFF) .c.c.
' 1963
v. June S-
u BA THIN (DEFENDANT).*
p,-,j'Jz'H" 'Y '1~t~ ~~O.'J<i.i.rat.i>.'l-mit on 11ew pro-note in respect rif .tome. d.~bt
d!t~ '' d?r old prn-1?~? -pres:~mption as to consideration-Negotiable l!!strtt-
me!ltS Act, s. II8 (a)-maintainability of suit.
Th~ D!f-:ndant had r:tk;n a total ofK 77,000 from the Plaintiff Bank, znd
for which two promi s~ory notes were executed by him. Later, a pro-note for
K 75,000 was executed by him !n respect of the same debt, and the previous
pro-notes w!re canc:lled by the Plaintiff. The main issues in the s~tit were
wh~ther th~ suit pro-note wa~ executed for consideration and whether the suit
was m3intainable.
H :ld: S!nc~ th~ D :fcndant had mad~ a fresh promise to pay the amount
by executing the suit pro-note, it was executed for consideration.
According to s. 25 (3) of the Contract Act, the old debts ar!l not revived,
but it is considered to b ~ a good consideration for the promise to pay and thi~
n~w promise is 'the !ll~asure of the creditor's right. The Plaintiff Bank is not
relying upon the old notes for payment but:on the new suit note. It is alto.
~ther a new contract. It is ~ substitution and not a renewal.
Sanrll~ura Singh v. Kehr Singh, A.I.R. (1936), Lah. 1016; A_bdu1{4k}n v.
Maung Ne Dun. an.d a1other, I.L.R. 7 Ran. 292; Brajendra Kisi;or~ Roy
Chowdllu_ry v. H.~n4.ustan C()-operatiye Insurance Society , ~imited, I.L.R. 44
Cal. 978; Mrs. Nieri1eyer v. E. M. Mamooji and otlters, (1938) R.L.R. 521,
referred to: :
There,is.J;J.O need to demand payment under a p~qmis~ory ,note if th e debt is
payable o~ _demand. A pro-note. payable. on .de~anfl..i.~. l!-r-Eresent deb_t and is
payable w~tnout demand. There 1s no obllgat'lon m law iogive any notice.
T.C. Bhose v: Ob~dur Rahman ChoWdhury, iJ:.i;.R. 6 . ~. 297 (3oo);
Rf1!jit ~umar; Rfjf <!!'d, ~'lother. v .. Kabira Kisori. J14ohan ~ta and anotlJCT
I.L.R. (1940) (2) Cal. 362, referred to.
Ba Gyan for ~~ p~$1tiff.. .
B. K. Sen.for :t::li.defendant;
.U :K;y.A.w ZAtf.U, j .-. this.suit::is stykd :as a. ;, Sui~ for
recqvezyof K .83,935.~27 due on proinissory notedated 8th
July I9qo.". It was alleged that the' plaintiffBahk-iicrom-
,modated .10ari'-' and overdi:'a'ft. acilities: .to . the defendant
,. :
=~.
376
against the -security o:fmDney aHeged to have been due to
him on army contracts, but the said security became value-
1 h l h ave rescm
CoMMERCIAL ess as t e army aut 10nties
SrATJi ded the contracts
B~- for the -defaults made by him. The promissory note
u DA THIN. (Exhibit " Ka-Gyi ") is for K 7 5,000 with interest at the rate
of K 6~ per cent per annum.
The _defendant admitted the recision of the contracts
and the execution of the suit pro-note, but denied consid-
eration. Under section u8 (a) of the Negotiable Instru-
ments Act, the presumption is to be made that every
negotiable instrument was made or drawn for considera-
tion : hence .t he burden was on the defendant to show that
there was no consideration. He alleged that fraud was
practised upon him by the Bank by making him sign
the suit pro-note on .t he understanding that no suit would
be filed against him on the old pro-not~ executed by him
without any consideration, and which are now time-barred.
He contended the -suit" as framed is mot maintainable.
With the consent of the parties the following issues were
fr.amed:
I. Was the suit pro-note executed for .consideration?
2. Is the suit pro-note renewal of the old pro-notes
as alleged in paragraph 2 of rthe wr-i tten state-
ment?
3 Did the plaintiff perpetrate fraud.upon the defend-
- ant as alieged PI paragraph 2 of fue Written
statement?
4 _Is the su.it as framed maintainable?
5- What relief is the plainliff_entitled :to?
. As regards the fu"st issue, which ~ the.mllin -~ue !;in the
~tj.,J~.- -d.~~ndant ~adm;:tte~l that h~ x~-red 1,( .5\$-0f>O{i>n
E1Xhibit> -'$:!Nga ". ,pro~no~ dated: . :u>th , july- _::I~~6 and
v ' (i)f.l)O
...>-.!2ati ;(i).a._, E~..J... IJ!.-,' '... :t..Ja
.;JI!ul.b.~"' "
u1i,a. \f. t ;~..;.~ l-..~
-p.r~no e. W111U.w1 ~ars no
date 'iualdng3: Wt;a1 surtf of -~ 7.7_,.ooo~. Hefteposed thathe
.. 4
B~RMA .L AW REPORTS, 377
had assigned his debts owed to him by the Burma Army
on contracts to the Bank as per Exhibit No. 1 amounti~1g
ki STATE
ro K 2o,ooo and K 55.000 as per Ex11ib1t No. 2 rna ng a CoMMSRCtAL
total sum of K 75,000 which represents the capital for the ~~K
smt. pro-note. All t 11ese assignments
. ~ 11 t hrough as t h e u BA THtN.
1-e
contracts were rescinded but it cannot be denied that he
still owes these amounts to the Bank. He stated that he
has not been able to repay the amounts due to the Bank
as he has no cash in hand. He was frank enough to con-
fess that if he could get money he would pay up the debts
due. to the Bank. There is no doubt that the defendant
made honest attempts to pay up as shown in his letter
dated 2oth August 1957 (Exhibit "Ga-gyi ") addressed to
the Registrar of the late High Court requesting him to pay
the attached sum of about K 22,000 in the civil suit he
(defendant) filed against one U Thein Aung. Since he had
made a fresh promise to pay the amount by executing_ the
suit pro-no.te the first issue must J}.ecessarily be ans-wered
in the affirmative.
As reg.arns the 2nd issue U Tin Myint .tpw ~) the
Manager (Loans Department) of the Bank deposed that he
had c~ncelled the two old pro-notes {Exhibits " Nga " and
"Nga I " ) .and the .new suit pro-note was executed on
Sth July 1960. As a matter of fact ;he. cancelled these
notes only on the day he gave evidence thougb he admitted
that they ought to have been cancelled long ago. He
stated .that th-e twn oid :pro-netes 'were cancelled :as 'the
defendant had .executed the new suit pro-note. According
to -sub-section (3) of 2 of t:he Contract Act the old .debts
are mot .revived 'bttt it is considered to be a :good .consid-
eratian. ior tb.e promise to pay and .this new promise is
the measure 0f :the .creditor's -right. Tne;Bank is not Telyjng
upon lthe,old notes for payment but,on the new suit,note.
It is altogether a new contract. :It is a substituti9n.
Hence, the answer to this issue is in ;t~e negative.
-
-~
'318 BURMA LAW .REPOR.TS.
The third issue must also be answered in the negative.
The.defendant thought the suit pro-note was blank when
STATE
CoMMERcrAL he signed it, and said that U Tin Myint made him sign on
BANK
v, the understanding that no suit or prosecution would be
u BA THm. made-against him on account of his age and as the old
accounts and the notes could not be traced. It is hard to
believe that a man like the defendant who was a contractor
doing business to the extent of three lakhs would sign the
th.e note blindly. U Tin Myint denied the allegations. He
said he was responsible for the loan documents and if any
loss had occurred he would have been dismissed from
service. .According to him the defendant was then hand-
ling big and important contracts, and at the time of the
execution of the suit pro-note he never asked for the old
pro-note for inspection though he was ready to show them
to him.
In this suit on pro-note where execution has been
admitted the burden was on the defendant to prove that
there was no consideration. The defendant had failed to
discharge his burden. He had to admit the receipt of the
amount shown in the suit pro-note, and the fresh promise
he made for. the payment on demand. In Si:mdhura Singh
. v. Kehr Singh (1) which was a suit on pro-note, the defend-
ant denied receipt of consideration and the plaintiff, in
answer, produced documents not included in the list of
documents filed with the plaint, it was held that no adverse
inference could be drawn agai'ns'f the plaintiff. It is
interesting to rrote -rhat the. points adv-anced in the agru-
.ment of the learned Advocate:for the def~ndant were also
resolv:ed in that case; it was held there thaf for a promise
to pay a time barred'debt to be a good consid~ration; it is
not necessary. tha:tthe debtor must ex,Pressly state that he
.is renewing a. barred de~t.: Section25 of the O:mtract Act
.does not-explicitly say that the d ebtor must expressly: state
. . li
~
.....
~
:'t963] BURMA LAW REPORTS. 379
't hat he is renewing a barred debt. Where a pro-note ;9;3
stated that the entire
,
consideration had been paid in cash, 8 TATE,
but the promisee subsequently said that a part of the CoMMERCIAL
. . dbd BANK
consideration was on account of the pre-ex1stmg e ts ue v.
.
~ h 1m, 1t was _e
h ld m t h at case t11at t h e prom1se
. could U BA THIN.
prove that the actual consideration was something different
from that recited in the document. See also Abdullakin
v. Maung Ne Dun and another (2}. The learned Advocate
for the defendant complained that no demand had been
made by the Bank for payment from the defendant but
this is not fatal. In T. C. Bose v. Obedur Rahman
Chowdhury (3) it was held that if the debt is payable on
demand it is not necessary to make actual demands. Again
~ ~anjit Kumar Roy and another v. Kabiraj Kisori Mohan
Gupta and another (4) it was held that a pro-note payable
on demand is a present debt and is payable without demand.
There is no obligation in law to give any notice at all.
See also Brajendra Kishore Roy Chowdhury v. Hindustan
Co-operative Insurance Society Limited (S). The learned
Advocate for the defendant submitted that no allegations
were made in the plaint how the defendant came to execute
the suit pro-note. This is a suit on pro-note and the
observations made by Baguley, J., in Mrs. Niemeyer v.
E. M. Mamooji and others (6) are very opposite. The
learned Judge said, " Irrelevant and undue prolixity in
pleadings is also to be discouraged, and, strictly speaking,
if a suit is brought on a promissory note, all that it is
necessary to set out is that the defendants by their pro-
missory notes promised to pay and they have failed. In
the case of a promissory note consideration is presumed
and it is for the defendant, if execution is proved, to prove
that there was no consideration. When there is no reason
(2) I.L.R. 7 Rangoon 292. (3) I.L.R. 6 Rangoon 297 (300).
(4) I .L.R. (1943) 2 Calcutta 362. (5) I.L.R. 44 Calcutta 978.
(6) (1938) R.L.R. 521.
380 . :SijRMA -LA~ REPORTS.
~~ . to suppose a priori that the question .of consideration will
STATE ever come to be raised I can see no good reason why parties
Col\ntMERcrAL filing suits based on promissory notes should, in the plaint,
:AN&
.v. set out the consideratin for promissory notes. As I have
u BA THIN. s~I"d, cons1"derat1on . Is. assumed . The mere eXIstence
. . o f t he
.. promissory note in the case, therefore, prima facie implies
.that there was consideration for it, and until and unless
the .question of consideration becomes of interest, I see no
re~on why the plaint should be burdened with long details
.. of how the promissory note came to be executed. When
the question of consideration becomes of interest, then,
and then only, is there any reason for the plaintiff to set
forth what the consideration was."
For all these reasons it must be held that the suit as
framed is maintainable and a decree for payment of the
.amount claimed must be passed. Accordingly a decree
for payment of K 83,935.27 is passed against the defendant
with costs.
BURMAJ.;AW REPORTS. 1'81
"'
CIVIL MISCELLANEOUS
Before U San Matmg, U Saw Ba Thein CJf U Tun Tin, JJ.
.THE COMMISSIONER OF INCOME-TAX, BURMA
(APPLICANT).
v. lt1a~ 14.
MESSRS. PVv'INT GAUNG AND BROTHERS (RESPONDENT).*
Income-ta:c Act. s. 66 ( t) and (2)-Assessment under s. 23 (4)--?tO application
for canul/(lll(m fo r assessme11t tmder s. z;- trllflhl'r assessm~tt can be set
asid~ by Incon~- tax Appellate Tribtmal-questiOtt of law.
The Income-tu Appellate Tribunal had set aside an assessment and ordered
a ~h ooe, !n 2 =where the assessee had not applied for cancellation of
uscssment unci= ;, z; , but had merely uppealed against the quantwn.
On ...\ppli=uo n b~ the Commi;sioncr of Income-tax, the Tribunal refused to
rriu a case to the Chief Court on the ground that no question of law ~rose:-
Ik/d:--Tl!t Tcibunal was wTong in coming to the conclusion that no
qualon of law ar-ose out of itS Appellate order.
Where an Applicant has not avai lt-d himself of the provwons of s. 27 for
cancellation of assessment made under s. 23 (4), he has no right to challange in
appeal either before the Assistant Commissioner or the Income-ta.'t Appellate
Tribunal the validity of the assessment made under s. 23 (4).
U Kan Gyi v. Commissioner of Income-ta."C, Rangoon, (1~58) B.L.R... 172
(H.~.); Naba Kumar Singh Dudhuria v. Commissioner of Iru:ome-tax, Bengal,
1944 XII I.T.R. 327; Chhotelal Gobardhan Das v. Commissi011eT' of Income--tax,
U.P. (tQS3) XXIII, I.T.R. 272; Sir Padampar Singhania v. Conutriss:Umer of
Int-a~-tax, U.P. and Aj_me.t-Menvata, (1 953) XXIV I.T.R., r-t~; M.auladin
Ayuh Firm v. Commissioner of Income-tax , Bombay South, (1959) :XXXV I.T.R._t.
449, referred to and followed.
Suganclumd Kanhaiyalal Ratlii v. Commis.-ioner of ItreoTM-tmc-, (1958) .
XXXIV I.T.R., 162, referred to.
Ba Kyaw (Government Advocate} for the applicant.
U. Paing for the respondent.
U SAN MAUNG, J.-This application under section 66 (2)
of' the Burma Income-tax Act arises out of the order of
the Income-tax Appellate Tribunal, Rangoon, in its
Reference No. 9 of 1961, wherein the Tribunal refused to
Civil Miscellaneous Application No. 52 of 1961, against the order of the
Income-tax. Appc:!late Tribunal of Rangoon in Reference No. 9 .of_r961,
dated 13th }uly.t96r. . .,
BURMA .LAW REPORTS. -
c.c. iefer to the late High Court a ques~on oflaw said to have
1963
arisen out of its order dated the 8th February 196r in
~~~~~~~:;.- -Appeal No. 41 of 1960. The facts giving rise to the present
OF INCOME- application are briefly these:
TAX, BURiVI4
M~sas~ _ The respondents 'Messrs. Pwint Gaung and Brothers
. ~~~~ were assessed to income-tax for the assessment year
Bao~~~Rs. 1957-58 under section 23 (4) of the Burma Income-tax Act
on an in<;ome of K 2,59,583. Being dissatisfied with the
amount of income assessed and the amount of tax deter-
mined, the respondents filed _a n appeal before the Assistant
Commissioner of Income-tax (Appeals) who dismissed the
appeal on tbe ground that the income estimated as assessed
by the Income-tax Officer was not excessive. The res-
pondents then filed a second appeal before the Income-tax
Appellate .TJ;ibunal under section 33A of the Act on the
ground that the assessment of the Income-tax Officer \-.'as
arbitrary, excessive and unreasonable and that the
Assistant Commissioner of Income-tax was wrong in having
- confirmed the same. The Appellate Tribunal, however, by
its order dated the 8th February 1961 in Appeal No. 41 of
1960 set aside the assessment and directed the Income-tax
. Officer .to . make a fresh one. In this connection.
tbe Tribunal.said "Taking all the facts and circumstances
of the case into consideration, we are of opinion that a
fresh assessment would be fairer and more proper ; and
. consequently, we set aside the assessment and directed th~ ,
Income-tax Officer to make a fresh one from the stage at
which the return had been filed by the appellant firm .....!
. The Commissioner of Income-tax, Burma, being -dissatisfied
with ,t he, order of the Tribunal applied to itunder section,
66.(z-).-of the Burma Inc~me-tax Act to refer to this Co~ ,
the following question of law said to_havearisenout of the ,
order,of the Tribunal:
. : ~~ -Whether in the circu~stances o~ thecase the Incom_MaX:
. Appellate -Tribunal had rightly set aside the assessment made
BURMA LAW REPOR'fS. 383
under section 23 (4) where the respondent had not applied
under section 27 and where the respondent's appeal to the
Tribunal is against the quantum only " . THE CoM-
MISSIONER OF
INCOME-TAX,
The Tribunal. however, by its order in Reference No. 9 of BuRMA
1961 refused to refer the case to this Court on the ground Mt~ns.
PWINT
that no question of law had arisen out of its Appellate GAuNa AND
BROTHERS.
order. Hence, the present application to th1s Court by the
Commissioner of Income-tax, Burma, under sectio'lli 66 (2)
of the Burma Income-tax Act.
In our opinion, the Tribunal was wrong in corning to
the conclusion that no question of law had arisen out of
its Appellate order. In U Kan Gyi v. Commissioner of
Income-tax. Rangoon (r) it was held following the decision
in Naba Kumar Singh Dudhuria v. Commissioner
of Income-tax, Bengal (2) that where an applicant has not
availed himself of the provisions of section 2 7 of the
Income-tax Act for cancellation of assessment made under
section ~3 (4), he has no right to challenge in appeal either
before the Assistant Commissioner or before the Appellate
Tribunal the validity of the assessment made under section
23 (4). To the same effect are the desions in Clzhotelal
Gobardhan Das v. Commissioner of Income-tax, U .P. (3),
Sir Padampat Singhania v. Commissioner of Income-tax, U.
P. and Ajmer-Merwara (4) and Mauladin Ayub Firm v.
Commissioner of Income-tax, Bombay South (5). A recent
decision to the contrary is to be found in Suganchand
Kanhaivalal Rathi v. Commissioner of Income-tax.(6).
The Income-tax Appellate Tribunal had tried to justify
its action on the ground that because the Assistant Com-
missioner of Income-tax had wrongly considere.d the ques-
tion whether the Income-tax Officer was justified in making
(1) (1958) B.L.R. 172. (HC). (4) (1953) XXIV I.T.R. 141.
(z) (1944) XII I.T.R. 327. (S) (1959) XXXV I.T.R. 449
(3) (1953) XXIII I.T.R. 272. (6) (1958) XXXIV I.T.R. 162.
BBRMA LAW-- REPORTS.
an assessment under section 23 (4), it had 'jurisdiction to
go into the same question. \Vhether this view of the
'!'Hz.CoM-or-
Z..ii.i;Sw~rn Income-tax Appe11ate Tn1'buna l 1s
. or not correct 1.s
. a ques-
Il'icoME-1'AX, tion -of law.
BURM.\
v . .,
M!lSsns.
For these reasons \,c would direct . the Income-t<1x Ap-
Pwtl'T pellate Tribunal to state the case and refer to this Court.
G ..WN'G ANI)
BnoTusns. the question of law involved therein. There wilt be no
order as.to costs.
BiitMA LAW REPORTS. 385
CIVIL REFERENCE
Before U San Maung, U Saw Ba Thein & U Tun Tin, JJ.
THE COMMISSIONER OF INCOME-TAX, BURMA c.c.
1963
(APPLIC~
May 9
v.
THE RANGOON TIN FACTORY {RE.SPONDENT)*
Burma Income-tax Act, s. 26A-Application for renewal of registration-firm
registered under Registration Act only after the date or order nf I .T.O.-
whether such application to be accepted.
Fo: the assessment year I9S8-S9. the assessee had applied for renewal of
ngistration under s. 26A of the Burma Income-tax Act, on 30th December
1958. The Partnership deed of the firm had been registered under the
Partnership .~ct on that date, but the registration under the Registration Act
was done only on 28th April I9S9
On 17th J une 1959 the I.T.O. passed an order refusing renewal of registra-
tion on the ground that tl:ie Deed of Partnership was not duly registered under
the R~gistration Act on the date of presentation of the application.
T'ne A~sistant Commissioner (Appeals) upheld the said order but the
Income-tax Appellate Tribunal, held that under the circumstances the I.T.O.
was bound to register the firm.
The Commissioner of Income-tax being dissatisfied with the said order'
the Tribunal referred the question to the Chief Court.
H e/d:-Sub-section (1) of section z6A of the Burma Income-tax Act read
with the proviso thereto clearly lays down that in order that a firm may be able
to make to the. Income-tax Officer the necessary application for registration it
must be (x) constituted by an instrument of partnership specifyin!; the individual
shares of the partners; (2) if situated in any area to which the provisions of the
Registration Act apply, the instrument of partnership has been registered under
the R~gistration Act and (3) if situated in any area to which the provisions of
Chapter VII of the Partnership Act apply, duly registered under the Partnership
Act.
It is not sufficient that at the time of the application for registration under
section 26A is made, the firm is in the process of being registered under the
Partnership Act or that the instrument of partnership should be in the process
of b::ing -registered under the Registration Act.
The words" is registered" and the .word.'!" is duly registere... " appearing
in proviso (a) and proviso (b) to sub-section (x) of section 26A have the same
* Arising out of Civil Reference No. 19 of I96o against the order of the
Income-tax Appellate Tribunal of Rangoon in Appeal No. 2.5 of r96o, dated
x8th May 1960. .
5
BURMA LAw""'::REPOR.TS.
c.C. force as the word~ " has been registered ~ and" has been duly regist ered" as
1963 the ca~e may be.
Commissio11er of I7!come-tax , Nl~dras v . D. Arokiaswami Chetti and Co ...
TBECOM
MISSIONER OF (1948), XV, I.T.R., p . 404; K~hiram Bhajat~ L al v. Commissioner of !ncom~tax ~
ItccGME-TAX, U.P. (1962), XLV l.T.R. , p. r , referred to.
BmM~
~ Ba Kyaw (Government Advocate) for U!e applicant.
~~:c~ U Paing for the respondent.
TORY.
U SAw MAUNG, ].-This reference under section 66 (r)>
of the Burma Income-tax Act arises out of the order dated
the 19th of May 196o passed by the Income-tax Appellate
Tribunal, Rangoon, in Appeal No. 25 of 1960. The ques-
tion referred by the Tribunal to' the late High Court is in
the following terms :
" Whether in the circumstances of the <:ase, the Income-tax
Appellate Tribunal was right in law in directing the Income-
tax Officer to accept the application for renewal of registra-
tion under section 26A of Burma ln{;ome-tax Act, where the
deed of partnership was registered under the Registration Act.
after the date of the applicatoin, but before the date of order
of the Income-tax Officer."
The facts giving rise to the reference which have been
set out by the Tribunal in its statement of the case are
these. For .the assessment year 195859. the Rangoon Tin
Factory Of No. 15, 15th Street, Rangoon, applied for the
renewal of registration under section 26A of the Burma
Income-tax Act. At the time of the application which
was filed on the 3oth December 1958, the deed of partner-
ship by which the firm was constituted had been registered
under the Partnership Act, but. had not yet been registered
under the Registration Act. The respondent firm then
applied W have its partner~hip deed registered un~r -t he
Registration Act and.this was duly done Dn the 28th April
1959. On the 17th June 1959 after the partnership deed
had been registered under the Registration Act, the Income-
tax Officer passed an order refusing to have the registra-
tion under section z6A of the Burma Income-tax Act
BURMA LAW REPORTS. 387
renewed on the ground that the deed of partnership was c.~.
. . h
not duly registered under th e Reg~stranon Act on t e ate d -19 3
-
. of t he app}'I canon
of the presentation . f or reg~stratlon.
. . The MISSIONER
THE CoM-
oF
respondent firm then appealed before the Assistant Com- IN~=Ax,
missioner (Appeals), but the Assist~nt Commissioner con- - ;~
firmed the order of the Income-tax Officer refusing renewal RANGooN
of registration. The finn made a further appeal to the TlN FAC-
TORY.
Income-tax Appellate Tribunal and the Tribunal holding
that so long as the firm seeking to have its Comp~ny regis-
tered, or to have its registration renewed under section
26A of the Burma Income-tax Act, had its partnership
deed registered under the Registration Act, and the firm
itself registered under the Partnership Act before 0rders
are passed by the Income-tax Officer regarding lts applica-
tion under section 26A, the Income-tax Officer was bound
to register the firm under the Burma Income-tax Act. The
Commissioner of Income-tax being dissatisfied with the
order of the Tribunal made an application to the Tribunal
to refer to the late High Court the question of law involved
and the Tribunal-had referred to the late High Court the
question referred to above.
Now, section 26A of the Burma Income-tax Act as
inserted by the Burma Income-tax (Second Amendment)
Act, 1957 which came into force on the 1st October 1957
reads:
"26A. _ (I) Application may be made to the Income-tax
Officer on behalf of any firm, constituted by an instrument
of partnership specifying the individual shares of the partners,
for registration for the purposes of this Act and of any other
enactment for the time being in force relating to income-tax
or super-tax:
Provided that-
(a) in the case of a firm situated. in any area to which
the provisions of the Registration Act apply, such
instrument of Partnership iS registered under the
Registration Act; and
BU8MA
=+-
LAW REPORTS.
c.c. (b) in the case of a firm situated in any area to- which
1963
the provisions of Chapter VII of the Partnership
THll CoM- Act apply. such firm is duly registered under the
MISSIONER OF
lNcpMETAX, Partnership Act.
B~MA,.
v. _(2) The application shall be made by such persons, and
THE at such times and shall contain such particulars and shall
RANGOON ..
TIN.f~c be in such form, and be verified in such manner, as may be
TORY. prescribed ; and it shall be dealt with by the Income-tax
Officer in such manner as may prescribed."
Proviso to Rule 2 relating to applications for registra-
tiQn under section 26A of the A<::t is in the following
terms:
'
" ProVl.ded that the Income-tax Officer may, for special
reasons entertain an application made three months after
the expiry of the time-limit specified in this Rule for the as-
sessment for the year ending on the 30th day of Sept-ember
1959 ; and in any other case where the firm ~atisfies the
Income-tax Officer that it was prevented by sufficient cause
f:rom making the application within the time specified in this
Rule, he may, with the previous approval of the AsSistant
Commissioner, entertain the application."
The proviso to Rule 6 relating to renewal of registra-
tion is in the following terms :
".Provided that the Income-tax Officer may for special
reasons entertain an application made three months after the
expiry of the said date f<?r the assessment for the year ending
on th~ 30th .day of September 1959, and in any other case
where the firm satisfies the Income-tax Officer that it was
p-revented by sufficient cause from making the application
within the 1;ime specified in this Rule, he may with the
previous . approval of the Assistant Commissioner, entet1ain
the application."
In our opinion, sub-section ( r~ of section 26A of the
Burma Income-tax Ad read wi the proviso ~hereto clear-
ly fays dpwn that in order that a firm may be able to
make to the Income~tax Officer the necessary application
. .:.
--~BURMA LAW REPORTS. 38W:
for registration it must be (1) constituted by an instru- c. c.
ment of partnership specifying the individual sharec; of
the partners; (2) if situated in any are'a to which the M~~~o~~~r~F
provisions of the Registration Act, apply, the instrument lN~MB-TAx,
,uURMA
of partnership has been registered under the Registration v.
THB
Act and (3) if situated in any area to vvhich the provisions RANGOoN
of Chapter VII of the Partnership Act apply, duly regis- T:!~c- .
tered under the Partnership Act.
It is not sufficient that at the time of the application
for registration under section 26A is made, the firm is
in the process of being registered under the Partnership
Act or that the instrument of partnership should be jn the
process of being registered under the. Registration Ad.
In other words, the words " is registered " and the
words "is duly registered" appearing in proviso (a) and
proviso (b) to sub-section (r) of section 26A have the same
force as the -words " has been registered " and " has been
duly registered " as the case may be.
Because section 26A as amended came into force on
the 1st October 1957 it affects the" previous year" ending
the 30th September I 9 58 relating to the assessment year
ending the 30th September 1959 It is apparently for .this
reason that in the provisions to Rule i and Rule 6 relating
to the application for registration and for renewal of re-
gistration of partnership under the Burma Income-tax Act,
it is specifically laid down that the Income-tax Officer may,.
for special reasons, entertain an application made three
months after the expiry of the time-limit specified in the
rule for the assessment year ending the 30th of September
1959 without obtaining the previous approval of the Assis-
tant Commissioner of Income-tax. Such an approval
would be necessary for subsequent assessment years
In favour of the view that the same consideration
applies to registration of a firm under the .Burma Income-
tax Act as it is to renewal of registration, is the case of
BURMA -.LAW:)mPORTS.
c.c. the Commissioner of Income-tax, Madras v. D. Arokia-
1963 swami Chetti and Co. (r). There it was pointed out that
TaE CoM- section 26A does not in terms refer to renewal of regis-
MISSIONER OF l f . . ff
INcoME-nx, tration as every renewa o reg1strat1on IS m e ect a regis-
lBuRMA tration under that section.
V
~~oN The learned Advocate for the respondent .firm has in-
Tm FAc- vited our attention to the case of Kashiram Bhajan Lal
TORT. v. Commissioner of Income-tax, U.P. (2). There it was
held that the proviso to section 30 (r) has to be interpreted
in the context, that by the main clause the right of appeal
. has been expressly conferred, and that the tru construc-
tion 0f section 30 (r) is that the kgislatur.e intended to
-eonfer a right of appeal in every case of imposition of
' penalty but qualified that right by -saying that it shall not
be effective unless the tax is paid. Therefore, even if the
tax is paid on the date of hearing, the appeal would be
competent and the case can be,~eard on the merits.
In our opinion as the law has been dearly laid down
in section 26A of the Burma Income-tax Act read with
the proviso thereto, there is no room for interpretation
in the sense that it would be sufficient if the requirements
o f the proviso had been fulfilled by the date of the order,
if not already fulfilled at the date of the application for
registration.
For these reasons our answer to the question propound-
.ed by the Income-tax Appellate Tribunal is in the negative.
There wiU be nq order a5 to costs of this reference.
--.;
BURMA LAW REPOR"F-S. 391
APPELLATE CRIMINAL
Before U Kyaw Zatr U, J.
UNION OF BURMA (APPELLANT)
c.c.
1963
v. May 8.
M. E. JOSEPH (RESPONDENT).*
Penal Code, s. 2Q4A-drawing, promoting and conducting and lo~ery-scheme
fort~ distribution of plastic baskt tl for purchasers of tins of coffu containing
a coupon-rohether a lottery.
The R~pondent was acquirted of a charge \mder s. 294A of the Penal Code,
for or!l"a'lising a scheme for the distribution of prize~, namely plastic baskets,
by insening a coupon in the tins of coffee sold by him.
O:t appeal asrainst acquittal by the Government.
H41d: s- 29 of the Penal Code has been amended by Act 32 of 196o and
-tbe section is not confined to " drawing", but now extends to "promoting or
conducting any lottery".
The word "lottery is not defined in any statute. Its common meaning
'is an arrangement for distributing prizes by chances.
What a purchaser bought was not. only a tin of coffee, but also a cbance of
"$etting a plastic basket.
Th~ R:spqndent is therefore guilty of an offence under s. 294-A of the
Penal Code.
Tun Nyo (Government Advocate) for the appellant.
13. K. Sen for the respondent.
U KYAW ZAN U, J.-This is an appeal by the Govern-
ment under section 417 of the Code of Criminal Procedure
to set aside the order .of acquital of the respondent by the
learned 4th Additional Magistrate of Rangoon in ~
Criminal Summary Trial No. 129 of 1962 wherein he was
prosecuted under section 294A of the Penal Code as
.amep.ded for organizing a scheme for the .distribution of
-priZes or gifts, namely, plastic baskets, by chance to the
purchasers of his 3 lb. tins of coffee that contained .a
Criminal Appeal No. 73 of 1963 . . Appeal from the order of the sth
Adiitional Magistrate of Rangoon, dated the 29th day of October 1962., passed
in Criminal Summary Trial No. 12.93 of 1962..
392 -4t.BURMA
'*''
LAW REPORTS.
coupon. The respondent is a Jew and according to his
UNION OF
learned Advocate he is a foreigner. There are no facts
BURMA in dispute.
v.
.
M.E.JosEPH. It seems the trial e ourt was not aware of Act XXXI I
of 1960 which amended section 294A of the Penal Code.
The section is no longer confined to " drawing ", which,
used in its physical sense, means act of pulling or extract-
ing a card or coupon .from the pack or taking lots. Its
meaning relative to a lottery is the drawing by some
mechanical or human a.gency involving chance extraction.
The section now extends to " promoting or conducting
any lottery ". Therefore, if a. person merely promotes or
. conducts a lott-ery he is liable under the section. . Before
the amendment if a .Person promoted or conducted a
lottery but there was no " drawing " he was not liable
as in the case of Vazirally v. Emperor. (rJ relied upon by
the trial Court though it was held that the transaction
amounted to a lottery. The actual drawing of lots is no
longer an essential ingredient under the law as amended.
The word " Jottery " is nowhere defined in the
Criminar Codes ~r in any other Statute. that i know of.
Its common meaning is an arrangement for distributing
prizes by chance. A prize ticket or coupon for. a plastic
basket was inserted by the respondent in some tins and
if a buyer happened to get a tin with a ticket or coupon
.~ide he did not have .to pay anything extra but' would
get a :plastic basket as tlie' p:r.ize: I~ was his go'od chance
or luck. . 'What he purtbased was not only a tin of coffee
but .'~I~ ~ chance ~ g~tting a plastic basket. In making
Ills :purCb!iSe he exercised no choice and .g ot the prize
Without aciion of his own will, but as the :result of mere
~ance or accident. If the scheme had .. been to give a
plastic .basket if the purchaser by chance obtained the tin
(1) A.I.R. 1928 Bom. S'SO
BURMA LAW REPORTS.
that contained the ticket or coupon paying the same fixed
price there could have been no question that it would
UNIO N OF
have been a lottery. The principle underlying a lottery B uRM A
is that there should be a distribution. of prizes determined M.E.JosEPH.
solely by chance.
For the reasons given I find the respondent guilty under
section 294A (I) of the Penal Code and accordingly the
order of acquittal is hereby set aside. Taking into con-
sideration that his scheme was purely to promote his own
coffee in the market in competition with other makes
without seriously effecting :the public morals, I do not
think a severe sentence is called for. He is therefore
sentenced to pay a fine of K 200 (Kyats two hundred only)
or in default to suffer one month's rigorous imprisonment.
.'394 BURMA ~t~W . REPOR1f'S.
APPELLATE CIVU..
Before U Bo Gyi, C.J. and U San Maung,J.
c.c. U I\,YAW (APPELLANT)
196.-J
May u.
v.
U AH CHUN (a) U BA YONE (RESPONDENT).*
Sham and.fictitious document to cloak real t1an.saction-hire agreement to cloak
loan transaction- sham and fictitious nature of document ca1z be proved-
Evidence Act, ss. 91 and 92 -Admission of Advocate when binding on client.
The Plaintiff had filed a suit on an alleged hire agreement of a Cinema
sound projector, and the Defendant had stated in his written statement that
it was a sham and fictitious agreement and that the real relationship be'tween
them was that of borrower and.lender.
The learned Advocate for the Defendant had agreed that on the
pleadings no issues need be proved. The learned tdal J udge then
decreed the Plai~tifF'a s\l.it on tl'!e pieadings alone.
On Appeai:-He/d: The leamed trial Judge had taken -amistaken view in
thinking that the written statement disclosed on defence. The admission
made by the Advocate for the Defendant-Appellant that on the pleadings no
issues need b e framed, is not binding on the Defendant-Appel lant as it is not
an admission of fact. Besides it was the dury of the trial Judge to discover
whether the written statement disclosed any defence~ not.
He!dfurtlu!r: Evidence of a sham or fictitious nature of a document is not
excluded by s. 92 the of Evidence Act.
Shio Karan Singh v. Surya Nath Singh and two others, (1959) B.L.R. 207,
followed.
Also, oral evidence is admissible to show that a document executed by a
person was nevt'r intended to operate as an ag~:eement, but was brought into
exist-ence solely for the purpose of creating evidence about some other matter.
Tyagaraja Mudaliyar and another v. Vedathanni, A.I.R. (1936) Privy
Council, referred to and followed.
According!y the suit was r emanded foF trial on the merits.
Pha Tha Htaw for the appellant.
Tun M aung for the respondent.
'
U SAN MAUNG, J.-In Civil Regular Suit No. 2 of 1961
of the District Court of Myaungmya out of which this
appeal has arisen, the plaintiff U Ah Chun (a) U Ba Yone,
Civil First Appeal No. 107 of 1961 against the decree of the District
Court of My:ai.mgmya in Civil Reguiar Suit No. z of 1Q61, dated 28th
September 1961 .
BURMA'LAW REPORTS. 395
who is the respondent in the present appeal sued the ?9~j
defendant~appellant U Kyaw for the recovery of one cinema u KYAW
sound projector complete with equipment alleged to have o.
. u AH CHliN
been hired out by him to the defendant at a rental of _(a)
. h }. d U BA YoNE.
K 320 per mensem. In the alternanve e c a1me a sum
of K r6,ooo as value of the said projector. He also claimed
K 640 as compensation for use made by the defendant for
a period. of two months after he had been called upon to
return the projector.
With the plaint is an agreement purported to have
been signed by the defendant for the hire of the projector
in terms contained therein. The defendant by his written
statement admitted having executed the agreement in
question. On the other hand, the defendant said that it
was a sham and fictitious document which he had to
execute to cloak the real transaction between him and the
plaintiff. On the roth July 1956 the defendant :had
borrowed from the plaintiff a sum of K r6,ooo .for the
purpose of purchasing the projector in question. Later,
another sum of K 7,ooo was also borrmved for the same
purpose. The document by which the defendant purported
to take a hire of the projector in question was executed
by the defendant at the plaintiff's request in order to cloak
the relationship between him and the plaintiff which
was that of borrower and lender of money. The sum
borrowed had already been _repaid by the defendant to the
plaintiff.
The plaintiff by his reply to the defendant's written
statement contended that since the defendant had admitted
'having executed the agreement in question, all extraneous
evidence regarding the nature of the transaction between
him and the plaintiff was excluded by section 92 of the
Evidence Act. Accordingly, the plaintiff contended that
a O.ecree should be given to him on the strength of the
396 .. BURMA LAW REPORTS .
. c.c. admission made by the defendant regarding the execution
1963
UKYAW
of the document in question.
'IJ.
u AaCauN The learned Pleader for the defendant after filing several
{a)
U BA Y'oNE. suggested issues seemed to have agreed with the learned
Advocate for the plaintiff that on the pleadings no issue
need be framed. The defendant, however, sought to amend
paragraph I of the written statement to make it specific
that he had never taken the projector on hire from the
plaintiff as he and not the plaintiff was the owner thereof.
However, the learned Judge refused to allow the proposed
amel}dment on the ground that the defendant had not
submitted a proposed amended written statement embooy-
ing the amen{i.meiit.
The learned Judge then decreed the plaintiff-s suit on
the ground that on the pleadings alone the plaintiff was
entitled to a . decree as prayed for by him. Hence the
present appeal by _ the d~fendant. In our opinion, the
learned trial.-Judge had taken a mistaken view of the case
by coming to the conclusion that the written statement of
the defendant <lid not disclose any defence. In fact, among
the suggested issues filed by the learned Pleader for the
defendant, there is one vital issue, namely, "\1\fhether the
agreement mentioned in paragraph I of the plaint is a:
sham and fictitious document under the circumstances men-
tioned in paragraph I of the written statement and whether
it is legally binding on the defendant.''
The . mistaken admission later made by the learned
Pleader for the defendant that on the pleadings no issue
need be framed, is not binding on the defendant as it is not
an admission of fa~t . Besides, it was the duty . of the
..}earned District Judge to discover whether the written:
statement did or did not disclose any defence.
BURMA LAW REPORTS.
In this connection, the attention of the learned Judge
is invited to the .case: bf Shio Karan Singh v. Surya Nath
. h ld h 'd
Singh and two others (1) where 1t was e t at ev1 ence JS
. U KYAW
v.
admissible in proof of the sham or fictitious nature of a u A(a~HUN
document and that such evidence is no~ excluded by section u B' YoNB .
92 of the Evidence Act.
See also the case of Tyagaraja Mudaliyar and another
v. Vedathanni (2) where it was held that' section JI only
excludes oral evidence as to the terms of a wr-itten contract
.and that therefore oral evidence is admissible to show that
.a document executed by a person was never intended to
-~perate as an agreement, but was brought into e~istence
solely for the purpose of creating evidence about some
<>ther matter.
For these . reasons we consider that the learned trial
Judge was wrong in having decreed the plaintiff's suit
without giving an opportunity to the defendant to
substantiate the defence which he had set out in his
written statement. In the result the appeal succeeds. The
judgment and decree appealed against are set aside and
under Order XLI, Rule 23 of the Civil Procedure Code, the
suit is remanded to the trial Court for admission under its
<Original number and for trjal according to law in the light
of the remarks made above. Costs must abide . the fi.nal
result .o f :the suit on the merits; Advocate's fees in this
.appeal being assessed at five gold mohurs.
A certificate for the refund of court-fees paid on the
memor.a ndum of appeal will be issued to the appellant
under section I 3 of the Court Fees Act.
(x) (1959) B.L.R. 207. (z) A .I .R. (1936) Privy Council 70.
398. lRJRMA~ LAW RRPORTS.
CIVIL MISCELLANEOUS
Before U Bo Gyi, C.J., a11d U San Maung,J.
c.c.
I96J U KY.AUK SEIN (APPLICANT)
MayS V.
THE FINANCIAL COMMISSIONER, BURMA A.ND THREE
OTHERS (RESPONDENT}.*
Writ of Certiorari--onler of ~mu OfJUn , Income-tax Department directing
appointme-n t of Ret:eitNr for taking charg~ of assessee's properties--whether
made witP.iTJ~-
Under the various Notifications issued by the Commissioner of Income-tax:
and the Ministry of Finance and Revenue, a Revenue Officer of the Income-tax
Department has jurisdiction t-o pass an order di.r.ecting that a Receiver be
appointed to take charge of the properties belonging to an assessee and which
has been attached for the recovery of income-tax.
Ba Swe for the applicant.
Ba Kyaw (Government Advocate) for the respondent.
U SAN MAUNG, J.-This is an application by U Kyaulc
Sein for himself and as a legal representative of his deceased
wife Daw Aye Kyi to quash by the issue of a writ of"
certiorari the order of the Revenue Officer, Income-tax.
Department, dated the 19th October 1962 in his Proceeding
No. 4) -7/6o-6r. By that order the Revenue Officer
<lirected that a Receiver should be appointed to take charge
of the properties belonging to the deceased Daw Aye Kyi'
which had been attached for the recovery of income-tax:
of over K 3s.oo,ooo due by her for the assessment years
1955-56 to 19s8-59 Among these properties were the-
President Cinema situated at Signal Pagoda Road and furni--
ture and eqllipment installed therein, the Carlton Cinema
situated at B?gyoke Aung San Road. It is contended inter
alia 'b y U Kya-qk ~in that these properties belonged to him:
Civil Misce~laneous Application No. 35 of 1963.
-
BURMA LAW .,BEPORTS.
.
and not to his deceased wife Daw Aye Kyi and that in any
event the Revenue Officer concerned had no jurisdiction
u KYA.u!C:
to pass the order now sought to be quashed. SEIN
v.
However, the only point argued
by the learned F THE
lNANCIAL
Advocate for the applicant is regarding the jurisdiction of Co'M~us-
. SIONER,
the Revenue Officer concerned. The learned Advocate BuRMA AND-
contends that under . sub-section
. f . 6 f h
(~ o section 4 o t e
THREE
oTHERS.
Burma Income-tax Act, it is only the Collector of the
District who has the power to recover arrears of income-
tax on a certificate forwarded to him by the Income-tax
Officer under section 45, as if such arrears were sums due
under a decree and also to exercise the powers of a .civil
Court for this purpose. On the other hand, the learned
Government Advocate contends that the learned A<lvocate
for the applicant has overlooked the provision of sub-
section (3) of section 46 by which the Commissioner of
Income-tax can direct that any arrears may be recovered
by any process enforceable for the recovery of an arrear
of Municipal-tax and that the Income-tax Officer may t\ien
proceed to recover the amount due by such proc~:l'< He
has invited the attention of the Court to Notification No. 2,
dated the 6th July 1957 of the Commissioner of Income-
tax, Burma, wherein the Commissioner has directed that
within the limits of Rangoon Municipal area, arrears of
income-tax should be recovered by any process enforceable
for the recovery of arrears of Municipal-tax. The learned
Government Advocate has also invited the attention of the
Court to Notification No. 290, dated 3rd JulY. 1957 of the
Department of Finance and Rev~nue, wherein all officers
of Income-tax Department deputed for duty under the
Assistant Commissioner of Income-tax (Administration}
have been invested by the President of the Union under
section 45 of the Land and Revenue Act with the powers
IURMA LAW REPORT$;
of the Revenue Officer, who may exercise the powers of a
civil Court executing a Clecree, when taking steps to realize
u KYAUK
SinN arrears of land revenue. He contends that since under
v.
THE
section 194 of the 9ty of Rangoon Municipal Act any
FINANCIAL
COMMIS-
arrears of tax claimable by the Corporation under the Act
B~:BR~No may be recovered as if they were arrears of land re\en ue,
THREE arrears of income-tax may also be recovered as arrears of
OTHERs.
land revenue and that under section 45 of the Land and
_. Revenue Act an arrear may be realized as if it was the
amount of a decree for money passed against a defaulter in
favour of any Revenue Officer whom the President of the
-- Union may.from time to ti~e appoint in this behalf. These
officers. are -those mentioned in Notification No .. 289 dated
the 3rd July 1957 of the Department of Finance and
. Revenue. Therefore, the learned Government Advocate
contends that the 1ncome-tax Officer whose order is sought
to be quashed by the issue of a writ of certiorari had the
jurisdiction to pass the order which he did.
In our opinion, the contention of the learned Govern-
ment Advocate must be allowed to prevail. Firstly, the
arrears of -income-tax may be recO\ered as though they
are arrears of Municipal-tax because of the notification by
, the Commissioner of Income-tax under sub-section (3) of
section. 46. Secondly, arrears of Municipal-tax may be
. recovered as if they are arrears of land revenue vide section
L94 of the City of Rangoon Municipal Act. Thirdly,
. arrears of land revenue may be recovered as if they are .
monies due .under a decree. Fourthly, the officers con-
-cerned have -.been duly invested by the President of the -
Uriion . with .powers under section 45 of the Land and
. Revenue Act-.- Officers mentioned in Notification No. 289
are th~se in whose favour a decree may be deemed to have
. been passed. Officers mentioned. in N9tification No. 29o
BURMA LAW REPORTS:::f. 401
are those who can exercise the powers of the civil Court c.c.
1963
executing a decree.
u KYUAK
In the result the application fails and it is dismissed ~~~
v.
with costs. Advocate fees being_ assessed at ten gold
"'THB
mohurs. FINANCIAL
CoMMis-
SIONBR,
BURMA AND
THREll
OTHERS.
6
402 ~lLJi~ LA~. REPORTS.
APPELLATE CIVIL
Before U S an J fmmg . J.
c.c: u THEIN sHvVE AND o~E (APPELLANTs)
1963
v.
;June ~.
u MAUNG MAUNG AND Ol'<E {RESPONDENTS)'.*
Urban Rent Control Act, 1960, s. 12 (r} (c)- ejectment decree passed on account
of conviction for gambling committed after the expiry of the 1948 Act and
before "the enactment of the 196o Act--whether suit maintainable-whether
s. 12 (x) (c) can operate retrospectively.
Where the question in issue was whether a landlord could eject h i s tenants
under s. 12 (x) (c) of the Urban Rent Control Act, 196o, on the ground that
they had been convicted of an offence under tb.e Gambling Act on r8th
November 1959 that is after the expiry of the Urban Rent Countrol Act, 1948,
and be'fore the 1960 Act came into force.
Held: Unless s. 12 (x) (c; of the Urban Rent Control Att, x()6o, can operate
retrospectively with effect from the date the earlier Act expi.nd, the suit against
the tenants under s. 12 (r) (c) would not be maintainable. It bas already been
held that the provisions of the Urban Rent Control Act, x<J(io, are not retro-
spective with effect from the date of the expiry of the old .!,a.
U Ohn Maung v. Daw Kyi Kyi, Special Civil Apo-eal No. 19 of 1958;
Ko Lan Bah v. Prapulla Chandra Palaka and three, Civil M.isceUaneous
Application No. x8 of 1962, r.,ferred to and followed.
Accordingly, although the suit was filed after the new .1\J::t came i.nto force,
it is not maintainable in law.
Ba Shun for the appellants.
Ba Swe and Khin Maung for the respondents.
u SAN MA.UNG, J.-In Civil Regular Suit No. 12 of 1960
of the Township Court of Prome, the plaintiff U Maung
Maung and baw Khin Pu who are the respondents in the
present" appeal sued the defendant-appellants Maung Thein
Shwe and Ma Kyi for the;ir ejectment from the premises in .
s~it of which they were the owners and the defendants
were the tenants on the ground that Maung Sein Hla and
six others had peen convicted of the offence punishable
under section I I of the Gambling Act for unlawful &aming
. Civ:il Seconli Appeal No. 27 of 1962, against the decree of the Additional
Di~trict Court of Frome in Civil Appeal No. 6 (P) of r96r, date<\ the
23rd February i96I.
'BURMA:4AW REPORTS.
-~ ';
inside the premises in suit and that the defendants had
connived at the commission of this offence. The suit was UTmiN
. decreed by the learned trial Judge on the ground that the SHWE AND
provisions of section r2 (r} (c) of the Urban Rent Control o:.E
Act were applicable. The .
defend'ants being dissatisfied MQ MAuKG
AUNG AND.
with the judgment and decree of the trial Court appealed oNE.
and the learned Additional District Judge of Prome by his
judgment in Civil Appeal No. 6 (P) of 196I confirmed the
ju'dgm~nt and decree of the trial Court and dis1~issed the
appeal. Hence, the present appeal under section 18 of
the Urban. Rent Control Act, 1960, read with section 21 of
the Union Judiciary Act.
One of the grounds of appeal is that on the facts admitt-
ed or proved beyond controversy, the alleged offence under
section I I of the Gambling Act was committed on the
I6th ?\0\ember 1959 after the Urban Rent Control Act of
1948 had expired by efflux of time and the new Urban
Rent Control Act of 1960 had not yet come into force.
Therefore, the decree for ejectment under section 12 (r) (c)
of the Urban Rent Control Act, 1960, was bad in law.
In my opinion, there is ample force in this contention
of the. defendant-appellants. The Urban Rent Control Act
of 1948 expired by efflux of time on the 8th October 1959
The offence punishable under section r I of the Gambling
Act was committed by Maung Sein IDa and others on the
premises in suit on the r6th November 1959 and the con-
viction against them was on the r8th of November I959
Therefore, unless section 12 (r) (c) of the Urban Rent
Control Act can operate retrospectively with effect from
the date on which the earlier Act expired, a suit against
. :the defendants under section 12 (r) (c) of the Act would
not be maintainable in law.
Now, in the case of U Ohti Maung v. Daw Kyi Kyi (i)
the late High Court held that on the Urban Rent Control
(x) Special Civil Appeal No. 19 of 1958.
C.i~ Act, 1948 expiring by efflux of time landlords and tenants
x9ti3
were relegated to the position they held under the general
UTHEIN
SaWB AND law except in respect of tl~ose matters specially provided
ONE
p. for in the Act itself as for instance, the proviso to sub-
Urv"..<r.U~ section (3) of section 1 .
MAuNG AND
ONE.
In Ko Lan Bah v. Prapulla Chandra Palaka and three
(2) a Special Bench of this Court held that section 44 (b)
of the Urban Rent Control Act of 1960 had no application
to those cases which had been filed subsequent to the 8th
October J959 the date of expiry of the old Act and prior
to the 4th May 1960, the date of the coming into force of
'the new Act. Accordingly, these cases between landlords
and ~~nants were to be tried under the general' law of the
country.
This decision clearly shows that the provisions of the
Urban Rent Control Ad, 1960, are not retrospective with
effeq; from the date of the expiry of the old Act.
Accordingly, notwithstanding the fact that the present
suit W4S file<;l on the 14th June 1960 after the new Act had
~orne into force, it is not maintainable in law as a tenant
is not liable to be ejected under section 12 (r) (c) of the
Urban Ren~ Control Act, 1960, for the offence committed
in his premises and connived at by him during the interven-
ing period, namely, 8th October 1959 and the 4th May
1960.
In the result the appeal succeeds ; the judgment and
d~cree of "the Addjtional District Cour~ of Prome appealed
~ciinst: are set aside and the plaintiff-respondents' suit dis-
missed.
As ~he appeal succeeds on a -ground which was only
take~: up in this Court, I would direct that each part}r
~h9uid b~r its own costs throu~hout .
{2) Civil Uis~ . .1\.pplicati.oplJo, ~8 of ;9"6rz..
BURMA LAW lilll?,QRT$. 405
CIVIL MISCELLANEOUS
Before U Bo Gyi and U San Mawrg, JJ.
u TUN AUNG (APPLICANT) c.t:.
:i<j6j
v. June 26.
COURT OF INDUSfRIAL ARBITRATION, BURMA AND
ONE (RESPONDENTS).
Trade Disputes.Act-film actress cUiiming for wages-whether trade dispuu-
w.lnth~r a tuork>n<l>t under s.z( k) of the Act.
In a claim by a film actress against her employer for wages, for taking
part in a film production, ir was contended that there was no trade.dispute
within the meaning of s. 2 (J) of the Traae Disputes Act and also that thl!
actress in question was not a "workman" within the meaning of s. 2 (k) of
he Act. T~'l'l court of Insustrial Arbitration rejected both the contentions'
in its Award.
O:t A?;>lication for a Writ of Certiorari to quash die Award:-
Held : The Motion Picture Council, Biuma, to whiCh the film actress
belongs, has taken UP. her case and reported the matter to the Government and
it cannot be said that tl:is Council does r:ot represent the interest of fil~
Actresses ; accordingly, it cannot be contended that there was no '' ti:ide
disj>ute " as defined in s. 2 (j) of the Trade Disputes Act.
Regarding the Question as to whether the actress in question is a
" workman" there is the finding of fact that she did bot intend to give her
services gratis, but that she ciid expect remuneration for the same. She is
therefore a "workman" as defined in the Act.
The Punjab and Si1ul Bonk Ltd. v. Rameshwar Daval and others, A.I.R.
(1958) Punjab 14; D.N. Bmtedi v. P.R.: Mukherjee and others, A.t.R. (r953)
oi
Supreme Court . p. s8 : Mlifulg'nneirt ~Ttiai ExPefimthtitl Station. Ciil1iamara
v .State of Assam and others, A.I.R: (196o) Assam 13z ~t p . 137.
Held further : Mere non-abservanc:e of the Rules ofPr.ocedwe framed under
s. 16 of the Act, will n ot necessarily divest the &uri ofIndustrial A;bitradon
of the jurisdiction to decide a traae dispute rdtrrcd to it under s. 9 of tne Act.
U Chit Pe v . .Sirwe Setkya Cheroot Factqry Worfr,tn' .Asspciati(}fl and one;
Civil Miscellaneous Applicaticr. 1\o. ~6 d 1~6 1 of the late Supnme
Court.
Tun'Aung for the applicant.
Hla Maung for the respondent.
R~pondent . No. 2, in person.
4
oivil Miscellaneous Application No. 67 of t963.
C"f U SAN MAUNG, J.-This application by U Tun Aung,
~~ Proprietor of Mohein Film Co. is for a writ of certiorari to
u Tu:AUNo quash the award of the Court of Industrial Arbitration,
~~RI~ Burma, dated the r8th of April 1963 in its Proceedings
ARBtTAATroN No. 8 of 1963. The .facts giving rise to the present appli-
AND ONB.
cation are briefly these :
On a dispute arising between one, Daw May Nu, a
film actress and U Tun Aung over payment of her wages for
taking part in the production of a cinema film entitled
" Sular Than-ba-wa Maha Than-ba-wa " belonging to the
applicant U Tun Aung the matter was reported by Daw
May Nu to the Motion Picture Council of Burma of which
she was a member. The Motion Picture Council tried to
mediate in the dispute between Daw May Nu and l" T Tun
Aung and upon its failure to arrive at a satisfactory result
reported the matter to the Government. The Government
in jts labour Department then referred the dispute to the
Court of Industrial Arbitration under section 9 of the
Trade Disputes Act vide Labour Department Notification
No. 44, dated 25th February 1963. In that notification
ft was ;mentioned that on a trade dispute arising between
the Motion Picture Council of Burma and U Tun Aung,
the Chairman of the Revolutionary Council was satisfied
that the dispute was not likely to be settled by any other
means than by reference to the Court. Accordingly two
questions were referred, namely :
{r) Whether U Tun Aung, Proprietor of Mohein Film
Company had still to pay a sum of K 4,ooo to
Daw May Nu, a film actress, for the services
l'endered by her by taking part in the p,roduc-
tion of the cinema film " Sular Thari-b.a~wa
.Maha Than-ba-wa." ?
(2) If the sum owing to Daw May Nu was not
K 4,ooo what would be the suitable remunera-
tion.to be giyen to her by U Tun Aung?
BURMA LAW REPORTS.
The Court of Industrial Arbitration then after examin- c.c.
1963
. Daw May N u on oath and a f ter tak.
mg
' mg mto cons1dera- -
tion the affidavits filed by U Tun Aung and his two u-ru:.Atmo
witnesses U Thet U and Daw Tin, eame to the conclusion ~~!.
that although there was no specific agreement between ARBITRATioN
ANDONE.
Daw May Nu and U Tun Aung as to the amount wh1ch
she should receive for the part taken by her in the filming
of" Sular Than-ba-wa :'vfaha Than-ba-wa, " she was entitled
to a sum of K 2.400 regard being had to the principles
underlying section 70 of the Contract Act. Therefore,
since she had already been given K I,ooo, she should
receive a further sum of K 1,400 from U Tun Aung.
In coming to the conclusion it did the Court overruled
the objection that it had no jurisdiction to entertain the
mater because the requirements of Rule 8 (c) of the rules
framed by it under section 16 of the Tra'de Disputes Act
have not been strictly compljed with. It also overruled
the objections that there was no " trade dispute " as defined
in section 2 (J) and that Daw May Nu was not a " work-
man " as defined in section 2 (k) of the Act.
In support of the present application for a writ of
-certiorari the learned Advocate for the applicant U Tun
Aung has contended that the dispute was essentially one
between an individual film actress Daw May Nu, and a
film producer U T~ Aung, and that therefore there ~as
no " trade dispute " as defined in the Act. In sup~r~ of
his contention he has cited several cases of which i~ is
;Only necessary to mention a few. These are: The Ptin]ab
<Uld Sind Bank Ltd. v. Rameshwar Dayal and others (1},
D. N. Banerji v. P.R. Mukherjee and others (2) and Manage-
ment of Tocklai Experimental Station, Cinnamara v. State
of Assam and others(~).
(1) A.I.R. (1958) Punjab, 14. (z) A.I.R. (1953) Supreme Court, p. ss.
(3) R.I.A. (1960) Assam, 132 at p. 137.
--
~ BURMA LAV-- REtiORfs.
In the first of these cases Falshaw, J. observed that a
d.ispute between an employer and one or two workmen
UTr:INt/, AUNo is not an industrial dispute such as could be referred to
peURT qr the Tribunal under section ro (r) of the Industrial Disputes.
~=~ . Act of 1947. There is nothing unacceptable in this obser-
AND eNII. vation. However, Falshaw, J. recognized in that case that
very often even where only one workman is concerned the
Union:to which the workman belongs takes up his cas'e and
represents it in the proceedings before the Tribunal so that
the dispute assumes the character of a " trade dispute " as
defined in the Act.
In.Management of Tocklai Experimental Station, Cin-
namarav. State of Assam and others (3) where the decision
of the Supreme Court of India in D. N. Banerji v. P. ~ Muk-
herjee and others (2) was cited with approval Sarjoo Prosad,.
C.J ., observed:
" It is now well settled that an individual dispute between
a workman and an employer cannot be regarded as an indust-
rial dispute. It is only when the dispute has been taken up-
by the other workman in the establishment that the dispute
acquires the character of an ' industrial dispute ' within the
meaning of the Act.. Thus the validity of the discharge of a
single workman or the question of his reinstatement is doubt-
iess a question, which relates to his non-employment and is.
essentially a question with reference to that individual work-
man: but if the dispute has been taken up by the workmen~
as a tiass, it would assume the importance of an industrial'
dispute. As the section 2 (k) shows, the dispute or difference
tn:usl: b'e co'nnected with the employment or non-employment:
. or thetenDs of employment. or with the conditions of labour
of any person. "
The material .facts which led to the reference were
thes~ : One, Chitta Kanta Sa:ikia w~ a driver ih the employ-
.ment of the petitioner.. On 14th November 1917, accord-
ing to the petitoner, he wru; found guilty of <J.runken~
. <z) A.~.R.. (I953) Sui:>I:etne Court, P s8.
(3) A.I.R. (;r:96o) Assami1 I 3.2 at p. 137.
BURMA .LAW REP01trs. 409
behaviour suspended. charge-sheeted and eventually by an ;;~
order dated r2th December 1957, his services were UTuN:AuNG
terminated by the management. This led to a dispute by v.
COURT 01'
the management on the one s1de anct the workmen on the INnuSTRIAI:.
other, which was evidently taken up by the Cha ~:fazdoor ARB:O~~N
Union on behalf of the workmen ; but before the Govern-
ment referred the dispute for adjudication to the Labour
Court under notification dated 25th june 1958, Sri Saikia
(the workman) 'died on 2oth May 1958. It wac; held that
on the death of the workman concerned the dispute had
come to an end and that it was incompetent for the Govern-
ment to have referred the dispute to the Labour Court.
This decision serves to highlight the importance of the
individual concerned in a " trade dispute " as defined in the
Trade Disputes Act although, of course, if the body to
which the workman belonged does not take up his case it
remains an individual dispute beyond the jurisdiction of
the Court of Industrial Arbitration.
In the case now under consideration, the Mo-
tion Picture Council, Burma, to which Daw May Nu be-
longed had taken up her case and reported the matter to
the Government. As it cannot be said that the Motion
Picture Council, Burma, does not represent. the interests of
film workers such as film actresses like Daw May Nu, it
cannot be contended that there was no "trade dispute" as
defined in section 2 (J) of the Trade Disputes Act.
The next point is whether Daw May Nu is a " work-
man " as defined in section 2 (k} of the Act. In this con-
nection the learned Advocate for the applicant contends
that she cannot be a workman as there was no talk of any
remuneration between her and U Tun Aung when she
consented to act in the film" Sular Thanbawa-Maha Thand-
bawa ". However, in view of the finding of fact of the
Court of Industrial Arbitration that Daw May Nu did not
intend to give her services gratis but that she did expect
410 BifRMA LAW REPORTS.
c.c. remuneration for the same, she is undoubtedly a work-
1
. 9 63 man " as defined in the Act; for, "workman " means any
U T uNAtrnc person employed, whether for wages or not, 'in any tr<lde
Coun~ oF or industry to do a:iiy skilled or unskilled. manual or
INDusTRIAl.
ARBITRATION clencal WOrk. .
d b
AND O~E.
The third and last point raiSe y t he 1earned Auvocate
-A
for the ~pplicant is that the Court of Industrial Arbitration
was wrong in having taken cognizance of the case in view
of the absence of a complaint signed by at least 5 workers,
or by two members of the Committee in the case of
registered-Union, as provided for in Rule 8 (f) of the Rules
framed under section 16 of the Act. However, in .this
connection the decision of the late Supreme Court in
U Chit Pe V. Shwe Setkya Cheroot Factory Workers' As-
sociation <Ind one (4) is clear on the poin~ that mere non-
observance of the ruLes of procedure framed under section
16 of the Act 'Nill not necessarily divest the Court of
Industrial Arbitration of the jurisdiction to decide a trade
dispute referred to it under section 9 of the Act.
For these reasons we consider that there is .no merit
in this application and it is accordingly dismissed with no
order as to costs.
. .
(4) Civi1.Misc. Application No. ?6 of 1961 of the late Supr~ ni.e Court.
BURMA LAW REPORTS. 401
are those who can exercise the powers of the civil Court c.c.
1963
executing a decree.
U KYUAK
In the , result the application fails and it is dismissed qBlN
v.
with costs. Advocate fees being. assessed at ten gold ~ THB
mohurs. FINANCIAL
COMMIS-
SI ONBR,
BuRMA AND
THRBB
OTHERS.
6
402 BURMA LAW REPORTS.
APPELLATE CIVIL
Befora U Sait J1attng, J.
u THEIN SHWE AND ONE (APPELLANTS)
v.
u MAUNG MAUNG A;'lD ONE (RESPONDENTS).*
Urban Rent Control Act, 1960, s. 12 (r) (c)-ejectment decree passed 011 acco1tnt
of comiction for gambling committed afte1 the expiry of the 1948 Act and
before "the enactment of the 1960 Act-'i~hethe' mit maintainable-whether
s. 12 (1) (c) can operate retrospectively.
Whe~.e the question in issue was whether a landlord could eject his tenants
under s: 12 (x) (c) of the Urban Ren~ Control Act, 196o, on the ground that
they had been convicted of an offence under the Gambling Act on x8th
November !959 that is after the eJCPiry of the Urban Rent Countrol Act, 1948,
and be"fore the 196o Act came into force.
Held: Unless's. 12 (x) (c; of the Urban Rent Control Act, 1960, can operate
retrospectively with effect from the date the earlier Act expired, the suit against
the tenants under s: 12 (x) (c) would not be maintainable. It has already been
held that the provisions of the U1ban Rent Control Act, 1960, are not retro~
spective with effect from the date of the expiry of the old Act.
'u Ohn Maung v. Daw Kyi Kyi, Special Civil Apt.-eal No. 19 of 1958;
Ko Lan Bah v . Prapulla Chandra Palaka and three, Civil 1\-Iisccllaneous
Application No. x8 of 1962, r,.ferred to and followed.
Accordingly, although the suit was filed after the new Act came into force,
it is not maintainable in law.
Ba Shun for :the appellants.
Ba Swe and Khin Maung for the respondents.
U SAN MAUNG, J.-In Civil Regular Suit No. 12 of 1960
of fue ToWnship Court of Prome, the plaintiff U Maung
Maung and Daw Khin Pu who are the respondents jn the
present appeal sued the defendant-appellants Maung Thein
Shwe and Ma Kyi for their ejectment from the premises in
suit of which they were the owners and the defendants
w~re th~ tenants on the ground that Maung Sein Hla and
siX others had been convicted . of the offence punishable
tinder sectioh :I r of the Gamblfug Act for unlawful gaming
Civil Seeond Appeal No. 27 of 1962~ a gainst the decree of the Additional
District Court of Prome in Civil Appeal No. 6 (P) of 1961, dated the
23 rd FebruarY 196r.
BURMA LAW REPORTS. . 403
ins1de the premises in suit and that the defendants had c.c.
1963
connived at the commission of this offence. The suit was
UTHsm
decreed by the learned trial Judge on the ground that the SHWB ANo
provisions of section 12 (I} (c) of the Urban Rent Control o:.E
Act were applicable. .
The defendants being dissatisfied MllAUNG
MAuNa
AND
with the judgment and decree of the trial Court appealed oNE.
and the learned Additional District Judge of Prome by his
judgment in Ci\il Appeal No. 6 (P) of 1961 confirmed the
judgment and decree of the trial Court and dismissed the
appeal. Hence, the present appeal under section 18 of
the Urban Rent Control Act, 1960, read with section 21 of
the Union Judiciary Act.
One of the grounds of appeal is that on the facts admitt-
ed or proved beyond controversy, the alleged offence under
section I r of the Gambling Act was committed on the
16th November 1959 after the Urban Rent Control Act of
1948 had expired by efflux of time and the new Urban
Rent Control Act of 1960 had not yet come into force.
Therefore, the decree for ejectment under section 12 (I) (c)
of the Urban Rent Control Act, 1960, was bad in law.
In my .opinion, there is ample force in this contention
of the defendant-appellants. The Urban Rent Control Act
of 1948 expired by efflux of time on the 8th October 1959.
The offence pJ.mishable under section I I of the Gambling
Act was committed by Maung Sein Hla and others on the
premises in suit on the 16th November 1959 and the con-
viction against them was on the 18th of November 1959 .
. Therefore, unless section 12 (r) (c) of the Urban Rent
Control Act can operate retrospectively with effect from
the date on which the earlier Act expired, a suit against
the defendants under section 12 (r) (c) of the Act would
not be maintainable ;in law.
.Now, in the case of U Ohn Maung v. Daw Kyi Kyi (1)
the late High Court held. that on the Urban Rent Control
(r) Special Civil Appeal No. 19 of 1958.
4()4. BURMA LAW REPORTS.
c. ~. Act, 1948 expiring by efflux of time landlords and tenants
I9fl3
were relegated to the position they held under the ge neral
. UTHEIN
saws .\No law except in respect of those matters specially proYided
ONE
v. for in the Act itself as for instance, the proviso to sub-
UM~u~ section (3) of section
MAWG AND
. ONE.
r:
In K-o Lan Bah v. Prapulla Chandra Pal aka and three
(2) a Special Bench of this Court held that section 44 (b)
of the Uroan Rent Control Act of 1960 had no application
to those cases which had been filed subsequent to the 8th
October 1959, the date of expiry of the old Act and prior
~o the 4th May 1960, the date of the coming into force of
'the new Act. Accordingly, these cases between landlords
and t~nants were to be tried under the general law of the
country.
This decision clearly shows that the provisions of the
Urban Rent Control Ad, 1960, are not retrospective with
effect .from the date of the expiry of the old Act.
Accordingly, notwithstanding the fact that the present
suit was filed on the 14th June 1960 after the new Act had
come into force, it is not maintainable in law as a tenant
is not liable to be ejected under section 12 (r) (c) of the
Urban Rent Control J:..ct, 1960, for the offence committed
in his premises and connived at by him 'during the interven-
ing peiiod, namely, 8th October 1959 and the 4th May
1960.
Iri the result the appeal succeeds ; the judgment and
decree of the Additional District Court of Prome appealed
against are set aside and ~he plaintiff-respondents' sujt dis-
Qlissed.
As :t;he ~ppeal succeeds on a ground which was only
take~ up in this Court. I would. direct that each party
~h<:mld bear its own costs throughout.
(z) c;vil tvli!>{: J\.pp~icati~n :No. ~8 of ~962.
BURMA LAW REPORTS.
CIVIL MISCELLANEOUS
Before U Bo Gyi and U San Maung, JJ.
u TUN AUNG (APPLICANT) c.<::.
f963
v. :fune 26.
COURT OF INDUSTRIAL ARBITRATION, BURMA AND
ONE (RESPONDENTS}.*
Trade Disputes Act-film actress claiming for wages-whetlm trade ditjJute-
tolo,th~r a toork>nan under s. z ( k) of the Act.
In a claim by a film actress against her employer for wages, for taking
part .in a film production, it was contended that there was no trade.dis{1ute
within -the maning of&. 2 (J) of the Trade Disputes Act and also that the
actress in question.was not a" workman" within the meaning of s. z (k) of
he Act. T:1~ court of Insustrial Arbitration rejected both the contentions
jO its Award.
0:1 A?;>lication for a Writ of Certiorari to quash the Award:-
Held : The M otion Picture Council, Burma, to which the film actress
belongs, has taken up her case and reported the matter to the Government and
it cannot be said that this Council does r.ot represent the interest of film
Actres~es ; accotdingly, it cannot be contend~d that there was no ''trade
dispute" as defined in s. 2 (j) of the Trade Disputes Act.
Regarding the Question as to whether the actress in question is a
'' wod:man" there is the finding of fact that she did not intend to give her
services gratis, . but that she did expect remunera:tion for the same. She is
tl:}erefore a " workman" as defined in the Act.
The Punjab and Sind Bank Ltd. v. Rameshwar Daval and others, A.I.Re
(1958) Punjab 14 ; D. N. Banerji v. P.R. Mukherjee and others, A.1.R. (1953)
Supreme Court, p. 58 : MaJUigement oj Tolklo.i Exjlefimeiltal Station, Cinnamarti
v. State of Assam and others, A.I.R. (196o) Assam 132 at p. I37
Held further : Mere non-abservance of the Rules ofProcedwe framed under
s. x6 of the Act, will n ot necessarily divest the Court of industrial Arbitration
of the jurisdiction to decide a traae dispute referred to it under s. 9 oftheAct.
U Chit Pe -:v. Shwe Setkya Cherooi Factory Wor~s' Associatio11 and one;
Civil Miscellaneous Applicaticr. 1\o. ;6 cf xs6x of the late Supreme
Court.
Tun Aung for the applicant.
Hla Maung for the respondent.
R~~pondent No.2, in person.
~ ~ivil Miscellaneous Application No. 67 of x963 .
406 BURMA LAw REPORTS.
c.~. U SAN MAuNe, J.-This application by U Tun Aung,
19 3
Proprietor of Mohein Film Co. is for a writ of certiorari to
UTu:.AUNo quash the award of the Court of Industrial ATbitration,
~~RI: Burma, dated the r8th of April 1963 in its Proceedings
ARBITRATioN No. 8 of 1963. The .facts giving rise to the present appli-
AND ONB. .
cation are briefly these:
On a dispute arising between one, Daw May Nu, a
film actress and U Tun Aung over payment of her wages for
taking part in the production of a cinema film entitled
" Sular Than-ba-wa Maha Than-ba-wa , belonging to the
applic.ant uTun Aung the matter was reported by Daw
May Nu to the Motion Picture Council of Burma of which
-she was a member. The Motion Picture Council tried to
mediate in the dispute between Daw May Nu and T J Tun
Aung arid upon its failure to arrive at a satisfactory result
reported the matter to the Government. The Government
in its labour Department then referred the dispute to the
Court of Industrial Arbitration under section 9 of the
Trade Disputes Act vide Labour Department Notification
No. 44, dated 25th February 1963. In that notification
it was mentioned that on a trade dispute arising between
the Motion Picture Council of Burma and U Tun Aung,
the Chairman of the Revolutionary Council was satisfied
that the dispute was not likely to be settled by any other
means than by reference to the Court. Accordingly two
qu~tions were referred, namely:
(1) Whether U Tun Aung, Proprietor of Mohein Film
Company had still to pay a sum of K 4,000 to
Daw May Nu, a film actress, for the services
rendered by her by taking part in the produc-
tion of the cinema film " Sular Than-Qa~wa
Maha Than-ba-wa." ?
(2) If the sum owing to Daw May Nu was "not
K 4,000 what would be th.e suitable remunera-
tion to be given to .her by U Tun Aung?
BURMA LAW REPORTS. 407
The Court of Industrial Arbitration then after examin- c.c.
1963
.mg Daw May N h d f k' .
. u on oat an a ter ta mg mto cons1 era-'d -
tion the affidavits filed by U Tun Aung and his two U~AUNo
witnesses U Thet U and Daw Tin, came to the conclusion ~~~
that although there was no specific agreement between ARBITRATioN
AND ONE.
Daw May Nu and U Tun Aung as to the amount which
she should receive for the part taken by her in th.e filming
of " Sular Than-ba-wa Maha Than-ba-wa, " she was entitled
to a sum of K 2,400 regard being had to the principles
underlying section 70 of the Contract Act. Therefore,
since she had already been given K I .ooo. she should
receive a further sum of K 1.400 from U Tun Aung.
Jn coming to the conclusion it did the Court overruled
the objection that it had no jurisdiction to entertain the
mater because the requirements of Rule 8 (c) of the rules
framed by it under section 16 of the Trade Disputes Act
have not been strictly complied with. It also overruled
the objections that there was no " trade dispute " as defined
in section 2 (J) and that Daw May Nu was not a " work-
man " as defined in section 2 (k) of the Act.
In support of the present application for a writ of
-certiorari the learned Advocate for the applicant U Tun
Aung has contended that the dispute was essentially one
between an individual film actress Daw May Nu, and a
film producer U Tun Aung, and that therefore there !fa5
no " trade dispute " as defined in the Act. In suppo_n; of
his contention he has cited several cases of which it is
only necessary to mention a few. These are: The P~n]ab
-and Sind Bank Ud. v. Rameshwar Dayal and others (1),
D. N. Banerji v. P.R. Mukherjee and others (2) and Manage-
ment of T ocklai Experimental Station, Cinnamara v. State
of Assam and others ('5).
(I) A.I.R. (I9S8) Punjab, 14. (2) A.l.R. (1953) Supreme Court, p. s8.
(3) R.l.A. (196o) Assaiil, 132 at p. 137.
BURMA LAW REPORTS.
c.c. In the first of these cases Falshaw, J. observed that a
1963
dispute between an employer and one or two workmen
UTUN AUNo is not an industrial. dispute such as could be referred to
v.
CouaT o'f the Tribunal under sect~on 10 (r) of the Industrial DLc:;putes.
INDT:JSTIUAL ' f h . h bl . h'
ARBITRATION Act o 1947. T ere IS not ing unaccepta .e m t 1s o ser-
b
ANIH>NB. vation. However, Falshaw, J. recognized in that case that
very often even where only one workman is concerned the
Union to which the workman belongs takes up his case and
represents it in the proceedings before the Tribunal so that
the dispute assumes the character of a " trade dispute " as
defined in the Act.
In .Management of Tocklai Experimental Station, Cin-
natnara v. State of Assam and others (3) where the decision
of the Supreme Court of India in D. N. Banerji v. P.R. Muk-
lierjee and others (2) was cited with approval Sarjoo Prosad,.
C.J., observed:
" It is now well settled that an individual dispute between
a workman and an employer cannot be regarded as an indust-.
rial dispute. It is only when the dispute has been taken up
by the other workman in the establishment that the dispute
acquires the character of an ' industrial dispute ' within the-
meaning of the Act. Thus the validity of the discharge or a
single workman or the question of his reinstatement is doubt-
less a question, which relates to his non-employment and is.
essentially a question with reference to that individual work-
man:. but if the dispute has been taken up by the workmen~
as a ciass, It would assume the importance of an industrial
displiW. As the section 2 (k) shows, the dispute ot difference
mu.St -ffe Gb'nnected with the employment or non-employment:
or the t~rms of employment or with 'the conditions of labour
of any person. "
The material facts which led to the reference were
thes~ : Orre, Chitra Kanta Saikia was a driver in the employ--
ment of t1I.e petitioner. .On 14th November I91j7, accord- -
ing to the petitoner, he was fou~d guilty of drunkent
. (z) 'A.j.R.. (1953). Supreme Court, p. s8.
- (3) A.I.R. (~g6o) Assami, 132 at p. I37
BURMA LAW REPORTS. 409
behaviour suspended,. charge-sheeted and eventually by an ~;~
order dated 12th r;>ecember 1957, his services were UTUNAUNG .
terminated by the management. This led to a dispute by ~
COURT . oF
the management on the one side and' the workmen on the INouSTRxAL
. was ev1dently
other, which . taken up by th e Cl. 1a 1
?..fazdoor ARBITRATION
AND om.
Union on behalf of the workmen ; but before the Govern-
ment referred the dispute for adjudication to the Labour
Co'urt under notification dated 25th June 1958, Sri Saikia
(the workman) died on 2oth May 1958. It was held that
on the death of the workman concerned the dispute had
come to an end and that it was incompetent for the Govern-
ment to have referred the dispute to the Labour Court.
This decision serves to highlight the importance of the
individual concerned in a " trade dispute " as defined in the
Trade Disputes Act although. of course. if the hody to
which the .workman belonged does not take up his case it
remains an individual dispute beyond the jurisdiction of
the Court of Industrial Arbitration.
In the case now under consideration, the Mo-
tion Picture Council, Burma, to which Daw May Nu be-
longed had taken up her case and reported the matter to
the Government. As it cannot be said that the Motion
Picture Council, Burma, does not represent the interests of
film workers such as film actresses like Daw May Nu, it
cannot be contended that there was no " trade dispute " as
defined in section 2 (J) of the Trade Disputes Act.
The next point is whether Daw May Nu is a " work-
man " as defined in section 2 (k) of the Act. In this con-
nection the learned Advocate for the applicant contends
that she cannot be a workman as there.was no talk of any
remuneration between her and U Tun Aung when she
consented to act in the film" Sular Thanbawa-Maha Thand-
bawa ". However, in view of the finding of fact of the
Court of Industrial Arbitration that Daw May Nu did not
intend to give her services gratis but that she did expect
410 'BURMA LAW REPORTS.
c.c. remuneration for the same, she is undoubtedly a " work-
.
1
963 man" as defined in the Act; for, "workman" means any
U _TuNAUNG person employed, whether for wages or not. in any trade
Cotm~ -oF or industry to do any skilled or unskilled. manual or
INDusTRIAL
ARBITRATION cleriCal WOrk.
ANDONE.
The third and last point raised by the learned Advocate
for the applicant is that the Court of Industrial Arbitration
was wrong in having taken cognizance of the case in view
of the absence of a -complaint signed by at least 5 workers,
or by two members of the Committee in the case of
registered Union, as provided for in Rule 8 (f) of the Rules
framM under section 16 of the Act. However, in this
connection the decision of the late Supreme Court in
U Chit Pe V . Shwe Setkya Cheroot Factory Workers' As-
sociation and one (4.) is clear on the point that mere non-
observance of the rules of procedure framed under section
16 of the Act will not necessarily divest the Court of
Industrial Arbitration of the jurisdiction to decide a trade
dispute referred to it under section 9 of the Act. .
For these reasons we consider that there is no merit
in this application and it is accordingly dismiss&.i with no
order as ~o costs.
(4) Civil Misc. Application No. 76 of 1961 of the late Supreme Court.
BURMA.LAW REPORTS.
APPELLATE CIVIL
Btfore U Kyaw Zan U. J.
u TUN YIN (APPELLANT)
v.
LACHEEYAR {RESPONDENT).*
Ej 1;1-n 1~! -S':tit for cj!Cllmnt-iJcree for t>j~ctm~nt pasud '"' Mn-paym~nt of
rent-no isstte "oil th~ point-but arnars admitted Ecidmu Act. s.s8-no
need to prove admitted fact-decru properly f>tUScd under Urban Rlmt
Control Act, s. n(t) (a) read witJs ortkr n, r. 6,. Civil Proadure Codt.
Tl\! Plaintiff had filed a S<lit for ejectm~nt under s. 12 (t) (a) (c) and.U) of
the Urban Rent C<lotrol Act alleging non-payment of rent, nuisance and bona
fide requirement. Since the arrears of rent was admitted, issues were framed
regarding the que,""tiO:I of nuisance and bonafide re-quirement only, and nn both
these issues the Plaintiff failed. However a d ecree for ejectment was passed
on the admitted fact of non-payment of rent.
On Appeal it was contendad that the trial Court was wrong in passing an
ejectment decree for no!l-payment of rent as there was no issue on the point.
Held: Under o. 12, r. 1 of the Civil Procedure Code no issue can arise on
admissions on pleadings. Under 0.12, r. 6 the Respondent could have applied
for a decree on the admission of non-payment of rent. Ur.der s. 58 of the
Evidence Act no fact need be proved which had been admitted on the
-pleadings.
As the -non-payment of rent was admitted, the tria! Court could pass a
ckcree for eviction under s. 12 (1) (a) of the Urban Rent Control Act.
Saw Lwin for the appellant.
U Nyun for the respondent.
u KYAW ZAN U, J.-In Civil Regular Suit No. ssB of
1960 of the City Civil Court, Rangoon, tbe respondent
instituted a suit on 17th June 1960 against the appellant
who is her tenant for eviction from the middle room of the
house known as No. 66, Minlan, Sanchaung, Rangoon, on
~e grounds that (i) he has not paid the rents due from May
c1\1'IF"1rst Appea1 No. 87 ofi96 I, ap.amst
decree of the Rangoon Ci y
the--
order t
Civil Co:.trt of Rt:J.goon in Civil R~gular Suit No. ss8 of I96o, ~dated the
4th September 1961.
412 BURMA LAW REPORT$.
1959 to- April 1960 for 12 months at K 15 per month.
amounting to K r8o; (ii) he has been giving all kinds of
UTUNYIN troubles or annoyances :to her ; and (iii) she desires to
v.
LACHEEYAR. occupy the room he:-self for residence. The suit comes
under Section r2 (r) (a), (c) and (f) of the Urban Rent
Control Act, 1960. A notie (Ex. e ) dated 6th May
r 960 stating that the appellant was giving troubles or
annoyances to her and that she herself wanted the pre-
mises for her residence and demanding payment of the
aforesaid arrears of rents before vacating the premises on
or before 31st May 1960 complying with the provisions
of SP.ction 12 {I) (a) of the Urban Rent Control Act read
with Section ro6 of the Transfer of Property Act was
admittedly served on the appellant.
The appellant (defendant) in his written statement
"admitted inter alia the arrears of rent due but denied that
he gave troubles or annoyances or that the respondent
required the premises for her residence.
Since the arrears of rent due and the receipt of the
notice had been admitted, there was no necessity to frame
issues on these points and the trial Court rightly framed
two main issues on the questions of troubles or annoyanes
and bona fide requirement of the premises on the plead-
ings, and after hearing found that the respondent had
failed tb prove that the appellant gave her troubles or
annoyances or tha~ she required the premises bona fide
for her re.sidence, but on the admitted fact that the arrears
of rent were due by the appellant to her and no payment
having been made inspite of the notice, the decree was-
passed in her-favour for eviction under Section r 2 (I) (a)
of the Urban Rent Control Act for eviCtion of the appel~
Iant. Hence this appeal."
It has been contended in limine that the trial Court
was wrong -in p~ing the decree for evidi~h for non-
payment _of rents as there was "no issue on .the point.
BURMA LAW REPORTS. 413
This contention must fail. Under Order 14, Rule I (I) of c.c.
1963
the Code of Civil Procedure, issues arise only when a
material proposition of fact or law is affirmed by one u TUN 'U.
YrN
party and denied by the other. Fateh :~!uhamnwd v. LAcHEEYAR.
Imam-Ud-Din & Another (r). No" issue can arise on
admissions on pleadings under Order r2, Rule I of the
Code of Civil Procedure. If the questions of troubles or
.
annoyances or bona nde requirement of the premises were
not pleaded, the respondent could have applied to the
Court for such a decree upon the admission of the appel-
lant that the. rents were due by him to the respondent
under Order ~2, Rule 6 of the Code of Civil Procedure read
with Section 12 (r) (a) of the Urban Rent Control Act.
Issues are framed only from the pleadings and if there is
no dispute on a point for the purpose of determining the
real question in controversy between the parties, no issues
need be framed. Section 58 of the Evidence Act enacts
fuat no fact need be proved which a party has admitted
by his pleadings. The appellant has admitted
:the arrears of rent due in his written statement and the
receipt of the notice _(Ex. c- ) demanding payment. In
~ese circumstances the trial Court could pass :the decree
for eviction under section r2 .{I) _(a) of the Urban Rent
Control Act, 1960.
There is .no substance in this appeal. It is therefore
dismissed wi..t h costs. Advocate's fee :three gold mohurs.
---~--~~~~-~ - ---~-~~.~~-------~=-~
(t) A.I.R. (t9Z') L~ore, 369.
414 BURMA LAW REPORTS.
CIVIL MISCELLANEOUS
Brfore U .Kyaw Za11 r.:. _1.
<
c.c. V. N. NADESA THEVAR (APPELLANT)
1963
June 15.
v.
A. v. MlfTHUSAMI (RESPONDENT).*
Limitation Act, s. s-time-barred appeal-uhether nlllged illness of litigant
.good gr.otmd for e-.emption-medical certificnte-(ddentiarjl value of.
The Appellant's appeal being admittedly time bared, exemption was
prayed fol' on the. ground of his illness, and a medical certificate signed by a
privaremedical practitioner certifying that he l':ad beer. suffering frcrn giddi~ess
and nervous dc::bility was filed.
Held : There is nothing on record to show that the Appellant could not
have sent instructions to his Advocate to file the appeal within the prescribed
period. There was also nothing to prevent a lawyer from visiting the appellant
and taking instructions. For illness to be sufficient cause, it must be proved
that the man was utterly disabled to attend to anything.
Ma Thei?t Khin v. Ma U Byu, J..L.R. 6 Ran., p. 571 ; S.M. Ally v.
Maung San Nyein, I.L.R. 14 Ran., p. 155; and Le Ht!.V. Ah Yitz, (I897-I(J-Ot)
Vol. U, Upper Burma Rulir.gs (Civil), 451 , nfern.d to. Heldjurtlu:r : For a
medical'certificate to be admissible, it must be proved by the author. An
ordinary m{>dical certificate is only hearasy evidence and is not admissible.
A medical certificate does not prove itself.
- Emperor v. Ahilva Manaji, I.L.R. 47 Bombay, p. 74; Stis Chandra
Nandyv. Sm. AnnapurnaRay,A.I.R. (1950), Calcurra , p. 173 ; and C.:J. Balaram
and another v. Rukmannamma aud others, A.LR. (19:;3), Hyderabad, p. zog,
referred to.
R. ]ai:Janathan for the appellant.
Aung Min (2) for the respondent.
U. KYAW ZAN U, J.-This is an appeal against the
order. of the learned 3Td Judge of the Cjty Civil Court,
Rangoon, passe<! on rrth September r962, soon after the
Civil Miscellaneous Appeal No. 43 of 1962, against the decree of th~>
Third Judge, City Cjvil Court of Rangoon in Civil Regultr Suit No. 72 of
9162, dated the IIth September 1962.
BURMA LAW REPORTS. 415
examination of the appellant returning the plaint to be
filed in the proper Court as he had no territorial jurisdic-
tion: The appeal is' admittedly
time-barred as it was filed v.TN.N.-\DESA
HEV.a..R
only on 24th October 1962. The appellant is now asking v.
the Court to admit the appeal under section 5 of the M!!~~~r.u.
Limitation Act by exercising its discretion in his favour
on The ground of illness. According to his affidavit he
was wanting to come to an Advocate to apply for a
certified copy of the order but he suddenly got 111 from
3rd to 17th October 1962. Be it so. It is obvious that
he had ample time from the date of the order right up
to his illness to apply for the copy. In exercising its
discretion the. Court must consider whether the appt;llant
had acted with reasonable diligence in prosecuting the
appeal. In order to have the benefit of section 5 the
appellant is bound to explain every day by which the
period allowed by the Limitation Act is exceeded. If no
such explanation is forthcoming for the delay, a valuable
right having accrued in favour of .t he opposite party the
appeal will be dismissed. The days between the order and
the illness were not explained by the appellant. He
merely stated that before his illness he consulted an advo-
cate who advised him to go up on appeal against the
order.
A person is not bound, of course, to file his appeal at
the earliest possible moment and is entitled to the use of
the fUll time allowed by law as held in Ma Thein Khin v.
Ma U Byu . :(1). The point for determination, therefore,
in this appeal is wheTher the appellant was really ill
between the 3rd and 17th October 1962. He filed a
medical certificate signed by a private medical practitioner
certifying that he " had been suffering from giddiness with
nervous debility " . It did not say that he was bed-ridden
(1) I.L.R. 6, Ran. p. 571.
416 BURMA LAW RI}.PORTS.
c.c. and unable to talk or walk about. InS. M. Ally v. Maung
1963
San Nyein (2) it was held that " a plea of illness is not
v.N. N~oEsA sufficient unless the effect of the illness was such that in
~~AR the circumstances it would afford a reasonable excuse for
A.V. the delay in presentin-a the appeal". Now, even assuming
M UTHUSAMI. '0
that the appellant had been ill there is nothing on record
to show that he could not have sent instructions to his
Advocate to file the appeal within the prescribed period.
There ~as also nothing to prevent a lawyer from visiting
the appellant at his house and taking his instructions.
Illness may be a sufficient cause but it must be proved that
the man was utterly disabled to attend to any duty.
Le Hu v. Ah Yin (3). The medical certificate is not per se
irrelevant- but to be admissible in evidence it must, apart
from special authority like section 510 of the Code of
Criminal Procedure, be proved by the author, without
special authority in that behalf a medical certificate from
a third party is only hearsay evidence and is not admissi-
ble. There is serious objection that if illness generally
were admitted as an excuse for delay, there would be no
end to the number of applications which would be made
on .that account. There has been a great laxity of practice.
to accept such certificates that stringent rules are
necessary. It must be remembered that a medical certifi-
.cate is no evidence. The medical man in the instant case
did not swear an affidavit and the medical certificate
tendered in this manner is the worst form of hearsay
evidence. A meilical cer.tificate does not prove itself.
Emperor v. Ahilva Manaji :(4). Sris Chandr(l Nandy v.
Sm. Annapurna Ray (5). C. ]. Ba!ar.am and another v.
Rukinannamma and o~hers (6).
(~) I.L.R. I4 ~A P,., ISS.
(~) (x8cn-~9.~,r) Yo). It lJP.P~~ B.~n;na ~\lHf\gS (Ciyil), 45~.
('!-) I.L.R. 47 Bo.m., p. 74 . . .
(s) A.I.R. 1950 Calcutta, p. 173.
(6) A.I.R. (1953) Hyderabad, p. 209.
BURMA
. LA\V REPORTS.
~
417
For all th~e reasons, in my opinion, the appellant has
failed to discharge the onus that lies upon him to satisfy
the Court that he had sufficient cause for not preferring v .N. NADESA
the appeal within the time limited by law. The result TH~~AR
is that the appeal is dismissed with aosts. Advocate's fee Muri!Am.
3 ...(three) gold mohurs.
BURMA LAW REPORTS.
CIVIL MISCELLANEOUS
U San i\llaung and U Kyaw Zan U, JJ.
VUMTUAL (APPLICANT}
v.
June 29.
THE FINANCIAL COMMISSIONER (COMMERCE) AND TWO
{RESPONDENTS).*
JVrit of C~rtiorad-s.167 (8), Sea Customs Act, read with s. 7 (1) of the Land
Customs Act-goods found on plane at Kalemyo Airport-whether amounts
to att empt to export goods out of Bu1ma.
On toth March 1957 the Applicant had sent four packages marked AC
b)r plane to Kalemyo Airport which purported to be motor-car spare parts.
On b~ing opened by Customs Officers they w:re found to contain 200 douns
of bobbins and 300 dozens of bobbin casing!' of Japanese manufacture, adaptable
for use on Singer sewing machines. Action was then taken against the
Applicant on the ground that an attempt had been made to export the goods
illegally out of Burma.
On an application for a writ of certiorari to quash the respective orders of
the Sea and Land Customs Authorities : -
Held: Even if the Applicant had the intention of smuggling the gocds
eventually out of Burma, through the Chin Hills, his act icn ur.ount<d ro ItO
more than mere prepa.ration to smuggle the goods. It did not .amount to
an "attempt" within the mischief of s. 107 (8).
Obiter : Undoubtedly, a new offence of " attempt" has been created by
'S. r67B of the Sea Customs (Amendment) Act, 1959. Bur the pre-visions of
:S. 167B could not have been, and, in fact, they did not purport to
be retrospective.
Ptm Za Cin (a) P. KI1U11 Za Ci,z v. the Fi11ancia/ Commissioner (Commuce)
and two otllm, (196o) D.L.R., 142 (S.C.) ; and Lall Singh v. The Minister of
Finance and Revemte and three others, (1958) B.L.R., 195 (S.C.), referred to and
followed.
Kyaw Min for ~he applicants.
Hla Maung for the respondents.
U SAN MAUNG, J.-This is an applica.tion by Vumtual,
.a merchant of Tiddim in Upper Chind.win district for a
writ of certiorari to quash the orders of the Financial
Commissioner (Commerce), Rangoon, dated the 2oth of
* Civil Miscellaneous Application No. t8I of 1962.
BURMA LAW REPORTS. 419
September . 1962 in Revision Case No. 4 Ah Ka 85/6o
confirm.ing the order dated the 16th of February 1959
passed by the Commissioner of Customs, Rangoon, m Case VuMTUAi.
{/.
No. I Ah Ya/57 (36) in which the Commissioner confirmed Frn~:~rAL
.the order ofthe Collector of Land Customs, Mawlaik, dated CoMMls-
SJONI!R
the. 7th of June 1957 m Case No. S. r I Ka La- (Cor.rMBRcB)
Ka La Ma 57 (3). The facts giving rise to the present appli- AND Two.
cation are briefly these:
On the 1oth of .\~arc~ 1957. iour packages be;ning
the mark . .\C .1ni\ cd Jt Kakmyo aboard the Union of
l)urma. :\ irw ay~ plane which flew from Rangoon 'ia
\I.Jndaby. In the rebant Freight Receipt No. 73519 it
is shovn that these goods belonged to Vumtual of Tiddim
and that they were motor-car spare parts. The packages
were detained by the customs officers on duty at Kalemyo
Airport and when the applicant Vumtual came to redeem
the packages about four days later, these officers opened
them in the presence of Vumtual. It was. then found that
contrary to the description given in the Freight Receipt
the packages contained 200 dozens of bobbin.s and 300
dozens of bobbin casings adaptable for use on Singer Sewing
Machines. . They were of Japanese manufacture. The
Collector of Land Customs, Mawlaik, then took action
against the goods under section 167 (8) of the Sea Customs
Act read with. section 7 (r} of the Land Customs Act on the
ground that an attempt had been made to export
the. goods out of Burma contrary to the prohibition con-
tained in .section I 9 of the Sea Customs Act. The goods
were confiscated and as provided for in section 183 of the
Sea Customs Act the applicant was given an option of
redeeming them on payment of K 64,<><>q which was double
the assessed. value of K 32,000. The Collector of Land
Customs rejected the applicant's contention that these
bobbins and casings were meant for sale in rhe Chin Hills
Division area, .a nd .that the value did not exceed,K u,ooo.
420 BURMA. LAW REPORTS.
Bein.g dissatisfied with the order of the Coliector of
Land Customs, Mawlaik, the applicant appealed but the
:V.UM'rtl./iL
y. Co.mmissioner of Customs, Rangoon, by his order dated the
THE i6th of February 1959. dismissed the appeal on the ground
Fl~.WCJAL
' CQMM!S-
lllE>~""ER
that the applicant's explanation that such a vast quantity
(COMMERC!t) of bobbins and casings were required for sale in the Chin
ANP TWO.
Hills area w.as totally unacceptable and that he had credible
informapon to the effect that goods of such description
yvere . smuggled over the border to India, through the
thin Hills where the customs authorities could exercise
little or no ~igil~rice.
. Th~~ppU~ant next went up to the Financial Com11}.is-
. sioner for revi~~on, but the Financial Commissioner by his
'o rder now ought to be quashed confirmed the orders of the
Colleetor ~f Land Customs, Mawlaik and the Commissioner
of _<:;ustoms, Rangoon, on appeal against .the order of. the
Collector of.;Land Cu~toms, Mawlaik.
In support of the present application the Je:tmed
Advocate for the applicant has contended that this case is
indistinguishable from that decided by the late Supreme
Court iii Pun Za Cin (a) P. Khun Za Cin v. The Financial
Commissioner (Commerce) and two others (I'). In our
opinion this ctm~tibn must be allowed to prevail.
. .
In an earlier case. namely, Lall Singh v. The Minister of
Finance &.Revenue and three others (2) where 3,000 gallons
of kerosene oil were seized by the customs authorities at
lashio. ~md later, ~cated under sec~on 167 (8) of the
Sea Customs Act read with section 7 (r) of the Land
,.Customs Act, it \vi.s held that even . if Lall Sfu~ had
intended ..to smuggle .the kerosene 'oil across the border to
'Chjna, hiS act.iori. did not amount to an att~mpt and that
therefore. tl)e provili6ns of section 167 (8)' of the Sea Cus-
toms Act which p:unishes attempts to export. goods frbm
. . . . . . . .:
(r) (r96o), B:L.R., 142 (SC). (z) (1958) B,L.R., 195 (SC).
BURMA .LAW REPORTS. 421;-
Burma contrary to prohibition or restriction, did not apply. c.e.
x96;J-.
The judgment in Lall Singh's c:1se was passed on the 8th of .
VUMTUAL'
December 1958. Subsequently. the Sea Customs (Amend- v.,
'I'Hs. -
ment} Act of 1959 (Act No. XIX of 1959) was promulgated FINANCIAL
on the 2rst of September 1959. In that Act section 167B CoMM(s-SiaN.BR
was inserted after section 167A. It reads: (Go~EqCB) )
AND.TWp,
" 167B. For the purposes of item 8 of the schedule to
<;ection 167 and section I67A.the word
Attempt.
'attempt' means any act of conceal-
ment. keeping or conve\'ing of goods under such circum-
stance:; as are sufficient to satisfy the Customs-Collector
that the-- goods are be'ng conce:tlecl. kept or conveyed ,.,;tJl
intent to Import or cxpor: t~e g0od~ contrary to the p-.o!':ibi-
tion or restriction under S('ction t9.''
Undoubtedly, as pointed out by the Supreme Court in
Pun Za Cin's case (I) a new offence much more comprehen-
sive in its sc0pe than the existing offence of attempt as
defined in Lall Singh's case (2) had been created in the guise
of defining the word " attempt " occurring in section
167 (8) and 167A. The provisions of section r67B there-
fore could not have been, and, in fact, they did not purport
to be, retrospective.
The present alleged offence by Vumtual took place on
the roth of March 1957 when the goods consigned by him
from Rangoon to Kalemyo by the Union of Burma Airways
plane were seized in Kal~myo. Accordingly, the law as
enunciated in Lall Singh's case and Pun Za Cin's case would
apply. Even if Vumtual had the intention of smuggling
the goods eventually out of Burma, through the Chin Hills
his action amounted to no more than mere preparation to
smuggle the goods. It did not amount to an attempt
within the mischief of section 167 (8).
Accordingly the orders of the Collector of Land
Customs, Mawlaik, the Commissioner of Customs, Rangoon
and the Financial Commissioner (Commerce) are speaking
. -zzA.
,;ll:. . .'
~ BURMA LAW REPORTS.
orders inasmuch as they are palpably erroneous. These
orders are therefore quashed. The goods seized must be
VoMTUAL
f). returned to the applicant.
THE
FINANCIAL The applicant will ~e awarded costs of this application,
. COMMJS
'SIONER
Advo.cate's fees being assessed at 10 (ten} gold mohurs.
(COMMRe&)
AND TWO.
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" Their Lordships think that nothing would be gained by
discussing these varying authorities in detail. They think
that the question must be decided upon the plain words of
the ~de : " where there has been an appeal," time is to
run from the date of the decree of the appellate Court.
There is, in their Lordships' opinion, no warrant for reading
into the words quoted any qualification either as to the
character of the appeal or as to the parties to it; the words
JV.ean just what they say. The fixation of periods of limita-
tion must always be to some extent arbitrary, and may
frequently result in hardship. But in construing such pro-
visions equitable considerations are out of place, and the
strict grammatical meaning of the words is, their Lordships
think, the only safe gUide."
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" Article 182, Limitation Act, provides for various starting
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amended, the starting point is the date of amendment. Now,
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()I ro~:G<.91 Cj~:n211
"resting this case, therefore, J:>y the other suggested
criteria or badges of industrialism, can it be said tha'tt the
educational activities of the States constitute an ind:ustry ?
So far a5 t~e matter is one of fact, we would say. that ey
cannot. They beat: no resemb~~ce whetever to an ordinary
trade, bu~ess o~ jndustry. They ~e. not connecte<l dir~y
(o) 9o ,g,u.J:.rl(c0)roo-:>(4Y~"o:> ~lie"
BURMA LAW REPORTS. 437
with, or attendant upon, the production or distribution of
wealth: and there js no co-operation of capital and labour,
in any relevant sense, for a great Pl!blic scheme of education
is forced upon the communities of the States by law. It was
said that .if the activities were carried on by a private person,
such . as a schoolmaster, then the operations would be
described as a business, a trade, or an industry. Shortly, that
argument is met by the fact that a private personcould no
more can:y on this system of public education than he could
carry on .His Majesty's Treasury or any of the other executive
departm~nts of Government: and if he were authorized to
do so, which is almost inconceivable, then he would no more
carry on an industry than the State does now.
438 . . .BURMA LAW REPOR'it [1963
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r.:" r.: c:- sr: o r.: o " o c- c- c "~ c c
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.BURMA LAW REiiDRTS. 439
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s:l~Jmw::om ::x>m~~'Ptfmt? j '!"~">-
.. (1) . , . .. Whether under the facts and circumstances of
the case there was wilful default within the meaning
of section 10 ~) of the Sales Tax Act. 1952.
(2) . . . . Whether under the facts and circumstances of
'the case the assessment was barred by limitation under
Rule 25 of the Sales Tax Rules, 1952."
BURMA LAW REPORTS.
BURMA LAW REPORTS.- 441
or;::c- 1m c- ~c- oc- ~ c- c- C' c c~ c o o
~tJOOOJ')G~')~ I r::~r~')~ccro~:::~o:x;:ro') !n~f>Go:>?~c:t::l::lj<? m:IG>t
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.. In the case now under consideration the Income-tax
Appellate Tribunal had given reasons for coming to the con-
. elusion that the accounts submitted by the respondents
Messrs. E. C. Madha Brothers are reliable and that these
accounts should form the basis of assessment for j;he year
1957-58. Without constituting i~elf as an appellate authority.
this Court cannot consider whether the reasons given by the
Income-tax Appellate Tribunal are or are not sound ....."
-.4-42
, C' C' C C' OC' C'
O@:Jj ~;01 G'Pc:~ff2?:eoG!38Jt{!3 j:J qc-
" Value of Goods Escaping Assessment. If for any
reason the .whole or any part of the sale price or the landed
cost of 'the goods qf an assessee has escaped assessment to the
tax in any year the Commercial Tax Officer may, at any time
within the year or _the ~o years next succeeding that to
which the tax-relates, assess the tax payable on the value of
.goods -which has escaped assess)llent; after issuing a notice in
Form S.T. 22 to the assessee and after making such inquiry as
he <onsiders necessary. .. .. "
<.J?.~~pf:OO:>:e) II
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. ~2:e~ooo:>:t1c:o:>e? 02:m~:::>v"'<D GmJ ~f'~J2t>c:llll
BURMA LAW REPORTS. 443
(.' .,
1j'):G00J211
~:oSro:>:eln
. "There is no justification for confining of the word
.. escape' in section 34. of the Indian Incometax Act to those
<::a.Ses only which have not come to the notice of tl}e Income-
tax Officer at all and excluding those cases where he has
applied his mind but on account of an error of judgment has
set any part of the income free from assessment. The section
is wide enough to include any case of non-assessment, to
wha~ver cause it may be due. . "
A; (.' (.' <.'~ _<::
U?c:u 11c::x>::::l":n')tiro'):~ u
(z) (1935) III Income-tax Reports, 171.
444 BURMA LAW REPORTS.
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7<;c Sili:IO?GO'n~fC:ICgt:.:j: Q C" <:
09cc::qgqcro2:-
C"
" Held. by the Full Bench (Dalip Singh. ]., dissenting): that
section 34 of the Acr is not confined to cases where income
had not been returned at all ; it applies also to cases where
an item of income is included in the return made by the
assessee but is left unassessed by the Income-'tax Officer or if
assessed in the first instance the assessment is cancelled by
any appellate or revisional authority; the income in question
had escaped assessment within 'the meaning of section 34
and Ute assessee was rightly assessed under seGtion 34 on this:
income.
Per Dalip Singh, L (contra) :-The word 'Escaped' in
section 34 should not be read in the widest sense that that
word is capable of bearing. I't means 'eluded ~otice ' in the
course of assessment and does not mean ' had avoided being
assessed' and the expression ' had escaped assessment ' is not
. ~uivalent to 'has not been assessed'. In order to escape
assessment the income must avoid both. calculation and charg-
ing and there is no distinction between mistakes of fact and
mistakes of law on the part of the Income-tax Officer ..
~ 5f:ro8:ooToo-:>:~u
(3) (1935) III Income-tax Reports, 438.
1963] BURMA LAW REPORTS. 445
~ ....$.
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446 I}l;J~ ~ REPORTS. [196~
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448 BURMA LAw REPORT?:
BURMA LA '*l REtORTS. 4-49
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:x>~ll otf9Y CjO u lj5?f::;>Jrogp:~? G~')(I)O Dd<Xf:tjiD:x>~ll
"4'I. No Civil Court shall have jurisdiction to deteri:iiine--
(a) any matter which,. under this Ac:t, is to be de\ ermined
by the Revenue-officer ;
(b) any claim to any right over land as against the Govern-
ment."
'(o) O(!j9 l{t~' BtQ"~~'f~~:OJ":' o:itp:~c&O>~~J(8a 0?' :ia
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BURMA LAW REPORTS.
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"17. .Where the def~ndant or his agent or such other person
as aforesaid refuses to sign the acknowledgement, or where
the serving officer, after using all due and reasonable diligence,
cannot find the defendant, and there is no agent empowered
to accept service of the summons on his behalf, nor any other
person on whom serVice can be made, the serving officer shall
.a'ffix a copy of the stunmons on the outer door or some other
conspicuous part of the house in which the defendant
ordinarily ..resides or carries on business or personally works
. or _gain, and shall than return the original to the Court from
which it was issued, with a report endorsed thereon or annexed
thereto stating that he was so affixed the copy, the circum-
stanceS under which he did so, and the name and address
of the person (if any) by whom the house was identified and
in whose presence the. c;:opy was affixed."
BURMA LAW REPORTS. :.. +59
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Gramal v. Bombay Steamships ( ~) qf;1
" Under order 5, Rule I7, the duplicate summons must be
affixed to the outer door or to some other conspicuous part
of the house in which the defendant resides. Merely leaving
the duplicate summons on the teapoy of the defendant's
residence is not complying with requirements of Order 5,
Rule 17 as it cannot be said to be affuc.ed to the teapoy."
ur4:1 Ganeshmal Bhamarkzl v. Kesoram Cotton Mills Ltd. (J)
c ('
~<D?~JJ mp :X: O?C-
.. (r8) The affixation of the copy on the outer door is not
an idle ceremony nor it is an immaterial part of the service.
Its object is to give due publicity to the act of the process-
server and to impress the party that formal service is being
effected. Rule 17 itself shows its importance. The report
of the process-server must show the affixation, the circum-
stances under which it was made and the persons in whose
presence it was done. The cardinal fact and important matter
of Rule 17 is affixation of the copy. If Rule 17 provides for
a mode of service, the affixation itself is the service or at
least the most essencial part of the service.
(19) The case of non-affixation of a copy of refusal to sign
is not a case of an irregular service. Irregular service pre-
supposes a service. But here there is no service under Rule
16 and 20. As there is no affixation there is also no service
under Rule I]."
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former, the intention of the person so making use of that
money must prima facie be dishonest within the meaning.
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47'1,
IssUES.
1. Is the Pla,inti1f firm registered under the Partnershlp Act?
2. ~ 1:4~ suit barred by limitation 7
3 Is the suit bad for misjoinder of parties 1
4 Is th,e li st Defendant a proper party to the suit 7
S Were the goods referred to in paragraph .1. of the Plaint
landed from the m.v. "Bradeverett " . If so, is the
Shippjng Company free from ali responsibility 1
6. Di4 the Plaintiffs give notice of loss or damage as re-
quired by the bill of lading?
1 To what relief jf any is the plaintiff ent,itled 1
'-!;.
s.t~Od:ni M V1 V.W1UUI SL:r
B:t}RMA LAW REPORTS. 479
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JU ~G:::n~1 m~qq? (Carriage of Goods by Sea Act, ~chedule
.Article III, Para 6, Clause 3) . ro~:o~:::n::S
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Co. v. S. K . Ramalingam Chettiar (3) ~~ ~e~o ~~ilr roq>:
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. .. Whatever be the proper mode of ascertainjng the date
when delivery ought to be made' under _Art. 31 of the
Limitation Act-whether that be the reasonabie time for deli
very in the circumstance$ of the case or the date when after
correspondence' the c~er. intim,ates its inability to deliver or
the date of the final repudiation of the claim on a Claim fot
c6mpensatimi h~iving ' been .made or in the case -of part deli-
.very the date when thetb ulk :of the co~igrunenr w~ d~liver
:. ed4-the ,-dat~ whe~' rlte- goods 'Should have been deli:ve:r.e:d for
the purpose.of; .tb,efl1W!d1a:l.ause! of the 6th parct-gi:aph 10f Art.
JII of the Carrjage of Goods by Sea Act is th,e date when the
$hlp by which the goOds Were contracted to be carried has
left the port at Which d6livery was to be niade." (Para 29).
. "Th.e arrival at port of t;}le vessel by which~~ g09ds ha;ve
been contracted to be dtried! being ~own and the departure
beihg equally ~ ascertainable thing and the duty of 'tiie
canier tieing necessarily to complete the delivery before lea:V-
.in'g the port, the date by. which the delivery should have
been . made: is already a fixed point of ti~e and later cor-
respondence, claims or repudiation. thereof can in lio way
cll-ange it." r;Para 28).
{3;) .A:I.-R. (x9.6o) Supre.me-Court, ~ xos8.
BURMA LAW REPORTS. 481
o o r,;: c c c o c
<::q~~:t:Jro:;p3 sc:IO'JC<::q: 0-:l<lJmp ::lOL$j
c r. c
qc1 o:>:;p:oyel:gp:m
C'~ 1
C' 0 C' c: c: RC 0 c: C' 0 C' C'
mQ>cm Cl:{l!>~:mg:::x>oo3?';)Jfnt G9~m::Pil' ro:;p:<:~cr.trrmmGo:~u9r G!f.l':lCCCG"\!lC
(' ('
c
o c c: r,;:
u "
[sC' C' C' C''f:::C' C' C'
Gf'm~: c:~o:>~G~'Jffi~::x>-:>1 IO<X>C ~'J~2?~~:(9<X>~\5c:'pi ~ymr ro~o:cu:
o:>~mg;;8~8m G<.9~fZirnrot Aic
l.:rr ~ G:G:>rb0J~t:s;;'Gfffi:>t:SGro::D~ II J.
C.:, 1. Ll L t. ~ C.:. 0 (' ('
I.-!
<fc troO'.ro
"Most, if not all of the cases which have considered the "{Clt?:G~ 0('
('0 ('
question of the ascertainment of the date when the goods OJCGlG~?.U
00
ought to be delivered' for the purpose of Article 31 deal ::Y.>?ll>l?:OO<.l
with cases of transport by Railways where no date<has been ox-6 u1 Jll
or can be specified in the contract for carriage. V'{e, cannot
however ignore the fact that the conditions of carpage of
g~ by ship are essentially different trom contracts of
carriage of goods by Railway in one re<;pect. viz., that whereas
in contracts of carriage of goods by Railways there i.e;
ordinarily no knowledge as to by which particular train the
ge>e9s will be despatched nor is there any undertaki~g by the
Railways . as regards such trains, there is ordinarily, in con-
tracts of carriage of goods by sea a diStinct anangement that
.. the goods will be shipped by a particular vessel."
C' C' c_s 'l"~ c
o:><.9yoomromSIG<.91 1::1o:>~'P~
" But whether the delivery has to be. made to the consignee
at the ship's side or is made on the quay side there can be
little doubt that the carrier's duty is to start the qeliy~ry of
goods as soon as the ship arrives at the port of destination
and to complete the delivery b:efore the ship le,aves the port.
In .a particular case the' carrier may not do his duty that
cannot however alter the fact of the e~istence of hi~ duty
'to complete the (leliverx between the amv~l of the ship at
"the pon and the departure of the ship frein tM port. If
as regards any particular goods this ~uty remains unperf<?l11:Iled
at the time when the ship leaves the port there can no be
escape from the conclusio~ that the point of time ~hen 'the
ship leaves the port is the latest point of time by which: the
goods. should have been delivered."
"BURMA LAW REPORTS.
OC' r,:;::: C' 0 (' "1 Q C' C' C C' C' "1 OC'
t'CG~:.:ec:mll roromo1 09coq: 0-:J~Jm~,') oo~l( qc1 Gs;)?ffiol oo9C:
C' C' r,; 0 C'
('
<0~-:>C COG'}:lC
(' :;omrom ti~CO:J:GCD::D~ II
0
(l)l,l('U) :The fact that after this point or . time correspondence
LU'-..
~c started betWX!en t:fle carrier and the consignee as regards the
...
J
0 (' ('
oo~roooro failure to deliver and at a Ia.t er point of time the carrier
~J:p:r,;ro communicates his inability tO deliver cannot affeC't this ques-
"" ('
OJC!VGS':I?. G tion. Nor can the ultimate repudiation of any claim that
O)')l~?:~ m~y be made by the shipper or the consignee affect the
O:xrlo1 Jll ascertainment of the date when the goods should have been
delivered. The arrival at port of the vessel by which the
. goods have been .contracted to be carried being ,known and
the departure being- equally an ascertainable thing and the
duty of the carrier being necessarily to comple'te the delivery
before leaving the port, the date by which the delivery should
have beei{~~de is already a fixed point of' tim~ ahd later
correspondence, claims or repudi.ation thereof can in no way
change it ."
-
~~0~9~3] ~ -. :BURMA LAW REPORTS.
0 (' (' 0 0 (' 0' (' ('
OOO?ml 0:>0> ::T.)~O?C 8;)0:>0> mro:CD~I'J:OJ . GOJ'JC:OOQOJ:'D ::T.)QC S'dG9:
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-
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OG9: ~OGOJ'J
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0 ('c ::T.)(X)ffi
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l 6 L o l 16 I ] l
G~To1 East and West Steam Ship Co. u. S. K. Ramalingam
C' C' (' '1 OC' (.;"'""' C'
Chetttar (3 ) ~c~w~c1
Q
GS'd'J(l)()l ro~: [::j'-"''J:Gro:::D211
"Clause 3 of paragraph 6 of Article III in 'the Schedule to
the Act provides for the extinction of the right to compensa-
tion and not merely a rule of limitation. In view of the
international character of the rules, court should be slow to
put on the word ' discharged from liability ' an interpretation
which would produce results varying in different countries
and thus keeping the position uncertain for both 'the shipper
~d the shipowner. Quite apart from this consideration,
however, the ordinary grammatical sense of discharged from
liability ' does not connote free from 'the remedy as regards
liabiij~1 <OO.t<We-mfo:re ~c~-m~ - ~ ; total :. e~ip.dit>n . of.~he
liability following ,uwn-.a n. e.x~inction of the right. Once
the liability is extinguished under this clause, there is no
scope of any acknowledgment of liability thereafter."
BURMA tA.W REPbRTS 485:
CIVIL REVISION
Before U San Jfmmg. J.
DAW THAN MAY (APP ELI.ANT/APPLICANT)
v.
KO. KYAw HLINE AND 3 OTHERS (RESPONDEI\'TS). * Aug.z3.
Stay of. suit-Suit. under s. 9 Sf>ific R~luf .Mct--;hether should be sta)ed pending
cross-wit baud nn title.
A prior suit fiic!i under s. 9 of the Specific Relief Act should not be stayed
pending the decision of a cross-suit based on ti de.
i'\tla Kyan and another v. Daw Kye (.". .-\. l.R. (193 5) Ran., refelOI"ed to
and dissented from.
Irrespective of the fact that the plaintiff in the cross-suit is the true owner of
a piece of land, the plaintiff in a prior suit under s. 9 of the Specific Relief
Act is entitled t~ a quick and summary justice in the form of a decree for eject-
ment of the person who had forcibly dispossessed him.
Satishehandrq De v. Madanmohan Jati, A.I.R. (X9JI) Cal. 483 at 484; and
Narayan RI>W v. Dharmachar, I.LR. XXVI, Mad. 514, referred to and followed.
Further more, the cause of action in a suit under s. 9 of the Specific Relief
Act is entirely different froro the C~l)$~ of action of a suit based on title. There-
fore, a d.ecree granted in the former suit should not be restrained by injunction
from being executed in the latter suit.
N. C. Sen for the appellant/applicant.
Ba Swe for the respondents.
U SAN MAuNG., J.-This application for revision by
Maung Sein Hla, Legal Representative of Daw Than May
(deceased) who was the plaintiff in Civil Regular Suit
No. 33 of1958 of the Township Court of Bassein West,
is against the order of the Township Judge dated the 2oth .
of August I962 by which the learned Judge refused to
set aside his predecessor's order dated the 2:lth of April
ctvil Revtston
. . N o. 56 o.f 196z, agatnst
. the dectee of t h e. T ownship
oratr Gout1:
of B~ssein in Civil Regular Suit No. 33 of 1958 dated zoth August 1.9 62.
. BURMA LAW REPORTS
c.c. 1960, dismissing the plaintiff's SJlit. The facts giving rise
-1963 to t h e present appI'1cat1on
. . fly t h ese.
are bne
::mN
n ...'M. . in Civil Regular Suit No 33 of 1958 .mentioned above,
Ko i{YAw the plaintiff Daw Than May sued the defendant-respondent
HuNs AND Ma Mya Ngwe and 2 others for their ejectment from the
THREE
oTHERs. suit land on the ground that they had forcibly entered
. into 'possession thereof, the suit being one under section
9 of the Specific Relief Act. She impleaded as a proforma
defendant, Ko Maung Ni whom she had herself deputed
to look after the suit land because Ko Maung Ni refused
to join her as a co-plaintiff in the suit. On the 26th of
July 1958, about two weeks after the filing of the present
suit by Daw Than May, Ma Mya Ngwe filed a suit against
her for a declaration that she was the owner of the suit
land in succession to her adoptive parents, U San Nyein ,
and Daw Khin, and for injunction restraining Daw Than
May from executing against her, any decree which
s,he might be able to obtain in the present suit. Ma Mya
Ngwe impleaded in her suit Ko Maung Ni, Ma Kyin Myint
and,Ma Mya Mya. Ma Mya Ngwe then applied for stay of
Civil Regular Suit No. 33 of I958 pending the decisio~
of her suit, namely, Civil Regular Suit 't\o. 36 of 1958 on '
the ground that whatever decree that might be passed in
favour of Daw Than May would be subject to the result
of her own suit, which was based on title. The learned.
Judge then relying on a dictum of Dunkley J. in Ma Kyaw
and anqther v . Daw Kye U (r) stayed the present suit
pending the disposalof Civil Regular Suit No: 36 0 1958.1
In that suit Daw TI1an May's defence was that Ma Mya
. Ngw~'s alleged adoptive mother Daw Khin sold a portion
of the suit 'land to the defendant Ma Mya Mya by an
uriregister~ saJe deed with possession. Ma. Mya Mya in
turn sold her portion to Ma Kyin Myint by a registered
deed and Iy!a Kyin Myint in turn sold it to her,. also by a
. reg1stered deed. The status of Ma Mya NgWe as Kittima
(1) A.l.R. (1935) Ran .3SS
BURMA LAW REPORTS 487'
adoptive daughter of U San Nyein and Daw Khin was also C.~.
disputed. The Township Court decreed Ma Mya Ngwe's ~
suit . on the 27th of Apn'l 19 6o on .t he ground t h at sh e was DAW THAN
MAY
at the very least, an appatitha chi~d of U San Nyein and Ko ;{:YAw
Daw Khin and was therefore entitled to inherit their estate HuNe AND
in the absence of other heirs thereto. He also held that o:=::.
in the absence of cogent proof regarding the loss of the
document said to have been executed by Da"vv Khin in
favour of Ma Mya :V1ya. secondary e-vi dence of i ts con-
tents ;\Js inadmissible in law so that the defcndJnts ~!.1
Mya \ly.a . Ma Kyin \fyint a nd Daw Than May could not
pro' ,..H~ y titk to the portion ciaimed by them. On the
..;..1n:c (! .w.:. in the presence of the learned Advocat<JS for
both ;:1e parries. the Township j udge dismissed the pre-
sent ) u i ~ (( i,il Regular Suit No. 33 of 1958) on the ground
that \fa Mya Ngwe had succeeded in proving her title in
the connected suit Against this dismissal there was no
application for revision by the plaintiff Daw Than May.
Daw Than May, however, appealed to the District
Court against the judgment and decree in Civil Regular
Suit No. 36 of 1958 but her. appeal was dismissed by the
District Judge of Bassein in Civil Appe~l No. 7 of 1960
of that Court on 'the 6ti1 of March 1961. Daw Than May
preferred a further appeal to the late High Court a~1d her
appeal :was de~llt with in Civil Second Appeal No. 23 of
1961. This ti.me she was successful, and the judgment
and .decree of the District Court confirming those of the
Township Court were set aside on the 3oth of March
1962 by U Kyaw Zan U, ]., on the ground that although
Ma Mya Ngwe had succeeded in proving that she was an
appa~itha daughter of U ~an Nyein and Daw Khin her
su~t being on the footing that ?he 'Yas a. Kittima adoptive
daughter, it must be dismissed in the absence. of an alter-
native claim .of right as. an appqtjtha . datlg~~r. The
learned ..Judge also held that in that suit Daw Than May
had: not succeeded in proving her title to the portion
. 488 BURMA LAW REPORTS
~9~j cl~_med by her because Ma Mya Mya who was away in
-:- Arakan could not come to give evidence before the Town-
DAwMAvTHAN s.h'1p Court o f Bassem,
an d t l1e app I'1cat10n
:to exam1ne
h er
Ko KvAw on commission was disallowed by the learned Township
HLtNAND Judge. So the nett result of the two suits was that Daw
THREE
oT~s~ Than May's daim for possession under section 9 of the.
Specific Relief Act was unsuccessful, and Ma Mya Ngwe's
claim for declaration of title and for injunction was also
urisucces~ful. There was complete status quo.
On the 29th of June r960, a few days after she had
filed her appeal against the' judgment and decte'e in Givil
Regular suit No. 36 of 1958, Daw Than May applied to
the T~'Wnsbip Judge :to " recall and vacate the order of
dismissal dated :the 27th April 1960" pending the result
of her appeal against the judgment and decree in the con-
ne'cted suit. Her application was, however, kept pending
and order was passed on the 2oth August 1962, dismissing
her application mainly on the ground that the application
which "Yas purported to be under section 151 of the Civil
Procedtire Code did not lie. The present application for
revision is against :that order.
Now, with due respect to the learned Judge who de-
cided the case of Ma Kyaw and another v. Daw Kye U
(r) I do not consider that it would be right to say that
a prior suit under section 9 of the Specific Relief Act should
l;>e stayed pending the decision of a cross-suit based on
title. As obseryed by Pag_~, J. (as he then was) in
Satishchandra De v. Madan.rriohan ]ati (2}:
-.. "In suits under section 9, Specific Relief Act, ques.t ions
of title are irrelevant, for,. like the old assize of novel dis-
. s~iiin in Plan~agenet times, section 9 was e~a~ted to afford
~ summary remedy against persons wh9 had taken the law
into their own hands .and had ejecte~ those in possession
of land Gtherwise than thr~ugh' proc55 of law."
BURMA LA\\- REPORTS
In this connection the oh<;cn ation of a Bench of the C.f
Madras High Court in Nara_,ana Row v. Dharmachar (3) ~
DAW THAN
may also be usefully quoted . The _learned Judges sa1d: MAY
v.
"The only effect of section 9 of the Specific Relief Act Ko KYAW
HLINEAND
is that a person who has been dispossessed otherwise than THREE
in due course of law and who brings a summary suit within OTHERs.
the time prescribed by th.u section, is entitled to be re-
instated even if the defendJnt by whom he was dispossessed
be the true owner or a person authorized by or claiming
under him. But a decree passed in such a suit will not have
the force of res judicata on the question of title."
Therefore irrespectiYe of the fact that the plaintiff in the
cross-suit is the true owner of a piece of land, the plaintiff
in a prior suit under section 9 of the Specific Relief Act
is entitled to a quick and summary justice in the form
of a decree for ejectment of the person who had forcibiy
dispossessed him- Furthermore, I do not see how as in
Civil Regular Suit No. 36 of 1958, now under considera-
tion, a plaintiff can be given a decree for injunction res-
training the person obtaining a decree under section 9 of
the Specific Relief Act from executing his decreee for eject-
ment. As already observed above the cause of action in
such a suit is entirely different from the cause of action
in a suit based on title. Logically, therefore, a decree
granted on a good and subsisting cause of action should
be allowed to be execu~ed and not restrained by injunc-
tion from being executed.
Consequently. the learned Judge of the Township
Court, Bassein West, was wrong in staying the present
suit and in also dismissing it on the ground that a decree
had been obWned by the plaintiff (Ma Mya Ngwe) in the
cross-suit. If, therefore, an application for revision had
been filed against the order of the learned Township Judge
dated the 27th of April 1960, I might have been inclined
to interfere.
(3) l .L.R. X..."'{VI Mad. 514.
SURMA LAW REPORTS
o.c. However, the present application is not against the
1963
order dated 27th April 1960 but against the order dated
DAW TH..o.N
MAY 2oth August 1962, refusing to review the order dated the
'D.
Ko Kv11w
27th April 1960 by the Township Judge exercising the
HLINE AND inherent powers of the Court. The application for review
THRE!?
OTHERS, whether under inherent powers or under the relevant pro-
visions of the Civil Proc-edure Code was entirely miscon-
ceived, for, section 9, Specific Relief Act enacts that "no
appeal shall 'lie from any or(l,er or decree passed in any
suit instituted under this section nor shall any review of
any such order or decree be allowed."
.. Gonsequently, the application for the revision of the
order of the learned Township Judge refusing to review
the order of'his predecessor dated the 27th of April r96o
is also misconceived. It is dismissed with no order as to
costs.
BURMA LAW REPORTS 491
APPELLATE CIVIL
B~Jore U San Marwg and U Tttn Tin, JJ.
DORA WIN AND THREE OTHERS (APPELLANTS)
v. Aug. 30.
DAw SAw MYINT AND ONE (RESPONDENTS).*
Declaration-Sriit for declaration by children of al~eged second 1~ife-.,lretlrer
can be declared as lawful children and heirs of deceased father.
The Plaintiffs, who were the children of the alleged second wife of the
deceased, sued the first wife and their mother for a declaration that they were
the la~vful children and heirs of the deceased and as such entitled to 1/4th
of the estate of the deceased. The Learned Judge of the Original Side however
dismissed the suit. On appeal: '
Held: The present suit by the plaintiffs, although framed in the form of
a suit for declaration is a thinly disguised suit for administration of the estate of
the deceased.
According to Burmese Buddhist Law, on the death of the deceased, the
only heirs were his widow, the first wife,, and also the second wife, assuming.
she was also his widow. Therefore the plaintiffs in the present suit have no
cause of action against anybody on the death of the deceased, assuming him to be
their father.
Regarding ' the contention that the Learned Judge on the Original Side
should at least have declared that they were the children of the deceased as
their contention to this effect had not been admitted by the 1st wife; this is
too far-fetched a proposition. In fact, what the plaintiffs sought for was
a declaration of heirship. to.the estate of the deceased, and not to the estate of
his widow the first wife. Consequently, they can have no claim to the first
wife's estate until she is de~d, even assuming that they are the children of
the deceased.
Furthermore, there is no knowing whether the 1st wife would not be survived
by children or adoptive children of her own.
Therefore the present suit for a bare .declaration should be dismissed.
Tarak Chandra Das and another v. Anuku Chandra Mukherjee, A.I.R. (x946),
Cal. 118, referred to and distinguished.
Bhoop Singh v. Tan] Singh, A.I.R (tCJS2), All. 392, referred to and
distinguished.
Ba Tin for the appellants.
Kyaw Myint for the respondents.
* Civil First Appeal No. 88. of 1962, again$~ the ~ree of the Original
Side, Chief Court in Civil Regular Suit No. s8/6z, dated 31st Octob~ 1962.
492 BuRMA LAW tl:PORTS
U SAN MAUNG, ].-In Civil Regular Suit No. 58 of 1962
of the Original Side of this Court the plaintiff Dora Win
I].~R*!: and her younger brofhers and sister, Michrel Win, Tommy
oTHERs Win and Cissie Win With Dora Win acting as their next
friend sued the defendant Daw Saw Myint and their mother
DAw'O_. SAw
.M"~.~No Daw Mya Thin for a declaration that they were the lawful
children and heirs of the late U Ba Win and as such entitled
to inherit one-quarter of the estate of the late U Ba Win.
Their case was that their father U Ba Win, an Advocate of
the High Court, died ori the 2rs.t of March 1955, leaving
the two defendants and .themselves as heirs and legal
repre?entatives. He also died possessed of considerable
property as mentioned in the schedule. At the time of
his death the plaintiffs were minors, Dora Wjn the eldest
daughter, being only .13 years of age.
In Civil Regular Suit No. 19 of 1956, their mother Daw
Mya Thin sued the rst defendant Daw Saw Myint for
administration of the estate of U Ba Win on the ground
that she was one of his wives. Subsequentfy, the suit was
compromised by Daw Saw Myint paying a sum of K 4o,ooo
to Daw Mya Thin. The plaintiffs claim that since they
were also heirs and legal representatives of U Ba Win this:
settlement whi<;h was made in a suit to which they were
not parties, was not binding upon them. A<:cordingly on
the roth of April 1962, they had sent a notice to Daw Saw
Myint, who was in possession of U Ba Will's estate, for
.delivery to them of their r-ightful share in that estate.
Daw Saw Myint by her reply denied their claim and status.
Therefore, they averred in paragraph I I of their plaint as
follows:
"The abovementioned plaintiffs aver that they are legally
cil~itled to a declaration. tha_t . ~h~y are the l'c:l.wfyl ~ldren and
. heirs of their .late father U Ba Win. That they are further
'e ntitled to a 'declaration that they are heirs :o< the estate of
the late U Ba "Wiri to the..e:>ttetlt .of one-fourth of the said
.... BURMA LAW REPORTS
estate as mentioned in and to be read as part of this plaint- c. c.
1963
That the plaintiffs are not praying for consequential relief in
view of the fact that 'their mother the second defendant is DoRA \li.'IN
AND THREE
still alive." OTHERS
v.
DAW SAW
They also said that since they bad come to learn that MYINT AND
Daw Saw Myint _was adopting some persons in the Kittima oNE.
form this would have a dJmaging effect on their claim to
U Ba vVin's estate and upon their position and status as the
lawful children of the late U 8a Win.
The defendant Da,,..
Saw Myint by her written statement
said that she did nor admit that Daw Mya Thin was a~ any
time a wife of the deceased or that the plaintiffs were his
lawful children. She also said that the plaintiffs were not
heirs to the -estate of her deceased husband U Ba Win.
I ' '
She admitted the settlement between herself and Daw Mya
Thin in. Civil Regular Suit No. 19 of 1956 and averred that
since the : p~aintiffs were originally parties to that suit,
being rep1;.esented by their mother Daw Mya Thin as next
frien~. ~heir preSent suit was barred by res judicata as their
names had~ been struck off under Order I, Rule 10 (2) of
the Civil Procedure Code .on objection being made by
herself.
On th'e pleadings the learned trial Judge .fra-m ed three
issues o{ law : . . . . .
(r) On the assumption that the 2nd defendant D4w
Mya Thin was a Wife of the late U Ba Win,
. are the plaintiffs, who .were minors at the time
. o:f his death; heirs to his esrate? . .
(2) Is:the pl<iintif;fs' suit barr~ by reaSOJ1 of th~ order
: . ~a~ed 4th June.I95? pa.ss~ in Civil Suit No: i9
of .r9s6 s.triking out thir names from ~he, said
suit?. . .. ~ . .
. .. .
(~)_ Is _the__ suit for.a bar~ 'de~larati~n ~thout c~h:.
sequential relief maintainable?
BU~1v1A LAW REPORTS
C:C. .The learned trial Judge answered all these issues in favour
1963
of the defendant and he accordingly dismissed the plaint-
DoRA Wx~
AND THREE iffs' suit with costs. Hence this appeal.
OTHERS
11.
DAWSAW
Now, in Civil Regular Suit No. 19 of 195.6 of the late
MYINTAND High Court Daw Mya Thin for herself and as next friend
ONE.
of her minor children Dora Win, Mich<el Win, Tommy
Win -and Cissie Win sued Daw Saw Myint for a declaration
that she was the widow of the deceased U Ba Win equal
in status and standing -with that of Daw Saw Myint and
that the mjnor plaintiffs were the children of the late U Ba
win and herself and as such she and her minor children
wer~ entitled to a half-share of the estate of U Ba Win.
She also asked 'for administration. of the estate of U Ba
Win.
The .defen~~ of Daw Saw Myint was that she would
not ~dmit that Daw Mya Thin was a wife of 1! ~a Wm or
that the minor plaintiffs were his laWful ch~ldren and' that
therefore their suit should be dis~. Daw Saw Myint
also objected to Dora Wm, Mi~I _ Win. Tommy \in and
Cissie Win being joined as p!aint:iJis in the suit on the
ground that they had no cause of action against her even
assuming that Daw Mya Thin was U Ba \Vin's 'vife and
her children were begotten of U Ba Win. The learned
-Judge.on the Original Side of the late High Court (U Aung
Tha -Gyaw, J .} accepted this plea of Daw Saw Myiq.t_1and
-struck the present plaintiffs off from the array of pbintiffs
in: that suit under the provisions of Order I, Rule ro (2) of
the Civil Procedure Code.
rf. the present plamtiffs had been majors .at th~t time it
.is hardly open to doubt that by their inaction in not appeal-
ing against the order of the learned Judgeof the late High
-Court their -present suit would be barred as res judicata.
In Rama Rao and another v." .The Raja of Pitt!lpar. and two
_others (i) a Bench of the .
Madras High Court he!~ that an
. .
(i) I'.L.R. XLI.. :\iad. Qtz-.
BURMA LAW :REPORTs 495
order in a suit striking out from the array of parties a c.c.
1963
defendant as an unnece~ary party dismissing the suit
DoRA WIN
against him is in effect a decree and is appea1able as sueh.. AND THRB
In SherAli v. ]agmdhan Ram (2) a Rench of the Allahabad OTHERs
v.
High Court observed : -il~~~T s~:o
"Where however a cause of action against a defendant oNE
has been specifically pleaded and a distinct relief has been
claimed against him, the order directing the removal of his
name from the array of parties is in substance, although not
in 'form, a decree : because the effect of the order is the
refusal to grant the relief to the plaintiff which he had prayed
for against him .. .."
[See also Ramji Panday v. Alai Khan (3) and Nankumar
Sipba v. Roi &:rhadur 1'aslmpati~Ghosh (4)], where the above
-tbtee cases were cited with apptoval.
However, in our opinion, it is unnecessary in this appeal
to consider whether or not the plaintiffs' suit is barred as
res judicata by reason of their names having been struck
-off from the array of plaintiffs in the former suit under
"Order I, Rule ro (2) of the Civil Procedure Code, "during
their minority.
The present suit by the plaintiffs although framed in
.the form of a suit for 'declaration is a thinly disguised suit
for administration of the estate of U Ba Win. In the
plaint they had taken up a very inconsistent attitude. In
:paragraph ro thereof as in their notice to Daw Saw Myint,
they contended their present right to inherit a one-fourth
share of U Ba Win's estate. By paragraph 1 r thereof they
contended that they need only file a suit for a declaration
as their mother was stiil alive. In their prayer they asked
for a declaration that they had the present right to inherit
-one-fourth of the late U Ba Win's estate.
. Novy, the peculiar position of the children of a
'Burmese Buddhist couple nee"ds to be mentioned. On the
.(z) I.L.R. 53 All. 466. (3) I.L.R. Ill, Pat. 859.
.. (4) I.L.R. .zo, Pat. 417:
496
c.c. death of their parents the children immediately succeed
1963
.to their estate as tenants-in-common. However, while
DoRA WIN
AND THREE they are alive the children, especially if they are minors
.. OTHERS
v.
are largely dependent on their will as to the disposition
DAW SAW of the parental estate. For instance, when the marriage
MYil'!T AND
ONE. between the parents is dissolved the children lose the right
to inherit the property of the parent who has abandoned
them unless filial relations are resumed. I.f children are
given away in adoption they cease to have any right to-
inherit from the natural parents' estate. [See Ma Yi by
her Guardian ad litem Thet Pon v. Ma Gale (5) and Maung
Ba T[lwin v. Maung Po Hti (6)].
On the death of the father or the mother it is the sur-
viving spouse who inherits the whole of the estate subject
only to the claim of the Orasa. The claim of the other
children would only arise in the event of remarriage of the
surviVmg spouse. [See Ma Sein Ton and two others v.
Ma Son (7) and MaE Hmyin and three v. Maung Ba Maung
(8)]. In the latter case this rule has been succinctly put
as follows:
"The ordinary rule of Burmese Buddhist Law is that the
\'vidow succeeds to her husband"s estate to the exclusion of
her children (except the auratha if there is an auratha) and
that so long as the mother is alive and remains unmarried
no child of bers (except the aurarba) can claim any share of
the property left by: their father.
."
Consequently, on the death of U Ba W in the only
heirs were his widow-Qaw Saw Myint, and, Daw Mya Thin
on the assumption that she ~lso was his widow. Th~
lean1-ed Judge on the Original Side of the late High Court
was qujte justified m the co~dusion arrived at by hjm that
the pr-esent plq.intiffs who were then represented by their
<s> vr L.B.R.. xo'i. (7) VIII L.B.R.' sox (FB).
(6) I.L.R. VI Ran. sxo. (8) I.L.R. z Ran. xz3.
B~ LAW REPORTS 497.
mother Daw Mya Thin .
as their next friend were not neces~ c.c
1963
sary or proper parties to that.suit, and that therefore their -
. d R l f DoRA WI;s
names should be struck off under Or er I, u e IO (2) o AND THREE
the Civil Procedure Code. The plaintiffs in the present or:.ERs
suit have also no cause
. .
of action against anybody on the 1\tDl.:-..w SAw
YINT AND
death. of U Ba Win, assuming him to be their father. o!'<~.
Therefore, the learned Judge's answer to Issue No. I in
favour of the defendant Daw Saw Myint is well supported
by authority.
In fact .the learned Advocate for the plaintiff-appellants
cannot cite a single authority to the contrary. He
accordingly contends that even if the learned Judge on the
Original Side of this Court was right in refusing to dedare
that the pW.ntiffs were the heirs of U Ba Win he was
wrong in refusing to give them a decree declaring that they
were the children of U Ba Win, as their contention to this
effect had not been admitted by Daw Saw Myint. In
support of his contention he has cited several cases of
which it would be suffici~nt to notice only two. They
~re: [Tarak Chandra Das and another v. Anukul Chandra
Mukherjee (9) and Bhoop Singh v. Tarif Singh (Id)]. In
th,e orm,~:r: case it was held that a person having even a
contingent right in a property may sue for a de<;:laration,
though the Court in the exercise of its discretion may
refuse to make such declaration if it considers the claim
to be too remote. In the latter case it was held that the
words " legal character " and " right as to any property "
have been used in section 42 of the Specific Relief Act
disjunctively, and not conjunctively, so as to entitle the
plaintiff to a declaration on the exclusive basis of either
the one or the o~er ; and that whether a man is a legiti- .
mate son of another, whether he is the adoptive father of
another, whether he h~ legally married a particular
woman, ar_e instances of questions involving his " Legal
~)) A.I,R. 1946, Cal. 118. (to) A.I.R. 1952, All. 392.
Character " within the meaning .of section 42 of the Act;
and that if he finds a danger or entertains any fear of a
DoRA Wr:-1
Arm THREe challenge to his status as such he may seek relief in a Court
oTHERS of law. In elaboration of his argument the learned
DA\:sAw Advocate contends that if the plaintiffs are the legitimate
MY!~~.AND children of U Ba Win they would succeed to Daw Saw
Myint's own estate, in the event of Daw Saw Myint pre-
deceas~~ them without having any children of her own.
This, in our opinion, is too far-fetched a proposition to
persuade us that the declaration sought for should be given.
In fact, what the plaintiffs sought for was a declaration of
heirship to the estate of the late U Ba Win and not to the
estate of his widow Daw Saw Myint. Consequently, they
can have no claim to Daw Saw Myint's estate until she iS
dead even assuming that they are the children of U Ba Win.
Furthermore, there is no knowing whether Daw Saw Myint
would not be survived by children or adoptive children of
her own. Therefore, in our opinion, the learned Judge on
the Original Side of this Court was quite justified in coming
to the conclusion that the present suit for a bare declaration
in the form asked by the plaintiffs should be dismissed.
In the result; the appeal fails and it is dismissed with
costs, Advocate's fees being assessed at ro (ten) gold.
mohurs.
CIVIL MISCELLANEOUS
Before U Maung Maung,J.
IN THE MATT.J::R OF CHAN THA ZAY Co. c .c .
1963
u OHN MAUNG AND ONE (PETITIONERS). * Aug. 30.
Windirzg tiP of Company-Ss. 162 and 166, Burma Companies Act-Application
by tu:o. m~mbers of Company on grounds of misconduct and mismarzageme11t-
whetlzer "jnst and equitable".
The Petitioner had applied to the Court for winding up of the Respondent
Company of which they were members, on grounds of misconduct and
mismanagement, under ss. 162 and x66 of the Burma Companies Act. 0At the
hearing, the main charges were mismanagement of the Board of Directors,
past and present; inefficiency and wastage; and the gloomy prospects of the
Company to make profits in the future.
Held: .\ sufficient case has not been made out to render it just and equitable
for the Court to order a winding up of the Company. A company is like
a family of people -who have pooled their res()urces to work together and share
the. profits, sticking together in good times and in bad. When problems arise.
about the management of their affairs the natural and reasonable thing for
the members of the family to do is to get together and discuss the problems and
arrive at their solutions. The family of shareholders is thus the domestic
forum of the Company where matters such as management and the ;haring of
risks and of ,rewards must be discussed and decided. It is only when decisions
cannot .be arrived at the domestic forum and tqe grounds are strong and suffi-
cient that the Court should intervene and take a hand in the management of
the affairs of the Company or the d.r astic step of winding it up. Here the
petitioners have disdained to voice their feelings or seek their remedies at
the domestic forum and. rushed to the Court instead.
. In the matter of 1\1ahamandal Shastrci Prakashak Samity Limited, Benares
. I .L.R. Vol. XXXIX Allahabad, p. 334, Sudhiva Nath Bhaduri v. Bihar Nationa[
Instirance Co. Ltd., Patna, A.I.R. (1941) Pat., p. 6o3; ReCine Industries and
Recording Company Ltd., A.I.R. (1942) Bo,m., p. 231; and B: Cowasji ~nd
others v . .S ..ath Singh Oil Company:.Ltd., XIII B. L.T., ? sr, referred to.
Fisher. for the petitioners . .
Po Tha and Myint Soe for the :respohdent-company.
"'"Civil.Miscellaneous 24o.of 1962, in the matter of the Burma Companies
Act; and in the matter of the Chan Tha Zay Company, incorporated under
<o~V the Burma Companies Act, ~rrying on business at 176A, 24th Street; Rangoon.
.SQQ BURMA LAW REPORTS
c.c. U MAUNG MAUNG, J.-The petitioners apply to the
1963
Court under sections r62 and r66 of the Burma Companies
lN THE
MAT 11m OF Act for a winding up of the Chan Tha Zay Co. by order
Cf.AN THA
. ZAYCo.
and under the supervision of the Court. Paragraphs 5 to
I I of the petition lay down the grounds on which , the
petitioners allege, the Court should find it " just and equit-
able" to order the winding up.
The .first ground set forth is that the election of the
Directors of the Company had not been done in compliance
with the provisions of the Burma Companies Act. The
.second general .charge is that the Directors have been guilty
o f ~isconduct in the performance of their d~ties and mis-
manag~lile.nt of the Company's affairs r~nging'~rom failure
to coiwene general rn_eetings and other meetings, or the
-convention of such meetings at short notice; the failure
to " exhibit any accounts " for inspection and to report
on the circumstances of the Company to the shareholders;
the squandering of the capital of the Company and the
borrowing of money by pledging share certificates belong-
ing to the petitioners on false pretexts. It is also general-
1y alleged that the Company has been suffering irreparable
1ossand its business has no:t been conducted to the advant-
:age of the shareholders.
In his final address after the evidence has been record-
ed Mr. Fisher, learned Advocate for the petitioners con~
centrates his attention on charges of mismanagement of
the Board of Directors past and present, inefficiency and
~astage, and on th.e prospects of the Company for making
-profitS in 't:he. fu,ture, which, Mr. Fisher would like me to
infer from the evidence~ are gloomy.
U 9hn Maung, one of the petitioners, states in his
evidence that he holds 50 shares of K Ioo each in the
C ompany and h~ paid up for the shares in full. . The.
-paid-up 'capital of the Company is K I,25',ooo. He sa~ .l
1
that though
.
he
.
has
. been a shareholder for about 5 years,
~URMA LAW REPORTS 501-;
1:hat is, since about the founding of the Company, he has c.c.
1963
not received any dividends and his attempts to inspect the lNTH
:accounts of the Company were always frustrated by the MATTER OF
CHAN THA
Directors. He was invited to m~etings of the Company ZAYCO.
three or four times but notices of the meeting would arrive
very late. In September 1960, Daw Khin Su, the Managing
Director took his share certificate from him saying that
1:hey were needed for the registration purposes. Daw
Khin Su, according to U Ohn Maung, took the share certi-
:ficates from Daw Than Than, the co-petitioner, and Daw
Yin Yin, a. Director, also. Four or five months later, \vhen
be asked for the share certificates, he found after some cor-
responpence with Daw Khin Su that the shares ha'd been
pledged .with one U Thant. U Ohn \ faung has prosecuted
Daw Khin Su and U Thanr in the Court of the Ioth Addi-
tional Magistrate, Rangoon, and the case is still pending.
U Ohn Maung has heard that the Company has received
K 2,oo,ooo worth of import licences but the Government,
-according to U Ohn Mal,lng, would be discontinuing the
issue of import licence to private traders and the prospect
of the Company, whose main subsistence is import busi-
ness, to survive an,d make profi~s is negligible.
Under cross-examination by U Myint Soe, U Ohn
Maung says that from 1958 to 1960, Daw Yin Yin was
the Managing Director. During those years the petitioner
bad no ground for dissatisfaction with the conduct of the
affairs of the Company. It was after the assumption of
1:he Managing Directorship by Daw Khin Su that the dis-
satisfaction with the management of the Company began.
1t was a matter of principle, U Ohn Maung says, and there
was nothing personal about his dissatisfaction. The elec-
tions of the Directors were made without his knowledge
and without the vote of the shareholders. U Ohn Maung
further says that he did not attend the general meeting at
whfch the Company was founded nor has he read the
Memorandum and Articles of Association of the Company
2
BURMA tAw REJfibifts
c.c. {Exhibit. A). He did not attend the meetings of the Com-
1963
. pany partly, he says, because the notices were received
MA~~F late, and alSO because he had other business tO attend tO
c;~,J~ at the times the meetings were held. During the term of
Daw Yin Yin as Managing Director, the Company did not
receive any import licence and it was only after Daw Khin
Su had taken over that licences were received. U Ohn
Mating thinks that now that the licences are received the
Company should be making profits, but he has not received
any statement of accounts or reports on the Company's
affairs-
. Da.w Than Than, who joins with U Ohn Maung in filing
the petitioil., . states in evidence that she too is a holder.
~f K 5,ooo worth of shares in the Company. Daw Yin Yin
who.was her aunt was Managing Director of the Company
and she herself was Secretary for a few years until Daw
Khin Su, with whom also she is related but not so closely;
became Managing Director. All the shareholders accord-
ing to Daw Than Than are relatives of some degree or
other. Daw .T han Than did not attend meetings of the
COmpany after the change in the Managing Directorship,.
ana that was because she did not receive invitations.
Aq::ording to information, Daw Than Than says, Daw Khin
Su draws a monthly salary of K soo and her sister is draw-
ing K 200 or K 300 per month as Assistant Manager. Sh~
also says that statements of accounts of the Company are
not available up to ~ate. Cross-examined by U Myint Soe.
Daw Than Than admits that at the time Daw Yin Yin was
' Managing Director and herself was secretary no import
licence$ were received, business was dull and therefore
there was rio need . to keep accounts and books. She
lives in the same house with Daw Yin Yin but has her
O'Yfi business and was not in league wit~ heraunt in filing
this petition. She had received on 4th August 1961 an
invitation for Daw Yin Yin to attend the meetirig of the
Company and acknowledges that the signature in the peon
:.
BURMA. LAVrREPORTS "* 503
book Exhibit 2-A is her own. On 8th August 1961 she c"c.
1963
similarly received and acknowledged on behalf of Daw
IN THE
Yin Yin an invitation from the Company. Again on 9th Mf.TTEROF
'August 1961 she received from the Company letters for CliANTHA
ZAYCO.
Daw Yin Yin, herself, U Ohn Maung the co-petitioner
and a few others. Exhibit 2-B in the peon book also
shows that Daw Than Than received on behalf of Daw
Yin Yin, herself, U Ohn Maung and others, invitations to
an extraordinary meeting of the Company and in the
acknowledgment it is noted that the time at which the
invitations were received was 7 p.m. Daw Than Than
states that it was because of the late hour that she
received the invitc<1tions on behalf of the others and that
she had herself despatched them. On 22nd December
1961 there were similar invitations received by her and
acknowledged in Exhibit 2-C. Her complaint is that
these invitations were received late and gave only very
short notice for the meetings.
Daw Than Than does not go so far as to say :t hat Daw
Khin Su would misappropriate the profits accruing from
the licences that the Company has received. Her fear is
that due to inefficiency and wastage, the profits might not
be shared fairly among the shareholders. She was invited,
Daw Than Than says, to the last annual general meeting
of the Company but she did not attend in protest against
the short notice. She did not go to the Company's office
to inspect the accounts and she does not know whether
the accounts, duly audited, are available for inspection.
In reply to questions by the Court Daw Than Than
states that the Company has 25 shareholders. She has
not discussed with any of the other shareholders the de~
sirability or otherwi$e of voluntarily winding up the Com-
pany and she has not requisitioned a meeting of the
shareholders for the purpose of discussing . this question,
nor did she. speak to the Managing Director or other
Directors about this. Because she has been in the dark
.BURMA
~~ . LAW REPORTS . [19553.
. ...._...,
: ...
:~
4bOut the a1talrS or the Company, and also because she
has grave fears that the Company would not have much
IN THE
1\llATT.ER OF of a future ih the prevailing situation of the country, she
CHAN THA
ZAY Co.
has come directly to Court praying for a compulsory wind-
ing up.
U Thant, a witness cited by the petitioners, is the man
who lent money to Daw Khin Su and Daw Yin Yin, two
Directors of the Company, on the pledge of the share
certificates. : The ladies had come to him and said that for
purpo5es of registration of the Company money was need-
ed urgently. When he asked them what had happened
'to the-capital of the Company Daw Khin Su replied :that
the capital has been used up. The witness says that Daw
Khin 'Su promised to put up as security I4 share certificates
and Daw Yin Yin promised to put up I I.
' Dav/ Khin Su, .t he Managing Director, in her evidence
states that though the Company was in a bad way when
she took over from Daw Yin Yin, things have started to
brighten. In support of her statement she files Exhibits
3, 4, 5 and 6 which are audited accounts of the Company
for the years 1958 to I962. She says that she has con-
ducted the affairs of the Company in full compliance with
the requirements of the law, that general meetings have
been called regularly as per Exhibits B, ro-A an'd I r, and
the required reports and returns have been regularly lodged
with the Registrar of Joint Stock Companies. The Com-
pany has been receiving import licences for various lines
of goods and the prospects of being able to declare divid-
ends for the first time in the young history of the Com-
pany is good. .
U Ohn Maung <me of the petitioners, Daw Khin Su
states, had published the notice in the newspaper,
Exhibits 7 and 8, after filing the petition ih this Court for
a compulsory winding up. He has also warned the
Burmese Economic Bank Ltd., as it then was, by a letter
:Exhibit 9 that the petition having been filed, the Bank
BURMA LAW REPORTS. 505
would deal with the Company at its own risk. These c.c.
1963
are drastic measures, Daw Khin Su states, and did great
IN THE
harm to the ~usiness of the Company which found itself MATTER OF
unable to obtain over-drafts from the Banks with the re- CHAN THA
ZAYCO.
sult that several orders of goods for which import licences
had been received had to be cancelled at great loss to the
Cpmpany. Daw Khin Su says that annual general meet-
ings have been regularly called and invitations we1 e posted
in advance to. the shareholders in support of which she
files posta l receipts Exhibit 10. Neither U Ohn Vz.1uPg
nor Da\\' ;-han Than. the petitioners, discussed the desir-
ability of the Company going into voluntary liquida_tion,
Daw Khin Su says: this matter was never brought up by
the peti <ioners with the Directors or at meetings. The
accou nts were prepared, audited and kept ready at the
office of the Company and were available for all share-
holders . to see on request. Daw Khin Su admits that
money had to be borrowed from U Thant (PvV r) on pledge
of share certificates but this, she says, was made necessary
because the banks declined to grant over-drafts and the
pledge of share certificates was made with the full know-
ledge and consent of Daw Yin Yin and the owners .
.The evidence on record does not substantiate the charge
of mismanagement and Mr. Fisher, learned Advocate for
the petitioner~, could only point to one or two instances
where invitations to meetings sent to the address of
Daw TI1an Than were received rather late or too late- .
Mr. Fisher do.es not go so far as to say that the Court
should intervene and order the winding up of the Company
.because invitations to meetings addressed to shareholders
arrived late in one or two instances.
There is also a general charge that the capital of the
Company has been squandered and that at the time the
Managing Directorship was transferred from Daw Yin Ym
to Daw Khin Su, cash in hand was down to about K 3,000.
U Po Tha, learned Advocate for the respondent Company,
-=coo BU.RMA LAW~REPORT~
however, explains that this was the cash in hand whereas
stocks of goods and the assets were worth much more at
IN THE
MATTER OF that time In a ny case the audited accounts of the Com-
CHAN TaA pany are on record and they show the full financial history
ZAYCO.
of the venture. No cases of fraud or gross wastage are re-
vealed by the accounts, though undoubtedly the Company
was not making profits all these years and, as Daw Khin Su
ad~its, ,it has not been able to distribute dividends to the
shareholders or make profits which are assessable for
income-tax.
Mr. Fisher therefore concentrates his arguments on
the grounds that it would be just and equitable to have the
Company wound up because its prospects of making good
in the socialist economy that is being built are negligible.
Issue of" import licences will be stopped, Mr. Fisher says,
and that would be the final and fatal blow to the Com-
pany. Let the losses be cut while there is time~
Mr. Fisher argues, and let the shareholders salvage what..
ever they can out of the Company.
u.P-o Tha in reply raises one rather interesting point
of Jaw, namely, whether the two petitioners who may be
supposed to have fully paid up for their shares are
"Contributories" within the meaning of section r66 of
the Bunna Companies Ac.t, read with sections r 56 an d I 58,
A member of the Company who has fully paid up for his
snares 'rio longer labours under a liability to contribute
a.nd would therefore be outside the meaning of " contri-
butory, and hence incompetent to file a winding up
petition under section r 66. That is the argumen~ of
U Po "Tha. His research has shown that in India there
ar.e several conflicting rulings on the competence of a
member who has fully paidtip to file a winding up petition}
a.nd the ques.t ion has required the assistanCe of legislation
in order' to dear away the doubts.. Under amended com-
. pany la.w in India a member who has paid up in full has
..
Bu:Ri\1;k::LAW -:RiEPORTS 507,
... .....
.~:"'
.. ... ,. ; .~
. .. =.,;~;;-.
-- .
the competence to petition for winding up : see section c.c.
1963
439 (3) of the Companies Act of India, 1956. IN THE
The need to give an answer to this fine point of law MATIER OF
CHANTHA
posed by U Po Tha is, however, obviated because in the ZAvCo.
first place he does not press for an answer, choosing to
meet the petition on its merits. Secondly while U Ohn
Maung has said in his evidence that he has paid in full for
his K 5,ooo worth of shares, there is no evidence on record
that his co-petitioner has done so.
In arguing on the merits of the petition U Po Tha
submits that no definite charge of gross mismanagement
has been made or proved Regarding the speculation made
by the . petitioners that the Company has no h?pe of
survival ~s a profitable business venture, U Po Tha. points
out that the Company has recently received import licences
and for the first time in its history the signs are . that
dividends will be distributed when the accounts are closed
for the year. He also invites my attention to the rulings
.in "In th~ matter of the Mahamandal Shastra Prakashak
Samity Limited, Benares (rt) and Sudhiva Nath Bhadur~ v.
Bihar National Insurance Co., Ltd., Patna (2) where the
principal has been laid down that mere apprehension o~
petitioners that if the Company continued to work, loss
instead of gain would result, was not a sufficient ground
for ordering a .dissolution in the absence of proof that the
substratum of the Company was gone or that the Company
was conceived and brought forth in fraud Also in Re
Cine .Industries and Recording Company Ltd. (3) it has
been .ruled that in a petition for the winding up of a Com-
pany the Court will not gobehi,nd the balance sheet of the
Company duly audited by th~ auditors. more so when it
was open to the shareholder-petitioner to challenge its
correctness in other proceedings. And in B. Cowasji and
. o~hers. v. :Nath Singl! Oil Company Ud. (4), Rutledge, J.
(r) I.L.R. V:>l. XXXIX All., p. 334 (3) A.I.R. (1942) Born., p. 231,
(z) A.I.R (1941) Pat., p. 6o3 . . (4) Xiii B.L.T., p. sr.
~BURMA LAW REPORTS
had observea. : w mding up a Company is an extra-
-
IN TH
ordinary remedy to be resorted to only in extreme cases~
MATTER OF Internal fraud, or unconscientious conduct of the directors:
CHANTHA
Z.-.yCo.
in managing the affairs of the company is no ground for
a winding up order at the instance of a minority of the
shareholders."
In the light of the above observations I consider that
a sufficien~ case has not been made to render it just and
equitable for the Court to order a winding up of the Com-
pany. (A company is like a,:family of people who have
pooled their resources to work together and share the pro,..
fits, sticking together in good times and in bad. When
problei-ns arise about the management of their affairs the
natural and reasonable thing for the members of the family
to do is to get together and discuss the problems and arrive
at their' solutions. The family of shareholders is thus the
domestic. forum of the Company where matters such as
management and the sharing of risks and of rewards must
be discussed and decided. It is only when decisions can-
not be arrived at at the domestic forum and the grounds are
strong and sufficient that the Court should intervene and
take a hand in the management of the affairs of the Com-
pany or the drastic step of winding it up. Here the peti-
tioners llave disdained to voice their feelings or seek their
remedies at the domestic forum and rushed to the Court
instead.)
I must therefore dismiss their application with <:osts.
Advocate~ fees K r7o.
BURMA LAW REPOKTS 509~
APPELLATE CIVIL
Before U San Maung and U Tun Tin, JI
K. M. CHIDHAMBARAM CHEITYAR (APPELLANT) c.c..
1963
v.
Aug. 26 ..
s. T. P. N. SUBBIAH CHETIYAR. AGENT & ATTORNEY OF
S. T. P. NACHfAPPA CHETIYAR (REsPONDENT).*
Monl!y-kndcr~uestion whetlv.r a !'='~ u a ~-letder-<:rm brr raiud at
the Appellau Stagt--rcgistra:ion of a,ntt as rMney-le..-der-rwt s:.tff.eimt
for ccrr;\ing on 'IIKAU}'-in>ti~ ~ on bdwlf &j principal.
The R~;><>n<lent had brought a suit on behalf of his principal for reco,e~
of money on a promissory note. The trial Court decreed the suit, but on .
AppeaL the question that the principal wa.'i not a registered money-lender was
raised for :be firSt rime.
H~ld : It is clear on the evidence that several money-lending transactions
had been made by the respondent ncting as agent of his principal. As there
were no other business for the principal in Burma, his business must be that of
money-lending, regard being had to the said transactions. Bishwa Nath Rai v
Kashi Nath Rai, (1948) B.L.R. 449, referred to and distinguished.
The issue whether the principal is a money-lender or not, though raised
only at the Appellate Stage, can be considered if it is based on facts either
admitted or proved beyond controversy. Bishwa Nath Raiv. Kashi Nath Rai,.
(1948) B.L.R. 449; A.R.M.N.A. Chettyar Firm v. R.M.V.S. Chettyar and
others, (1938) R.L.R. 256; U Ba Yi v. Daw Hmi (a) Mrs. Khoo Sein Ban .
(1953) B.L.R. 36o (H.C.), referred to.
No decree can be passed in favour of the principal as he was a money-lender,.
but w~s _n ot registered as such.
The agent may have his own money-lending business, but this is not
sufficient. His registration is good only for his own money-lending business
It is of no use for the money-lending business which he was conducting for
his principal.
The Appeal was therefore allowed.
R. ]aganathan for th~ appellant.
G. N. Banerji for the respondent.
Civil First Appeal No. 6o of 1958. Against- the Decree of the Originab
Side, late High Cou~ of Rangoon -in-Civjl ReguJar Suit. No. (!8 of 1956, dated
the r8th Se)te:-riber 1958. .
.510
C-f
19 3
U SAN MAUNG, J.-In Civil Regular Suit No. 68 of 1956
of the late High Court the plaintiff S. T. p. N. Subbiah
~~~ Chettyar as Agent of S. T. P. Nachiappa Chettyar, sued
CHETTYAR
v.
the defendant K. M. Chidhambaram Chettyar for the re-
.s. T. P. N. covery of K 8,500 With interest thereon due on the pro-
c=~.!. missory note in suit dated the 7th of July, I953 The
.A~;~::~F plaintiff's case was that he paid the defendant on that
s. T. P. date a sum of K 8,500 for which the defendant executed
N ACHlAPPA ,
-CHETTYAR.' the pr6m1ssory note m question and that altogether a sum
of K 13,09475 pyas was due thereon. The defendant by
his written statement admitted having executed the suit
promissory note. He, however, denied that he received
ani. consideration therefor. His story was tha~ the plain-
tiff Subbiah Chettyar was having difficulty in rendering
accounts to his principal Nachiappa Chettyar so that in
order to help Subbiah Chettyar he executed .the suit pro-
missory note which the plaintiff promised to return to
him after satisfying his principal.
On the pleadings the most important issue framed was
whether or not the promissory note in suit was for con-
sideration. Mter examining witnesses cited by both the
parties to the suit the learned Judge on the Original Side
(U Mya Thein, J.), who had the benefit of seeing all the
witnesses in the case and of appraising their credibility
came to the conclusion that the suit promissory note was
executed for consideration. He accordingly decreed the
plaintiff's suit with costs. The defendant being dissatis-
fi.ed with the judgment and decree of the Original Side of
the late High Court appealed and a Bench of the late High
court remanded the suit to the Original Side for examina-
tion of one of the defence witnesses, S. Ramiah Pillay,
after admitting in evidence the account books relied upon
by him. Since then the High .Court had ceased to be in
existence and the suit was transferred to the City Civil
Cotift, Rangoon, as being within the limits of its
pecunialj. jlirisdiction. Further evidence of s. Ramiah
.Sl l
Pillay was accordingly taken by the second judge, Rangoon c.c.
1963
City Civil Court.
Now, the learned trial Judge noticed that there was ~~~~
an important discrepancy between the story told by the CH~AR
defendant Chidharp.baram Chettyar and by his main witness s. T. P. N
Ramiah Pillay. According to Chidhambaram Chettyar the c8: ! ,
plaintiff Subbiah Chettyar told him that as his principal ::r~r:~F
was pressing hard. for rendition of accounts a promissory
o
Ns. T. P.
ACHIAPPA
note for K 8,soo executed by Chidhambaram Chettyar CasTTvAR.
would facilitate the submission of his accounts to his prin-
cipal. According to Ramiah Pillay, however, there was
a dispute between Subbiah Chettyar and Chidhambaram
Chettyar over the amount due by the latter. Subbiah
Chettyar was claiming that a sum of about K 8,ooo was
due while Chidhambaram Chettyar said that nothing like
this amount remained to be paid by him. Ramiah Pillay,
therefore, advised Chidhambaram to execute the suit pro-
missory note so that accounts could be settled later,
especially in view of the fact that the old promissory note
which was for a sum of K 6,ooo was nearly getting time
barred.
According to Ramiah Pillay it was through his inter-
vention that the sum of K 3,000 still owing by Chidham-
baram to Subbiah Chettyar was paid by instalments and
the last payment of K 400 was made on theISt of Decem
ber 1954. Chidhambaram Chettyar also said that the
last payment was on that date and that he was able to
obtain from Subbiah Chettyar the return of the old pro-
missory note forK 6,ooo namely, exhibit No.2. Chidham-
baram Chettyar would have it that he also asked for the
return of the suit promissory note but that he had been
put off by Subbiah-Chettyar on sev~ral pretexts.
Now, under section .H8 of the Negotiable.Instruments
Act until the contrary is proved it must be presumed that
every negotiable instrument was made for consider~tion.
In our opinion, the learned trial Judge was quite justified
BURMA LAW REPORJ'S
c.t. in coming to the conclusion that Chidhambaram Chettyar
1963
had not proved satisfactorily that there was no considera-.
::riA~~~~- tion for the suit promissory note. As observed by him
.c~vAR Chidhambaram Chetty.ar was careful enough to enter in
s. T. P. N. his own handwriting the consideration for the promissory
~~H
CHETTYAR, note. He had been careful enough to obtam the return of
A~~~F th~ promissory note for K 6,ooo. The fact that he allowed
s. T. P. the
N ACHlAPPA
suit promissory note .to remain in the hands of Subbiah
Ca~>rTYAR. Chettyar without taking any necessary action to have it
returned is in strong .corroboration of the truth of Subbiah's
story. In any event, having regard to the dictum of the
late High Court in Chinnaya v. U K.ha (I) the finding of
fact of the learned Judge on the Original Side of the late-
High Court cannot be disturbed.
Nevertheless, the present appeal, in our opinion, must
;succeed on another ground. In his plaint Subbiah Chettyar
said that neither he nor his principal was a money-lender
as defined in the Money Lender's Act of 1945. This was
deni~d by Chidhambaram Chettyar in his amended writ-
ten state~ent! but no steps were taken to have an issue-
framed .on the point. But from the admissions made by
:Subbiah Chettyar in the course of his evidence it is clear
.that his principal Nachiappa Chettyar was a money-lender.
Nachiappa Chettyar came to Burma in the year 1940 and
had been carrying on business as a money-lender through
Subbiah <:hettyar as his agent since 1941. He invested
K 50,000 in this business and one Vallachami Pillay who
. had borrowe4 money from him owed him a large sum
of. money, ~amely, Rs. 49,000. This debt was settled for
Rs . .n,soo through the intervention of the defendant
,Chidharnbaram who claims that he was entitled to some
commissjon. in bringing about. this settlement The date
of th~ loan to Vallachami Pillay does not ~ppear in
su.'bbiah's e'vid.ence but it is dear that in the year !950
there . were
. four transaction,s
,.
b~tween N~chiappa
. and ~he
(I) I.L ..R. 14 Ran., ii.
BURMA LAW REPORTS 513
<defendant Chidhambaram Chettyar through Subbiah Chet- ;.;~3
tyar acting as agent of Nachiappa Chettyar. These were -
K. M. CIU
loans of Rs. 8,ooo on 6th rebruary 1950; Rs. 2,ooo on DHAMB.\RAM
24th May I950; Rs. 2,500 on 15th }!lne 1950 and Rs. 2,500 CH~AR
on 29th. june 1950. .
Besides these loans were the two S.5T. P. N.
UBBIAH
transactions as evidenced by the promissory note exhibit CHETTYAR,
1. Th AGENT AND
2 and ~ue promissory note now m su1t. ere was no ATToRNEY oF
,other business for Nachiappa Chettyar in Burro'! so that J.:cJ~;';A
his business p1ust be that of money-lending regard being CHETTYAR.
bad to the fact that all the abovementioned loans were
with interest. Accordingly this case is distinguishable
from that of Bishwa Nath Rai v. Kashi Nath Rai (2) where
it was held that a person who lends money on two or <three
occasions a year to his friends while doing some other
'business cannot be regarded as a money-lender.
No doubt, the issue that Nachiappa Chettyar, of whom
:Subbiah Chettyar is an agent, is a money-lender was raised
only at the appellate stage. However, it is now settled
that a question of law which is raised for the first time
in a Court of last resort will receive consideration if it
is based on facts either admitted or proved beyond con-
liroversy. [See A.R.M.N.A. Chettyar Firm v. R.M.V.S.
Chettyar and others (3); Bishwa Nath Rai v. Kashi Nath
Rai (2) and U Ba Yi v. Daw Hmi (a) Mrs. Khoo Sein Ban
'(4)]. In fact in Bishwa Nath Rai's case (:?!) the issue that
'the plaintiff was a money-lender was raised only at the
:appellate stage.
As the plaintiff Nachiappa Chettyar is a money-lender
no decree can be given to him on the suit promissory note
unless he was registered under the Money Lender's Act,
1945 and the registration is still in force. He was never
registered as such.
No doubt, Subbiah Chettyar has his own private money-
lending business and he has been registered but this is
(z) (rg~S) B.L R. 449 (3) (1938) R.L.R. zs6.
(4) (z9~3) B.L.R. 360 (H.C.).
514
c.c. quite insufficient. His registration is good only for his
1
9 63 own money-lending business. It is of no use for the
K. lVl. ciu- money-lending business which he was conducting for his
DHAMBARAM
CHETTYAR
pnnctpa 1. Nach.1appa Chettyar. .
v.
s. T. i?. N. In the result the appeal succeeds. The judgment and
c!~~!;!, decree of the Original Side of the late High Court are
AGENT ANDo set aside and the suit is dismissed. Regarding costs as
AT:rORNE'( F
.s. T. P. the defendant succeeds on a plea taken up by him only
~~:&~ at the appellate stage we would direct that each party
should bear its own costs throughout.
-
BURMA LAW REPORTS 515
APPELLATE CIVIL
Before U S(m Maung and U Kyaw Zan U , JJ.
c.c.
KO MAUNG GALE AND ONE (APPELLANTS) 1963
v. July 6 .
MA ON NYUNT :AND ONE (RESPONDENTS).~
Licensee and tenant-licensee for consideration-irrevocability of license.
The Plaintiffs had sued the Defendants for a Declaration that they are in
possession and enjoyment of a certain 'building under an irrevocable license
granted by the Defendants. It was alleged by the Plaintiffs that it was agt"eed
that they would build the said building, half of which was to be occupied by
them, and the other half by the Defendants who would pay for their share of the
costs of the building by easy instalments. The Defendants however con
tended that the building belonged to them, and that the Plaintiffs were merely
their tenants.
The trial court gave a decree for the Plaintiffs.
On Appeal:-Held: What constitutes a license can be seen from the
English Common Law principles involved in the present case.
The Common Law of England was and still is applied in this country under
s. 13 (3) of the Burma Laws Act, as justice, equity and good conscience.
The Tajmahal Stationery Mart v. K. E. Mohamed Ebrahim, V. S, Aliar
and Co. (1950) B.L.R. 41 (H. C.); The Union of Burma v. U Htoon Pe (1958)
B.L .R. so (H.C.), ,referred to.
In English Common Law, there is a difference between a bare license and
a contractual license which is irrevocable. To establish a contractual license,
there must be a promise which is intended to be binding and is either supported
by consideration or is intended to be acted on and is in fact, acted on.
An irrevocable license confers an equitable title. Winter Garden Theatre
(London) Limited v. Millenium Productions Limited, L.R. (1948) A.C. 173;
Foster v. Robinson, (1950) z All. E.R. 342; Vaughan v. Vaughan, (1953) I A14
E.R. 209 ; Erri11gton v. Errington and another, (1952) I All. E.R. 149, referred
to and followed.
It.has also been held by the late High Court that where there is a license with
a contractual riglit, equity would always intervene to protect by injunction,
the "licensee's right from any revocation or threatening interference in breach
of the contract.
U Tin Eng v. U Ba Yoke, (1957) B.L.R. 341 (H.C.), referred to.
Civil First Appeal No. 101 of 1961, against the decreeforderof the District
C:ourt of Henzada.in Civil Regular Suit No.6 ofi959, dated z3rdAugust 1961
.. .. --
BURMA LAW REPQ:&WSf:::.
It is apparent in this case that the Plaint iffs were mere licensees and not
t enants. There was nevertheless a binding contract that in cons ideration for
whatever they had promised to do, they would be allowed to reside p<!acefull y
: Ko l\1AUNC
GALE on their own section of the house. The license was accordingly an irrevocable
.AND ONE one.
v.
MA ON
NYIJNT
_A..'ID ONE.
Kyaw Myint for the appellants.
.
G. N. Banerji for the respondents .
U SAN MAUNG, J.- In Civil Regular Suit No. 6 of 1959
of the District Court of Henzada, the plaintiffs Ma On
Nyunt and Biswanath Chowbay who are the respondents
in the present appeal, sued the defendant appe-llants Ko
Maung Gale and Ma Hla Yin .for a declaration that they are
in possession and enjoyment of the building known as
House No. 3 in Bogyoke Road, Henzada, standing on Hold-
ing No. 245-' of 1958-59 in Block No. 29 of :vfyoma \Vest
Circle of Henzada Town under an irrevocable license
granted by the defendant:; to occupy the site in question.
The plaintiffs' case was that the defendant Ko Maung Gale
had offered to sell them a strip of land ro feet wide and
extending to the whole length of the holding in question
for a sum of K 7,ooo for the purpose of building a house.
20 feet wide half of which was to stand on the land still
,owned by the defendants. The consideration for the sale
of this land was to be K 7 ,ooo which was to be paid in three
.instalments of K 3,500, K 2,ooo and K 1,ooo besides the
.::advance of K 500. All these sums had been paid but the
.-defendants did not convey the strip of land to them on the
-ground that it was a condition of the grant under which
they: held it that there would be no transfers whatsoever.
Subsequently, an amiCable settlement was arrived at
..between the plaintiffs and the defendants by which- the
.plaintiffs would still .build a house 20 feet wide, half of
-:which was-to be occupied by them and the other half by
;the defendants who would pay for their share of the cost
BURMA LAW REPORTS 517
of putting up the building by easy instalments. The build- c.c.
1963
ing was at first ~ssessed to Municipal taxes in the name of
the plaintiffs but later, because of the defendants' claim KoMAuNG.
GALE
that the building was theirs a disp4te arose between the AND ONE
v.
plaintiffs and the defendants as a result of which the MA ON-
NYUNT
Municipality assessed each party in respect of that part of AND ONE.:
the building actually possessed by it. Consequently, in
order to remove the cloud whkh had been cast. on the
plaintiffs' title to the suit house the present suit for decla-
ration had to be filed by them.
The .defendants, on the other hand, contended that the
building belonged to them and that the plaintiffs yvere
merely their tenants. They said that they had taken an
advance of$. 6,49I partly in cash and partly in building
materials from the plaintiffs and that the monthly rental
of K 130 rayable by the plaintiffs was to be set off against
the advance taken by the defendants. As a point of law
the defendants contended that if the plaintiffs' story
regarding the manner of their possession of the site on
which.the building stood be true it was in the nature of a
lease in perpetuity which was invalid in law without a
registered instrument.
On the pleadings various issues were framed but the
most important' points to be determined were:
. (ctj whether the suit building was built by the plaint-
iffs at their own expense under an agreement
with the defendants in the manner set out in
.the plaint or whether the building belonged
to the def~ndants who had leased a portion of
it to the plaintiffs at a monthly rental of K 130
to be set off against the advance paid ;
(b) if the plaintiffs' story be. true .wh_e.t her the
arrangement between the plaintiffs and the
defendants was in the nature of an irrevocable
3
518 BURMA LAW REPORTS
license or whether it was in the nature of a
lease in perpetuity.
Ko MAUNG
. GA ;.E
AND ONE The learned trial Judge after examining many witnesses
v. cited by both the parties came to the conclusion that tl:e
MA ON
. NYUNi: plaintiffs' story was essentially true. He accordingly gave
AND ONE.
the plaintiffs a decree as asked for by them.
'On the evidence on re<:ord it can hardly be gainsaid
that the building in suit was in fact constructed by the
plaintiffs although the defendants might have co-operated
in the enterprise. That there was a prior agreement to sell
a strip of land 1 0 .feet wide is also established by the
evid~nce of:M?-ung Aye Maung (PW 5), Clerk of U Kyaw
Shein, an Advocate of Henzada to whom the parties en-
trusted 'the task of drafting an instrument. The draft,
Exhibit '' ~" was actually written by Maung Aye Maung
under. the dictation of U Kyaw Shein and there is evidence
to the effect that at that time ~he plaintiff Biswanath
Chowbay handed over a sum of K 500 to U Kyaw Shein
who in tum ' handed it over to. the defendant Ko Maung
Gale. The plaintiffs contended that further sums of
K 3,500, K 2,ooo and K 1,000 were paid towards the pur-
chase price of the land but this part of the story seems
exaggerated as in the reply letter, Exhibit " e ", dated
the 18th june 1957 given to the defendants' pleader U Po
'Kyeik; in answer to the defendants' notice to the effect
that the plaintiffs as their tenants should make no altera-
tions or repaids to that part of the building occupied by
them without the permission of the landlords, it is only
mention.ed that a total sum of K 3.750 had been paid
towards the purchase price of the strip of land.
'It is, however, unnecessary in this case to decide what
was the amount actually paid by the plaintiffs to the
.defendants towards the purchase of the strip of land. Re
garding the ownership of the building there is abundant
evidence. The Master-Carpenter U Ba Aye (PW 4). and
BURMA LA\V REPORTS -519
. '
:the Master-Mason Shafee (P\V 20) were unanimous in that
it was the 2nd plaintiff-respondent Biswanath Chowbay
Ko MAUNG
who had engaged the111 for the purpose of buii.ding the GALE
:suit house. There is also other evidence relating to the AND ONE
u.
purchase of building materials by the plaintiffs. MA 0-.:
NYUNT.
AND ONE.
For the defendants one Maung Hla Aye (DW 10) said
that the defendant Ko Maung Gale had purchased 3o,ooo
'bricks for the purpose of constructing the suit buil.ding but
~n cross-examination this witness had to admit that he
was only a clerk and that payment of the price for the
bricks had to be made to Ko Hla Shwe (P\V 13) and his
testimony cannot carry any weight. According to Ko
Hla Shwe (PW I 3) t'he bricks were purchased by the 2nd
plaintiff Biswanath Chowbay. The witness who gave
:strong evidence in favour of th~ defendants' version is
U Thi HI a (DW I 3'), an ex-police officer but the learned
trial Judge considered this witness to be unreliable and we
:see no reason for differing from his opinion as to the
credibility of the witness whom he had himself examined.
In our opinion, the true case has been set out by the
. plaintiffs in the~r reply tp the .4etendan~$: netic;~. There
the plaintiffs said:
"The contract between Ko Maung Gale <?n the one part
and Maharaj (a) Biswanath Chowbay and his wife Ma On
Gyaw on the .other part was this. ~o Maung Gale contracted
to sell ro feet wide land of his compound ~nd length flush
with the .length of his compound, for a consideration of
K 7,000 .(Kyat Seven Thou~and) to Ma On Gyaw, wife of
. Biswanath Chowbay who undenook to build a brick house
-on 20 feet wide on the land at his expense, half of which
:standing on ro feet wide' land sold to Ma On cyaw was t~
belong to Ma On Gyaw and the other half to Ko Maung Gale
who was to pay back to my clients half of the building
expenses. The building was accor~ingly completed by my-
diems at an expense of K 12,345 and half of this building is
occupied by my clients as Ma On Gyaw's ovvn property an~
not as a tenant as falsely alleged by your client."
520 . BURMA LAW REPORTS _ .
c .c: The existence of a very friendly arrangement had been
1963
disclosecl'whereby the defendants were to sell the plaintiffs
Ko MAUN.G
GALE a strip of land I o feet wide, the purchase being made in the
.AND ONE
v. name of the plaintiff Ma On Nyunt who was a Burma:
.MA Ol'f
NYUNT
Nationat her husband Biswanath Chowbay being a
AND ONE. foreigner. The plaintiffs were to build a house 20 feet
Wide hal.f of .which was to be occupied by them and the
other h<1lf by the defendants who would pay their share
of the cost of the house by easy instalments.
The question is: what is the status of the plaintiffs
so far as.i t concerns the site on which the building stands r
Now, what constitutes a ~icense is briefly explained in
Halsvury's Laws of England at Page 430 of Volume 23, 3rd
Edition. The relevant passage reads:
"A mere license does not create any estate or interest in
'the property to which it relates ; it only makes an act lawful
which without it would be uniawful. A purely personal
license is not assignable. A gratuitious license is revocable
by notice at any time and is revoked by the death of either.
.party or by an assignment of the land over which the license
is granted. A contractual license may be revocable or ir-
revocable according to the express or implied terms of the
contract between the parties."
The English Common Law principles in so far as they
have not been expressly abrogated by statute or otherwise~
are still being follq__wed by. Courts in this country. The
. common law of Fngland was and still is applied as the law
envisaged in section 13 (3) of t4e Burma Laws Act, i.e., a
law which is ac.co:rding to justic;:e, equity and good con-
science. [See The Tajmahal Stationery Mart v. K. E.
Mohamed Ebrahim V. S. Aliar & Co. (r) and The Union. of
Burma v. U Htoori Pe (2}].
The following cases illustrate tpe . common. law
.principles involved in the determination .o f the present
(r) (1950) B.L.R. 41(H.C.) (i) (1958) B.L.R. so (HC.)
BURMA LAW REPORTS 521
litigation. In Winter Garden Theatre (London) Limited v. c.c.
Millennium Productions Limited (3) a license was granted 1963
by the former to the latter .for producing stage plays, Ko MAtJNc
GALE
concerts and ballets for six months from July 6, 1942, AND ONE
with an option to continue for a further six months at an v.
MA ON
increased rent. The license contained the following pro- NYl.'NT
AND ONE.
vision: " On the expiration of the two periods of six
months before mentioned you are to have the option of
further cont;inuing the license of the theatre on the pay-
ment each week of a flat rent of 300 per week and you
will giYe us one month's notice of your intention of then
terminating the license." Provision was also made for
the payment of four weeks' rent in advance. The licensors
retained the management of the bars and cloak-rooms.
There \vas no express provision for the termination of the
license by the licensors. It was held by he House of Lords
that the license was a revocable one.
In the words of Lord MacDermott : . . . . " a close
scrutiny of what the parties have agreed has failed to
reveal any stipulation which I can regard as manifesting
an intention that the license was to go on for ever if the
licensees so desired." Accordingly, it is a matter of con-
struction whether in each particular case there is an inten-
tion that the license granted should be irrevocable.
In Foster v. Robinson (4) the landlord, a farmer, was
~he owner of a cottage which liad been occupied for many
years by the defendant's father who worked for the land-
lord on the farm and paid a yearly rent for the cottage.
In May 1946, the defendant's father, owing to age and
infirmity, had ceased to work, and it was then verbally
agreed betwe~n him and the landlord that he need not
pay' any further rent but could continue to live in the
cottage for the rest of his life rent free. Thereafter rent
was 'neither demanded nor tendered. The defendant's
father remained in the cottage until january 15, 1950,
(3) L.R. (1948) A.C. I73 (4) (1950) 2 All. E.R., p. 342.
siz BURiifA LAW REPORTS
when he died intestate. The defendant who was the
administratrix of her father's estate, had lived with him
KOMAUNG
GALE . in the cottage for a number of years and resided there at
AND ON"
v. the time of his death . The landlord informed the
MA ON : defendant, of his intention to sell the cottage with vacant
NYUNT
Al'.'D ONE: possession on. April 6. 1950, and he allowed her to reside
there rent free until that date but she refused to leave the
cottage: In an action for possession by the landlord it
was held that the agreement between the defendant's father
. ahd the landlord in May 1946, was effectual to produce ;x
surrender of the tep~ncy by operation of law, and the
defe.!ldant was estopped from asserting that the old
tenancy still existed. It was also held that after the sur-
render of the tenancy the defendant's father was a licensee.
In this connection Evershed, M. R., observed:
"Since the recent decision in Winter Garden Theatre
(London) Ltd. v. Millennium Productions, Ltd. (3). I think
that, althougl;l a license of that kind may, apart from the
terms of the contract, be revoked. it may now be taken that..
if the landlord, having made that arrangement, sought to
revoke it, he would be restrained by the court from so doing.
Thus, :he result is arrived at that Mr. Robinson was entitled
as lkensee to occupy the cottage without charge for the rest
of his days. and he did so. I prefer that analysis of the case.."
As this observation was apt to be misleading the learned
Master of Rolls had to explain it in a subsequent case.
being Vaughan v. Vaughan (5) where he said:
. .
"I <lid -no~ intend to lay it down in that passage that where
a proniise. pas been made which is not contractual in form
or effect and that promise has been acted on; then and
.with,out more a right is given to the promisee to go on enjoy-
ing . ~e subject-matter of the promis-e indefinitely. . I have
thought it right to make that explanation because I thirik
the_..cqunty .court judge .in the present case may have thought
othat ..the -~9rds of mine which I have read did Ie.ad to such
a conclusio~:"
(s) (1953) z All. E .R. 209.
BuRMA LAW REPORTS 523
In the case above mentioned the husband was the owner c.c.
I96J
of a dwelling house which was the for!Tler I'T'atrimonial
Ko MAUNG
home of the parties. In 1948 he dec;erted the wife, leaving GALE
AND ONI!-
her in the house and saying that she could " always live 'IJ.
there.'.' On June 19, 1950. the wife obtained a decree of MA ON
NYUNT
divorce on the ground o! the husband's adultery. By letter AND ONE.
dated March rr. 1952. the husband purported to determine
the license of the wife to remain in the house. CX1 a claim
by the husband for possession of the house it wac; held that
after the dissolution of the marriage the wife could not
assert a continuing right to remain in occupation of the
former matrimonial home unless she could set up some
kind of contract and that the husband's statement and the
subsequent conduct of the parties could amount to no more
than that the wife was a bare licensee of the husband
under a license which was revocable. In this connection
Denning, L.J., observed on page 212 of the Report: "The
difficulty here is to see that a contractual license was
established. To establish a contractual license there must
be a promise which is intended to be binding and is either
supported by consideration or is intended to be acted on
and is, in fact, acted on."
Another observation of Denning, L.J ., is also illu-
minating. It is in the case of Errington v. Errington and
another (6). In that case, a father bought a house for
his son and daughter-in-law in the year 1936. He paid
250 in cash and borrowed 500 from a building society
on the security of the house, the loan being payable with
interest by instalments of rss. a week. The house was
in the father's name and he was r~ponsible to the building
society for the payment of the instalments. He told the
daughter-in-law that the 250 was a present to her and
her husband, .handed the building society book to her, and
said that if and when she ~nd ~e.r husband had paid all the
instalments the house would be their property. Fromthat
(6) (1952) I All. E.R. 149
524c..
..... BURMA .LAW
, REPORTS
..
c.c. date onwards the daughteF~in-law paid the instalments as
1963
they fell due out of the money given her by her husband.
KoMAUNG
GALE In 1945 the father _died and by his will left the house to
AND ONE
v:
'his widow. Shortly afterwards the son left his wife. In
M.A ON an action by the widow against the d;:wghter-in-law for
NY'UNT
AND ONE. possession of the house, it was held that the occupation of
the house by the son and -daughter-in-law was under an
irrevoca.ble license inasmuch as they had the right to
remain in possession so-long as they paid the instalments
and - ~hat they would have a good equitable title to the
house when all the instalments were paid.
In this case Denning, L.J ., said, after reviewing a
numner of cases:
. " The result of all these cases is that, althougb a person
who is let into exclusive possession is. prima facie, to be
consider.ed . to be a tenant, nevertheless he will not be held
to be so if the circumstances negative any intention to cr~ale
a tenancy, Words alone may not suffice. Parties cannot
turn a tenancy into a license merely by calling it one. But
.. -i f the cir-G:umstances and conduct of the parties show that
aU that was i.n-tended was that the occupier should be granted
a . personal . privilege with no iQterest in the land, qe will be
hdd only to be a licensee."
. . '
. In U Tin Eng v. U Ba Yoke (7) a Bench of the late High
Court held that where there is a license with a contractual
right, equity would always intervene to protect by injunc-
_tion, the Iiceh?ee's right from any revocation or threatening
interference jn breach of the contract.
Applying the principles enunciated above to the case
now . under consideration it is apparent that the plaintiffs
were-mere licensees and not tena:q.ts. Tliey were allowed
:to build a hous~ on the suit land belonging to the defendants
~n their .undertaking to aliow: the . defend~nts to occupy
half the h9use .On a SO~ of hire purch~se arrangemen~.
(?) (r957) B.. L.R. 341 (H,C.)
BURMA LAW .REPORTS 525
The plaintiffs cannot be considered as having been in exclu- c.c.
1963
sive possession of the site. Moreover, they pay no rent as
KoMAUNO
such. There was nevertheless a binding contract that in GALE
consideration for whatever they had promised to do they AND ONE
o.
would be allowed to reside peacefully on their own section MA ON
NYUNT
-of the house. The license was accordingly an irrevocable AND ONB.
one. It has been contended on behalf of the 'defendant-
appellants, firstly that the arrangement must be c<;msidered
'void as an attempt to evade the provisions of the Transfer
of Immoveable Property (Restriction) Act of I 947 which
prohibited transfers of immo~eable property to foreign
nationals. However. there was no necessity for such an
evasion as this bec-ause if the defendants were in a poGition
to sell part of their holding it could have been purchased
validly by 1st. plain tiff Ma On Nyum who was a Burma
National.
The further contention contained in the written state-
1nent that the arrangement was in the nature of a lease in
perpetuity and. therefore, invalid for want of a registered
instrument needs no elaborate discussion. There never
was a lease in the first instance and in this connection the
observation of Denning, L.J ., in Errington v. Errington and
another (6) is most. apposite.
For these reasons, we consider that the learned Judge
of the trial -Court had come to the right conclusion by
holding that there existed an irrevocable license of the
site on which the house stands in favour of the plaintiff-
itespondents. In the result, the appeal fails and it is dis-
.missed with costs, Advocate's fees being assessed at c: (five~
gold mohurs.
{6) (r ) .52) 1 All. E . R. 49
526 B:Effi.MA LAW REPORTS
ORIGINAL CIVIL
Before U Maung Maung, J.
c.c. MRS. PROTIMA GHOSH (PETITIONER)
196~
v.
Oct. 17.
BIMALENDU .GHOSH (RESPONDENT).*
Children's we~fnre and education-Privilege and dut~, of parent reJ<arding. Cruelt:r
to -wif~What amounts to. Condonation-Not total forgiveness-Duration-
of protection afforded by.
It was the .privilege and duty of the respondent as a father to look after
the welfare.of the children and to provide them with good education in happY
surroupdings. The privilege and duty was shared by the mother but by taw
and custom the leadership was with the father.
Cruelty can take many forms and th~ law has recognised that some.kind of'
mental .cruelty may be more grievous than physical blows. Jamieson v; Jamie-
son, (1952) A.C. 525, referred to.
Where. physical violence is averred and proved the test becomes simpler
but there again, the measure of the physical violence, the circumstances in
which it is administered and the mental susceptibilities of the party on whom
it is administered-and such factors become rele,ant to consider whether the
physical violence proved-amounts to cruelty.
Windea'tt y . .Wi1!deatt, (x962) 2 W.L.R. 1056; Eoans v. 'Evans, 1 Hag. Con.
35.; R,ussell v. Russell, 1897 A.C. 395; Collins v. Collins, (196z) 3 W.L.R
xSo, referred to.
Stabbing the wife and causing her injuries of a grievous nature including
a fracture of her hand was cruelty by any test.
Striking a pregnant wife surely was cruelty. King v. King, A.I.R. (1925)'
All. 237, referred to.
Condonation is not total forgiveness; it does not wipe the offence clean.
. It operates merely as a suspension of the right to divorce or s.e paration, and .
thi;; suspension-lasts only so long as the guilty party is of good behaviour.
If and when that-party misbehaves, the protection of condonation is withdrawn.
Barnes .v . . Barnes, {1947) z All. E.R 326; Mackrell v. Mackrell, (1948) '
2 All. E.R.-858; Graham v. Graham, (1878) 5 R. 1093, 1095; Moss v. Moss
(1916) C:A. 155, 161; referred to.
Kyaw Myint and Myint Soe for the petitioner.
.BaHan for the respondent.
Civil Regular No. 47 of 1956.
NoTE:~The apove decision was upheld by the Chief Court (A-ppellate Side) .
-in Givil First Appeal ;No. sz . of 1962, and the Appeilate Juqgment is:.
reported elsewhere in this issue.
BURMA LAW REPORTS 52/
U MAUNe MAUNG, J.-The petitioner Mrs. Protima c.c.
1962
Ghosh seeks a decree of judicial separation from her hus-
MRS.
band Mr. Bimalendu Ghosh on the ground that he has PROTIMA
GHOSH
been guilty of acts of harshness and cruelty towards her. v.
The petition is vigorously resiSted by the respondent. BIMALENDl!"
GHOSH.
The following are the facts of the case. The couple,
both professing the Hindu faith were married under the
Spedal Marriage Act at Rangoon on the I 5th of August.
1946. Since :hc:1 the pri:1cipal places cf c..ohabitation have
been :'\o. 10. \\unmin Road. BauktJW . Rangoon. and
No. 38. Durg.J Charan \iirter Street. Calcutta. The former
address was where the petitioner last resided wit~ her
husband- Four children were born of the marriage, name-
ly. a girl born on the 19th October, 1947; a boy born on
the 12th April. 1949; a girl born on the 12th March, 1953r
and a boy born on the 29th September, 1954 Mr. Ghosh
belongs to a different caste from that of his wife and there
was strong opposition to the marriage from the brother
and mother of Mrs. Ghosh because " my husband was a
non-Brahmin and they did not like him as a man." The
birth of the first child brought about somewhat happier
relations 'between Mr. Ghosh and the mother and the
brother of Mrs. Ghosh, but the voluminous evidence in the
case indicates that while there was a truce no great love
developed between them.
In February 1955. Mr. and Mrs. Ghosh visited Calcutta-
where they performed the funeral rites of the mother of
Mr. Ghosh, and the petitioner alleges that while they were
there, one night Mr. Ghosh stabbed her with a pair of
scissors in the aftermath of a q\zarrel. She was seriously
injured and her hand was" fractUred." Mr. Ghosh admits
in his written statement that there was a quarrel, but in
his evidence he says that the injuries were sustained by her
in a fall from bed. Within a few weeks of the incident
Mr. and Mrs. Ghosh returned to Rangoon and resumed
cohabitation. After a few days of living together
BURMA LAW .REPORTS
c.c. Mrs. Ghosh left the home to go and stay with her brother
1962
MRS.
Mr. s. Ganguli (P\V r) because she said there were no ser-
PROTIMA' vants in the house and she had to look after the chlldren
GHOSH
v. and do other household duties with her arm in a sling and
BtMALENDU
CHOSH.
plaster. A few weeks later, in April 1955, she returned
to Mr. Ghosh. The fact that she left home and later
returned is not disputed but the reasons are.
... Jn September 1955, Mrs. Ghosh was admitted as an
in~patient to the Mental Hospital, Tadagale and she alleges
that that was an act of betrayal and cruelty on the part
of her husband because she did not need the treatment
and he only wanted to put her away. On the part of
Mr. Ghosh it is pointed out that she was taken 1:0 the
hospital on the best medical advice and that .she herself
signed the necessary forms of admission and gave her
. consent .
Several acts of cruelty are also alleged in the petition
during this period ranging from the use of insulting
language, assaults and beatings to an attempt by the re-
spondent to procure abortion when Mrs. Ghosh was preg-
nant. It is also charged that Mr. Ghosh in the month of
December 1955, took three of the older children away
from the home ostensibly to take them to Toungoo but
actually put them in two Convents in Rangoon . It was
only much later that the mother discovered. according to
~er petition, that the children were in Rangoon. Tearing
the children away from her is, she says, an act of cruelty
'that "caused her extreme distress, sorrow and anxiety.
'There are other acts of cruelty which are charged such
as drunken bouts of violence, varying between beatings
and forced sexual intercourse, The petitioner alleges that
:on the 2rstof March 1956, when she was pregnant again,
the.respondent hit her several times in the neighbourhood
of the abdomen intending to procure an .ab'ortion The
next day she went to consQlt her doctor and on return to
the. home sh'e found that -Mr. Gho$h had taken away the
BURMA LAW: REPORT-$.: 529>
youngest child, r Yz years old, and this finally made her c.c.
1962
leave the house, never to return.
MRS.
A large volume of evidence has been led by both PROTIMA
GHOSH
parties and my learned predecessor took early steps to 11.
BIMALENDU'
shut out from the record evidence relating to custody of GHosH.
the children and of their property. I should say, with
respect, that that was a wise step to take for the admission
of such evidence would only have burdened the. already
rather heavy record. The question of guardianship of the
children and their property should of course be decided
with the main objective of protecting the children's interest
and promoting their welfare.
The following issues were settled by my lectrned
predecessor :
I. Did the respondent treat the petitioner with great harsh-
ness and cruelty as alleged in paragraph 4 of the
petition?
2. Did the respondent stab the petitioner in February 1955,
fracturing her hand as alleged in paragraph 5 of t4e
plaint ?
3 Did the respondent cause the petitioner to be detained
in Tadagale Mental Hospital without sufficient cause or
was she detained there on the advice of Dr. Sea Blue
and Dr. Hufton ?
4 Did the respondent remove the elder children from the
English Methodist School without sufficient cause or
were they removed with the petitioner's consent ?
5 Was the youngest child taken away from the petitioner's
house by the respondent without her knowledge ?
6. Did the respondent hit the petitioner on the night of
21st March, 1956 t-..yo or three times on the abdomen
to cause an abortion ?
7 Did the respondent behavetowards the petitioner in such
a way as to break up the marriage ?
8. Is the petitioner entitled to the remedies claimed in her
petition ?
In paragraph 4 of her petition the petitioner has charged
that shortly after their marriage her husband " conducted
~53{} .. - BURMA LAW REPORTS
c.c. himself towards the petitioner with great harsh.ness and
1962
cruelty, frequently abusing her in the coarsest and most
MRS.
PROTIMA
insulting language, and beating and assaulting her with
. GHO.S H his fists, with legs or with some weapon: In her evidence
v.
: :SJMALENDU the petitioner says that the marriage was happy for a year
.GHOSH.
or two but her husband's temper began to change and h_e
started to treat her .r oughly, shouting or beating her in
explosions of rage-
[The. learned Ju<l,ge then proceeded to discuss the
evidence on this matter].
* ..
* * *
. The respondent also led evidence to try and establish
that it was the petitioner who created disharmony in the
home and that if there were quarrels and acts of violence
she was not always at the receiving end.
[The relevant evidence was then discussed by the
learned Judg~].
* *
* * * *
There is a lot more in the evidence in that vein, of
char~~s an:d co';lnt~;,-cl};lrg~s. of violfnce, cruelty, moods,
1o.ck qf lov~ for th~ children, and . irresponsibility in
running the .holl)..e. The evidence, however, does not go
beyond establishing that it was not a happy home life that
the Ghosh ,faririly lived, that a year or two after the
inarnage :relations between the husband and wife
' -dei:erioratect .and' that quarrels often lea~ing to. fights took
place ; .but, along with Dr. Grace John, I . will only hold
~hat the petitioner and the respondent quarrelled perhaps
.a .little more frequendy or violently than husbands and.
.Wives generally do. I do not consider that the charge of
.Cruelty . ~s : alleged ~n paragraph 4 of t}).e petition is
-.established and w~mld answer issue No. I in the neg~tive.
BURMA LA\V REPORTS ~ 531
~~ . .
I turn to issue No. 2. Mrs. Ghosh says that in February c.c.
196z
1955. she and her husband went to Calcutta to perform
MRS.
the funeral rites for Mr. Ghosh's mother. They stayed PROTIMA
GHOSH
with the relatives of Mr. Ghosh and, according to her, v.
Mr. Ghosh nagged her with the accusation that she was BIM.'\LI!NDU
GHOSH.
flirting with his nephews and brothers. One night while
:she was asleep she was suddenly awakened by a heavy
:pressure on her chest and upon her arm. Opening her
-eyes she found her husband bending over her, his left arm
pinning her down and his right arm stabbing at her with
-a pair of scissors whose blades were 8 or 9 inches long.
She was hurt in about 12 places on her left arm and on
the upper left portion of her body. She screamed for help
:and Mr. Ghosh's brother, his nephew and his niece who
lived downstairs broke open the door and dragged him
:away. Mrs. Ghosh was given medical treatment that night
:and it was found that her left armed had been fractured.
The respondent in his written statement simply states
that because of his strong disapproval of his wife's
behaviour towards men he reprimanded her and there was,
consequently, a quarrel. The incident, he states, "has
been forgotten and condoned (italics mine) ". In his
evidence, however, Mr. Ghosh says that the injuries were
:sustained by his wife in a fall from her bed. There was a
beavy trunk, he explains,. which was kept on a stool by
tlie side of his wife's bed, and that night, he heard the
:sound of the box falling and his wife screaming. Rushing
:into her room he found her lying on the side of the bed
on the floor with the trunk near her left arm. He removed
the trunk, which had sharp corners, and. found her left
arm injured and bleeding. The doctors who treated he~
found a compound fracture with several cuts and bruises.
[The learned Judge then .Proceeded to discuss the
evidence regarding the said injury.] .
* * * *
* * * *
532 BURMA :LAW : REPQB,i~i
t . : n.-#.. . ~
c.c. The respondent in fact does not seriously dispute that
196z
the scars were the result of injuries which the petitioner
MRS.
PROTIMA
sustained in Calcutta. What is in dispute is the cau~e
GHOSH
'V.
of the injuries.
BrMALllNDU [The evidence (including medical evidence) relating to-
GHOSH.
the cause of the injury was then discussed.]
* * * *
* * * *
Summing up the evidence on the 2nd issue I consider
that the answer to it should be in the affirmative. The
respondent was desperate and unhappy towards the end
of 1954; that is, shortly before their visit t.o Calcutta. In
his Written . statement the respondent does not say that.
his wife sustained injuries from a fall from the bed. In-
stead, he rlher curtly says that there was a quarrel but
the incident " has been forgotten and condoned." The .
story that h.e gives of his wife's fall from the bed with
a heavy trunk falling on her is not a likely one ; besides,.
if the .story was. true, it is difficult to see what is there
io condone. People do not keep heavy trunks on high.
stools precariously perched by their bed-side. If, as the
respondent says, his wife fell 'from the bed and the trunk
fell on her the injuries she would receive would be in the:
nature of crushing wounds which would not leave the
scars that Dr. Maung Maung Taik found. It is an ingenious
explanation no doubt .~at a fractured bone in the arm
by thrusting o\J.t fragments might have caused the cuts,:
but this is improbable. Apart from the statement of
Mrs. Gh:osh there ar~ the admissions that t.he respondent
made to G. D. Mitra and Dr. Suvi . Learned Counsel for
the reSpondent points out, and quite rightly, the danger~
of . accepting . such ad.rnissions at their face value.
G. D. -Mitra's credibiljty js also impeached because he was..
an employee who was. later dismissed -by Mr. Ghosh while
Dr. Suvi is, according to ..him, "my wife's favourite doc-
tor." On .the other hand, the very fact that Dr. Suvi has_
533
been more kind to hls wife might have persuaded Mr Ghosh c.c.
196z
when he returned alone from Calcutta to go and make
Mas.
the admission to Dr. Suvi knowing ~hat when his wife PROTIMA
came back the doctor would hear about it from her lips GHOSH v.
anyway. In considering the evidence of Mitra also, while BIMALENDU
GHOSH.
I suspect that the witness has elaborated and touched up
his story, sifting the chaff from the grain, I think that
there are a few grains of truth in what he says. !he ad-
mission that the respondent was supposed tO<"'have made
to Mitra might not have been made in the very same
words that Mitra utters in Court but an admission to the
same effect was probably made. Mrs. Ghosh herself in
her cross-examination admitted that on her return h<1rne
from Calcu,tta she referred, to the incident, in her con-
versations With friends, as an accident. Dr. Anandan also
says that she told him there was an accident. But the peti-
tioner explains that she was trying to cover up the truth
which after all was not a palatable one. Since she had
come home to resume cohabitation with her husband there
was no need, nor was i.t even desirable, for her to go .
about proclaiming the truth. These considerations lead
me to answer the question posed in issue No. 2 in the
affirmative.
The 3rd is:me relates to the admission of the petitioner
into the Tadagale Mental Hospitai as an in-patient. She
alleges that the respondent arranged for her admission
without sufficient caus~ and by misrepresenting to her
that both the respondent and the petitioner were to receive
treatment to lift the gloom from their moods. The res-
pondent replies that :treatment was given to Mrs. Ghosh
on the best medical advice and it was only when admis-
sion of her as an in-patient was advised that she was ad-
mitted by her consent and after her signl.ng the necessary
forms and papers. This issue also stands agains:t a back-
ground of ~vidence adduced by both parties to prove their
loving nature as husband or wife, to charge the other as
4
534: BURMA
-
LAW REPORT;,s-
. . .. .:-;
c. c. unkind, neglectful father or mother, to prove oneself as
1962
the long suffering spouse, to charge the other as one 'who
Mns.
PROTIMA has consistently caused disharmony and unhappiness in
GHOSH
v.
the home. Not merely failures of paternal or maternal
B!MM.FNT>U duty but acts of violence are also charged. The petitioner
,G HOSH.
is charged with constant nagging of her husband which led
her to shows of temper and violence such as burning her
own Sari, tl1reatening to commit suicide. Similarly, against
the respondent are levelled charges of cruelty such as
beatings and lack of love for the home which he .was
alleged to have shown in pushing children away when
they cuddled up 'to him for love.
:[The learned Judge then discussed the evidence regard-
ing the mental condition and behaviour of the petitioner.]
* * * *
* * * *
Mr. S. Ganguli (WP 1) a brother of the petitioner on
hearing that his sister had been admitted as an in-patient
to the Tadagale Mental Hospital filed an application for
the writ of habeas corpus with the High Court. Notice
w.as duly served on the Medical Superintendent and
Mrs. Ghosh produced before U San Maung, J. On being
asked by the Judge as to what she wanted to do she said
she wanted to .go home and the matter ended. with Mrs.
Ghosh returnin~ home and Mr. Ganguli's applicati<>n being
dismisseQ. a~ A.hhdrawn. ..
Dr . .J?a K"~ says that the treatment of Mrs. Ghosh
was ..<;,ompleted on the 8th of September 1955, and that
same evening he received a summons from the High Court
arising out of the habeas corpus application. He therefore
~ailed Mr. Ghosll..~to. c0me and t*e..-~rs. Ghosh away on
the next ro0rni~. The discharge application, exhibjt 15,
was signed -by r.s Ghosh and she was d;uly discharged
the: vezr; IDf;>pri~~ wr~ the Hi~h Coi.u;t ;w:as io hear an4
pas~
. qr4.~rs. .qJ::\. .the, l].abe~
~ . . J;natt(l!r. A~l thes~ ~e
.corpus ~ . .
BURMA LAW REPOR'f.S . 535
challenged by the learned Counsel for the petitioner c.c.
1962
U Kyaw Myint as being too neat. The case history in
MRS.
exhibit D, Counsel points out, had been written up almost PROTIMA
GHOSH
completely on the same day and the decision by the Medical fl.
BIMALE.NDU
Superintendent that the treatment was completed also fell GHOSH.
conveniently on the very day a summons from the. High
Court arrived. These criticisms. I find, are validly made.
I also find the certificate, exhibit ro. given by Dr. Ba Jhwin
to Mr- Ghosh a little unnecessary. When a husband has
his wife admitted into hospital for treatment he does not
in_normal circumstances take the precaution to arm him-
self with such a certificate. On the other hand, these too
neat and tidy arrangements by themselves do not establi'Sh
that \1rs. Ghosh was admitted into the Mental Hospital
by deception on the part of the respondent. It might well
be that both. rather than the petitioner alone, could have
benefited from treatment but that does not mean that by
having his wife receive the treatment while he himself
shied away from it, Mr. Ghosh was committing an act of
legal cruelty on the wife. It was obviously by that time
a disturbed home ~hat the respondent and the petitioner
were living in and I consider that the advice given by
doctors Anandan, Hufton and Sea Blue was rendered in
good faith. While Dr. Ba Thwin obviously took precau-
tio~s to protect himself when Mrs- Ghosh became a High
Court case I do hot think that he admitted her without
sufficient cause. He might have made an error in judgment
as to the necessity of treatment or the nature of the treat-
ment that she should receive but I cannot find him guilty
. of bad faith. In answering issue No. 3, therefore,. in the
negative I would observe that matrimonial .life in the Ghosh
home had by about the end of 1955 become oppressive .
and charged with suspicion betw~en husband -and wife.
I h<tve. no doubt that. the incident caused pain and distress.
to Mrs. Ghosh and further dishwm,oJ;ty .in -the home.; but
it may be n.o ted th~t her natural .instinct'. was still to g_o
. .. ... .
. -:-" -r--~
536 . BURMA LAW 'EiEPORTS
c.c. home, for that was what she asked for when she appeared
1'1(12
before U San Maung, ].
M11s.
PttO:rtMA Tiie 4th issue relates to the removal of the three older
Gao sa children from the English Methodist School where, the
v.
BIMALENDV
GHOSH.
petitioner alleges, they had been rec-eiving adequate educa~
tion.
[Tjle evidence relating to this issue was then discussed
by the learned Judge.]
* * *
* * *
U Kyaw Myint, learned Couusel for the petiti-oner,
comments on this incident that if petitioner had been
wanting in love for her {:hildren regarding them as rivals
in a ferocious contest for the r-espondent's attention she
would have been happy to see .the children go away from
the home. Instead, here was a mother who was angered
by the prospect of her children being placed under the
care of the nuns at the conv.ent and who fought hard
to keep them with her at home. I consider that the child-
ren were removed from home without the petitioner's
consent despite the respondent's assertion that she had
at 'first willingly agreed. On the other hand, I cannot see
that such removal was without suffident cause. It was
the privilege and duty of the respondent as a father to
look after the welfare of the ~hildren and to provide them
with good education in happy surro-l!ndings. The privilege
and duty was shar-ed by the mother but by law and by
custom t he leadership was with the father. In the cir-
cumstance in which tile home had been placed it was
probably a wise thing to send the children to boarding
-school where at least they would be spared the pain of
a ~stur-bed fannly. Sending them away to school deprived
their mother of :the comfort of .their companionship and
probablymade her more .troubled and restle.Ss afterw~rds ;
but, Mr. Ghosh had to make the decision trying to strike
BURM:A LAW ..B.EPORTS 537
,. . - .
a balance between his duty to the children and his duty c.c
I96Z
..
to his wife. I cannot, therefore, hold that sending the
children away constituted an act of cruelty on the part of PR~~~A
the respondent towards the petitioner. I do, however, c:~sa
take the view that the story that the petitioner tells of her BtM.\LENDtl
GHOSK.
being pushed out from the car and left behind is true. rt
is more than probable that Mr. Ghosh used some measure
of physical force to evict the petitioner from the car. In
the excited state that she was in it is higl!Jy improbable
that she would have gently descended and quietly stayed
behind. This act of pushing her out and the use of force
would not by itself amount to cruelty. but it is one of the
factors that must be considered when we look at the
matrimonial life of the Ghosh family as a continuity.
Issues No. 5 and 6 relate to events which are so closely
bound up together that they may be taken up together.
[The evidence relating to these issues was then discuss-
ed.] .
*
*
The answers to issues No. 5 and 6 should, therefore,
be that the respondent hit the petitioner serveral times on
the night of the 21st March 1956, and that in her absence
the next merning while she was away to see her doctor
he took the youngest child away from the home without
her knowledge and consent.
Issue No. 7 is closely bound up with issue No. 8 anQ.
the two must be taken up together. In matrimonial
matters of this kind it is not always safe to think in terms
of the breakup or the breakdown of family life ; for in
the absence of matrimonial offences recognized by law as
valid grounds for dissolution of marriage or judicial separa-
tion the question of breaking up or breaking down can
sometimes be irrelevant. In this connection, it may be
apposite, ~ally in view of the fact that the Divorce
5.3.8_,. BURMA LAW REPORTS [!9~
.; , .""!!f..
. . c.c. Act is based on English principles of matrimonial causes
1962
. . MRs.
to note a finding of .the Royal Commission on Marriage
. PR0TIM,, and Divorce presided over by .Lord Morton. In its Report
GHOSH
. v, published in March r956, the Commission has recognized
BIMALENDU
GHOSH.
that the basis for the existing div-orce law of England and
Sco.tland is the " doctrine of matrimonial offence.'' The
Commission rejected a suggested change of basis to " the
doctritJ.e of break-down of marriage." The reason for
the rejection is mainly that the doctrine of matrimonial
offen-Ce provided a dear and intelligent principle and it
makes for security in marriage, while the introduction of
the doctrine of br~ak-down of marriage in any form would
begravely detrimental to the well-being of the community.
The present petition puts forward cruelty as the basis
for the judicial separation that it sought. Cruelty can
'take many forms and the law has recognized .tl1at some
kinds of !llehtal cruelty may be more grievous than physi-
cal blows. It is not, however, possible to attempt a com-
prehensive definition of cruelty and as Tucker, L.J ..
observed in Jamieson v. jamieson (r) : "Every such act
(to amount: .to c~uelty) must be judged in .r~lation to its
att~ndant qrcumstances, and the physical or mentpl condi-
tion or the susceptibilities of the innocent spouse. The
intention ,of the offending spouse and the offe~9-er's knowl-
edge 'Of the actual or probable effect of his conduct on
the other's health (to botrow fro!J1 the language of Lord
K,eith) are all matters which could be -decisive in det-ermin-
ing .on' :which side of the _line a I?articular .case or -course
of conduct lies." Where physiCal violence is a~erred and
proved the test becomes simpler but there again, the
measure of the physical violence, the circumstan<;:es in
W;hich it is administered and the mental susceptibilities of
the parcy on whom it is administered-and such factors
. become relevant to consider: whether the:ph~sical v\olence
prove&.::-amountS ~to legal cruelry. _tn the recent- case: -o f
('r) (r952) A.c. s2s .
BURMA LAW REPORTS ~39
Windeatt v. Windeatt (2), Willmer L.J., considered that he c.c.
_196z
must be guided by the Commissioner's assessment of the
IviR .
personality of the wife who had obtained a decree nisi on PROTlMA
GHOSH
the ground of her husband's cruelty, her complaint being v.
almost wholly based upon an allegation of persistent as- BIMALENDt'
GHOSH .
sociation between her husband and another woman though
there was no allegation of adultery or of any sexual im-
propriety. The Court (remarked Willmer, L.J .) must
attach the greatest importance to the assessment by the
Commissioner of the wife's character in these terms :
"The w1fe appeared to me to be a sensitive and highly
strung lady, even making allowance for the stress and dis
comfort or shyness which some witnesses experienced in
coming forward in a public Court. I think anybody would
soon form the impression that she could be very easUy wound-
ed and distressed by unkindness."
Another test of cruelty may be found in an earlier
classic case of Evans v. Evans (3) wher~ it . w.as observed
that ".It is th~ duty of Courts . .. to keep the rule
extremely strict The causes must b~ grave and weighty
and such as show an absolute impossibjlity-that the duties
of the married life can . be discharged." This became a
part of the standard direction in cases of quelty and was
approv~ by both the. majority an.<;l., th~ .minority of the
House of Lords in Russell v. RI!SSi!ll . (4). .In Collins v.
Goliins (5). Sir J. Simon P. and. K<WQ.s .J. reviewing a series
of recent decisions on cruelty hav~ also held that the state
of mind requisite for cruelty can like any other be in-
ferred from conduct; in particular, indifference to suffer-
ing n:tay be so callous that a desire to cause it can be fairly
dedpced. It was also held that " although an actual in-
tention _to injure is not a necessary ingredient to consti-
tute cruelty, it will in many cases a~d partic~ltrrly in
: ... .....
(z) (1962) 2. W.L .. R. 1056 at ros6. (4) t897. A.C. 39~
,.(3) n H11g.-Co~JS ' ... . ' (,s) (oi962,). 3 w,_r.;.R. I.So.
540 BURMA' .L AW. REPORTS
border .line cases, be of decisive importance if only be
cause conduct which is intended to hurt strikes with a
p~~s.IMA sharper edge than conduct which is the consequence of
Gaosa mere obtuseness or indifference."
BIMA~'l>u In the light of these principles I must now proceed
Gaosa. to make my decision on the petition. I have found in
issue No. 2 that the respondent had stabbed the petitioner
in Calcutta, causing injuries of a .grievous nature including
a fractUring of her hand. That was cruelty by any te,$t.
:rhere was condonation on the part of the petitioner, how-
. ever, as her learned Counsel readily concedes, for she came
back with her husband and resumed cohabitation. A few
.. mottths after tileir return to Rangoon she conceived so
that the cohabitation that was resumed was one in the
fullest sense. Yet, condonation is not total forgiveness;
it does not wipe the offence clean. lt operat-es merely
as a suspension of the right to divorce or separation, and
this suspension lasts only so long as the guilty party is
of good behaviour. . If and when that party misbehaves,
the protection of condonation is withdrawn. See Barnei
v. Barnes (6) Denning LJ., has suggested the following
test in Mackrell v. Mackrell (7): "Reconciliation does
not take place unless and until mutual trust and confidenc~
are restored. It is not to be expected that the partie$ can:
ever recapture the mutual devotion which exist~ wheri
they vyere first mamed, but their relationship must be
reStored, by mutual consent, to a settled .rhythm in which
the past offences, if not forgotten, at least no longer :rankle
and embitter their daily lives. Then, and not until then,
are the offences condoned." . . .
Here, in this case, there was no settled l'hythm, an.d
the daily life in the home became one of bitterness and
suspicion. The admissi~n of the petitioner into the Meillal
HOspital, her ~oming the subject of a habeas corpus
application, the removal of the children froin home into
(7) (l94S) z All.E.R. 8 58.
. .S.f l
-
- BURMA LAW REPORTS
c.c.
the Convents, the use of force by the respondent to evict r96z
the petitioner from the car so that he might take the child-
Mas.
ren away to the Convents, these which appear on t~e record PRO'I"IMA
GHostl
do not indicate a settled home. " When a wife comes fl.
into Court," it has been observed in Graham v. Graham BIMALI!NOU
GHoSH.
(8) and quoted with approval in Moss v. Moss (9) "to
complain that she cannot live with her husband becaus~
of acts of violence to her. and of a course of conduct that
has placed her life or health in danger, she thereby opens
up an inquiry into the whole history of her married life.
Although acts of violence committed at an earlier period,
and which have not prevented her from living with him.
or going back to him after they have separated, cannot
be made the sole foundation of an action for separation.
they may form the subject of investigation and proof,
with a view to determine what is the true issue in the case. .
whether the wife can with safety to person and health
live with him now."
I have also answered issues No. 5 and 6 in the sense
that .t he respondent had struck the petitioner on the 2 tst
March, 1956, and on the 22nd March, -while she was away-
from home, had taken their youngest child away. and put
him into a Convent without her knowledge and consent.
These constitute acts of cruelty in themselves. The peti-
tioner was pregnant at the time, and striking her surely
was cruelty ; it has been held that even the threat of force,
short of the actual use of it, made against a pregnant
woman could amount to legal cruelty: King .v. King (xo):
Taking the youngest child away, the only child left in the
hom~ after the older ones had been sent away to boarding
schools, also amounts to cruelty- on the part of the respon-
dent. Perhaps, in taking .t he young child away, the res~
pondent only wanted to protect him, but in: the circum:
stances it must be held that he acted, if not With deliberate
(8) {1878) 5 R. 1093. IO CS. {9) (t9t6) C.A. xss, t6t .
(1o) AIR. .l9ZS. All, ~37
BURMA LAW REPORTS
c~c.
..,_~
962
intention to hurt her, with callou~ indifference towards
her feelings . These constitute cruelty and also revive the
MRS.
PR01'll\IIA act of cruelty which the respondent had committed in
GHOSH
t),
Calcutta a little over a year ago.
BIMAI.E.'IOl)
GHOSH .
It may be useful, at this point, to take a look at the
personalities of the petitioner and the respondent She
comes frgm a family of high caste and low means ; he
comes .from a lower caste but otherwise is much more
fortunately placed. The evidence shows her as sensitive
and insecure; capable of love and kindness towards her
family-.e.g. Dr. Hufton, a witness whom the respondent
called~ has said she was normal and a loving mother up
to 1955-and in g:r:eat ne~d herself for loYe and kindness.
She was clubfooted, which probably made her more :shy
and sensitive, more ready to employ wiles to gain, and keep,
her husband's attention. She was hurt in Calcutta, she
was admitted into Mental Hospital alone when she expect-
ed that her husband would receive treatment with her.
she was brought before theHigh Court, and once, earlier.
she went to stay wi~h her brother for a few weeks. But
. she always came home. On th~ 22nd March, 1956, she
went to consult a doctor because she feared abortion after
she had been struck by her husband, but she came ho:me,
and it was only in the late eventng and because her young
child had been taken away that she left the home for good.
On hi~>' part,:the respon:denf is a man of the world, and
has held positions of :feadershtp in government service or
business-; 1he' has confidence and a:bility enough to succ-eed
in business; to organize. for the children's ~ducat~on, and.
if he had out Sincerely tned, to build .a happy .family .
life. He must :also know that his wife wh9 'craves for
. love can be hurt by its denial, who. asks fDr kindness can
.be deeply wounded .by atts :of cruelty. It ri:lay.t. atsq :be
noticed that.tho,ugh he haseresisted th-e petitfonWith ..vigour
the.r e ii 'nd. offer ~~~ h:is J?a.r~ t~ ta:~~: her i>a~k: nb' attempt
543
to coax her home, and six years have passed since the c. c.
1~62
petition was filed.
MRs.
I answer issue No. 7, therefore, in this sense that the PROTIMA
GHOSH
acts of cruelty committed by the respondent place the tl.
'81 MALF.KDU
responsibility on him for breaking up the home. I con- GHOSH.
sider that the petitioner is entitled to the relief she prays
for, and grant her a decree of judicial separation with
costs.
544 _ BURMA LAW
.....
REPORTS
~
CIVIL MISCELLANEOUS
Before U San Maung and U Tun Tin, JJ.
c. c. S. N. ZAVERI AND TWO OTHERS (APPLICANTS)
IC}6J
Aug. 31. v.
THE COMMISSIONER. PEGU DIVISION AND THREE OTHERS
(RESPONDENTS).*
Certiorari-writ of-Order of Deputy Commissioner and Commissioner under
the Municipal Act-whether administrati'{)e or quasi-judicial orders. Natural
j"ustic~pportunity of being heard--not necessary in a revision.
The order of the Town Committee for the demolition of a building
Wilder tb:: Municipal Act, as well as the subsequent order of the Depl!ty Com-
missioner and the Commissioner in Appeal and Revision, are aU administrative
Orders and not qu.asi-jtulicial orders.
Where the determination of a question is left to the subjecti"Ve discretion of
the authorities ~oncerned, the mere existence of a right of appeal against an
order is not enough to indicate that the authority concerned whose order is
subject to appeal is under an obli,oation to act judicially.
Hanunumbax A6arwaUa v. Subdivisi<nUJl Officer, ~ tmd anothu,
A.f.R. (1952) Assam us, referred to and followed.
U San v. U Win Htain, Bailding Engi'l'!eer, RangOOff M~ Cort>cratitm
and three others, C.M.A. roo of 196o (S.C.), refetnd to and distinguished.
Moreover, an opportunity of being heard need. not be gi"Ven in a revision
application bef~e the Commissioner under s. 222 of the Municipal Act.
Oruy in an appeal under s. 201 of the said A1, isthe opportunity of being hea!"d
provided for.
Myint Soe and Ba Sein for the applicants.
Hla Maung {Government Advocate) for the respond~nts
Nos. I and 2.
In person for the respondent No. 4.
U SAN MAUNG, J.-This application for a writ of
ce(tiorari by the applicants S. N. Zaveri and two others is
to quash the order of the ExeQl.tive Officer, Thingangyun
Civil 'Miscellaneous Appl.iClltioa N0. 104 of I3. :Application fo~: a writ
ef CI!ItWTttri.
19(}3] BuRMA LAW REPORTS 545
Town Committee dated the 4th of May 1962, which was c.c.
.
purported to have been passed und er secno.n II9, su - b 1913
__
sections (11) and (2) of the Municipal Act and those of the S.N ~~vERI
. "
Deputy Commissioner, lnsein, dated the I]th of May 1963, Two oTHERS
dismissing the appeal against the Executive Officer's order THEvCoM-
on the ground that it was barred by limitation and the ~~~~~:
order in revision of the Commissioner, Pegu Division dated swN ~>ND
THill>
the ISt of July 1963 confirming that of the Executive oTHERS.
Officer. The facrs giving rise to the present application are
b~efly as follows:
About April 1962, S. N. Zaveri received a notice
from the Executive Officer, Thingangyun Town Committee
calling for \vritten objections against his intention to prohi-
bit the occupancy of House No. 6, Theingi Street,
Thingangyun occupied by the applicants, on the ground
th<Jt it was unfit for human habitation. Similar notices
were also received by the other applicants in this case.
Thereupon S. N. Zaveri and his co-applicants filed a written
objection before tbe Executive Officer saying that it was
not true that the house which they were occupying was
unfit for human habitation. Nevertheless, in spite of their
objection the Executive Officer by an order dated the 4th
of May 1962, now sought to be quashed, ordered the
applicants to remove themselves from the aforesaid build-
ing. The applicants then filed an application for a writ
of certiorari before this Court, but the same was with-
drawn when it was pointed out to them that since they
had not exhausted the remedies provided for in section
2or of the Municipal Act the application for a writ was
premature. An appeal was then filed before the Deputy
Commissioner, Insein, but it was dismissed on the 17th of
May 1963 on the ground that it was presented beyond the
period of 30 days limitation period prescribed by law. An
application for revision was filed before the Commissioner,
Pegu Division who, however, dismissed it on the merits
without g1vmg the applicants an opportunity of being
heard. Hence the present application for a writ of
N~~~vERr certiorari to quash the orders of the Executive Officer,
5
Two oTHERs Thingangyun Town Committee, the Deputy Commissioner,
v.
THE CoM- Insein and the Commissioner, Pegu Division.
MISSIONER,
Pcu DJVI- Now, section I 19 (r) of the Municipal Act is in the
s !oN AND
THREE
followin.
g terms:
OTHERS.
" u9., (r) If for any reason it shall appear to the Com-
mittee that any building or part of a building, intended for
or used for human habitation or human occupation for any
purpose whatever, is unfit for such habitation or occupation,
it shall give to the owner or occupier of such building notice
in \vriting stating such reason and signifying its intention to
prohibit the further use of such building or part of a building
for such purpose and calling upon the owner or occupier of
such a building to . state in writing any objection thereto
within seven days after the receipt of such notice. and, if no
-objection is raised by such owner or occupier within such
period as aforesaid, or if any objection which is raised by
such owner or occupier within such period appears to the
committee invalid or insufficient, it may, by an order in
writing, prohibit the further use of such building or part of
a building for human habitation or occupation."
The .order of the Executive Officer, Thingangyun Town
Committee, is therefore essentially an administrative order.
In this connection it is useful to quote the -observation of
Das; ]. (as he then was) in Province of Bombay v.
Khushaldas S. Advani (I} where the leatned Judges of the
Supreme court of India made an exhaustive discussion as
to what constitutes an administrative..order and what con-
stitutes a quasi-judicial order. Da~, J. said:
" It is well established that if the Legislatu~e si.roply COl!-
. fides.' the power of doing an act to a particular body if in the
opinion of, th~t body . ~t iS necessary or expedien:t to do it.
then.
. . an administrative, i.e. an executive act
the .act is purely:
. ' \t) A.T:.R. 6 .959), !?~.Preme C~urt, 22~.
BURMA :LAW REPORTS 547.
as opposed to :~ judicial or quasi-judicial act and, in the C.C.
196
absence of proof of bad faith, the Court has no jurisdiction 3
ro interfere with it and certainly not by the high prerogative S.N. zAvERI
writ of certiorari. Usually this discretion is confided by the Two OTHERS
use of expressions like "if it appears to." " if in the opinion fl.
of" or " if so and so is satisfied." THE CoM:-
MtsstoxER,
1:-ECU D'IVI-
SION ANO
In Hanumanbax Agarwalla v. Subdivisional Officer, 1 HREE
OTHERS.
Sibsanar and another (2) it was held that where ehe deter-
mination of a question is left to the subjective discretion
of the authoritlec; concerned, the mere existence of a right
of appeal agair.~t an order is not enough to indicate that
the authority concerned whose order is subject to appeal
ic; under an obligation to act judicially.
In the case now under <;Onsideration it would appear
to us that the Legislature had left it to the subjective dis-
cretion of the Municipal Committee to consider whether
or not a building or any part of it is unfit for human
habitation. Accordingly, the order sought to be impugned
is essentially an administratives order. So are the orders
of the Deputy Commissioner, Insein and the Commissioner,
Pegu Division. No doubt, in U San v. U Win Htain.
Buildin9 Engineer, Rangoon Municipal Corporation and
three others (3), it was assumed by the late Supreme Court
that the orders of the Municipal Corporation under an
analogous section of the Rangoon Municipal Act (Section
r 57) relating to removal of persons from buildings which
are in an imminently dangerous condition, was a quasi-
judicial order. However, with due respect the Supreme
Court had not considered whether the determination of the
question by the Municipal Corporation was according to a
subjective or an objective test.
The reasons given above are sufficient to dismiss the
present application f.or a writ of certiorari. However,
since the learned Advocate for the applicants has contended
(~) A.I.R. (1952), Assam., J 15.
(J) Civ. Misc. Application No. 100 of 1960 ofthe late Supreme Court.
548 BU~A LAW REPORTS
. .
c.c. that the or.der of the Commissioner, Pegu Division, is
1963
against the principles of natural justice as no opportunity
S.N. ZAVERl
AND was given to the applicant of their being heard we would
TWO OTHERS
v. like to point out that the action taken by the Commissioner
THE CoM- was in a revision under section 222 of the Municipal Act
. MISSIONER,
PECU DIVI- and not an app~al under section 201. It is only under
SION ANI;)
THREE the latter section that it is provided that the order appealed
OTHERS.
. against shall not be set aside until the appellant and the
committee have had a reasonable opportunity of being
heard. Furthermore, the Deputy Commissioner did not
in fact set aside the or<ler of the Executive Officer but
rather dismissed the appeal on the ground that it was
barred by limitation.
In the result, the application for a writ of certiorari
fails and it is dismissed with no order as to costs.
13URMA LAW REPORTS 549
CRIMINAL REVISION
Before U Tun Tin , J.
c.c.
UNION OF BURMA (APPLICANT) x963
v. . Aug. JI.
MAUNG KHIN MYINE (DEAF MUTE) (RESPONDENT).*
Criminal Procedure Codt , s. 341-where accused a dumb person-plea of guilty-
:: hnher accused understood proceedings.
The Respondent who was a dumb person had pleaded guilty befooe the
trial co urt . T he ::ial magistrate had however submitted the proceedings to
the Chief Ccur. t~> p.l$5 an appropriate sentence under s. 341 of the Criminal
Procedure Code.
Held : The t ria! magistrate has misconcieved the provisions or
s 341, Criminal Procedure Code, for the section envisages a case "where
the accused though not insane, cannot be made to under tand the proceedings''
and not a case of the present nature where respondent accused, fully understood
the nature of the proceedings though by signs through his mother and has even
pleaded guilty to the charge.
The reference cannot therefore be entertained.
Toe Maung (Government Advocate) for the applicant.
U TUN TIN. ] .-This is a reference under section 341,
Criminal Procedure Code, by the xst Additional Magistrate,
Kyaukpyu, in his Criminal Regular Trial No. 42 of 1963
wherein the respondent Maung Khin Myine and his mother
Ma Ah Mi Nu were sent up under section 30 (a) of the
Excise Act . The prosecution case discloses that on 15th
April 1963 at about 5 p.m. respondent Maung Khin Myine
was found in possession of 6 quart bottle of country spirit.
When particulars of the Offence were read and explained
to respondent by signs through his mother, as respondent
js a dum..b person, respondent understood and pleaded
guilty, which was duly recorded.
Criminal Revision No. u6 (B) of 1963.
5
BU1Uvf~~ LAW REPORTS
Withal the learned trial Magistrate hold that as
respondent is a dumb person, it comes within the ambit of
u~~~AoP section 341, Criminal Procedure Code and has submitted
MA':;Nc the proceedings to this Court to pass appropriate sentence
KHIN MYINE in the case. This, to my mind, the learned trial Magistrate
(DEAF MUTE). h .
as miSCOilCelve. d . For sectiOn
. 341, cnmma
. . l procedure
Cooe, envisages a case " where the accused though not
insane, cannot be made to understand the proceedings "
and not a case of the present nature where respondent
accused fully understood the nature of the proceedings,
though by signs through his mo(her and has even pleaded
.gUilty to the charge. To this learned Government Advoca:te
a1so conce'ded, as from the facts and cir.cumstances of the
.case, it is evident, respondent cannot be said to.be a person
who could not be made to understand the proceedings
taken against him.
In the result, this reference can in no way be enter-
tained and the proceedings are therefore returned to the
Court of the rst Additional Magistrate, Kyaukpyu, with
the above remarks, for necessary action jn accordance with
law.
.-- 1
551-..
APPELLATE CIVIL
Before U San Marmg, J.
u HLA KYAW AND ONE (APPELLANTS) c.c.
1963
v. Aug. 29
u AUNG BA AND FIVE OTHERS (RESPONDEN;'S}.*
Forfeiture-determination of tenancy by forfeiture-necessity to conform rrith
the provisions of s. I I r, Transfer of PrQperty Act and s. rz ( t), Urban Rmt
Control Act. Benami--hether relevmt in a suit for ejtctmmt.
In a fnrmer suit for ejectment for non-payment of rent, the Defendants had
contended that they were not the tenants of the Plaintiffs. Accordingly,
the tenancy was determined by forfeiture, and the Plaintiffs filed a new suit
for ejectmer.t.
The trial judge dismissed the Plaintiffs suit on the ground that the house
has been purchased benami and that therefore no relationship of
landlord and tenant existed. The Plaintiffs then went on appeal. The
District Judge also dismissed the Appeal on the ground that no notice under
s. xo6 of the Transfer of Property Act and under s. 12 (t) of the t:rban Rent
Control Act had been ser.ved. He however held that the question of benami
s~ould not have been gone into.
On Second Appeal by the Plaintiffs:-
Held: Although it is true that the lease to the Defendants had been
determined by forfeiture, assuming that the Plainti& story be true, the suit
now framed by him is not maintainable in law. As provided in section III of
the Transfer of Property Act, a lease of immoveable property is determined by
efflux of time, or by the expiration of a notice to qnit or by forfeiture, etc.
In the case of a notice to quit, it must satisfy tbe provisions of section xo6 of
!he Transfer of Property Act. In the case of forfeiture, there must be a notice
1
n writing showing the lessor's i.ota1tioo to determine the lease.
Also, though the lease of the suit bouse may be said to have been determin-
ed by forfeiture, the PLUntiffs must DeTatbeless frame their suit as one under
s rz of the L'rban Rent Control Act, 19(io, as the definition of " tenant '
includes person remaining in possession of the premises let to him after termi-
nation of the tenancy.
Held further~ It is not a correct exposition of law to say that in a suit
under s. I I (x) (a) of the Urban Rent Control Act the Court should not go into
the question whether the sale of the suit house to the Plaintiff was a benami
transaction. This is because one of the questions involved is whether or not
the Defendant is the )enant of the Plaintiffs as claimed by the Plaintiffs.
U Mya v . Abba Kasim and one, (1959) B.L.R. 28 (H.C.), di~ented from.,
Civil Second Appeal No. 25 of 1962, against the decree of the District
Court of Prome in Civil Appeal No. 7-P of 1961, dated 27th November 1961.
dB.URMA LAW REPORTS
~-
{;r9q$;,.:;;
.. ~~-..
c.c. Ba On (Advocate) for the appellants.
1963
UHLAKvAw Khin Maung (4) (Advocate) for the respondents.
' AND ONll .
v.
u AUNG BA
U SAN MAUNG, ].-In Civil Regular Suit No. 6 of 1960
AND FIVE
OTHERS. of the Sub-divisional Court of Prome, the plaintiffs U Hla
Kyaw and his son Maung Thaung Shwe, who are the
appellants in the present appeal sued the defendant-
respondents U Aung Ba and Daw Aye Shi for their eject-
ment from the suit house and its site on the ground that
they were their tenants. They joined as co-defendants
Maung Than Shwe, Ma Aye Than, Maung Than Tun and
Ma Ah Myinton the ground that they were residing on the
suit land. as sub-tenants of U Aung Ba and Daw Aye Shi.
The plaintiffs' case was that the deceased Daw Thein
Tin, wife of U Hla Kyaw and mother of Maung Thaung
Shwe, purchased the suit house and its site from one
U Kyaw Sein on the 30th June 1956 by a registered deed
of sale. Residing on the house were the defendants U Aung
Ba and Daw Aye Shi, who became tenants of Daw Thein
Tin at a monthly rental of K 6o. These defendants were
however in arrears of rent for 42 months, so that a notice
was sent to them to pay up such arrears. The defendants,
h~wever, replied that they were not tenants of the plaint-
iffs. Accordingly, a suit for the ejectment of the defend-
ants for non-payment of arrears of rent was filed, being
Civil -Regular Suit No. 14 of 1959 of the Township Court
of Prome~ There the defendants U Aung Ba and Daw Aye
Shi contended that they were not tenants of U Hla Kyaw
and Maung Thaung Shwe. The tenancy had therefore
b~n determined by forfeiture and the plaintiffs had to file
the present sujtfor :the ejectment of these defendants and
those holding under :them. ,
The defendants U Aung. Ba and Daw Aye Shi denied
that Daw Thein Tin or }:ter alleged heirs U Hla Ky~w and
Maung.. Thaung Shwe were :their landlords. On the other
BURMA LAW REPORTS:
hand, they said that the house had been purchased by Daw
Thein Tin benami on their behalf as Daw Thein Tin had
advanced to them a sum of K 1,500 .which was required by u.~~~Aw
them to pay towards the purchase price of K 2,ooo, K 500 u A:r;a BA
having been paid as earnest money. The Subdivisional AND FIVE
Judge framed an issue as to whether or not the defendants oTHERs.
U Aung Ba and Daw Aye Shi's contention was correct and
coming to the conclusion that the house and itssite were
in fact purchased by Daw Thein Tin as benamidar of
U Aung Ba and Daw Aye Shi and that therefore no rela-
tionship of landlord and tenant existed between them,
dismissed the plaintiffs' suit. The plaintiffs U Hla Kyaw
and Maung Thaung Shwe being dissatisfied with the
judgment and decree of the trial Court appealed, and the
learned District Judge by his judgment in Civil Appeal
No. 7-P of 1961 dismissed the appeal on the ground that
the plaintiffs had not served upon the defendants U Aung.
Ba and Daw Aye Shi a valid notice under section 106 of
the Transfer of Property Act terminating the tenancy, and
a valid notice under section 12 (r) (a) of the Urban Rent
Control Act asking them to pay the arrears of rent due
within 2 I days from the date of the notice. The learned
Judge also observed that the trial Judge was wrong _in
having gone into the question whether or' not Daw Thein
Tin was benamidar for the defendants U Aung Ba and Daw
Aye Shi. In so doing, the learned Judge relied upon the
dictum of U Thaung Sein, J. in U Mya v . Abba Kassim and
one {I) where it was held that in a suit under section
I I (r) (a) of the Urban Rent Control .Act, 1948 where the
'defendants contended that they wete not the tenants of
the plaintiff as they were the real purchasers of the suit
. house and the plaintiff was a mere benamidar, the Court
should not go into the question whe'ther the sale of the
suit house to the plaintiff was a benami transaction.
(1) (1959) B.L.R. 281 (H.C).
~ (..ss. 4
,1..._\..#
.~
;;r With due respect; I am of the opinion that this is not
a correct exposition of the law. Surely, in a suit under
:P~!v:w section I I (r). (a) of the Urban Rent Control Act, 1948, one
0: ~~~~ BA of the questions involved is whether or not the defendant
: ;:4~ is the tenant of the plaintiff as claimed by the plaintiff.
Therefore, if the -def-endant contends that the plaintiff
cannot be his landlord as the suit house belongs to him and
. the plaintiff is merely his benamidar, the question whether
or not the sale of the ..suit house :to the plaintiff is a benami
. transaction, is a most crucial one.
Unfortunately f.or the plaintiff-appellants in the
present suit, although it js true that the lease to the defen-
dants U Aung Ba and Daw Aye Shi has been determined
by forfeiture, assuming that the plaintiffs' story be true,
the suit now .framed by them is not maintainable in law.
(As provided in section I r r of the Transfer of Property
Act, a lease of immoveable property is determined by
efflux of time, or by .t he expiration of a notice to quit or
by forfeiture, etc. In the case of a notice to quit, it must
-satisfy the provisions of section ro6 of the Transfer of
Property Act. In the case of forfeiture, there must be a
notice in writing showing the lessor's intention to deter-
mine the lease.)
Nevertheless, although the lease of the suit house to
U Aung -Ba . and J?aw Aye Shi may be .said to h ave been
determined by .forfeiture, the plaintiffs must nevertheless
frame' their suit as one under section r 2 of the Urban Rent
(:ontrol Act; 1;960 as the definition of "tenant" includes
person remainjng in possession of the premises let to hlm
after th~ termii).ation of the tenancy. The.suit as framed
.is not under section 12 of the Urban Rent Control Act of
196~; :Jn fact; as po~ntedout bythelearned District.Judge
there' is no p;roof that any of the conditions specified in
section 12 of the Urban Rent Cqntrdl Act has been fulfilled.
In the result th:e a}:)peai fails. The i~~g.ment and decree ;;;~
of the District Court of Prome appealed against are con- -
u:::::f;:w
fumed .and the plaintiff-appellants' appeal "dismissed with
<:osts; Advocate fe~ being assessed .at t~ee gold mohurs. u A~a BA
AND FIVE
OTHERs.
.~it~~.;~c
...... .,.. .
BURMA LAW REPORTS;
CIVIL MISCELLANEOUS
Before U Maung Maung, _r.
c.c. u THA DIN (APPLICANT/PLANTIFF)
1963
July I2o
v.
THE SECRETARY, REVOLUTIONARY GOVERNMENT OF
THE L.TNION OF BURMA, DEPARTMENT OF SUPPLY
AND CO-OPERATION (RESPONDENT/DEFENDANT).*
Government Servant-suit by Government Servant against Government-based
01i -wrongful.removal from service--whether valid cause of action exists.
N,f.cessity to examine whether cause of action e.'l:ists before suit proceeds-
Pauper suits-Prerogative right of dismissal--whether still exists.
The Plaintiff was a Government Servant who had been dismissed from
service. Subsequently, he had applied to the late Supreme Court for a Writ of
. Mandamous/Certiora.ri to quash the order of dismissal, and the key question
before that court was whether the dismissal was wrongful, illegal or ultra vires.
The Supreme Court had then held that the present position of Civil Servants in
Burma was that of Master and Servant, as the prerogative of dismissal exercised
by the Crown no longer exists, 'and also because there are no longer any statutory
. or constitutional guarantees affording a Burmese Civil Servant to show cause
against punishment. The Supreme Court -accordingly indicated that the
proper remedy would be by way of suit.
The Plaintiff then filed the present suit before the Chief Court as a pauper
for a Declaration -and also for arrears of emoluments, gratuity, pension and
other payments.
Held: It is not the State alone, but every master also, who can dismiss its
servant at-pleasure, in the absence of contractual or Statutory restraints. In
the case of the State, the additional consideration of the welfare and safety of
thepeople'givesrise to the needed immunity from suits for wrongful di'SmissaL
'Except where the power to dismiss at pleasure is willingly restricted by the
Sovereign himself, such suits d'~ not lie. .
Th~ remark of the Supreme court iD. the previous writ application that
the' prerogative right of dismissal at pleasure had not found . a place in t~e
. C~~titution of Burma, seemed to have been by way of an obiter dicta.
, The prerogatives of the Crown continues to have force and life in the Union;
though -in a different form. Prerogative power is in essence the . sovereign
.. power or' the State and when Burma became a sovereign .State, the prerogative
or sovereign 9 r sovereign power continues in ~he. State. The Constitution of
Burma s. 223_expressly provides for a continuation of the J;>rero~~t~ve powers
previously belonging to the Crown.
* C_ivil Miscellaneous Application No. 173 of 196z.
BURMA LAW REPORTS. 557
This -.iew of the continuance of prerogative right of dismissal is also sup- c.c.
ported by the provisions of the Public Servants Inquiries Act. In s. 25 of 1963
the .-\c~. the doctrine of employment during the pleasure of the State is expressly u THA DIN:
preserved. "
THE
The basis of the present suit is that the dismissal of the plaintiff from the SECRETARY,
~ervice was wrongful or illegal or ultra vires. The cause of action therefore is REvoLu-
that the Government had acted wrongfully or illegal!y or ultra vires in removing TIONARY
GoVERNMI!NT'
the plaintiff from the service. This is a question which the late Supreme
OFTHB
Court had fully considered. The dismissal of the Plaintiff's application by UNION OF
the Supreme Court was on the ground that the Government had not acted BuRMA,
wrongfully, illegally or ultra vires in removing him from senice. Tile ruling of DEPARTMENT
OF SUPPLY
the Supreme Court and the law on the subject, depriYes the suit in its present
AND Co-
form of its cause of action. OPERATION.
U Tha Din v. The Secreta-ry, Ministry of Co-operative and Commodity
Distribution, (1959) B.L.R. 94- (S.C.); Secretary of State v. J.C. Maurice, (1937)
R.L.R. 35; Baroni v. The Sercetary of State for India in Council, (1929) l.L.R.
8 Rangoon 215; The Secretary of State for India in Council v. D' At,taides,
( 1934) I.L.R. 12 Rangoon 556; Ridge v. Baldwin and others, (1963) 2 W.L.R.
Q35; TerriU v. The Secretary of Statefor theColonie.t, (1953) 2 Q.B., p.482
referred to.
Than Sein for the applicant.
Mya Than Nu for the respondent.
U _MAUNG MAUNG, J.-The plaintiff applies for leave
to sue as a pauper " for a declaration that he was in the
service of :the Union Government as Secretary to the Com-
. missioner of Civil Supplies when suspended and iarer
removed and for arrears of emoluments, gratuity, pension
and other payments " which he has ~lculated ~ amount-
ing in all to K 2,34,416.
The Attorney-General, acting oii behalf of the defen-
dant, the Union Government, has raised the preliminary
objections that the suit is barred by limitation and that the
plaintiff has no cause of action. It ~ the contention of
the defendant that Article 14 of the Limitation Act applies
because the suit is one which seeks to set aside an act or
order of an officer of th~ Goverim:ient jn his official
capacity and the period of limjt-atio"n, prescribed is one
year from the date of the act or order. If this Article
~ BB~M* :LAW~EPORTS
- --
...... ,
,{..:.~.~
--
.4iilii/2;...
~9~ applies then the suit would be well o_u t of time for,
U
-D
T HA IN
ac-cording to the plaint, the plaintiff was removed from
v. the s.e rvice of the Union Government on 12th June 1956 ..
. SCR~~Y, U Than Sein, learned Advocate for the plaintiff however
~~~~; argues that when the act or order of an officer of the
GoVERNMNT Government is illegal or ultra vires then Article 14 has
u~:~F no application and it is by Article I 20 that the period of
n!=~NT limitation must be computed. The learned Deputy
oF SuPPLY Registrar .before whom this point was taken has agreed
.o:r?g;. with U Than Sein and found that limitation does not stand
in the way of the suit. On the motion of Daw Mya Than
Nu, learned Government Advocate appearing for the
defendant. the question has been referred to me.
As the plaintiff seeks to sue as a pauper tw:o pertinent
questions which must be answered before leave is granted
or refused is whether he is in fact a pauper, and whether
his plaint reveals a cause of action. Only when there are
positive answers to these two questions can this applica-
tion be allowed. Even where a plaintiff does not apply
for leave to. sue as _a pauper, it is often useful to examine
"if the plaint reveals a ca~se of action. If it does not, it
may be helpful to the plaintiff himself to dismiss the suit
at an early stage so that he may be saved the expense and
time of pursuing a wrong remedy. When the plaintiff
seeks to sue as a pauper, however, the question whether
the plaint reveals a cause of action assumes an even
greater importance fQr if the plaintiff is permitted to sue
.as .. a pauper, he has Ilttle to lose by way of costs whereas
. the defendant would stand in gr~ter need of protection
fr9m harassment and speculative litigations. I therefore
called upon the learned Advocates on both sides to argue
on -the broader question as ~o whether ~he plaint shows
a cause .of action on which the s1,1it may proc~. It is
only when the question of cause of action is .taken up
.fully that the hist0rjr of the case -m ay stand: revealed and
the question as tq whjch A,.rticle:.of. ~he. l-imitation-. Act
-MA LA~. REPORTS .:5-59
.. , ..
;
C:C.
applies to the suit cannot be adequately determined except ~963
in the light of that history. U THA DIN
. v.
The facts as disclosed in .the plaint are briefly these. s ECRETA
THER"
.Plaintiff U Tha Din was in the . service. of the Union REvoLu-
. TJONARY
Government and on 1st May 1948, he was appomted as GoVERNMENT
Secretary to the Commissioner of Civil Supplies. On 28th u~~o;:moF
.
September 1949, the Commissioner U Khin Ma~ng Lati DEPARTMENTBuRMA,
.and U Tha Din were ar.rested under the Public Property oP SuPPLv
Protection Act. They were prosecute.. d bef ore an d tne
d oP.ERATioN.
:>.No Co-
by a Special Crimes Tribunal which discharge9. them but
.a revision application filed by the Union Government with
the late High Court opened the way . for a retrjal. ~ The
retrial before another Special Crimes Tribunal resulted in
the acquittals of both U Khin Maung Latt and U Tha Din.
Appeals against the acquittals preferred by the Union
Government to the late High Court were unsuccessful.
At the conclusion of the trials the plaintiff was charged
departmentally on 7th March 1952, by the Secretary of
the Ministry of Co-operatives and Commodity Distribution
on two counts :
(i) That he conspired with the Commissioner of
Civil Supplies to make an unauthorised pay-
ment or that he abetted the unauthorised pay-
ment of Rs. II,o7,176/8 to the Zeyawaddy
Sugar Factory on the r_sth January 1949 and
that the unauthorised payment of the above
sum was in fact made inspite of the Memoran-
dum from the Ministry of Finance & Revenue
restraining the purchase or payment on a large
scale exceeding Rs. 50,000 in each case ; .
(ii) That he made a false representation to the
Ministry of Finance & Revenue that the Civil
Supplies Department was committed to pay a
sum of Rs. IQ lakhs to the Zeyawaddy Sugar
BURMA LAW REP.ORTS [i&
C;C. Factory by the terms of an agreement entered
1963
into between .the Sugar Factory and Civil
u THA DIN
v. Supplies Department with a view to obtaining
THE
SECRETARY,
the concurrence of the Ministry to the pay-
REvOLU-
TIONARY
ment to the Zeyawaddy Sugar Factory of the
GOVERNMENT . abovementioned sum fraudulently.
OF THE
UNION OF
DE~=NT The,plaintiff was given time till rrth March r952, to
oF SUPPLY submit his written statement of defence. The time was
AND Co-
OPERATION. extended till the 13th of March and the plaintiff's request
for further time was rejected. On sth February 1955, the
Secretary of the Ministry verbally asked the plaintiff to
submit a letter of resignation from the service but the
plaintiff declined to do so. On nth June 1956, the
Ministry issued an order removing the plaintiff from the
service of the Union Government on the grounds that his
-conduct was not above suspicion and that in any case he
had not given the due care and attention that was expected
of an officer of his position and thereby had proved him-
self to be unfit to be retained in the service .
.U Tha Din submitted an appeal against the order of
his removal from service to the President of the Union.
Response to his appeal dated r2th December 1956 came
on 4th July 1957 from the Ministry of Co-operatives and
Commodity Distribution saying that there was no reason
justifying a reconsideration of the suit or of the removal
order .and that therefore the President had rejected the
.app~al. "The plaintiff' submitted a memorial on 12th June
1958 to the President but the Ministry of Co-operatives andl
Commodity Distributi6n replied on 5th September r958
tharthe memorial coufd-not be entertained arid considered.
U Tha Din then went to the Supreme Court in Civil
Miscellan~ons Application No. ro of 1959 asking for a
dire.ction. of the Court in the exercise of its writ jurisdiction
.quashing the order of wrongful removal or, in the words
of, th.e petitj.on that U Tha Din filed, fQr an order to the
.
BURMA LAW REP-ORTS 561
respondent Ministry of Co-operatives and Commodity Dis- c.~.
19 3
tribution to " refrain from enforcement and continuing
enforcement of the President's order in the Ministry dated uTa~~ DIN
12th June 1956 and wrongfully removing the applicant SEc~~~v.
from service. of the Union Government." The Supreme REvow-
TIONARY
Court after dealing fully with the facts that led to the GoVERN~1ENT
petition rendered an opinion which is both illuminating u~~o~a~F
and important on the subject of the status and conditions o!~~T
of the public service. oF SuPPLY
AND Co-
The key question that was before the Court was oPERATioN.
whether the removal of U Tha Din from the service and
the circumstances in which it was ordered-about which
there was little room .for dispute-was wrongful, illegal
or ultra vires. The relevant sections of the Government
of Burma Act of 1935 and the rules made thereunder
relating to the civil service were examined by the Court
and compared with similar provisions in the Government
of India Act of 1935 and rules made t~ereunder (1). The
concept of employment of public servants during pleasure
of the Crown before the independence of Burma and of
India was also examined and the Supreme Court found that
the concept was preserved in section 310 of the Constitu-
tion of India. Section 311 of the Constitution, however,
guarantees reasonable opportunity fo the public servant of
showing cause while section 313 ensures the continuance
in force of all provisions relating to the Indian Public
Service. Thus, in the finding of the Supreme Court the
position of the civil servant in India has undergone no
change in regard to his constitutional right to be given an
opportunity of showing cause against punishment.
The Supreme Court, however, found that the Constitu-
tion of the Union of 13urma did not contain provisions
such as those made in lndia by section 310, 311 and 313
of the Indian Constitution. The fundamental rules~ the
(x) (t959) B.L.R., p. 94 (S.C).
562 ~BDRMJ\~W REPORTS
disdpline and leave rules and the " G " Circular r 5 of
1940 having been made under the Government of Burma
u T~ DrN . Act. 1935, and that Act having been repealed as from the
s~:Rv, day the Constitution came into force, th_e Supreme Co~rt
REvoLu- held that all the rules and the "G" C1rcular 15 wh1ch
GoVERNME:-.-r regu1ate ~he re1at10ns
. TIONARY . h.1p between the umon . Government
u~~b~HsoF and its civil servants ceased to have legal force. The
BuRIIB, relationship, the Supreme Court held, was therefore that
D.EPARTMl',"T .
oF SUPPLY of master and servant, neither higher nor lower, and It
o~~A~~~- . was obs~rved . that even thougq .the rul~s and regu~ations
. are not in vested with legal force they should, 'because. of.
long acceptance and practice on both sides be taken as the.
conditkms of service of Government employees retained
under section 229 of the Constitution or recruited after
Burma's attainment of iJ1depenoence. "The prerogative.
hitherto exercised by the Crown in regard to dismissal at
pleasure having found no place in the Burmese Constitu-
tion," the Supreme Court remarked, " and there being no
c.onstitl,ltional or statutory guarantee affording a Burmese.
civil servant reasonable chances of showing cause against
pun~hment, relationship between the Government of
Burma and its civil servants is no higher and no lower than.
that of the ordinary relationship between master and
servant." U Tha Din's application for direction to the:
Union Government by the Court in the nature of a vvrit of.
m.andamus or of a suitable other wri.t was dismissed and
the Supreme Court observed that if " a civil servant should
fe~l that he had been dismissed, reilJOVed. or punished.
without cause, or is otherwise aggrieved his obvious remedy .
(i.f adminfstrative r~medies are denied to him or jf they.
prove ine~cacious) must be by way of a suit against
Government_. A recourse tQ the writ jurisdiction of this.
<;outt is not a proper or satisfactory measure." :
-Thus while the Supreme Court did. not say it in so,
l!lany words its finding on the main question ari~ng from
t;he .application
. . '
of U Tha Din must be understood to be
--
~
-BURMA~AW REPORTS 5~~:
that the Union Government did not act illegally or ultra c.~.
1903
vires in removing him from the service, and that the act
. h . , . f U THA DIN .
or order of the Government m1g t glVe nse to a cause o v.
action for breach of contract as between master and SEc!.~ARY,
servant REvoLu-
Tl<.lNARY
The situation prevailing before the establishment of GovERl'<"MiN:r.
the Union of Burma was summed up in the .Secretary of u~;:~F.
State v. ]. C. Maurice (2). That was a Full Bench d.ecision 0J~R~~~1'
of the High Court at Rangoon, rendered on January 2oth oF StlPPct.Y.-
&"fo o-
193-7, on the eve of the coming into operation of the oPERATioN
Gov~rnment of Burma Act, 1935. The decision was .tb..m:.
for based on the provisions of the Government of I~~ia
Act of 1919 and the rules relating to the civil sefvice
framed thereunder. The concept or doctrine of employ-
;ment during the pleasure of the Crown was examined and
e4_plained fully in the decision and after a review of the
authorities on the subject the High Court held unap.iJ'!!~Ul~Y.
that section 96B of the Government of India Act" does not
entitle the public servant to an inquiry but! directs as a
departmental matter that an inquiry shall be held." It
'Yas held that'the rule relating to the holding of an inquiry
was not always applicable and its applicability was left
to the Secretary of State and responsible officers of the
executive in every case to dedde. - -~----
. Jbe Full Bench in the Maurice case.. expressJx. ~!
ruled the decision in Baroni v. The Secretary of Stote.JQr
India in Council (3) and Sec.re.tary of. S.ta.te f.o!_]ndia"_J.n:-
Council v. D'Attaides (4). In the Baroni case, an Extra
Assistant Commissioner of the Burma Civil S~ryice... sll.eK
th~Secretary of State for damages for wrongful dismis.s~l
and Jhe defence was by way of a demurrer that no__<;;~.S~
of ACtion was disclosed by the plaint. C~nli:ffe, J.,.J~ltJ.~
that action for damages for wrongful dismissal lay__~~!'
the Secretary .of State in respect of a breach o(.!.ll.~
(z) (1937) R.L.R., p. 35 . (3) (1929) I.L.R. 8 Ran., p. 21.5.
. (4) (1934) I.L.R. I2 Ran., p. 556.
. .~.:.. . ~ --- ' ..... ~ ... -
BURMA LAW
.
..REPQ&;E(:S,~>:..
. .. -.. . ... ~~~i'1--.
"""'"'M ' '' ~-, -.oo
c.c. made in pursuance of section 96B of the Government of
1963
India Act, 1919, and so far as it governed the conditions
u T~~ I;>IN and service of civjl serva_nts of the Crown. The D' Attaides
THE case also turned on the same question and a Bench of the
SECRETARY,
REvoLu- High Court composed of Page, C.J., and Baguley, J, came
TIONARY r l .
-GoVERNMENT . to a s1m1 ar cone us10n.
In h.IS note m . w h.IC h h e agreed
J:10~H~F with the unanimous decision of the Full Bench in the
D. BuRMA, Maliri"ce case, Braund, J. made the following remarks after
EPARTMENT
oF SUPPLY commenting on the two over-ruled decisions: "It appears
0~~~~~- ' to me that:there is, as a matter of construction, nothing in
section 96B of the Gov~!-~~e.~__<?fJn~ia_ A.~t - - ~9_!2., to
relax the over-riding pleasure of the Crown~~!J.~~.h-! ..<?.n the
cohttary it expres_sjy reaffiirris-=tO-dfsffi.iss it_s ~-~:r.Ya..nt~_9-nd
tilat there is' no inconsistency between the rules made
thereunder and th~ benefit they afford a "o f t he "'servant-
Cwwh onthe one hand-a~~ Hi~ M&~~-~_j"?~~r-riding rig}i,'9
to d1smiss his servants at will on the other hand. To put
'
the matter more shortly, the rules made under that section
appear to me to be regulations, devised for the benefit of
the civil servants but to which he has no contractual
privity, prescrib.ing merely the machinery by which the
pieasure of the Crown is, as between itself and the Local
Government, to be exercised."
The doctrine of employment during pleasure of the
Crown or the State, though it may appear to be harsh or
tyrannical, cyises from considerations of public _J;2olicy and
the welfare of th~ State. While on the Qil.e hand it II!aY
appear that the civil servant in holdin is office during
t e pleasure of the State, works under conditions of. in-
security, yet on the other hand the dangers-can be imagined .
Of a -situation in which the State has to explain its re;;;ns
for terminating the employment o f any pf itS. servant;or
of extending . his employment . af~~r .its .confidence in his
competence or integrity is go_ge. It is therefore a matter
of. striking .. a balance between the .interests of each
individual public servant az:id the inter~sts and . safety of
BURMA LAW REPOlttS 565
the.State. Where a fine balance is struck th~re is pe~ce ~;~3
and harmony in the ?tate as well as peace and secu~~ty u ~DIN
or the individual public servant. (It is not the State e,lone, v.
but every master also, who can dismiss its servant at plea- S~RY,
-sure, in the absence of contractual or statutory restraints. REVoLu-
TIONAR Y
In the ca.Se of the State the additional consideration of the GovERNMENT
welfare and safety of the people gives rise to the needed u~o~H~F
immunity from suits for wrongful dismissal. Excer>t where o!~:~NT
the power to dismiss at p.Ieasure is willingly restricted by oF S-uPPLY
AND Co-
the Sovereign himself such suits do not lie.) oPERATioN.
In a recent case before the House of Lords in England,
the contractional relationship between the master and the
servant is explained in the following simple and succinct
way. " The law regarding master and servant is not in
qggpt. There cannot be specific performance of a consract
of service and the master can terminate the contract with
~is servant at any time and for any reason or for no-!].e.
But if he does so in a manner not warranted by the contract
he must pay damages for breach of contract. So th.e
question in a pure case of master and servant does-not at
an~depend on whether the master has heard the servant in
his ow1;1 defence : it depends on whether the facts emerging
at the trial proved a breach of contracts." Ridge y.
Baldwin und others (5).
In rendering tne majority opinion of the House of Lords .
in that case, Reid, L.J ., also examined the position of
public servants who hold office at the .pleasure of the
Crown. He observed that '' apar.t from judges and others
whose ~enancy of office isgoverned by statute all servants
and all officers of the Crown hold office at pleasure, and
this has even been held to apply to a colonial judge [Terrell
,v, The Secretary of State for the Colonies (6)]. It has
always been held, I think rightly, that SU<i:h an officer has
: no right to be heaid before he is dismissed and the reason
(s) -{x963) :ll W.L.R., p. 935 (6) (I9S3) z Q B., p . 4~z .
. 6 .
!,.t.. -~~
566 :- BURJ~~; LAW REPORTS
, . ~9~3 . is dear. . As the JlW).Pn..h.aying the.B_o_wer of dismiss~} need
u - . . . not have a~y.th.illg_~gf:l)~st the officer, he nee<!_!l?..~.. gJ_~~- any
TH: -DtN r-easori." The appeal before the House of Lords was by a
THE Chief Constable who was dismissed by a Municipal
SECRET,\RY,
REvow- Corporation and their Lordships found that his office was
TIONARY
GovERNMENT governed by statute and the statutory provisions had not
u~o~"~F been complied with and therefore allowed the appeal.
BuRM!.; WhHe 'the late Supreme Court in considering the appli-
DEPARTMENT .
oF SuPPLY cation of U Tha Din for a direction to the Union Govern-
~=A~~~- merit by way of a writ of mandamus, or any other suitable
writ, remarked that the prerogative exercised by the Crown
in regard to dismissal at pleasure has not found a place in
the "constitution of the Union of Burma, I would most
. . respectfully observe that that remark seemed to have been
by \vay . of an obiter dicta. The Supreme Court
concentrat-ed its ~~~1!!~9..I1.. ()!1 th~.. _q~~~jgn wbetheCthe
fUndamental rules and other rules and regulations relating
to the status ~nd condhioris'-of'employme~t of r,j~jl sery~nts
were still of........
~- -
legal .force after
. . - - ..-....
.~ ..
the attainment of Burma's
mdependence. On the finding !ha~..?.~~h rules and regul~-
tions had ceased to have legal force ~}:le learned Court
<fecided that since =~_her~ wa~.. 1!9_ leg~). ~tt.rY.._ OJ! the Eart of
tlie Government to hold an inqu.ir:y his removal from the .
, serv1ce did--not give U Tha Din a legaX, rigl}.tQn which he
might fou~d ari applic?tion ~ wr~t. The prerogative
of the Crown, to my mind, does continue to have force.
and iife 1n the Union, though 1n a different form.
The prerogative pow-er of the British Crown belongs n9t
to_the . Queen in her _personal capacity but to the State
and it is well established that in the United Kingdom the
so-called prerogatives of the Cro'Wn are in fact exercised .
by the Government whkh is responsible to Parliam~~1::
e..g. the prerogative of mercy is exercised by the Queen
.on recommendation made . by . the Home Secretary.
''.(J>reroga'tive power is .. in essence the. sovereign power:.o~
the St~te
. .
. and w.h~n
.
Burma
. bec<ime
. -~~QY.ereign State the
- - - . . .
. A LAW REPORTS
:ererggative or_~~reign power continues i!!__!_h~--~tate). ~~~;
This does not !leed to be expressly _provide~ for ..because u .r;;;:
a prerogative p2Y.{~r is not extinguished :rp.erely by the v. DIN
absence of- an express reservation. However, the Consti- SECRTHE ETARY,
tution of Burma does expressly provide for a continuation REvoLU-
. . b , th TIONARY
of t h e prerogative powers preVIous1y e1ongmg to e GoVERNMENT
Crown. Secti0n 223 of the Constitution which provides u:x~:oF
for this continuity reads as follows : BuRMA,
0 EPARTMENT
OF SUPPLY
"All rights, authority, jurisdiction and prerogati,e hereto A."'D Co-
fore belonging to His Britannic 'vfajesty which appertain or O"PERATION.
are incidental to the government of the territories in Burma
for the time being vested in him by virtue of the Government
of Burma Act, 1935, or otherwise, and all rights, autbority,
jurisdiction and prerogative exercisable by him, by treaty,
grant, usage. sufferance or otherwise in, or in relation to, any
other territories in Burma, are hereby declared to belong to
the Union."
The situation therefore seems to be that all the prero-
gative powers which belonged to the Crown have passed
to the sovereign State of Burma and these powers are not
vested in any individual in .the Union in his personal
capacity, but they belong to and are exercisable by the
State or by those in whom the sovereign power of the
State resides. - It has always been the proclaimed goal of
the independent Union of Burma that sovereign power
belongs to the people and that it. will . ~ us.ed for the good
and welfare of the people. The ha~shness that appears
to .be in the doctrine of employme~t of :Public servants
during the pleasure of the State will disappear when the
theory that sovereign power belongs to the people and is
to be used only for their welfare and that public servants
serve only to achieve those ends, and the reality of condi-
tions in Burma coincide-. It is not i:ri Burma alone that
Governments and people' have been striving-to narrow the
gapf between the theory and philosophy of tbe State and
the realityo f -conditions. Wherethe attempts are l<rrgely
~ 5.70 ..JYiRMA LAW 'REPORTS '=[_"" 6 -:,;
- n~...._ ___:,--:.::-
rl.9 31.1
....
--~
c.C Wrongf.ul.Dismissals remarks: "It is clear therefore that
1963 . . .
- the servants have not gamed any new advantage by the
v. DIN consntunon
u . THA . . . I t IS
. c1ear t hat t he law relatmg
..
SE~~S:ARY, to tenure of office and dismissal of government servants is
REvow- not one and uniform and it is not at par with the law
TIONARY . b
GoVBRNMENT re1atmg to non-government servants o v10usly
b ecause
-u:o~F there -can be no question of prerogative or public policy
.BuRMA,
DBPARTMENT
in resp~ct
.to
. .
their tenure of service. The government
oF SUPPLY servants seem still liable to be summarily dismissed
'A ND Co-
OPEltATION. . (6) "
U Than Sein, learned Advocate for U Tha Qjn,. in
ar~uing that the present suit is within time because !~ is
Article r2o and not, according to him, Article 1,4 .of
Sc~edule I of the Limitation Act which applies, concedes
th!it for the purposes of thiS suit tbe words " wrongful '',
, "W~al " and " ultti:i .vires " :are interchangeably .used.
"yvrol}gful" does ~ot mean immoral or unkind. It
ineans _!:hat tlie dismissal order made by the GoVei11JI!~nt
, against his client: is without. legal right or ultra vires.
(The basis of this suit iS 'that the disinissal of U Tha Din
from the service was wrongful"or illegal or ultra .vires.
Even though ih the title of the plaint it is not charged
that the removal is wrongful, the whole tone and trend
of the plaint is that it is: In paragraph 3i of the plaint,
the plaintiff charges that " the order of- wrongful removal
:from service was consequently.. void and in:.openitive :and
against law 'and proeedtire; justice, equio/ and good con~
. sCience." Again in paragraph 3i:the plaintiff says that
."-the cause of action for this suit arose on the "12th June
1956 when the plaintiff abovenamed was wrongfully re-
moved from service . ~ : He therefore d~ms. in
. his prayer and 'in paragraph 36 of the plaint " a decree
for the .recovery of arrears of pay on a promoted ba:si$.
.leave sal~, gratuitY andpension amounting to K 2,34,416
:.fully . set out' in detail in the .sdiedule- hereto. annexed."
(6) znd editon .(1959), i" 39
-.Z..--
. BURMA LAW REPORTS ,S'W4
~.
~
The Schedule shows that U Tha Din is claimingarrears of ~f.:
salary on a promoted basis till I962 and gratuity and .!.....:
U THA Du"'
pension. v.
THE
The cause of action of the suit therefore is that the SREcRETARY,
EVOLU-
Government had acted wrongfully or illegally or ultra TIONARY
vires in removing the plaintiff from the service. This is a Go:i~ENT
question which the late Supreme Court had fully considered u;~~F
and decided with reference to the law and the rules and DEPART~T
OF 8 UPPLY
regulations relating .to.the civil service. Wh1le the Supreme .~ND Co-
court h ad ob served t h at a smt. ror Qamages. was probabJ y OPERATION.
the more appropriate course for U Tha Din to pursue
-rather than a -remedy by way of writ, the Supreme Cou~t
did not abdieate its judicial power. Instead it went"' fully
into the merits of the case and expounded the law that
applied. The dismissal of U Tha.Din's application by the
Supreme Court was on the ground that the Government
bad not acted wrongfully, illegally-or ultra vires in remov-
. ing him from service. Here, if V Tha Din is granted the
leave that he seeks to sue as a pauper, in the way the suit
1s framed the decision of the Supreme Court would stiil
. stand in his way, .for the whqle basis of the strit is that the
order of the Government is wrongful, illegal or ultra
vires. Even assuming, therefore, thatall the facts narrated
by U Tha Din in his plaint are true, the law would be
against him. The ruling of the Supreme Court and the
law on the subject, which I have at some length discussed
above, deprives the suit jn its present frame of its cause of
action.
I must therefore, and not without regret, nor without
sy_m pathy for the plaintiff, reject his application for leave
to sue as a pauper because the plaint, examined in the light
<lf the law, fails to reveal a valid cause of action.
BURMA:- LAW~PORTS
. - :.,:-;-?&,J;,t~.. : :.:fl.
APPELLATE CIVIL
Befo1e U Kyaw Zan U, J.
c.c. u TUN SHEIN (APPELLANT)
1963
Aug. 31. v.
u BA HMYIN (RESPONDE~.*
Estoppel by tetUlnt of title of landlord- Evidenr.e Act. s. t r6-whether applies
when tenant already in possessim at beginning of tmancy.
The Respondent/Plaintiff had filed a suit for ejectment against the Appellant/
Defendant,. on an unregistered lease deed executed on 21st October 1959, from
Certain salt-fields. It appears that the Appellant bad been in possession since-
1956. ~
The Respondent claimed to be the owner of the land and contended that
the .t\p~t ~as estopped from denying the title of his landlord!, the R,espon-
dent when be himself had admitted the tenancy.
On Seoond Appeal it was contended that as the Appellant w.as not let into
possession at an.y time before he took the lease, but was already in possession,
estop~~ ~t be invoked.
H~Td; A~rding to the evidence of the Respondent, he let out the land
to the Appellant verbally for the previous years 1957 and 1958. rt is therefore
clear that the Appellant was in possession only at the instance of the Respondent
when h.e ~~ t4e lease deed. in 1959:
7J Po Shit_t an4 cnwther v. Edward and others, A.I.R. (1934) Ran. 139 ..
referred to and distinguished. . .
The view that a tenant is .estopped from denying his landlord's title only if he
was let into possession by the landlord 11nd that there is no estoppel against
the tenant if, being alreadr in possession, he h11s executed a lease in favour of
the. person raising the estoppel, is now obsolete.
Lal Malwmed v. KallanttS, I.L.R. (x88s) rx Calcutta, 519, r-eferred to and.
distingui~hed.
Nagindas Sarzluzldzarzd v. Bapalal Pwshottam I.L.R. (1930) 45 Bombay
~~~~ .
The words " at the beginning of the tenancy " in s. u6 of. the Evidence
Act -do not _give a ground for the contentiQn ~at when a person already in
possession becomes a tenant, there is no estoppel- against bis denying his lessor's
title.
- . . .. . .
Krishna Prasad Lal Singha Deo v. j3araboni Coa{ Concern, Ltd., I.L.R.
(1938) I c31cu't'ta l P.C.,'referr~d to and approved.
--~--------~---
* Civil 2nd Appeal No. 6o of 1962 against the decree of the Additional
Dlstt:ict Court oC:Bassein in Civil Appeal No.8 of 196z,<:onfirming the judgme?t
anddecreeoftheTownshipCourtofNgaputawat.Bassein,dated J4thl\1arch 1962
573
The cpestion is whether a new tenancy had arisen and not whether the c.c.
tenant had been let into possession by the landlord. If it is proved that there 1963
was a new tenancy, then under $. tt6 of the Evidence Act, the tenant was UTuN
estopped duril")g the continuance oi that tenancy from denying his landlord's SHEIN
title at the beginning of the tenanc~. v.
UBA
Mt. Sajjoo and another'" Basdeo prasad a11d otlzers, A.I.R. (1937), Oudh ses HMYIN.
and Malwmed Mussa v. Aghore lwmar Gan~;uli, I.L.R. 42 Calcutta, Sot P.C;
referred to.
In the circumshmces of the instant case, the appellant was iet into possession
prior to and at the time of the execution of the exhibit lease deed by the respon-
dent, and he was accordingly estopped from denying the respon('\ent's title.
The question of o~vnership becomes irrelevant.
Tenancy being a contract, it was, no doubt open to the Appellant to raise
a preliminary issue that the contract was void or voidable but he never did.
In the ab~ence of finding he was precluded from agitating the broader question
that the re~pondent had no title when the relationship of landlord and tenant
came into existenoe.
Tun Sein (Advocate} for the appellant.
N. C. Sen (Advocate) for the respondent.
U KYAW ZAN U, ].-This is an appeal against the j.udg-
ment and decree of the Additional District Court of B.as-
sein, jn its Civil Appeal No. 8 of 1962, confirming the judg-
ment and decree of the Township Court of Ngaputaw, in
its Civil Regular Suit No. 2 of 1961 ejecting the appellant
from the suit salt-field with the direction to remove all
structures erected by him, and to give up possession to the
respondent, who was held to be his landlord by virtue of
the unregistered exhibit lease deed admittedly execu-
ted by him in favour of the respondent.
The suit was for ejectment. The lease deed executed
on 21st October 1959 was "for the period ending October
1959-60 '';hence it was not a lease" from year to year, or
for any term exceeding one year, or reserving a yearly
rent" under Section 107 of the Transfer of Property Act,
but it was a lease for less than a year or .at most a leas~
for a term of a year 0nly, i.e. till the erid Df the current salt
season. The rent was fixed at "K 200 only per year."
BURMA LAW REPORTS
c.c . :This expression does not mean that the lease. reserv:ed a
1963
yearly rent inasmuch as the lease clearly was for less than
UTUN
SHEIN a year or, at most, as stated above, a lease 'for a term of a
v. year only. Hence the contention of the learned Advocate
- UBA
HMYIN. for the appellant that the lease deed is invalid for want of
registration must fail.
The respondent claimed to be the owner and alleged
.~hat th~ appellant trespassed upon the land in 1949-1950
when it was under the control of the insurgents, and that
he allowed the appellant in the year 1956 when the condi-
tions-improved to work the land on payment of rent: He
further alleged that as the appellant refused to vacate by
the-end of Oc.t-ober 19-60 as agreed in the exhibit m lease
deed in spite of the notice (Exhibit c ) he objected to the
Superintendent of Salt to the issue of salt manufacturing
license to the appellant.
The appellant in his written statement denied that the
respondent was the owner and that he trespassed upon the
land or worked it with the permission of the respondent
prior to the execution of the exhibit m lease deed. He
all~ged that the land belonged to the government. He ad-
. mitted that he rec-eived the notice to quit and that the
Salt Department refused to issue a license.
In his reply the respondent denied that it was a Govern-
. .ment land and submitted that since the appellant had ad-
mitted the execution of the -exhibit w Iease deed he was
-estopped from denying the respondent's title. to the land.
to
Of the five issues: the.fust i.ssue was as wh o :owned
the land, and the second issue was on estoppel. The suit
. mainly rested on these two issues. Both the Courts below
were of the qpinion that the question of ownership in a .
suit for ejectment of a tenant was irrelevant, as the appel-
lant was estopped from denying the title of his landlord
the -respondent when he himself had admitted the tenancy.
The learned Advocate for the appellant now contentls
"that since the appellant was not let into .possession at any
BURMA LAW REPORTS 575
..ime before he took the lease but was in possession already c. c .
1963
estoppel could not be invoked. This is an important point UTt:N
-of law. The appellant deposed that he had been in pos- SHEIN
v.
session for ten years before he executed the lease deed. UBA
HMYIN.
Maung Hla Kyaw (DW r), a labourer, was the only witness
to support him but this witness could not say to whom
the land belonged. Evidence of his possession other than
by the consent of the respondent is exiguous. If ~he land,
In fact, belonged to the Government, there was no reason
why he should execute the exhibit lease deed in favour of
"the respondent. Ray (PW 4) the Superintendent of Salt
stated that on production of the exhibit m lease deed by
the appellant the license was granted to him, and thet in
the year I958-1959 also the approval of the respondent
was sought for before the license was issued to the appel-
lant. According to the evidence of the respondent he let
-out the land to the appellant verbally for the previous
years 1957 and 1958. It is therefore clear that the appel-
lant was in possession only at the instance of the respond-
ent when he executed the Exhibit ro lease deed. The
decision in U Po Shin and another v. Edward and others (r)
relied upon by the learned Advocate for the appellant for
'his proposition, no doubt, applies to cases where pers.ons
executing a lease deed are not let into possession of the
property by the landlord. In that case the tenants already
in possession " signed the lease, which was done under
pressure, under a mistake and in ignorance of facts relating
to the landlord's title " and, it was held, that in the circ-
umstances, the execution of the lease di'd not raise any
estoppel against the tenants. The present case is not on
all fours with that case. The learned Advocate for the
appellant argued that the Exhibit ro lease deed was signed
-under coercion inasmuch as the appellant would not have
got the license unless he signed the said deed. There is,
1n fact, not a scintilla of evidence that he was forced or
(t) A.I.R. (1934-) Ran., 139
576
c.c.
1963 influenced to sign the deed. This point was taken up only
UTuN
in this Second Appeal. The appellant should have pfeaded
SHEIN this defence specifically under Order 6 Rule 4 of the Code
v.
u BA of Civil 'Procedure. It is well settled that general allega-
HMYIN.
tions, however strong, are insufficient even to amount to an
averment of fraud or coercion of which any Court wili
take notice. M.C.T. Chidambaram Chettyar v. V.L.S.
Chockalingam Chettyar and five (2). Full particulars of
undue influel?-ce or coercion must be separately given, e.g.
nature of threat, the circumstances, date, time and place.
There was no issue on the point. It is true that there was
also no issue framed in the case relied upon by the learned
Adocate for the appellant but the question was specifical-
ly raised in the pleadings. In the instant case the point
was not specifically raised.
The view that a tenant is estopped to deny his land
lord's title only if he was let into possession by the landlord'
and that there is no estoppel against the tenant if, being
already in possession, he has executed a lease in .favour of
the person raising the estoppel as held in the case relied
upon by the learned Advocate for the appeliant is now
obsolete. This case mainly relied upon Lal Mahomed v.
Kallanus (3) which was dissented f:r.om in Nagindas-
Sankalchand v. Bapalal Purshottam (4). On going throqgh
the various authorities on the point, I find that a contrary
view has, however, been taken in some more recent
- authorities and even in some of the old where it has been
held that, if the relation of landlord and tenant is
established, the tenant is estopped from denying the land-
lord's title, even though he was. not put into possession by
the landlord. In ~he later Privy Council case of Krishna
Pms.ad__.Lal Sinnha Deo v. i3araboni Coal Concern, Ltd., (5)
..it :VV:?S .held that the words " at ~he beginning of the ten-
ancy ~- in Section u6 :of the Evidence Act do .not give aJ
. . . ~
(2)'{r95S) B.L:-R..u6 HC . .. - (4) I.L.R.'"(r93o) ~S Born., 487.
'(3)'l.L.R .:"cx'~8s) n Cat;~5 i 9: :_. , . (sJ .L.L.IC. {~ins) x Cal., r J?.c:
BURMA~W REPORTS
--
S!fr/
ground. tor a contention that when a person already in c.c.
1963
. possession becomes tenant, there is no estoppel agai~st his
U Tt.:N
denying his lessor's title. This Privy Council case observed SHEIN
t/.
that Lal Mahomed v. Kallanus (supra) relied upon in U Po u BA
Shin and another v. Edward and others (supra), which HMYIN
was cited by the learned Advocate for the appellant for
his proposition was "really outside Section II6, not being
concerned with title at the beginning of the tenancy, but
with the common case of sitting tenant attorning to a new
individual as entitled to receive rent. " The question is
whether a new tenancy had arisen and not whether th~
tenant had been let into possession by the landlord. If it
is proved that there was a new tenancy, then under Section
rr6 of the Evidence Act the tenant was estopped during
the continuance of that tenancy from aenying his land-
lord's title at the beginning of the tenancy. Again in
Mt. Sajjoo and another v. Basdeo Prasad and others (6) it
was held, relying upon the Privy Council decision in
Mahomed Mussa v. Aghore Kumar Ganguli (7), no tenant
can deny the title of his landlord, unless he can prove fraud,
coercion, misrepresentation or mistake. It may be of
interest to note in passing that this authority even went
further to say that assuming that the lease deed is register-
ableyet, it cannot be disallowed in evidence if unregister-
ed, because Equity will support a transaction ~lthough
clothed in an imperfect legal form when it has been acted
upon for a long time. There are, in fact, no Words in
Section n6 of the Evidence Act to show that the tenant
must be put into possessioh by the landlord in order to
estop the tenant from aisputing the landlord's title. See
Shankar Rana Patil and others v. ]agannath Mathura Lal
1Jhat (8).
In the circumstances obtaining in the instant case I am
of the opinion that the appellant was let into possession
{6) A.I.R. {i9.37) Oudh, sos. (.,) I.L.R. 42 Cal., Sot P .C.
(8) A.I.R. (1928) Born., z6s.
BURMA LAW REPO:R:fs i (i9.67..; ...
.c.D.
c.c. prior to and at the time of the execution 6'f the exhibit ro
1963
lease deed by the respondent, and he was accordingly
U TuN
SHEIN
estopped from denying the respondent's title. In Dayaial
. v. and Sons v. Ko Lon and another (9) it was held that a
UBA
HMYIN. tenant who has been let into possession cannot deny his
landlord's title however defective it may be so long as he
ha:s not openly restored possession by surrender to his.
landlor-d. The question . of ownership thus become
irrelevant and both the Courts below were justified in de-
dining to answer the first issue. In Ahamut v. Kalu (IO)
it was held that a person who lets out land to another, cari
recover rent from him, though he has no title in law to the
land. In that case the land was the Government land.
Even if he was not let into possession .he was still
estopped hom denying the respondent's title since he had
executed the Exhibit ro lease deed in view of the authori:.
ties shown above, and also in view of the trite Full Bench
decision of the Madras High Court in Venkata Chetty v.
Aiyanna Goundan (II) in the absence of proof that he
executed the said lease deed in ignorance of the defect of
the lessor's title or that his execution was procured by
fraud, misrepresentation or coercion. When the appellant
himself was a party to the aforesaid deed he cannot now
both approbate and reprobate. Section r r6 of the Evidence
Act is very clear. Under this section no tenant, shall,
during the continuance o~ the tenancy, be permitted to
d eny that the landlord had, at the beginning of the tenancy,
to
a: title the.fand. There is no justification for narrowing
its scope. The section is clear in itself and it should .be
interpreted.as it stan~ and understood without importing
foreign words or mea!lings. Tenancy .being a contract it
was, no doubt, open to the appelhmt to raise.a preliminary
i8sue that the contract was void or voidable but he never
:.did. In the absence of finding.
he w~
.
p~ecl~ded from
.; (9) I.L.R. 6 Ran., 657: (ro) .9 L.T. 55
. .. . (u) I.LR. 40 Mad., s6r (F.S). . .
BURMA LAW REPORTS
agitadng the broader question that the respondent had c.c.
1963
no title when the relationship of landlord and tenant came
U T UN
into existeQce. Prima facie the section applies to tenants SHEIN
tl.
who have been let into possession as well as to those who u BA
have acknowledged the landlord by executing a lease deed. HMYlN.
In Krishna Prasad Lal Singha Deo v. Baraboni Coal Concern,
Ltd. referred to above the defendant Company contended
thanection r r6 applies where it is shown .that the landlord
put the tenant into possession, and that when a person
already in possession becomes tenant to another there is
no estoppd against his denying his lessor's title. Their
Lordships of the Privy Council could not accept such a
construction. and said. "There is in English case law some
authority for the \'iew that a tenant is only estopped frorn
denying his landlord's title if at the time when he took his
lease he was not already in possession of the land. But in
section r r6 the Indian Legislature has .formulated no such
condition. The words 'at the beginning of the tenancy
give no ground for it. When a demise of land is mad~
and acted on; when the tenant proceeds to occupy and
.enjoy under the grant, gets the shelter of the grant.or's title
and the benefit of his covenants, it is difficult to see why
'during the continuance of the .tenancy' he should be
free of this form of estoppel." T4eir Lordships also rt:-
marked that in Vertannes and another v. Robinson and
another (I2) the Board applied section n6 to a case in
which it was difficult to say that the tenant had obtained
possession from the landlord.
In the .result the appeal fails and is dismissed with costs.
Advocate's fee three Gold mohurs.
\I2)IJ,I.L.R. 5 Ran., 427 P.C. .
580 BURMA LAW REPORTS
APPELLATE CIVIL
Bifo1e U San ~)lfaung and U Tun Tin, JJ.
c.c. . u YOKE SAN (APPELLANT)
1963
v.
!July 2.
U SAN MAUNG (RESPONDENT).*
Decree wit~out hearing evidence-suit on promissory nou~&hether examination of
plaintiff necessa;-y. Ci-;.il Procfdure Code, o. 17, r. 3-v:hether dec,a: proper.
In a suit on a promissory note, the trial Judge had decreed the su!:, without
hearing any evidence. There wa~ also no express direction either in the diary
or "in the judgment to the effect that the case sbou'ld proceed ex parte as
against the defendant.
~ Appeai :-Held: It was not necessary fo.- the trial judge to examine
the plaintiff on oath. Under s. I 18 of the Negotiable Instrum.ent Act, it
must be presumed that a negotiable instrument is for consider-ation until the
contrary is p~;oved.
However, in the absence of any express direction either in t-he diary or in
"the judgment to the effect that the case should proceed ex parte as against the
defendant, the judgment of the )earned trial judge .can be construed as having
been made under o. 17, r. J As thejudgmen~ now under appeal is not unequivo-
-cal the defendant-appellant .could easily have byen misled as to the proper
-remedy which he should pursue.
The decree was therefore set aside.
Mrs. L. Stevenson and one v. Ma Hla ~nand 4 others, {195+), B.L.R. r68
{HC), referred to and followed.
Kyin Htone for the appellant.
V Tin for the respondent.
U SAN MAUNG, J.-In Civil Regular Suit No. 706 of 1962
o the City Civil -court of Rangooll which was converted
from Civil Regular Suit No. 84 o:f"196I of the late High
Cour.t, the plaintiff U 'San Maung :vho is the respondent
in the present appeal, sued the defefi.dant-appellant U Yoke
San for, the recovery of K 25,000 due -on the promissory
note in suit. The defendant by his written stat~ent
admitted having -executed the suit promissory note. He,
* Civil First Appeal No. 84 of r962 against .the d~cree o"f the Chief Judge,
<;:ity.- Civ.il Court. of..Raitgoon.in. .Civil Regular. Suit No. 7o6. ~f- ~962, dated
4th October 1962. '
---
.BURMA LAW REP0RTS 58t'
however, said that it was renewal of another promissory c.c.
1963
note dated 21st of June 1956 executed by him in favour of
u VOKE
Daw Khin Nu bearing interest at three per cent per men- Sur
sem. Oil that promjssory note interest amounting ~o USAN
tl.
K 26,ooo was due and it was credited towards the sum ~A.pNO..
which the plaintiff had to pay the defendant in connection
with a building contract. About three years after the
execution of the first pro-note, the pro-note now in suit
was executed by the defendant in favour of the plaintiff
as requested by Daw Khin Nu. The defendant also con-
tended that the plaintiff was a money-lender carrying on
money-lending business as defined in the Money Lerlfler's
Act and that therefore the suit against him was not main-
tainable as the plaintiff was not a registered money-lender.
On the 24th of August 1962 and when Advocates for
both the parties were present several issues involved were
framed by the Iearned C~ief Judge of the City Civil Court.
The suit was then aojourned till the 4th of October 1962
for examination of witnesses cited by the parties. On
the latter date the plaintiff and his witnesses were present
but the defendant and his witnesses were absent. The
defendant's Advocate asked for an adjournment but in the
face of strong objection by the learned Advocate for the
plaintiff adjournment was refused. The learned Advocate
for the plaintiff then claimed that in view of the admission
made by the defendant regarding the execution of the suit
promissory note and . in the absence of any evidence to
the effect that there was no consideration therefor a decree
should be given to the plaintiff. The learned trial Judge
accepted this contention and decreed the plaintiff's suit
with costs.
In this appeal by the defendant two points have been
canvassed on 4;s behalf byhis learned Advocate:
(a) that the mere fact that the burden of proof was
on the defendant-appellant to. show that there
7
ssi BURMA LAW REPORTS.
c-.c: was no consideration did not absolve the
1963
learned trial Judge from examining the
U.YoxE
S.ur plaintiff on oath ; and
."'
U S.AN
{b) that' the learned trial Judge erred in law in pro
MAtii"ro. ceeding under Order 17, Rule 3 of the Civil
Procedure Code instead of under Order 17,
Rule 2 .
In our opinion, there is no substance in the first of
these two <!:ontentions. Under section r r8 of the Nego-
tiable Instruments Act until the contrary is proved it must
be pre;umed that a negotiable instrument is for considera-
tion. Accordingly it was not necessary or the learned
trial Judge to have examined on oath the plaintiff in the
suit now under appeal to show that consideration had
been paid before passing judgment in his favour.
Regarding the second contention, we consider that there
is ample force in it. ln the absence of any expressed
direction either in the diary or in the judgment to the
effect that the case should proceed ex par.te as against the .
defendant the judgment of :the learned trial Judge can be
construed as having been made under Order 17, Rule 3
Now, as observed by the late High Court in Mrs. L.
Stevenson and one v. Ma Hla Yin and four others (r) the
provisions of Order 17, Rule .3 do not apply unless:
{i} the hearing is adjoumea on the application of a
party to the suit.
(2) the hearing is adjourned on the application of.
the party who subsequently makes the default.
and
{3) ,the adjournment is granted tq enable the party
to produce his evidence or :to perform any .
other act necessary :to the .further progress of
the suit and if 'the party fails to perform any
(x) "(1954), B.L.R. x68 (HC).
BURMA LAW REPORT~ ss:i
of the acts for which the adjournment was c.c.
1963
granted within the time allowed by the Court.
U You
As the judgqtent now under appeal is not unequivocal the SAM
tl.
defendant-appellant could easily have been misled as to the USAN
MA.l1No.
proper remedy which he should pursue. Consequently, Ule
judgment and decree appealed against are set aside and
we would direct the learned trial Judge to proceed with
the suit in accordance with law in the light of the remarks
mad~ above.
In the circumstances obtaining in the case ana consider-
ing that the appellant was upsuccessfu} in his contt!ntion
that no decree should have been given without examining
the plaintiff on oath, and that the defect in the form of
the judgment appealed against was not due to any fault
or laches on the part of the plaintiff we would direct that
each party should bear its own costs of this appeal.
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BURMA LAW REPORTS 587
0 C' C' 'l'OC .C 0 ~ 0 C' C' C'
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Cl:ftJ?f:~JffildJ?:cp GSd?Ci'A.>ISd~C:I,j0:).)~ II
"135. A Contract between the creditor and the principal
. debtor, by which the creditor makes a composition with, or
promises to give time to, or not to sue, the pr4lcipal debtor
discharges the surety, unless 'the surety assents to such con-
tract."
sss BURMA
,... ..
LAW REPORTS
~
C' C' 0 C' . c- . . C' 0 C' C' 0., (' C' ('~
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"The reason of this rule appears to be that a surety has a
right, immediately on the debt becoming due, to insist upon
proceedings being a't once taken by the creditor against the
principal debtor, and any contract that would prevent the
creditor from suing him would be inconsistent with that right
{s. 139)."
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G0Tc:OJ:Gro:x>2 11
" A nominal giving of time may have the effect, .:in sub-
stance, of accelerating the creditor's remedy,. as where having
commen<:ed an action against the principal debtor, the
creditor t(jok a recorded ac.knowledgment of the debt, and
undertook not to enforce it befo:re a certain day-, which,
however, was earlier than the time at which he c9uld have
obtained judgment in the action in the ordinary course. In
such a case the surety, being manifestly not prejudiced, is
not discharged."
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BURMA LAW REPORTS
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BURMA. LAW R.PORTS 591
592 BURMAJ.AW REPORTS [r96~ ..
~URMA. bAW REPORTS 593
o C' C' C' r,::;::; C' C'O C' r,;: C' C' C'
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" 122. Crown Proceedings Act, 1947. Crown immunity in
tort was brought to an end by the Crown Proceedings Act,
1947, which came into force on January I, 1948. Section
2 (r) provides as follows : 'Subject to the provisions of. this
Act, the Crown shall be subject to all those liabilities in tort
to which, if it were a private person of full age and capacity,
it would be subject-(a~ in respect of torts committed by its
servants or aaents; (b) in respect of any breach of those duties
which a person owes to his servants or agents at common law
by reason of being their employer; and (c) in respect of any
breach of the duties attaching at common Jaw to the owner-
ship, occupation, possession or control of property.' "
594 BURMA LAVi REPcl!t:fs'
o ~ <' r<"G
~roG~~ews ro?m:>roO'J2~19ooror The Secretary of State for
India in Council v. J. Moment ro~ ( o) m/- f~:>~~:>: m2:({&
.
Go.:>:> Go<" oc c o c
OCOOCQG(}) c o c c c <'
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. ~ro!lot Gc::n.p'>31 ~02m ro'P:Oflel:;;mu Rankin, C.J. .::n2
Seeretary of.State v. Shiiobinda Chaudhuri ro~ (J) q~ Gro:>oSu1
OC'@ C' 0 ~<;:
roQ?C:
l
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. "There :the Government of Burma had an ordinary dispute
with an individual about the ownership of certain landed
property. It was finally decided that the property belonged.
: to the individual, and the suit was an ordinary ~ornmon law
suit in tort for damages for wrongfully interfering with the
plaintiff's property. The local Act had purported to say that
all claims to any right over lands as against Government
should be.brought in the Revenue Court and not in the Civil
Court. The Prhy Council held that was ultra vires of the
legislative authority of the local legislature and they held
that a suit for damages for wrongful interference with 'the
plaintiff's property would have lain against the East India
Company for the reasons explained by Sir Barnes Peacock in
the P. and 0. case (3). Therefore the P. and 0. case was
finally affirmed in so far ~s it held that it was possible to sue
the Government for tort if it was in connection with a private
under\ak.ing or undertaking not in the exercise of sovereign
powers. This put an end 'to the doubt raised by Sir Lawrence
Jenkins and Fletcher, J..''-
. .
BURMA LAW REPORTS 595
~~ ( in the exercise of sovereign powers ) ~rS:~:::ooro?'fcOJ~
~~.s?o3
Cj T L
c:O:r,;:~~<:n
ttl---IT J
oo:>uSmroGQIII
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( ) CfJ.C m'P:~e:l:QJlUm G~?mulo:d~c: ~moq~~-
" But where an act is done. or a contract is entered into;
in the exercise of powers usually called sovereign powers,
by which wex mean powers which cannot be lawfully ex-
ercised. except by a son~reign, or private individual d.elegated
by a sovereign to exercise them, no action will lie."'
!;. c c (" (" ' (" ("
[il~1t~Crr.>?:l COOOCOX>?cy.;:c9:~~~ Gg?C::OOG?C~?: O)'f>!2UGS~
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~!.P'JSO~:;t_pc: OJ~:UGJG;CO?m~co?: ~GQJ II
cQ3~ Secretary of State for India v. Kamachee Bove Sahaha
\ c (" ~r.: (" (" C" C" C" ' C" c
!D'Jt ( 'iJ q~; mt 0ud:l2i>u:x;~?~?: !DG~?: !DG~QgmJ;;9co::n ~r
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"The East India Company insisted that the seizing of the
property was an act of State and that the Supreme Court
could no't inquire into it. Lord Kingsdown delivering the
judgment of their Lordships of the Privy Council quoted with
approval the observations of Tindal C, J., in Gibson v. East
India Co., :(1839) 5 Bjng No. C. 262; [8 L.J. {N.S.}. C.P. _193],.
which are as follows :
'It is manifest that the East India Company have been
invested with powers and privileges of a two-fold nature,
perfectly distinct from each other: namely, powers t()
carry OI) trade as merchants, and (subject only to the p~
rogative .of the Crown to be exercised by the Board of:
596 B~ LAW REPO~TS
Commissioners for the affairs of India) power to acqu1re,
and retain, and govern territory, to raise and main~in
armed forces by sea and land, and to make peace or war
with the native power of India.'
and proceeded to observe :
That acts done in the -execution of these Sovereign
powers <-ere not subject to the control of the municipal
~ourt9, either of India or Great Britain, was sufficiently
established by the cases of the Nobob of Arcot v. East
India Co., in the Court of Chancery, in the year 1793: and
East India Co. v. Syed Ally, 7 M.I.A. 555: ,(r Sar 867 P.C.)
before the Privy Council in 1827.'
His. Lordship further stat-ed,
The next question is, what is the real character of the
acts done in this case? Was it a seizure by arbitrary
pow-er on behalf of the Crown of Great Britain, of the
domini{)ns and property of a rreighbouring State, an act not
affecting to justify itself on grounds of Municipal Law?
or was it, in whole or in part, a possession taken by the
Crown under colour of legal title of the property of the
late Raja of Tanjore in trust for those who, by law, might
be entitled to it on the death of the last possessor. If
it w.ere the latter, the defence s et up, of cour::;e has no
foundation.'"
C'(;'l C' or,:(' ('
0':0)_ oJ
G G C' C'
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C' "l oc r,;:c c-
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" These observations of their L{)rdships lay down the true
teSt 'aS to what actS or
a Sovereign .Cannot be questioned in
his Cour:ts. They are acts of State strictly so called-' acts not
affecting to justify themselves on grounds of municipal Jaw,'
-but where the act is done under colour of. legal :title, it
may be questioned in the municipal Courts."
...,_,... . - - . . . .
1t963if BURMA LAVv~ REPORTS . 597 ,
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'66S
BURMA .LAW REPORTS 1
"in or about February_1955, ~hen your petitioner and the
said B. Ghosh were on a visit to India, he stabbed your
petitioner as a result of a quarrel. Her hand was fractured. "
"Paragraph 5 of the petition is denied. What took pia~
in India in February 1955 was this. This respondent ~trongly
disapproved of petitioner's behaviour towards men and repri-
manded her. There was consequently a quarrel. Th~ incid-
ent had been forgo~ten _ and condoned; and they lived
together amicably thereafter. "
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BURMA LAW REPORTS .
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"It has been more than once pointed out that the conclu-
sion of condonation by an innocent wife of her husband's:
previous misconduct is not in all cases so strictly drawn from
the fact of subsequent intercourse, for there may be instances
where the innocent \!Vife, owing to the difficulties
of her situation, may have no means of immediately
breaking off relations. In Snow "1. Snow Dr. Lushington
discusses at length whether, where a husband has been guilty
of truelty, a wile can evoer maintain a suit where co-habita-
:t;ion was continued after -the last act, and he concludes that
subsequent co-habitation is not uni~rsally a bar to the wife's:
suit. for the reason above stated, "
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that the . injury shall not be repeated, and that the other
party shall he treated with conjugal kindness ; therefore on
breach of tlle c~ndition . the right to a remedy for th~ fo~mer
injury .revives."
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J:i~t' BURMA LAW REPORTS 6~;
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610~ .. BtJR:'MA:.LAW.JffiPORTS.:
--i. .;:~..... . ,. .........
" 17. The Burma Divorce Act shall apply to all marriages
contracted under this Act. and any such marriage may be
declared null or dissolved in the manner therein provided,
and Jor the causes therein mentioned, or on the ground that
it contravenes some one or more of the conditions prescribed'
in clauses (r). (2), (3) or (4) of section 2 of this Act."
. 'LAW~PORTs!-.
BURMA ~-:.. ~
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" Directly the crime of which a man has been convicted is
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63Z. BtifJtM~~W~ REP)JtTS' [1963.
er;::s ., " <" o " <'f:::h<" o <" o <' oo
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63_l
B'ORMA LAw REPORTS:;,;
. . ' .:'-.~
c:- r,; c:- o c:- . c:- c:- ~ c:- c:- c:- ro
::>@jO ~;m L:l~(.}?~CC m'f:C2roGO:>:l ::>tJO Q:>qc~~qc 04:G0Z!M'
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(..l)Olcoxp:~roGo:>?ro 9:1,jroro?:enuL<Xi~~:l,jo: ljc:'::-
" There is no denying of the fact that the ~ta~e, Agricultur~1
Marketing Board is not the only client the Araken Carriers
Syndicate has, and the latter d.oes transportation work for
every and <lflYbodY, !~quiring their services."
q~ G~TGo:>?. ~pfo:>~OlJoS ~Go:>?G?S~~ II
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" .. ; :''\On those materials it is prima facie proved that'
the defendant carries on the business of a eommon carrie~
arid tliat that is his vocation. The terrri.s; w.hich are binding
upon him, require him and are designed' to .require him t()
give the benefit of his services to all persons whp may require
them, subject, of course, to his ha1ng reasonable ground in
any patticula'i case for refusal. That is h~s obligation under
the license . . . . . . . . There is certainly nothing to sug-
.gest tliat he can ~ carrying on his business contrary to the
intention of the rules which require that the people, wh()
carry on the 'business, shall carry it on for the benefit of ali
persons, w~o may require their ~erVices "
q~ G~TJ9oq:~o3QJ~:;.J~o3cu
~ c:- c:-r,: c:- e c:- ( ) c:- c:- oc:-rR
g}jtn~~C O).Ct:Jo:>~ o:>roGo:>c>tn~o:> :). <.f<X>O)I:Jg(.)J?:8291 llXI;~
.. (' 0<:' (' 0 (' (' ' (' (' 'r'r,: (' . <: ('
qroc:<::lp! li,C~C<J?,0)2 mox:~~c:'f~C '~' tlc;;x~~e:-~.o:Q~o:~-:--.
. . . . . to unite all C.B. owners of Bassein and t()
distribute and allot the works in a fair, just; ai}d equitable
manners in co-operation with the State Agricultural Maricet~
ing Board, as well as to.Place any :legitimate grievances in a
: strong 'and effecti.ve manner before the said Board . . . .
Biz~iness.-This SyndiGate shall cany the works of light~r~
. ag~ an:d transport of S.A.M. Boardaha other sources .. : ..
. Banking : trausa~fion shall be run with iocal Bank ariet
treasury ~ ~ . ; : , .
,;~J::::, _<: ' :. O'l C (- c:- " <:' 0 . (' 0<:' (' <:'' Q o ' - ~
"';~\:3001111 .rooqo'92~mQJqJ~? CJC:CJ?..o:>2. ~?CG<X>?, GX??ro<..>o:>:; ~~:
C' ' (' 0 (' . 0 0 C' (' 0 . . C' 0 . c
O<.l:lCX]:~'t ro;;tno:>(.}p:~ cqoooo:>~f'P~ oxp:GJ!_tf.>~~ ~~ro.':f.o
636 .,B:u~~w- w.ii~ [1963
oom:~~oo~
T IL
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(J<~ IOOI'!f' Ol'j<l:
C'
c C' QC' ( ) c c <: 0
ro~o:>o:>2:n~t Protecuon Order Cl:?OOOOC:GOI')~m~n
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OOO[O>OXf>:"1:>,)e' (T.j(;<:oo.,rooclll ~~:ntl() o:~~oo0c:.,9t~=~t~~<Oroo:~e "
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<:~~~~p: ~o:ooo~c o:>c:~<; <:~')O)(X).,:0 c:c:~lllo:>2 n
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CJCIGf')O) ~c:JOOGOO':>Geli~J"f'J ~c:JOOG<D~eli~Oio:ltJ<; ~:OOI'Jf OI'JIWI
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~""tl'":.' 'W''?f(T.j(;<O;o-xoocc fel~!l o~o ~9' m~o:>2l~~ Protect:on
c c c c _ \OC c oc c c c r;:c
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~-oo:>".J<" u~cco:>~~~9~ co:'lf11::net Ct:ACf"J":~ m~u:>ut
oC' c: o c- C:-'1:. LU"'o c- cr;:c r:
~~~5R 'iro'JSGOO':>"J ~'C:f"-~l:l"":'i" eooa3X! c:ns"fiO>Jmtlo::nen
The Collector of Akyab v. Paw Tun U and one, 5 Rangoon, p. 8o6; L. Hoke
Sein v. The Controlur of Rents/or the City of R angoon and one, ( 1949)
0 0 (" C' ~ ~h t:' (' C'
B.L.R., p. r6o (S.C.) oaol'l2elf':t w":~:ox::o:~eu
kwiniKumar Pramanik Petitioner v. Dominqn of India through the
. . 0 0 C' C' ~ ~r:: (" C' ("
e_ertijicate Officer ~ 'l~f':t ~.,:~c~roc:ooeu
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".A protection -order under S. 3r, Provincial Insolvency Act
may apply either to all the insolvents' debts or to :some of
th~m . . It draws no distinction between classes of debts, that
is,: debt,c; due to the State or Corporation qr. Municipalities or
private. ~rsons. Section: 3r does not iii).Po~ ariy obligation
w~~t56e:Ver Oh: t;he'State. Certain: creditors are by law given
a nght:in certain. circumstances to have an unfortunate deb'to:r
.iinpnsorted 'for' failure to pay his debt. It is a form of
e~e~utiori; recognis~- l:iy the Code of Civil Procedure. The
' $tate'can tal<e advaJ?,tage qf. these' provisions and ~h~ fact ~)lat
: ~.:PrO~~Sti?n 'o!d,er.!llight be madejs not an. obligation impo~e.<r
. on the. State. 'All-'that, the section provides i.s thCI.t tbe:rights
;..of creditors to ~it:nprlSon Cl. debtor may be curtailed ' if \lie
#'* : ~ ..
..'. '
, .;_
debtor has been adjudicated insolvent: That being so, S. 31
must be held to apply t~ State debts."
"The Crown is not reached e}{cept by express words or by
necessary implication in any case where it would be ousted'
of an existing prerogative or interest It is presumed that
the legislature does not intend to deprive the Coown of any
prerogative, right, or property unless it expresses its inten-
tion to do so in explicit terms or makes t he inference-
irresiStible."
(3) (1949) B.L.R., p. t6o (S.C.)
S.UIOdffii i fV1 V~'ij Ot9,
-----"'1-f'
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i96~ :Jru'~W REPORTS
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APPELLATE CIVIL
Bl'jort U San Maung, J.
DAw .PU (APPELLANT)
v. JO.
DAw AYE TIN {RESPONDEN"!').*
!Burmese Buddhist Lmv--share of widow of Second m~rriage to husband's Pay in
property from the rst marriage.
The Plaintiff/Respondent was the second wife of the deceased and had sued
'the D efendant/Appellant who was the keittima adoptive daughter of the first
marriage of deceased, for the administration of the estate of the decease~
The property sought to be adminisrered was the payin of the deceased, to
ibis second marriage with the Plaintiff/Respondent.
In passing the final decree for administration, the t_rial judge.had held that
'the Plaintifl' was entitled to !th sha~e of the estate and. the Defendant was
-entitled to. .the remaining tths. On app~. to the District Judge, the decree
was varied and both parties were given equal shares.
Held: The learned District iud~e had overlooked cert.~iJ?. decision~. Of
>the Chief Court of Lower Burma where it has been h eld that the widow is
;entitled as against the children of her husband by .the former marriages t 0
<One-fourth ~hare of the property which her husband brought to his marriage
with her.
. Ma Ba We v. Mi Sa U and oihers, II L.B.R. 174: (F:B:); and MaLay and
cn'e v. Tun Shwe, X L.B.R. ro, referred to and follow'E;d.
Ma Nwe v. Ma Sai Da, VII Rangoon, p. 578, referred to.
Accordingly, the judgment and decree of the trial. coUrt. wa$ rest~~d:
Mauna Mauna I<hin (Advocate) for the appellant.
N. R. Majumdar (Advocate). for the respondent.
U SAN MAuNe, J.- This. appeal by Daw Pu~ the defend-
ant in Civil Regular Suit No. 3 of 1961 of the Subilivisional
Court of Pyinmana is against the judgment and decree of
the District Court, Yameth!n, in Civil Appe~l N6. 3 of' 19?2
.
. .. Civil second Appeal No. 67 of 1962, against' the qecree of the District
Court ofYamethin in Civil Appeal No.3 of 1962,dated the 24th July 1962.
;'BURMA LAW REPOR'Is
;..
c:c.
~
varying the judgment and decree of the trial Couri~ --The
- ~
1963
facts giving rise to the present appeal are briefly these :
DAWPU
v. In Civil Regular Suit No. 3 of 196 r. mentioned abo-..:e
DAW AYE
TIN. the plaintiff Daw Aye Tin who is the respondent in the
present appeal sued the defendant-appeliant Daw Pu for
administration of the estate of her deceased husband U Ba.
Tin. It is common ground that the defendant Daw Pu was.
the keittima adoptive daughter of U Ba Tin and his first
wife Da'vY Ohn Tin, who predeceased her husband. It is.
also not disputed that the property sought to be admin
istered w.:~s the payin of U Ba Tin to his second marriage
with Dav,; Aye Tin. A preliminary decree for administra-
tion' was passed by consent of both the parties. However,
when the finar decree was passed the learned trial judge
held that the plaintiff Daw Aye Tj.n was entitled to one-
fourth share of the estate and that the defendant Daw Pu
was entitled to remaining three-fourths. Daw A.ye Tin
being dissatisfied with the judgment and decree of the tria!
Court appealed and the learned District Judge holding that
the trial .Judge was in error in giving- the defendant one-
fourth share of the estate varied the decree by ordering
that the plaintiff and the defendant should .receive equal
shares of U Ba Tin's estate. -
Now, it is clear that the learned District Jurge had
overlook-ed the decision of the Full Bench of the Chief
l,'
Court of Lower Burma in Ma Ba We v. Mi Sa U and ot11ers-
(r) 'and the observation of Twomey, C.J. in MaLay and one
v. Tun Shwe (2). There the Chief Justice said:
"It wa~ definitely held in Ma<Ba We v . Mi Sa U (I) that
the widow is entitled as against the children of her husband.
by the former marriages to one-fourth share of the property
which her husband brought to his marriage with her. In that
' case the surviving widow was childless."
. (r) II L.B.R. I74 (F.B.). (2) X L.KB.. xo.
BURMA LAW REPORTS 653
See also Ma Nwe v. Ma Sai Da (3) where it was held that of c. c.
1963
the property inherited by the fath_er after the death of his
D.t\wPu
first wife but beforehis marriage with the second wife the
children of the first marriage are entitled to three-fourths "
D.>.wAve
TIN.2
as against tlu~ir step-mother who was entitled to only one-
fourth.
For these reasons I would set aside the judgment and
decree of the District Court of Yamethin appealed against
and restore those of the trial Court with each party bearing
its own costs in the two Courts below. The appellant will
be given costs incurred by her jn this Court. Advocate
fees being asse5sed at three gold mohurs.
(3) VII Rangoon, p. 578.
Before U San Mating, J.
t~~ DAw MYA (APPELLAN1l)
~
Oct. JO. v.
KO MAUNG THAN {RESPONDENT).*
Res judicata-s. II, Civil Procedure Code-suit under s. rz (x)(e) of the Urbatz
Rent Cotttrol Act-wlzetlzer barred because of previous suit under s.x:z.(x)(f)
of the Act-difference in cause of action--<>. z, r. 3, Civil Procedure Code--
Bona fide requirement.
The Plaintiff/Respondent had filed a previous suit under s.xz(I)() of
the Urban Rent Control Act. The suit was however dismissed on the ground
that he was not the "owner". Subsequently, the Plaintiff/Respondent
filed the present suit for ejectment for bona fide requirement for reconstruction
under s. IZ(I)(e) of the Urban Rent Conkol Act./
Among the defences raised were that the suit was barred under s. 1 I of
the Civil'ProcedureCode read with Explanation IV thereto and that the p rewi:;es
were not required reasonably and bona fide for reconstruction.
Both the trial judge and the lower Appellate <:ourt found in favour of
the Plaintiff/Respondent and decreed the suit:<"
Held: A suit based on clause IZ(t)(e) of the Urban ~nt Control Act, 1:960,
is in respect of a totally different cause of action from that based on section
u(x)(f) of the san1e Act. "Cause of action" means that bundle of essential
facts which it is necessary for a plaintiff to prove before he can succeed in
the case. It comprises every fact which it would be necessary for the plaintiff
to prove, it traversed, in order to support his right to the judgment of the court.
Musa Yakr1b Mody v. Manilal Ajitrai, I.L.R. XXIX Born. 368; Alexander
Brault v. lndrakrishna Kaul, I.L.R. LX Cal. 918, referred to.
In a suit under section u(x)(f) of the Urban Rent Control Act, the plaintiff
m~st prove, inter alia, that he is the " owner " of the premises as defined in
the proviso thereto and that he required the premises reasonably and bona fide
for occupation by himself exclusively for residential purposes. In a suit under
section xk(x)(e) of the Urban Rent Control Act, he must prove that the building
is reasonably and bonafide required by him for the purpose either of re-erection
or' for effecting essential and major structunl repairs. Accordingly, " the
bundle of essential facts '' which the plaintiff must aver and prove in the one case
is totally different fron~ those which he must aver and prove in the other case.
No doubt, Order ii, Rule 3 of the Cjvil Procedure Code permits. the joinder Of
several causes of action against the same defendant in one suit. However, this
1 .Provision is merely p~rmissive, not mandatory.
ACcordingly, there is nothing to prevent the plaintiff in this case, from filing
.the 2 separate suits referred to above. '
* Civil Second Appe11l No. 36 of 1962 against the decree of the Additional
<district Co.urtof Basseinin-Civil;A:ppeatNtr. I' of 196z;dllfed' x'6Ui' M'a)>' i'962:
Besides, " Expl~nation IV " to section 1 t of the Civil Procedure Code says ~ . e:
that any matter which might and ought to have been mad.e gro1,111d of defence cf ~.~b~
attack in a former suit shall be deemed to have been a matter directly and substan- DAw _MvA
tially 'in issue in a subsequent suit. 1n the case now under consideration it would t/.
be difficult to say that the plaintiff ought to aver in the same suit such contradic- Ko~UNG
tory state.ments to the effect that (1) the house in question is reasonable and TH'.lli.
bona fide required by him for his own occupation, and (z) that it should be pulled
down for the purpose of erecting a new building in its place.
Therefore, the Defendant/Appellant's contention that the suit now under
appeal is barred by res judicata cannot be accepted.
Regarding the question of reasonable and bone fide requi~cment for re-
erection, one cannot apply a subjective test, but must be decided objectively in
the context 'of facts and circumstances relevant in each case.
Dm' Da-<~J Tlzi v. U Thein Maung and Co., Ltd., (t'}s6) B.L.R. q (HC),
rcf.:rred to.
Ac,vrdingly, on the e\idence, the two courts below cannot he <: 1d I~ l: e
wron~: !" the concluson arri\ed at by them.
N. C. Sen (AdYocate) for the appellant.
Tun Sein (Advocate) for the respondent.
U SAN MAUNG, J.-This appeal by Daw Mya, the defend-
ant in Civil Regular Suit No. 6o of 1961 of the Township
Court, Bassein-West, is .against the judgment and decree of
the Additional District Court of Bassein in Civil Appeal
No. I of 1962 confirming the judgment and decree of the
trial Court 'for her ejectment from the premises in suit.
The facts giving rise to the present appeal are briefly these =
I~Civil Regular Suit No. 46 of 1960 of the Township
Court of Bassein-West the plaintiff Ko Maung Than who
is the respondent in the present appeal sued the defendant-
appellant Daw Mya for her ejectment from the northern
room of the premises known as No. 4, Merchant Street,
Bassein, on the ground that she was his tenant and the
premises in question were required by him bona fide for
the occupation of himself and his dependants, the suit
being one under section 12 (r) (f) of the Urban Rent Control
Act, 1960. This suit was, however, withdrawn by th~ .
plaintiff with permission to file a fresh suit. Subsequently,
BURMA LAW REPORTS,:;
:~c.c. /,,on the 25tli of June 1960, Ko Maung Than fi.Ie'd another suit
?~~ against Daw Mya in which he averred that the notice to
D.-\~.MvA quit had been issued to her on the 2rst of April r960
KoMAUNG asking her to vacate by the end of May 1960 and that the
THAN.
,premises in question were required by him bona fide for
his own residence. The suit was. ho\Ve\-er, dismissed by
the learned trial Judge on the ground that the plaintiff was
not the " owner " as defined in the proviso to section
12 (r) (f) 0f the Urban Rent Control Act 1960, as he did
not .own th~ premises on the rst day of May 1945 or had
become the ownerthereof subsequent to that date by
inheritance.
On the 13th of July 1961, the plaintiff filed the
present suit for ejectment on the ground that the premises
in quest.ion were reasonably and bona fide required by him
for the purpose of erecting a new and substantially cons-
tructed puilding on its site, the suit being one under section
'I2 (r) (e) of the Urban Rent Control Act. Among the
defences raised by the defendant Daw Mya were:- (a) that
r
the suit was barred by section r of the Civil Procedure
Code read with Explanation IV thereto and (b) that the
plaintiff did not require the suit premises reasonabfy and
bona fide for the purpose of erecting a new building. Both
these issues were, however, answered by the learned trial
Judge in favour of the plaintiff Ko Maung Than and his
. suit was decree'd. The defendant Daw Mya appe;:tled and
the learned Judge of the Additional District Court of
~assein agreeing with the findings of the learned trial Judge
. .dismissed the. defendant's appeal with costs. Hence this
appeal.
Now, se~tion r r of the Civil. Procedure Code in so far
a~ it is .relevant for the present purpose enacts that no
. Court shall tz:y any suit in which the matter directly an'd
:s ubstantially, in issue has been directly and substantially
in issue 'i~ -~ former suit between the same parties litigating
under . ~e s~me title, in a Court compe~ent to try such
BURMA LAW REPOR!J?S-- 657
subsequent' suit and has been heard and finally decided by c.c.
1963
such Court:
DAW MYA
"Explanation IV.-Any matter which might and ought to v.
Ko MAUNG
have been made ground of defeaC"e or attack in such former THAN.
suit shall be deemed to have bee:1 a matter directly and
substantially in issue in such suit."
In this connection the learned Advocate for the
defendant-appellant contend-; that since the ev1dence
adduced by the plaintiff in the suit now under ::1ppeal
disclosed the fact that the suit premises were already !n a
dilapidated condition at the time when he filed Suit :\o. 63
.of 1960 and he had already obtained permission of the
Municipality to build a house according to the plan sub-
mitted by him, he should, in the former suit, have made
.as an alternative ground for the ejectment of the defendant
that the suit' premises were required by him reasonably
and bona fide for the purpose of constructing a new building
on its site.
However, in my opinion a suit based on clause 12 (r) (e)
of the Urban Rent Control Act, 1960, is in respect of a
totally different cause of action from that based on section
12 (I) (f) of the same Act. "Cause of action" means
that bundle of essential facts which it is necessary for a
,plaintiff to prove before he can succeed in the case, vide
tMusa Yakub Mody v. Manilal Ajitrai (r). It comprises
every fact which it would be necessary for the plaintiff to
prove, if traversed, in order to support his right to the
;judgment of the court, vide Alexander Brault v. lndra-
,Jcrishna Kaul (2).
In a suit under section 12 (I) (f) of the Urban Rent
<Control Act the plaintiff must prove, inter alia, that he is
the " owner " of the premises as defined in the proviso
:thereto and that he required the premises reasonably and
bona fide for occupation by himself exclusively for
(r) I.L.R. XXIX Born. 368. (2) I.L.R. LX Cal. 918.
658
residential purposes. In a s\lit under section r2 (r) (e) of
the Urban Rent Control Act he must prove that the bui[d-
DAW MYA ing is. reasonably and bona fide required by him "for the
. o.
Ko MATING purpose either of re-erection or for effecting essential and
THAN.
major structural repairs. Accordingly, "the bup.dle or
essential facts " which the plaintiff must aver and prove
in the one case is totally different from those which he
must av~r and prove in the other case. No doubt, Order II.
Rule 3 ofthe Civil Procedure Code permits the joinder of
several causes of actin against the same defendant in one
suit, - However, this provision is merely permissive, not
mandatory. Accordingly, there is nothing to prevent the
plaihti:ff Ko Maung Than in this case from filing two
separate suits against the defendant Daw Mya, one based on
sectien 12 (r) (f) of the Urban Rent Control Act and another
on section r2 (r) (e) of the Act, although he may if he so
elects, combine the two causes of action in the same suit.
Besides, . " Explanation fV: " to section I I of the Civil
Proce-dure Code says that any matter which might and
ought to have been made ground of defence or attack in a
former- sui~- shall be deemed to have been a matter directly-
and substantially in issue in a subsequent suit. In the case
now under consideration it woud be difficult to say that the
plaintiff ought to aver in the same suit such contradictory-
statements to the effect that :-(I) the house in question
is reasonably and bona fide required by him for his own.
occupation, and (2) that it should be pulled down for the
purpose of erecting a new building in its place.
Therefore -the defendant-appellant's contention that the
suit now - ~n~er appeal is barred by res i"!.dicata cannot be
accepted.
Regarding the question whether the premises were
. requirdl reasonably and bona fide for the purpose of re-
. .erection the.case of Daw Daw Thi .v: U Thein Maun(l and
Co. _Ltd. "<:5) is apposite. There. it was held in deciding
(3) 19~6. B.L.R. I4 (:tJ.C.) .
' - -- -- M-~'.p-Q.ruv.t
1963'] --~- """"tl'i:'rn'll. 8 A 1"~ 7
~fl;:..vv REPOR"l "v'--
whether the landlord does really entertain honest intention
or not one cannot apply a subjective test but that the
DAw MYA'
question must be decided objectively in the context" of tl.
KoMAUNG-
facts and circumstances relevant in each case. THAN.
Now, what are the facts? The northern room of the
house was admittedly occupied by the defendant Daw Mya
since the past 26 years. There is nothing to show that in
the meantime any major or structural repairs had been
carried out. There is the evidence of A. Rashid (P\V I),
Overseer employed by the Bassein Municipality that the
flooring, roofing and wallings of the suit house were old
and in need of repairs though the building was not in such
a dangerous condition as not to be habitable. The plaintiff
had obtained the necessary sanction from the municipality
to build a house according to the plan submitted by him ..
He had also mq.de arrangements with Contractor U Tun Tin.
(PW 3) to demolish the old house and to erect a new one
in its place. for a sum of K 7,500. In these circumstances..
I am not prepared to say that the two Courts below were
wrong in the conclusion arrived at by them that the
plaintiff required the suit premises reasonably and bona fide:.,.
for the purpose of re-erection.
In the result the appeal fails and it is dismissed with
costs, Advocate's fees being assessed at 3 gold mohurs.
APPELLATE CIVIL
Bt.>for<" U San llda:mg, :J.
DAvV TOKE TOKE (APPELLA:'\T)
Oct. g. v.
U HLA MAUNG A:-.iD tvfA THAN KYI (RESPONDE~TS).*
Partitioll-Suit for partition-Court rrithout power to direct a sale apa7t j1wn
the provisions of the Pa~tition Act-dismiss~! of suit -tdtether proper-
prop,iety of allowing 011Wtdment of pleadings .
.The Respondents had obtained a decree for possession against the Appell:mt
in a previous suit and at the execution proceedings the Appellant's husband has
filed an application under o. 2r, r. roo, of the Civil Procedure Code without
success. ~e had thereafter filed a suit for Declaration against the Respondents
that he had a one-third sharein the property, under o. 21, r. 103 of the Civil
'Ptocedure Code. In that suit he was successful.
Thereafter, the Appellant's hus-band filed the suit related to the present
Appe~;l against the Respondents for partition of the suit land h)' the method of
selling it and distributing the proceeds of the sale in the ratio of ! : fr.
A preliminary objection was taken by the Respondents that the suit in it
present form was not maintainable. In the meantime the Appellant's husband
-died, and the Appellant was brought in as his legal representative.
The objection was upheld by the learned trial judge '\\ho dismissed the
suit.
On Appeal against such dismissal:
lield: If apart from the provbions of the Partition Act, 1893, civil courts had
inherent power to order sale of the immoveable property sought to be
partitioned on the ground that it is just and equitable to follow such a procedure,
the pl11intiff's suit would be quite maintainable in the form in which it has been
presented. to the Court. However, Oll the question whether such an. inherent
. 'Powe~ is. possessed by the Court there is great divergence of opinion.
Pannala Datta v. H1ishikesh Datta, I Cal. p.192; Nitva Gopal Sa7m1nta
:v. Prarr Krishna Dau and others, A.I.R. (1952.) Cal. 893; R. Ramaprasada
iRao v. R. Suhbaramaiah and others, A.I.R. (1958) Andhra Pradesh 647
refe~:red to. '
Among the conflicting views, the view taken by the Calcutta High Court
"that in. a suit for partition the Court has no power to dir-ect a sale apart from
' the Pariition Act and that the power of the Court. to direct a sale in a suit for
;partition must be held to be limited to the case~ provided for within the Patti-
ion Ad, is the sounder view.
~--------------------------------~------------------
9ivil Fi~t Appeal No. 27 of 1962. against the decree of the 4th Judge,
'City Civil Court of Rangoon, in Civil R~gula Suit No. 447 of 1960, dated
~3th February zg62.
. . . . : ..'~; :.. ..- -~lt
BURMA LAW-:RER'QRT~
- .';::; ~ - -4 ~- ~
661
Accordingly, the suit was not mainta"inable in the form it was presented to c.c.
the Court. 1963
However, the learned trial judge should not ha\c taken the drs5tic step of DAwToK!l
dismissing the plaintiff's .suit without" giving him an opportunity of amending TOKE
"the plaint, which could have been easily done. (1.
u Ht.A
Hardandas Paladroy v. Sunder, IV U .B.R., PS7, referred to. MAUNG
AND
The suit is therefore returned to the original Court for readmission under
MA THAN
its original number and for disposal according to law. .KYI.
fJ San Myint (Advocate) for the appellant.
U Saw Lwin (Advocate) for the respondents.
U SAN MAuNe, J.-This appeal by Daw Toke Toke, wife
and legal representati\e of the deceased U Dwe is against
the judgment and decree of the Rangoon City Ciril Court
in Civil Regular Suit ):o. +t7 of 1960. wherein the learned
4th Judge of that Court dismissed U Dwe's suit for part1t!cn
of the suit land by sale thereof and distribution of the
proceeds.
The facts giving rise to the present appeal are briefly
these: In Civil Regular Suit No. 852 of 1953 of the City
Civil Cqurt, Rangoon, Ko H1a Maung and Ma Than K.yi,
who are the respondents in the present appeal obtained a
decree for possession against Daw Toke Toke, wife of
U Dwe, in her personal capacity. . In Civil Execution Case
No. 1099 of. 1953 of the same Court, Ko Hla Maung and
Ma Than Kyi applied for possession and jn spite of the
resistance of U Dwe on the ground that he was in posses-
sion of the suit land on his own right and not as a per-
missive occupant of Daw Toke Toke, he was dispossessed
on the 1oth September 1954. U Dwe then filed an appli-
cation under Order XXI, Rule 100 of the Civil Procedure
. Code, but his application was dismissed on the 2 Ist
September 1955. U Dwe then brought a suit for declara-
tion under Order XXI, Rul~ 103 of. the Civil Procedure
Code against Ko Hla Maung and. Ma Than Kyi and it was
dealt with by the City Civil Court in.its Civil Regular Suit
662 iBYF~W
~S:: ~
REPORTS
: . .s.:~ .
c.c. No. r49o of i955. U Dwe was successful in obtaining a
1963
decree declaring that he was owner of one-third share of
DAW TOKE
TOKE . the suit land.
v.
UHLA In the suit giving rise to the present appeal U Dwe
MAUNG
A ND
sued U Hla Maung and . Ma Than Kyi for partition of the
MA THAN suit land by the method of selling it and distributing the
Kvr.
proceeds of the sale. The reason given by U Dwe was that
by n~ason of the land being a leasehold held under the
Rangoon Development Trust, the division cannot reason-
ably or conveniently be made and that therefore it should
be sold and the proceeds distributed between him and the
defendants in the ratio of ~ : %. The plaintiff U Dvve-
pnrased his prayer as follows :
" Wherefore plaintiff prays for a decree for partition of
land being Lot No. 51, Block 26A-r, Kemmendine West Circle,
Rangoon by sale of .t he same and distribution of the proceeds
thereof to the extent of ~ share to the plaintiff together
with costs of suit."
A preliminary objection was taken to the frame of the
suit by the defendant-respondents U Hla Maung and Ma
Than Kyi. The learned trial Judge upheld this objection:
in the following words :
"The plaintiff has now come forward to a<;k the assistance
of the Court for partition by sale of the land in dispute and
distribution of proceeds ; and this order is the outCome of the
preliminary objection made by the defendants that the suit'
in its present form is no't maintainable in law. The counsel
for the defendants -contends that the suit should be one for
recovery of ~ portion of the suit land or value thereof, that
there can be no suit for partition with an out~ider and that:
the plaintiff's share is now, because of his death, merged with: .
that of his wife and legal representative Ma Tol\e Toke's."
. Regarding the contention that Daw Toke Toke as legal
representative of the plaintiff U Dwe was not entitled to
. maintain the suit as the plaintiff's one-third share han
merged into the two-thirds share sold by her to the defend- C;C.
1963
.ants, the learned trial Judge held tha:t this contention was
DAWTOKE
n ot maintainable. TOKE
As against the dismissal of th~ plaintiff's suit on the v..
U Hu
_ground that it had. been wrongly framed, Daw Toke Toke MAUNG
AND
.as the legal representative of U Dwe has filed the 'present MA THAN
KYJ
.appeal.
Now, if apart from the provisions of the Partition Act,
r893, Civil Courts had inherent power to order sale of the
Immoveable property sought to be partitioned on the
ground that. it is just and equitable to follow such a pro-
cedure, the plaintiff's suit would be quite maintainable in
the form in .which it has been presented to the Court.
However, on the question whether such an inherent power
is possessed by the Court there is great divergence of
opinion. Iri Panna/a/ Datta v. Hrishikesh Datta (r) it was
held by Sinha, J. that in a suit for partition where the
-property is such as cannot be reasonably and conveniently
partitioned. between the co-shares the Court has jurisdic-
1io.q., ~part from and. independently of the provisipris of the
Partition-Act, 189'3, to order a sale of such property among
the. parties co-shares to the suit and to direct that the
-property should be given to that co-sharer who offers to
pay the highest price above the valuation made ~y the
Caurt, although rio request for sale is made by any of the
parties. This decision was however dissented from by a
Bench of the sallie High Court in Nitya Gopal Samanta v.
Pran Krish"i1a Dan and others ('}})". The latter decision was
again dissented frorn by the High Court of Andhra Pradesh
"i n R. Ramaprasada Rao v. R. Su'bbaramaiah and others (3).
1n that cas'e the learned Chief Judge who delivered the
j~dgment of the Bench observed:
"Finally there iS a considered judgment of a Divisioii ~~ch
of t?e Caicutta High Court 011 th~ qif~on raised before u's iii
(r) I C~lcut~a, p . J2~ (2) A.I.R. (1952) Cal. 893.
(3) A.I.R (1958) Andhra Pra"desh 647.
-
;:'-664~
c. c. Nitya Gopal v. Pran Krishna (2). Das and Guha Ray, JJ.,
IQ63
definitely ruled that the court had no power apart from the
DAwToKE provisions of the .'\t't to direct :1 <de of the properties, the
TOKE
v. subject matter of a partition suit. After considering the
U HL.o\ English Law and also the relev.mr lndi.1n decisions .. the learned,
MAUNO
. AN'D Judges concluded their discussion thus :tt page 896 :
MA THAN
KYI. The result of th-e above discussion in my opinion is thatr
there is no cunent of authority which would establish that
in a suit for partition the court possesses a power to direct
a sale apart from the Partition Act. In my opinion, in the:
absence of clear authority which, binds us, it is open to us
to come to a conclusion based on the terms of the Act
looked at from the historical perspective. In my opinion
the effect of the Partition Act cannot b-e whittled down by
<irawing upon some undefined and uncertain inherent
powers in court to direct a sale in lieu of partition where
the invitation of t..he parti.es to the court is merely to make:
a partition between the co-shares inter .se. The power of
the Court to direct a sale in a suit for partition must be
held to be limited to the cases provided for within Parti-.
tion Act.'
With great respect to the learned Judges, we find it diffi.cui~
to agree with the aforesaid observations."
In the view of the learned Chief Judge the provi~ions of'
the Partition Act did not in any way entrench upon the-
undoubted power of the Court to effectuate a partition
between co-owners on an equitable basis and that whereas
before the Act a party had no right to insist upon the
Court to. follow a particular course in the process of parti:..
tion or to insist upon purchasing the share of the co-owner~.
under certain circumstances such a right is conferred upon
him under the Act. I have carefully considered the matter
and in my opinion the view taken by the .Bench of the
Calcutta High Court is the~ounder view -~o be taken. It
is furthermore in accord with the view expressed by
Saunders, J.C., in .Hardandas Paladrov v. Sunder (4}~
. (4) IV U.B.R. p. 57
665~
Accordingly I agree that the plaintiff U Dwe's suit is not c.c.
1963
maintainable in the form it was presented to the Court.
DAWTOKE
However, I consider that the learned 4th Judge of the TOKE
City Civil Court should not have taken such a drastic step v.
u HLA
of dismissing the plaintiff's. suit w.ithout giving him an MAUNe
M'l>
opportunity of amending the plaint. It could have been MA THAK-
KYI.
easily done by the deletion of paragraph 3 and by the
deletion of the words " by sale of the same and distribution
of proceeds thereof to the extent of ~ share to the plaintiff
together with costs of suit," appearing in the prayer.
In this connection I would like to draw the attention
of the learned trial Judge to the following passage in the
judgment of Saunders, J .C. in Hardandas Paladrov v. Sunder
(4). The learned Judge said at page 61:
" I should have been prepared to order the sale of the-
stair-case under section 2 of the Partition Act if either party
had applied for this course, and it appears to me that this
would have been a reasonable solution of the difficulty.
There is, however, ample authority for the view that if the-
decree is found to cause undue inconvenience it will be open
to either party still to apply for its modification by the
application of the Partition Act; see for instance the cases of
Bai Hirakore .(5) and Kadir Bacha Saheb .(6)."
For these reasons and in order to avoid multiplicity of
suits, I would set aside the judgment and decree of the trial"
Court and under Order XLI, Rule 23 of the Civil Procedur~
Code, direct the suit to be returned to that Court for re-.
admission under its original number and .for disposat
according to law in the light of the remarks made above.
Each party must bear its own costs of appeal to this
Court. Under section 13 of the Court Fees Act, a certif-
icate for the return of court-fees paid on the memorandum
of appeal will be issued to the plaintiff-appellant Daw Toke-
Toke.
(4) IV U.B.R. p. 57 (s) I.:t.,.R. 32 Bern., p. 103.
(6) I.L.R. 24 Mad., p. 639 .
t.6.66
... f
LAW REPORTS !1.9.:6.3~~
- - . .......r- -..
ciVIL FIRST APPEAL
Before U San Marmg,J.
c.c. DAW THEIN SHWE (APPELLANT)
1963
v.
Oct. 9
S.. M. CHOWDHURY (RESPONDENT). *
Urban Rent Control Act, s. 12, (1)(a)-written demand for .arrears of rent--neces-
sity to specify in notice the arrems of rent .
. W.here the notice to quit did not specify the amount of arrears of rent due:-
Held: Under s. I2(I)(a) of the Urban Rent Control Act, 19'6o, it is necessary
t'or thelandlord to make a wri~ten demand for payment of arrears of rent and
1:o send the same to the tenant by registered post. .Only when the det"Uand has
. not ~een complied within three weeks 'from the date thereof <:an a suit under
"that section be filed.
Accordingly, it is necessary for the landiord to specify in the notice of
-demand the arrears of rent said to be due by the tenant. In the notice now
under consideration there is no inkling whatsoever as to what amount was due
tO be paid.
Jamna Lal v. Ram Bilas and amth~r. A.LR. (1950) , .-\jmer r; , referred to
Wan Hock for t1le appellant.
Ria Pe (1) (a9 Arthur Paul for the respondent.
u SAN MAuNG, J.-In Civil Regular Suit: No. s'xof 1962
't\l,e plaintiff Daw Thein Shwe, who is the appellant in the
presen~ appeal. sued the defendant-respondent s. M.
Chowdhury for his ejectment from the premises in suit on
'the ground that the defendant was her tenant and that he
was in arrears. of rent, the suit being one under section
12 (r) (a) -of-the Urban Rent Control Act, 1960. One of
'the 'defences rais~ by the defendant was that the notice
giv.e n.tohim was not valid as it did not specify the arrears
-of'rent whic}l were due to be paid by him. This defence'
w~s ac~ep~ed, by the learned trial Judge and the plaintiff's
-sul.t was <flsmissed with costs ; hence this appeal.
. Civil Firs.t Appeal No. 22 of 1962 against the decree of the 4th Judge of
-the R;mgoon City Civil Court in Civil Regular Suit No. 8x of rz
~
~VRMA LAW REPORTS
Now, the notice given by the plaintiff to the defendant
~s in the following terms :
D.o\W THEIN
SHW
"Dear Sir. v.
Without wa1vmg my client's previous notice in Civil CH;~~~.,.
Regular No. 192 of 1958 of the Rangoon City Civil Court and
without prejudice to the Civil ISt Appeal ~o . 47 of 1960 of
the High Court I am to call upon you to pay the arrears of
rent.
I am also to call upon you to quit. vacate and giv~ up
. peaceable possession of the premises in your o::-cupation by
the end of January, 1962. On your failure to do so legal
proceedings will be taken against you without further
reference.''
Now, under section I 2 (z) (a) of the Urban Rent Control
.Act, 1960, it is n~cess~ry for the landlord to make a written
demand for payment or arrears of rent and to send the
same to the tenant by registered post. Only when the
demand has not been complied with in three weeks from
-rhe date thereof can a suit under that section be filed.
Accordingly, it is necessary for the landlord to specify
in the notice of demand the arrears of rent said to be due
by the tenant. In the notice now under consideration
"there is no inkling whatsoever as to what amount was due
to be paid by S.M. Chowdhury to the plaintiff Daw Thein
shwe.
In this connection, the decision in the case of ]amna Lal
v. Ram Bilas and another ( r) may be usefully quoted.
"There it was held that a notice in very vague terms and
which does not lay down as to whatarrears of rent and
for what period were claimed is not a "notice" within the
meaning of section 9 (z) (a) of the Delhi and Ajmer Merwara
Rent Control Act; 1947 and that such a notice would not
-entitle the landlord to eject a tenant from the premises.
(x) A.I.R. (195:>), Ajmer, 17.
2
c.c. For these reasons 1 hold .. tha:t the learned trial judge
~63 was quite justified in having dismissed the plaintiff;_
DAw THEIN appellant's suit as not maintainable in law.
SHWE
v. In the result the appeal fails and it is dismissed with.
CH~~"!~iRY. costs; Advocate fees b~ing assessed at three gold mohurs.
APPELLATE CIVIL
Before U SanMaung, J.
KO HLA AND ONE (APPELL A:-:TS) c.c. .
- :1963
v. Sept. I6.
DAW AYE KHIN (REsPONDENT)_.*
Ejectment-suit for-arrears of rent--v:hrrt ccmtractWJI rent is lower than the
standard rent- no retro!putif)t operation.
Where a decree for ejectment had b~n passed as:ain$t the defendant for
non-payment of arrears of rent, and one oi the questions in issu~ was what was
the arrears of rent payable in vie" of the fact that the standard rent fixed on
16th October 196' was higher than the original contractual rent:
Held: It is now settled law that where the contractual rent is highef
than the standard rent, the standard rent fixed will be operative retrospectively
So that the tenant need not pay the contractual rent. However, as a matter of
general principle, parties are at liberty to pay and accept the rent at a rate
lower than the standard re!lt
tJ Maung Gyi "(Advocate) for the appellants.
Than Maung (Advocate) for the respondent.
U SAN MAUNG. J.-ln Civil Regular Suit No. 54 of 1961
of the Township Court of Salin the plaintiff Daw Aye Khin,
who. is the respondent in the present appeal, sued the
defendant-appellants Ko Hla and Ko Hla Sein for their
ejectment from the premises in suit for non-payment of
arrears of rent, for the purpose of making structural repairs
and for the fact that the premises were required bona fide
for the .purpose of residence of the plaintiffs family. The
defence of Ko Hla and Ko Hla Sein was that there was no
arrears of rent as the house in question was built by them
a~ a cost of K 1,33137 on. the understallding that -the
agreed rent of K 7 per mensem payable by thein was to be
set off against the s~m spent by.them--in erecting the house~
* Civil Second Appeal No.' 57 <if 'rg6z against"die 'decree of the .Addition:~}
D~stric~ ~o-qrt of 1'4~~u in Civil Appeal No., I' <?f'-1''96~; 'd ated the iist.Apnl :
1962.
t
6~ ::
:
i!~M~ LAW REPORTS,
~
c.c. that no major str~c:;:tUI"a] repai~s w~r~ !equired as -'alleged
1963
by the plaintiff and that the plaintiff did not need the
Ko HLA
. liND ONB house bona fide for the purpose of her own occupation.
'(1.
D.~w AYE The learned trial Judge, however, after hearing witnesses
KHIN. cited by both the parties came to conclusions in favour of
the plaintiff, namely that there were arrears of rent, that
house was 1n need t3f maj0r stnattutal t"eJ:*iirs and that it
was req.uired bona fide by the plaintiff for the occupation
of her family, decr.eed the plaintiff's suit with costs.
The defe'n dants Ko Hla and I<o F-ila Sein being dis-
'sa.tisfied With the judg~ent a'n d aetree of the trial Court
:aJ)pealed and the learned Additional District Judge, Minbu.
by his judgment in Civil Appeal No. 1 of 1962 confirmed
_th~ decree for ejectment only on the ground that there
were arrear-s of rent within the meaning of section r2 (r) (a)
of the 'Urban :Rent Control Act, 19'6o. 111e learned Addi-
tional. District Judge did not concur with the finding of the
. trial Judge that the house was required for major structural
repairs or for the bona fide occupation of the landlady.
The defendants Ko Hla and Ko Hla Sein, however, were
still dissatisfied with the judgment and decree of the Acldi-
tional Distrkt Judge for their ej'e ctment from the premises
in suit for non-payment of arrears of rent. They have
therefore fifed the present appeal. Now, it must he taken
as established that the d~fendants had spent a sum of
K 1,331.37 f.or the construction of the house in suit and
that uriginal'ly they had agreed to pay a rent of K 7 pet
meiisem. which was to be set off agalhst the sum spent hy
theftl . .. Howev-er, it j!> an adtnittetl fact that on the appli-
C:ttion being made by the plaintiff Daw Aye Khih the
Assis~tant Controller of Rent had on the !'6th October I96I
ficx:ea the standard rent of the premises at K rs pet fuensem;
AhhEmgh priqr t-o tlfl.at date the tent payable bj the ttefeli:d-
ants wa.s . at. .t he contr~a:l rate of K :j per mensem., with
e~ fro-m the i6-~ ocrob.et r96t, f~nl~t.l:he rate of k rs
.pet ;rnehsem welila .be pay.able by them. It iS now settled
!
-:i
;.-~j~._
BURMA LAW RE'1>6Rl'*".:
:.t
law that where the contractual rent is higher than the
standard rent, the standard rent fixed will be operative
c.c.
1963
Ko HLA
retrospectively so that the tenant need not pay the con- AND ONE
tractual rent. However, as a matter of general principle, v.
DAwAvs
parties are at liberty to pay and accept the rent at a rate KHIN.
lower than the standard rent ; therefore the defendants Ko
Hla and Ko Hla Sein need not pay rent at a higher rate than
K 7 per mensem prior to the date of the fixation of the
standard r~nt. Therefore, although it is true that at the
date of t!-1e filing of the present suit, namely 8th December
1961. th~ defendants were in arrears of rent to th ~ extent
of K 8 ::-er mensem. this arrears Ls comparatively small
compar ~ to the sum which they woutd have to obtaio
from t!.e Dlaintiff.
Accordingly, while confirming the judgment and decree
of the Additional District Court of Minbu for ejectment of
the defendants for non-payment of arrears of rent, I would.
direct that each party should bear its own costs through-
out.
lt is undoubtedly open to the defendants to apply to
the trial Court for rescission of the ejectment decree passed
against them on payment of arrears of rent due by them:.
...
APPELLATE CIVIL
Btfo:e r.: Bo Gyi, C.J., and U San M:Z!l'lg, J.
. c.c. KO KYI SHEIN (APPE L!.. A~T)
. 1963
Oct. 29. v.
KO SOE SAN AND ONE (RESPO?'>:DEJ\TS). *
Hindu La'IJ)-Stridhana property-daughter as heir-sale by sons-possessory
title ripening into prescriptive title-conflicting claims between such title and
title obtained through imposter-fingerprint et,:i dmce--evidence of expert-
~alue wizen expert witness not properly cross-exami11ed.
The Plaintiff/Appellant had filed a suit against the Defendants/Respondents
for a ~claration as to the ownership of the suit land by virtue of purchase from
one "D.M ." and another, by a registered deed of sale in 1958.
The Defendants filed a counter claim in the suit and also claimed ownership
by virtue o( purchase, by a registered deed, .from a Chettyar firin which in
tum had bought the -same from the legal represemati,e and heirs of the said
"D:M.", who was the original lessor of the suit land, in I94I
T)le most important issue was therefore whether the registered deed o f
sale relied upon by the plaintiff was in fact executed by" D.M.", or by some
i mpersonator. Another important issue was whether the Chettyar firm from
whom the Defendants bought the suit land, had itself obtained tide to the suit
l and by the deed of I94I
The lea.rneq trial judg~ dismissed the plaintiff's suit and decreed the counter
claim. On Appeal:
!feld: Regarding the Deed of Sale, there is \ery little doubt that it was
execu~d by an imposter. The evidence of the Finger-Print Expert of the
. C. I. D. has shown that the thumb impression of" D.M." appearing on the Sal e
Deed of 1958 relied upon by the Plaintiff/Appellant, was that of a different
pe~son fr<;>m "D.M." whose thumb impression appears on the origit1al deed
of lease.
The evidence of the Finger-Print Expert has been assailed on the ground
that it qo~s not contain any reasons for the conclusion arrived at by him.
However, the Finger-Print Expert was himself present in Court for the purpose
of being cross-examin,ed.
Sarwqr Khan and another v. Emperor, A.I.R. (1920) Pat. 334; referred to
Regarding the validity of the sale deed between the Chettyar firm and the
representatives of the deceas~d " D.M." it has been alleged that as the heir of .
Civi! First Appeal No. 6 of 1963, against the decree of the znd Judge
C;ty Civil .Court .of Rangoon in Civil Regular Suit No. 1053 of 1958, dated
9th November 1962.
" D.:\1 ." in respect of the suit land was the daughter, instead of the sons, and a 5 c.c.
'the sons had signed the Sale Deed, it was invalid. 1963
'Cndoubtedly, if the deceased "D.M." was a Hindu lady of the Sudra caste, Ko KYl
-succession to her Stridhana would still be governed by the Mitakshara Law. SHEIN
However, there is nothing in the evidence to show whether the deceased "D.M." 1lo
"Was a lady belonging to the Sudra or to the Panchama caste. Ko SoE SAN
ANDONB.
Bastar Transport and Trading Co. v. Court of Wards, Bastar and mzother,
.A.I.R. (1955) Nag. 78, referred to.
Assuming that the sons only of " D.M." and not her daughters having
Conveyed the suit land to the Chettyar firm the title of that form was defective
at its inception; that firm had been in possession since 1941. lt-'herefore had
possessory title which in course <) f time ripened into prescriptive title.
Narayana Row v. DharrruJcluJr, I.L.R. 26 Mad. 515; Ma Saio v. l\1aung
Shwe Gan and Ma Ban, XI L.B.R. 415; Ma Pwa Zon and two v. Ma Pan I and
one, I.L.R. 5 Ran. 154; and .Hg Mya Than and another v. U Tun Tin, Civil
Second Appeal 1-\o. +4 of 1962 of the Chief Court, referred to.
Acccrdingly, the defendants clearly have a better title to the suit l~d.
Ba Maw (Advocate) for the appellant.
Aung Min (r) (Advocate) for the respondents.
U SAN MAUNG, ].-This appeal by Ko Kyi Shein the
plaintiff in Civil Regular Sutt No. 1053 of 1958 of the City
Civil Court, Rangoon, is against the judgment and decree
of the 2nd Judge of that Court dismissing his suit for
-declaration that the suit land belonged to him and decree-
ing the counter~claim of the defendant-respondents Ko See
.San and Ma Yin Yin for possession of the same land and 'for
mesne profits for wrongful use and occupation thereof.
The facts giving rise to the present appeal are briefly these:
The plaintiff Ko Kyi Shein's suit was to the effect
that he was the owner and is in possession of House No. 39.
90th Street, Rangoon, as also the land on which it stood
known as Lot No. 193, Block No. 12F, Cantonment Circle
by virtue of purchase from two persons D. Masaramma
:and Yenkana, by a registered deed of sale dated the r6th of
January, 1958. Thereafter he applied for and obtained
~utatipn of names from the National Housing Board' the
-- - ; . : t ,==:::""! .....
stfit' land haVing been held under a 90 years lease
by the Ra~goon Development Trust. After that, he sub-
~oH~~~ mitted to the Corporation of Rangoon a plan of the building-
.v.
Ko SeBSAN
which he-proposed to construct on the suit land and in
AND ONE. anticipation of sanction from the Corporation he started
to construct the building. On the 25th of October 1958,
the defendant Ko See San and his wife Ma Yin Yin filed
an objection to the building plansubmitted by the plaintiff'
for sanctiem by the Corporation. Therefore. the municipaf
~uttierities directed him to seek a declaration from the-
Court that he being the owner of the suit land was entitlecf.
to construct the proposed building thereon.
T~e defendants Ko Soe San and Ma Yin Yin by their
written statement contended that the 90 years' lease in
question dated the 8th .of October 1928 was granted to on~,
I). Masaramma, a lady. She was in occupation of this land
during her life-time and after her death her heirs and legai
representatives -sold it to R.M.P .L.S. Chettya~ Firm. Money
Lenders of No. 103, M-ogul Str~et by a registered deed of
sale dated the 22nd of May 1941. On the 14th of Decem-
ber I951: the Chettyar sold this land t0 the defendants by
a registered -deed of sale exhibited in the case (Exhib~t 5).
At the time of the purchase of the suit land. these defend-
ants were residing at No. 65A, 92nd Street. Rangoon. ancL
the defendant Ko Soe San was then working as a Godown
Clerk of the Port Commissioners, Rangoon. On the 5th
of M~r~h I.955 O.efendant Ko Soe San was arrested by th~
Bureau of Special Investigation and was kept. in custody
to be subsequently tried by the Court of Sp.ecial Judge
[B.S.I. (r)J, Rangoon, in its Criminal Regular Trial No. r3~
of 1955. He was convicted and sentenced to one year's:
rigorous imprisonment on the 25th of Fepruary I956, but,.
was released,.after .fou;r months on the occasion of the
25ooth anniv.ersary of Buddha's birthday. He nevertheless:
. pr0Sec_Uted h.is aP..peal to the High Court and was acquitted
of.tb:e.~harge on the 13th of March 1957. _Ih" August 1957;
BURMA LAW illiPORTS.-;
however, he was re-arrested by the Bureau of Special Inves-
tigation for the same offence and was sent up again for
Ko Kn
trial. He remained in custody till he was finally acquitted SH~tN
on tl~e 24th of June 1958. It was during the period of the Ko s~~ SAM>
defendant Ko Soe San's trial and imprisonment that the AND oNE.
plaintiff with a view to defraud them had cr.~ated the sale
deed relied upon by him. It was the defendants' case also
that since its purchase from the heirs of the original owner
D. Masaramma, the chettyar firm had been in possession
of the suit land till the time of the sale thereof to the
defendants on the 14th of December. I954 Regarding
the mutation of names by the National Housing Board, the
defenda nts mentioned that that Board on learning about
the true state of affairs cancelled the mutation of names in
f.::vou:- of the plaintiff and effected the mutation in the
names of the defendants. In these circumstances, the
defendants daim possession of the suit land from the
plaintiff and mesne profits calculated at the rare of K 3
per day from the 21st of November 1959
On the pleadings several issues were framed of which
the most important were : whether the registered deed of
sale in favour of the plaintiff was in fact executed by
D . Masar.amma in whose name the leasehold land stood,
or by' someone else impersonating D. Masaramma; whether
the defendants had lawfully derived title to the suit land
from R.M.P .L.S. Chettyar firm by the registered deed of sale
dated the 14th of December 1954 and if so, whether the
Chettyar firm itself had obtained title to the suit land by
the registered deed of sale dated the 22nd of May 1941 ; in
short, whether the plaintiff or the defendants were the
owners of the suit land and to what relief they were
entitled.
At the hearing the plaintiff has been able. to produce
the registered deed of sale, Exhibit " m " dated the 16th
~f January 1958 executed by D. Masaramma and Yenkana
and a true copy of the 90 years' leas~ dated the 8th of
-676
--------- . ..:...... - ---~ .
c.c.
1963
. October I928lranti<fi:>}r''the Rangoon Development Trust
to D. Masaramma. He was also able to produce receipts
Ko KYr
SHEIN for payment of ground rent issued by the National Housing
~o s6~ SAN . Board for the 2nd quarter 1954-55 till the 4th quarter
A~noNE. 1957-58 in the name of D. Masaramma.
On the other hand, the defendants were able to pro-
duce: -(a) the original deed of 90 years ' lease dated the
8th of October 1928, issued by the Rangoon Development
Trust <to D. Masaramma (Exhibit 1); (t!) certified copy of
the registered deed of mortgage dated the 21st December
1934, by which the suit land and 1426 acres of cultivable
land in Godavari .district in India were mortgaged by
D., Masaramma and one, Kondapalli Subramaniam to
"
R.M.P.L.S. Palaniappa Chettyar for a sum of Rs. r,ooo
(Exhibit 6) ; (c) registered deed of sale (Exhibit 7) dated
the 22nd of May 1941 executed by D. Subramaniam for
himself and his minor brothers D. Venkanna and D. Neela-
. kantam conveying the suit land to R.M.P.l.J.S. Chettyar firm
in consideration of the debt due by their deceased mother
D. Masaramma, their co-vendor being Kondapalli Subra-
maniam, the co-mortgagor mentioned in the mortgage deed,
Exhibit 6; (d) registered deed of sale dated the 14th of
December 1954 executed by R.M.P.L.S. Chettyar firm by
its Managing Partner Ramanathan Chet~yar by which the
suit land was conveyed to the defendants Ko Soe San and
Ma Yin Yin for a sum of K 4.500 ~ (Exhibit 5) and (e)
ground rent receipts for the 4th quarter 1953-54 issued by
the Rangoon Development Trust in the name of D. Masa-
ramma '(Exhibit 8).
In order to prove that the sale deea, Exhibit " m "
dated the.:I6th of Jan.uary 1958, was executed in his favour
by D. Masaramma the plaintiff has cited one witness,
Mau.ng .Shwe (PW 2), who had attested the deed. Accord-
. ~ng . to this witness, he wa? on a visit to the Regis~ation
Office .in connection .'with the sale of the land belonging
to his aunt, when he saw D. Masaramma r~eiving K 5,000
from the plai~tiff Ko Kyi Shein. He was asked to attest
the sale deed and he willingly obliged. However, he had
Ko KYI
to admit that this was the first time he had seen ~he person . RmnN
named D. Masaramma who was an Indian of about 6o years Ko 5~8 SAN
of age. The evidence of this witness is accordingly uselP.s!' AND oNE: '
to establish that the person executing the sale deed F.xhi~>it
.cc ro "was, in fact, the Indian lady named D. Masaramma
who was the grantee of the 90 years' lease issued by the
Rangoon Development Trust in respect of the suit land.
Another witness U Thein Maung (PW 3) who was the
Ayat-Luayi of the locality said that about the year 1958,
when he was visiting the houses in the locality in connec-
tion with Mee-kin (Fire Watchers) matters he sa'Y a
Coringhee woman known as D. Masaramma packing up to
lease House ~o. 39 in 90th Street and that he also saw
plaintiff Ko Kyi Shein at that house. House No. 39, 90th
street was the building standing on the suit land. How-
~ver, this witness did not state that the Coringhee woman
:known as D. Masaramma was in fact the grantee of the
9o years' lease in question.
For the defendants Arumugam Chettyar (DVv' r) who
was at one time partner .of R.M.P.L.S. Chettyar fum said
that he had attested the deed of sale evidencing the sale of
the suit land by Ramanathan Chettyar, Managing Partner
,of. the firm to the defendants, vide Exhibit 5 He could
.also say that this land and the house standing thereon were
mortgaged by a South Indian Hindu lady by the name of D.
:Masaramma to the chettyar fum and that on the death of
that lady, as the debt owing by her could not be repaid by
'her sons and daughter, the suit land was conveyed by them
-to the chettyar. That was .about the month of May 1941.
:Since then the chettyar firm had been collecting rent from
the tenants of the building which, ho.:wever, was destroyed
<Owing to Japanese bombing during the last World Vvar.
After the War the house site was occupied by certain
Coringhees from whom the chettvar collected rent. The
~Ajj BURMA AW-'Rf:V~R~
.. ~ ~;l;'>t,;oz-
ma~~;
-- : -~ .
..... ;..:... ..:..
.('
. . -,~:;:;';:k.\;:- c.;;~_:;.}: ,,,,
chettyar also paid land revenue in respect of the- suit land..
After selling the land to the defendants by the registered
Ko KYt
SHEIN deed of sale, Exhibit 5, Ramanathan C.h ettyar went away
t1. to India never to return to this country.
Ko SoE SAN
AND ONE. Balaji (D\V 2) is the most important witness in this case.
According to him he was the nephew of D. Masaramma,
the owner of the suit land who died during the month of
October 1938 leaving Neelakantam, Sultan, Venkanna and
Bodhi Amma as her sons and daughter. He knew that
the sUit bmd was mortgaged by his aunt D. Masaramma to
a chettyar and that after her death the land was sold by
her son-in-law Gnagana to this chettyar. After the sale-
the :chettyar collected rent in respect of the suit land and
the house situated thereon. About 6 or 7 months later,
tl'l.e War with Japan broke out and during the War the
house was destroyed owing to Japanese bombing. After
the return of the British to BuFma he -collected rent on
behalf.of the chettyar from those who were staying on the
suit land. After thus collecting rent for about a y~ar , the.
chettyar himself collected the same till about the time of
the sale of the sqit land to the defendant Ko Soe San. At
.. the outbreak of the War D. Masaramma's sons and daughter
were living at Yegyaw where they were engaged in Pinmin
(launderers') business. They then went back to India ..
They did not return after the cessation of hostilities.
Now, reg2.rding the deed of sale, Exhibit" m "in favour
of the plaintiff Ko Kyi Shein we have very little doubt:
that it was executed by an imposter. The defendants have
been a:ble to prove by the evidence of a Finger-print Expert
of the Criminal Investigation Department, lnsein p J Tin
~aung (DvV 4)] that the thumb impression of
D. Masaramma on the reverse of Exhibit " m " was that
of a different person from D. Masaramma whose thumb
im.pliession appears at the bottom of the original deed of
9'0 years'"lease, Exhibit I. On the other hand, the thumb:
impression: on this latt-er docume11t is of the same person
6iJ9
.as that appearing in the -Register of Thumb Impressions,
being Serial No. 8506 dated 21st December 1934 in Book
No. 152. This serial number is the same as that appearing ~~~;r
~ s
-in the mortgage deed Exhibit 6 dated the 21st of December K 0 8- 02 AN
1934 executed by D. Masa-r amma in favour of ~.M.P.L.S. ANo oNe.
:Palaniappa Chettyar.
The evidence of the Finger-print Expert has been
.assailed by the learned Adv-ecate for the defendant-
respondents on the .ground that it does not contain any
reasons for .the conclusion arrived at by him. However,
the Finger-print Expert was himself present in Court for
the purpose of being cross-examined. He has produced
"the enlarged phot-ogra.phs Exhibits 17, r8 and 19. Exh'rbit
17 is the magnification of the thumb impression, being
Serial No. Bso6, dated the 21st of December 1934 in the
:Register of Thumb impressions, Book No. 152, maintained
.at the Registrati(}n Office. Exhibit r8 is the magnification
<Of the thumb impress.im1 appearing on the original deed of.
lease Exhibit r issued by the Rangoon Development Trust
in favour of D. Masaramma. Exhibit 19 is a magnification
of the thumb impression of a person called D. Masar-amma
:app~ating on the registered deed -of sale Exhibit " m '~
Telied upon by the plaintiff. We have ourselves looked
.at these enlarged pl:tetogr-aphs and we do not doubt the
-correctness of the evidence of the Finger-print Expert. In
this connection it would be relevant to refer to the decision
<Of Sarwar Khan and anotlter v . Emperor (r). There it
was held that where there has l:>een ao cross-ec.amin-ation
of a Finger-print Expert witness impeaching the examina-
"tion which he had made of and the test to which he had
put a particular .finger-print impression submitted for his
c<:>nsider~tion, the value and weight to be attached to such
witness's evidence cannot be diminished by applying to it
c~nsiderations to which the witness's attention was never
directed.
680
. .
cc.
' J?,6'3
Regarding the defendants' side of the story: No doubt
there is some discrepancy between the evidence of Balaji:
Ko KYI
SHEIN (DW 21) as to the executants of the registered deed of sale
v._ . conveying the suit land to the chettyar firmin that whereas.
Ko Sos SAN
AND ONE. a<:mrding to Balaji the children of D. Masaramma were :
(I) Neelakantam, -(2) Sultan, (3) Venkanna and (4) Bodhf
Amma, the last mentioned-obviously being a daughter ;
the sale deed Exhibit 7 recited the fact that the children
of D. Masaramma were eldest son D. Subramaniam and two
minor sons D Venkanna and D. Neelakantam. However,.
it is -quite probable that the Sultan (No. 2) mentioned in
Balaji's evidence may be a misrecording for Subramaniam ~
There is also another discrepancy in that whereas according
to Balaji the sale deed was executed by Gangana, son-in-law
of D. Masaramma the deed in question recited the fact of
the eldest son having executed the same on behalf o.f him-
self and his minor brothers. However, as 'to this discrep-
ancy Balaji himself"who was not present at the execution
of the sale deed, might not have known who the rear
exe<:utants were.
' The -sale' deed, Exhibit 7, was attacked by the learned:.
Advocate for the plaintiff-appellant on the ground that in:
view of -Balaji's own evidence a daughter survived D.
Masaramma. Accordingly the heir of D. Masaramma in
respect of the suit land was the daughter instead of the
sons, as it was a specie of property known to Hindu law
as .Stridhana. Therefore, the daughter and her daughters:
and sons would inherit _the property in preference to her
sons. : In this connection the learned Advocate -has relied '
on 5ectiohs 135: aiid 152 of the Principies of 'H1ndu Law
by D. F. Mul.la, 12th Edition. Seetio'n ris is to the effect.
that- a Hindu' fep:iale may acquire property from other
sources enume~ated. in Se:Ctions-126 to _1,34 anci 'Section 152 .
provides . that sikh' other kinas of Stridhalia pass to '
daughters, .daughter's 'daughters, daughter's sons fu pre.:'
fereiice-to sonsan.d ;~rin"f/.' sons~..- - : ---------.. _
__-'"
Undoubtedly, if the deceased D. Masaramma was a
Hindu lady of the Sudra caste, succession to her Stridha_na
Ko KYI
would still be governed by the Mitakshara law, vide Bastar SHEIN
Transport and Trading Co. v. Court of Wards, Bastar and Ko 8"c;E SANr
another (2) where Deo J ., observed that the law for the AND' oNe.-
Sudras. regarding succession to Stridhana is not different
from the law relating to the other three castes. However,
there is nothing in the evidence to show wheth~r the
deceased D. Masaramma was a Iady belonging to the Sudra
or to the Panchama caste.
Assuming that the sons only of D. Masaramma and not
her daughter. having conveyed the suit land to R.M.P.L.S.
Chettyar firm for the debt due by their mother, the title
of that firm to the suit land was defective at its inception
the Chettyat firm had since 1941 till the date of the transfer
of the suit land to the defendants on the 14th of December
1954, been clearly in possession of it through their tenants
who were paying regularly rent and ground rent to the
firm. The Chettyar firm therefore had possessory title
which in course of time ripened into prescriptive title. In
this connection, it is only necessary to refer to Narayana
Row v. Dbarmacbar (~), Ma Saw v. Maung Sbwe Gan and
fv!a Ban (4), Ma Pwa Zon and two v. Ma Pan I and one (5)
and to the latest decision of this Court in Maung Mya Than
and another v. U Tun Tin '(6). Accordingly as between
the plaintiff who had obtained possession of the suit Iand
since the r6th of January 1958 from an impositer who
called herself D. Masaramma, and the defendants who had
purchased the suit land from a Chettyar firm which had
been in possession since the year 1941 pursuant to the
registered deed of sale dated the 22n'd of May 1941
(Exhibit 7), impugned as invalid, the defendants clearly
have a better title to the suit land. No doubt, the plaintiffs.
(2) A.I.R. (1955) Nag. 78. (4) XI L.B.R. 415.
(3) I.L.R. 26 Mad. 515. (s) I.L.R. s Ran. 154.
(6) Civil Second Appeal No. 44 of 1962 of th: Chief Court.
has been able to produce ground rent re~~lpts s-ince the
2nd quarter 1954-55 but this fact is of no avail in view of
~oH~~~ the evidence adduced by the defendants and the production
. v. . by them of an earlier ground rent receipt relating to the
i{o SoE SAN
AND oNE. 4th quarter 1953-54.
, For these reasons, we consider that the plaintiff's suit
had been rightly dismissed and the defendants' counter-
-claim for possession rightly decreed by the learned trial
0 -
Judge. Regarding the decr.ee for mesne pmfits granted
to the defendants at the rate of K 3 per day, we consider
that it is' far too excessive and it will be reduced to mesne
profits at the rate of K I per day from the 2.r st of Novem-
-ber 1959 till the date of this decree. Regarding costs, the
.defendants wHI be given proportionate costs in the Court
below, and . costs of this appeal, Advocate's fees in this
Court being assessed at 10 gold mohurs.
()83
APPELLATE CIVIL
Before U San Maung, J.
c.c.
KRISHNAN LAL AND FOUR OTHERS (APPELLANTS) 19.~3
V. Oct. z6.
SURAJMAL BAL CHAND (RESPONDENTS) .*
.
Civil Procedure Cndt. ~. oz-"'dlttl!er bar to maintainability n.f , i.ct:>ll'!!l s:tit
filed without sa~:c!ion of .-ldt:'>c~te-Gencral-Ol~ler l, Rule S, Chii P."o::edrtre
Code.
. Tht: rlaim ';T,; " ~r~ ,~;;,,mm:ttee memb::rs of a Gawshala Society (:<:1 t' :~ r~i>~
tered body) and s'J~d on behalf of themselves, the members of the ~oc;,.,~ .. and
of the Hirdu .:<immun ity fnr ej~crm~nt of the defendant from the ~t!<r i.!o~d.
The suit b, io:~ under o. 1. r. 8 of the Code.
The defendant had contended inter alia that the suit was not mainta:nable in
the fom1 it w:1s framed. The learned judge accordingly dismissed it on 'the
grounds th a< it was constituted without the prior consent of the Attorney-
General (or tO,e Collector), and secondly the suit land being trust property,
'Only a properly constituted trustee can maintain such a suit. On Appeal:
Held: Regarding the scope of s. 92 of the Civil Procedure Code, there is
a clear authority for the proposition that where a s~it relating to religious
-endowment does not claim any such relief as is specified in sub-section (l) Of
section 92 of the Civil Procedure Code, the section is no bar to the maintainability
of the suit without the sanction of the Advocate-General, and in the Court of
the Subordinate Judge instead of the Court of the District Judge. The 'relief
asked in the present suit is certainly not one of those specified in sub-section
~x) of section 92 aforesaid.
Abdur Rahim and others v. Syed Abu Mahomtd Barkat Ali, A.I.R. (1928)
P.C., p. x6, referred to.
Regarding the next question whether only a trustee can file a suit for pos-
session in respect of immoveable property belonging to a public trust, a line of
11uthorities show that such a proposition can no longer be regarded as good law.
Saw Durmay v. Baggah Singh and others, III Ran., p. 213, referred to
and dissented from. . .
Mohammad Abid attd azother v. Haji Baksha and others, A.I.R. ( 1936) Oudh
p. 133; Rengasami Nayudu attd.another v. V. Krishnasami Iyer and others, A.r.R
(19~3) !yladras, p. 276; and Mosque known O$ Masjid Sha~i.d Gani and other~
v . $hiromani Hurdwara Parbandlzak Committee, A1nritsar'~~d another, A.I.R
~1940) P.C., p . n6, referred to and fol!o,~ed. '
~ Civil. l,"irst Appeal No. 17 of 1962 against the decree of the Additional
District Court' of Mandalay in Civil Regular Suit No:'6 of
x96~. dated '29th
October 1962. .
3
684 ~~b;_ . 'REPORTS
r,~ ~tny e~ent the 'fearned tri2l judge w!!s wrong in having dk11i::~"d tl1e suit
witho;_~t goir.g into the evidence in order to dercrmine the na!urc of ~!1c trust in.
KRISHNAN r~pett of th:! suit property, and the int.-:res~ which the Hindu Co:l;.n:.t!!"!lc: v::>!.t1d
LALAND h:tve -in ~~ch 3 tl.""J.~t property. ..
FOUR OTHERS The suit vlas thei.cfo rc. rcn-.aadcd for <.h:c!sion accordL.tg to la"-, in the light
"
SURAJMAL
BAL CHAND.
of tbe ::bove remarks.
S. L. Verma (Advocate) for the appellants.
K. C. Singh (Advocate) for the respondent .
u SAN MAU:\G, J.-In o~til Regular Suit No. 6 of I96I
of the Additional District Court of \'fa ndJ bv.'
the ...nl.ab::iffs
Krishnan La.l and four others, who are the cornmittee
merrL~ers of the Tagundain; Ga ..vsh:"d:l Soc i~ ty sued on
behalf of themselves, the rr.em.bers of the Society -cd of
the Hindu community of Mandalay ag.1inst the defendant
Surajma.l Bal Chand for his ejectment f r8m the suit land.
being Holding No. 2o, Block No. 6o~. CP.an-e-tha-z:m \Vard,
M.::ndJ1ay, the suit being ort.e under O:(~C r I. ~ 1:1c 8 r ~ t'1c
Civil Procedure Code. The pJ.::Iintiffc;' case \\'."!;; ".::.:n: the
Hindu community of Mand~lr..y \Vas the C'.\'Der a~ the suit
land, but that it was managed by the T;-:gund<!in,g G.:!\\-shala
Society which was an unregiste;:ed body. The Hindu com-
munity through the GDwshah Societ:.- l-:.Jd been b . con-
tinuous possession of this hmd since ~bout the 17th ~vfarch
I94I till about the end of 1946 when the defend<.mt tres-
passed into the north-eastern porticn of this laJ1d. He
refused to vacate in spite of :repeat~d demands and hence
the necessity for filing the present suit.
The defendant Surajmal Bal Chand by his written state-
ment contended inter alia that the suit \Vas not maintain-
able in the form in which it was framed and the learned
Additional Dl.strict judge decided that in view of the deci-
sion in Saw Durmqy v. Baggah Singh and others (r) the suit
should be dismissed, firstly, because it was instituted
witho.ut the prior conse~t of the Attorney-General or the
(r) III Rsn., p. 213 .
BURMA LAW REPORTS . -685-
Collector of the District under section 92 of the Civil
ProceduH:' Code, an"d secondly th.1t .1s the suit land was
KR!SiiNAN
admittedly :he trust property, only .1 properly constituted LALAND
trustee c~ -, .mamtam
sucu
:1..
a SUlt.
["' "ffs 1oemg
11e p } amtl FOUR OTHERS
'l: .
dissatisfied .., _!th the dismissal of r:Kir suit have filed the SuRAJMIIL
BAL CHAl'.fD.
present appc.1l.
Noi, .. r ;nm the deed of sale of the suit land relied upon
by tl).e p;,,intit1s; it would appear that this hmd was
purchasd ; : ~.1bu Madan Chand ~s :\-bnaging Trustee of
the Tag~: !'~ ' -. : .:~ Gawshala from. a firm of merchants known
as Ganp:r:; ....- Gz,jadhar as repres~n :.::d by th.::ir Managing
Part;1er :\.::: t,ico . the conside:.;;.tio.:-l l~c:t:g p.~ ~t of the ~ebt
due to 1. . .: L1gu1H.laing Gawshala by C:iie Gangadhar, son
of Lac:~:~: ; r:Y..ly<m of Mandalay. It also seems to be
commo;-1 ground as stated in the judgment now under
appe~l. th.lt rhc suit land was property belonging to a
public trust.
No doubt in Saw Durmay v. Baggah Singh and others
(r) it was held that in respect of properties \Vhich form
part of a public trust, as for instance, a Christian church,
a mere worshipper can have no right by way of suit to
obtain possession of the properties. It was also held that
he would have no right to sue for any of the reliefs
mentioned in section 92 of the Civil Procedure Code except
in the manner prescribed by that section.
However, regarding the scope of section 92 of the Civil
Procedure Code, there is clear authority for the proposition
that where a suit relating to religious endowment does not
claim any such relief as is specified "in sub-section (r) of
section 92 of the Civil Procedure Code, the section is no
bar to the maintainability of the suit without the sanction
?f the Advocate-General, and in the Court of the Sub-
ordinate Judge instead of the Court of District Judge. See
'A.bdur. Rahim and others v-. Syed Abu l\Jahomed Barkat Ali
Shah and others (2)._ The relief asked in the present suit
(r) rn R~:.1. , p. :::x:;. (z} -'.. 1 !<. ( r<)z~) P.C., p. 16.
~URM~
... . ' . . ..
' c.c. is certainly not one of those speCified in sub-section (r) of
1963
- section 92 aforesaid.
lf.~~~:r The next question is whether in the case of immoveable
FOUR V~THI!RS propertieS belonging tO ..1 fJ UD!ic trUSt it is the trllStCe alone
SuRAJMAL who can file a suit f o r !)Ossession as against :m alleged
BAL CHAND.
trespasser. In t h'1s connccuon. t h.e learned .\. d \'OCate f or
the plaintiff-appellants has strongly relied upon the decision
in the c~se of Mohammad Abid and another v. Haji Baksha
and others (3'). There it was held that members of the
Mahomedan community suing in a representative capacity
can sue for possession of wakf property, if there are no
properly constituted mutawallis of that property, and that
when there is no properly constituted mutawalli of the
wakf property it is justifiable for the Court to decree
possession of the property in favour of the persons suing
in representative capacity on behalf of the Mahomedan
community because no one has a better title to possession
than such persons.
Among the au~horities cited in Mohammad Abid's case
is the decision in the case of Rengasami Nayudu and
another v. V. Krishnasami lyer and others (4). There it was
held that the property bequeathed to a temple, although
notionally held by a deity, must be in some human being
or human beings that if there is a trustee or manager, he
cart sue for its possession ; but that where there is no
trustee or manager, the righ~ to sue for P~.sse~sioD- on l?ehalf
~f the trust may vest in the :r~,gular ~od.Y of worship~r~
of tpe temple.
In Mosque known as Masjid Shahid Ganj ~nd others ,v.
Shiromani Gudwara Parbandhak . ..... Committee,
'
Amritsar and. ;
anqther (5) where the Privy Council held that Article 144
.o f the Limitation Act applies to wakf property and that
property made wakf for purposes of mosque can be
adversely possessed, jt was observ:ed that the .r igp.t of
(3) A.LR. (1936) 'Oudh, p. 1.33 '( 4) A.I:R. '(19~3)' Mad.', i>.' 276.
(s) A.I.R. (rg4o) P.C., p. ri6: . ... - . .
BURMA. LAW Ri'FoRTS 687
Muslim worshipper may be regarded as an individual right
t hough not a sort of easement in gross and that such an
J{RISHNAN
individual may, if he sues in time, procure the ejectment LAL AND
of a trespasser and have the property delivered into the FouR ~THERS
Possession of the mutawalli or of some other person for the
.
SuRAJMAL
B AL CHAND
. purposes of the wakf.
In this connection the Pri,y Council had cited with
approval the case of chidambaranatha Thambi;-an and
another v. P. S. Nallasira .\fudaliar and others (6). In
t hat case the properties in suit were purchased by a Pand~Ha
Sannaclhi of the Dharm.:1pur.1m .\dheenam in the year 1869.
Ano(rcr Pand.:r.1 SannJ~h i -;,!d them to the various contcst-
ii:g C:<.-ncants in jul~: 1901. Th~ plaintiffs arc the
t.1mbir2n;; of the mutt. Thl'y obtained leave under Ordrr
i. Rule 8. Ci\il Procedure Code. 1908 to institute a suit on
lx half of all the persons interested in the mutt. Their
case was that the properties belonged to the mutt and that
their aiienation in 1901 was invalid. They prayed for a
declaration that the alienation was not binding on the mutt
and for possession being delivered to defendant I who was
at the time of the suit the Pandara Sannadhi. It was held
that such a suit was maintainable.
The following observation of Seshagiri Aiyar, J. who
delivered the leading judgment in the case cited above is
most apposite. The learned Judge said :
"Sec-rion 63 is a very important provision. Mr. T.
Rangachariar contended that this section expressly limits the
right of the beneficiary to a bare declaration, and that con-
sequently he is not entitled to ask for possession. I do not
think that th.:: word declaration should be given such a narrow
interpretation. Even in a suit for fOSSession, there must be
an antecedent declara'tion. I am inclined to think that the
Legislature did not intend to prevent a beneficiary from suing
for possession in favour of the trustee. The beneficiary is
only entitled to a declaration in his own right, bul that would
688 BURMA LAW REPORTS
c.c . not prevent him from asking th<tt the declaration be followed
. 1963
up by giving possession to the trustee. However 'that may
KRISHNAN be. sec-tion 68 is not in terms applicable to charitable trusts
LALAND
FOUR OTHERS and consequently its language is not .conclusive of the 1ights
v. of a public trustee. If this section is rc<~d ;:long with section
SURAJMAL
BAL CHAND. ro, Limitation Act, it is dear that \\hrrcn'r trn5t property
has gone into the hands of a stranger. the b~neficiary can
take all the necessary steps to place it in the h,1 nds of a person
who tan legally administer the trust."
In view of this observation I consider th:lt the proposition
laid down in Saw Durmay v. Baggah Singh and others (r)
that in the case of a public trust it is only the trustee who
can file a suit for possession of the trust property can be
regarded as no longer good law.
In any event the learned trial Judge was wrong in
having dismissed the suit without going into the evidence
in order to determine the nature of the trust in respect of
the suit property and the interest which the Hindu com-
munity would have in such a trust property. I would
accordingly set aside the judgment and decree of the trial
Court and under Order XLI, Rule 23 of the Civil Procedure
Code, I would remand the suit to the Additional District
Court of Mandalay to be readmitted under its original
number and to be decided according to law in the light of
the remarks made above. Costs incurred in this appeal
must abide the final result of the suit. Advocates fees in
this Court being assessed at five gold mohurs.
A <;:ertifi~ate for the refund of the court-fees paid on
the memorandum of appeal will be issued to the appellant-:;
under section 13 of the Court Fees Act.
(x) III Ran., p . 213.
:r9~ BURMA LA'vV REPORTS 689
APPELLATE CIV1L
B~fo-re U Bo Gyi, C'.J. cud U Sal: ."f.<:m::, J.
MA NU (APPELLA:-iT)
V.
KO SAN AYE (RESPO!'IiDEI\rr). *
G!mrdian and lVardr Act, s. ~~-AM>Iicaticm by motho f or O/';>>i:/11101/ of
guardian--s. I() Guart!icl!< aud Tl'ards Act-;!o ap_t>oit:~ma:t v;" gua:-dian
rmless father is unfit.
The AppEc:nion of the .-\p;)clbnt under s. ro of the Gua r,li ~ a01J "nrc!-<
~c~ ::-or appointment of h:rself as guaro:an of her minor ch;ldr"~- w~o had
''~-<' i J:,i~,J: with th<.'ir f.!:hcr, the Respcndent, had been dismissed b:; rhc lo~vcr
Court. On Ap~eal:
fhid: Section H) of the Gu~rdians ?.nd \Vards Act en3cts t~~t S'..ll:-]ect to the
pro,sions of the Ac~ with respect to European Christians nothing in the Act
would authorize the Court to appoint and declare a guardian of the person of
a ini1~01 whose fathe r is living and is not, in the opinion of the Court, unfit to
be the guardian of the person of the minor.
There is nothing in the cvidenc~ tc show that the Respondent, as the father,
is un fit to act ns tt:e g;.tardi&n of his minor daughters.
Furthermore, they arc recei ving the best education and the best care and
attentior\ which could be provided.
However, it is ?.iso to the welfare of the minor$ that they should not be
entirely. estranged from their mother. Accordingly the Appellant should
be allowed to see the!'!\ once a month in school.
Thein Han (I~ for the appellant.
N. R. Majumdar for the respondent.
U SAN MAUNG, J.-This appeal by MaNu, the applicant
i n Civil Miscellaneous Case No. 17 of 1962 of the District
Court of Toungoo is against the order of the learned District
Judge dismissing her application under section 10 of the
Guardians and Wards Act for the appointment of herself
.as guardian of her minor daughters San San Aye and Than
i .
* Civil Misc. Appeal No. 29 of 1963 against the order of the District Court
<!lf Toungoo in Civil Misc.cllaneous Case No. 17 of 1962, dated Z9th April 1963.
690
c:c. : Than Aye. The facts which have been fully stated in the
1963
order appealed against are briefly as follows:
MAv.Nu The applicant MaNu and the respondent Ko San Aye,
Ko SAN AYE. a: clerk in the office of the Highway Dep~rtment had been
married 'for several years. There were fi\e daughters to
the' marriage, of whom San San Aye, 2ged I r is the eldest
and Than Than Ay~. aged eight is the third daughter.
When S<m San Aye was about one year and four months.
old, she was given to Daw Thein Yin, sister of Ko San Aye,
to be broughf up by her, Daw Thein Yin being Headmistress
of a State Primary School. Daw Thein Yin was married to
one Ko Saw, arid there being no issue to the marriage, San
San 1\.ye was brought up almost as a daL:~hter. She was
bottle Ied when young and was put into Saint Joseph's
Convent School when she was only four years old. About
May 1 962, the third daughter Th::m Tb:: Aye wc.s also
placed under the care of Daw Thein Yin. She also was
put "into the same Convent School as her eldest sister San
San Aye.
Differences arose between Ma Nu and her husband
Ko San Aye and they parted company. Ma Nu has in her
custody the second daughter Ni Ni Aye and the two
youngest daughters. She is receiving maintenance
allowance of K 30 for herself and K so for her three
children from her husband Ko San Aye. The application
under section IO of the Guardians and \Vards Act was filed
by her on the ground that the children San San Aye and
Than Than Aye being of tender age she was the fittest
person to act as their guardian. There was no allegation
that the father Ko San Aye was unfit to be the guardian of
the person of these two minor daughters. In the reply to
the written objection, however, MaNu alleged that she had
topart company from Ko San Aye as he was cruel to her,
having administered C\1-inese medi~ine to cause abortion~
on two occasions. On the third occasion he beat her wheru
pr-egnant with the result that there was abortion.
_. 691.
It is undisputed that the respondent Ko San Aye and ~6~
his . two minor children San San A}e nnd Than Than Aye r
. ~
are l.;ving together with Daw Them . Ym
. an d her }lUSbanu MA Nt:
v.
.
KO Saw and th at apart from t he care w h 1c t e mmors h h Ko SAN AYB-
receive from their father, love and affection have been
showered upon them by their aunt Daw Thein Yin and her
husband Ko Saw. No'" section 19 of the Guardians and
Vv::?.rds Act enact<> that su~ject to the provisions of ~he Act
with respe;::t to European C\ristians, nothing in the Act
would authorize the Court to appoint and decbre a
guard!an of the pe!scn o~ .1 ~:1inor whose bth~r is ihing
::.:-:d i.; ~10t, in the c;~;;:j.:) ;; of the Court, U!!fit l'0 ce the
gl!.:?rdiJn of the ~ ~~ ~::~:: c~f ttc ~11inor.
In our opinion t!->erc is nothing in the evidence to show
that Ko San Aye is un f:t t:> act as the guardi<ln of his minor
d:.t:.:.ght-=rs. Furt!lcr;nore. the minors are thrcug'b the
assistance of Ko s.~n Ayt 's e1der sister receiving the best
.education and the best car~ and attention vrhiC:: c:n.:ld t:~
provicied by them. Therefore, we are not inclined to
disturb with the order of the learned District Judse refusing
to appoint the present appellant Ma Nu as guardian of the
minors San San Aye and Than Than Aye.
However, we consider that it is also to t~1e welfare of
the minors San San Aye and Than Than Aye that they
should not be entirely estranged from their mother Ma Nu.
Accordingly, we would direct that by arrangement with
the head of the school in which these minors are being,
educated, she should be allowed to see them once a month
in school for not less than half an hour on each visit.
For the reasons given above, we would dismiss the
present appeal with no order as to costs.
BURMA LAW RE~ORTS [I2~.
APPELLATE CIVIL
Bffo-re U San Mazmg ana U Sa~o Ba 1'hein, JJ.
c.c. MA Sf SI AND ANOTHER (APPELLANTS)
1963
v.
SAYA MYA AND THREE OTHERS (RESPONDENT).*
Mohammedan Law- waqf-standaYd of proof Yegc:rding waqf fJrcperty-pl'oof
of i?l!rttemmorird user in the absc>:~!! of productio:~ of deed-!,!J.atwal!i-
wome;z ca11 act as lay Mutwalli-distiuctio:! k!:('t!:.?:z manageY a1zd matnall i
of P.lfosque.
:t'he P~est>ondents v:ho vlere :nu:.thers of t:~e \i:.t.,.lirn Co mmunity had filed
a suit fo: a Declaration ng2in~t t!J.e Appell~:-'~' ~!1at 3 piec~s of land Ilamely
Holding No. 30 Kagyi, H<Jlding Nn. 30 Khagwz (both o~iginaily being Hold in?,
No. 30) and Holding No. 55 were waqf ;noperty, :tnd had b'!en dedicated as
such by 2 Muslim gentlemen about 70 years ::go by a register-ed deed.
Holding No. 30 was the site of a mosque and Holding No. 55 was the site
of a l\1adra sa (school).
Held: Regarding the existence cf the registered deed creating tne waqf,
it is to be found that some witnesses were speaking from hearsay and tho$e who
were said to know of the existence of the deed had not actually read them so as
to be able to give admissible evidence regarding thei; contents.
Ma Mi andanolher v. Kalland~r Al:!.ma!, I.L.R. V Ran. r8 (PC}, reft!rred to.
of
In the absence direct evidence, circ:.tmstantial evidence is admissible in
proof of the existence of the waqf, and it is weli s~ttled that a ro:aqf may, in the
.absence of direct e\idence of dedication, estJ!>Ii;h!.'d by '"'i::lencc of U5el:.
Abdul Ghafoor \". Rahmat Ali and othL'rs, A.LR. (1930) Oudh 245; Umar Di11
and others v. _Hst. Aidhan a11d otheYs, A.I.R. (r9z r) L.~ht>r~ 303; K. Rausltan Din
.and others v. H. ,'\1"ohamed Sharif and others, A.I.R.(r936) Lahore 87 et p. 88, and
Mazhar Hussain and ethers v. Rao Bahadur Adha Saran Singh, A.I.R. (1948)
P.C. 42, rciem:d to.
In such circtLrnstances, the standard of proof necessary is t.~at the fact
.-established ~ust lead to the only =onable inference possible.
Although di.r ect evide:1ce is lacking, circumstantial evidence regarding the
-existence of the waqf itself was concerned must be regarded as conc!.usive, as
immemorial user had been established.
This however, cannot be said of the Holding No. 55 on which the madras sa
(school) stood. As it is not at all necessary for such school to be zoaqf property
1;0 ~nab!e it .to function, the exist.:nce of a waqf so far 2s the school itself is
COncerneq, <:an hardly be said to have been established by the evidence 011
T~rd .
. Civil First Appeal No. I r of I 962 against the decree of the District Court
<>f Mandalay in Civil Suit No. 13 of 1955, dat'!d I!thJune 1962.
1~3] BURMA LAW REPORTS . 693
The -:-asc of Ho:ding Fo. 30 !s :~~r'''-' ciiiiicl:i.: to d;:cidc.
~c:e !3 c;ide:-1-:c C.<.:.
1<)63
t " ;how that part of the holditig w.1-- n~~d :c) hr-:cd horses f<> r many y..:;m;. It i.;
wrprisina that the lVIuslim c.~:-:l::H.i:l!t\ wo.tld h;wc perm:tt..:d the misuse MA Sr Sr
of Lhe mosque land for such a lonfl p~rivd. '";"~u:. i.!.::t thr.t ti\cy had d<>n~ !"Z01 AND ANOTHER
Sll\mgl y militates against the ;:;ttth of the story 1i1i!r :he whole cf ho!ding !';o. 30 (;.
SAYA MYA
on which the mosque is sit-.::tt: w.1s w :rqf propert:. AND THREE
Regarding the contention tl:at, as r:,~ :no:h,;r n~ one of t.'le D ~=..:ndlnts OTHE.''lS.
nssu:ned the duties of mut;w!li d the :v!osquc af!cr the dcuth of her firs~
husband (one of the :Ulegcd donors :tnd the xst mutwalli), she must be assumed
to h::ve been acting as Muttcnlli in letting otlt and coilccting ren!s with regard
to the suit lands, there is nl)thing in the evidence to show tnat she was !n fact
acting as a Mutwa!li of the ).!osque because there were provisio:~s in the
alleged deeds of TVc:qf to c:l:,'l:: her to act as $U<""h.
There is however nu!hi:~ .; i:-. :Vlohammcdan l;:w to prevent a woman fwm
pc..rfo~ming the by d;.:t k' ,)f .:'!!:~~~~ili of a ::\ilosque.
Kassim. Hassa11 v. 11;-::ra j{,~:::;m, A.1.R. (19.!0) Cal. S::>o; and :1tJt. JVloideen
Bi:ii .Amm.nl ,._ Ra:hwz;,:u .' ludaki, A.I.R. ( t<)::;") ::viadr?.s 6'), referred to.
In th~ absc:1c:: c~ any oHl:1:is~ibi~ evi ..!..n.~.: 0.1 r.:co ..:.! t;.> prove t!u: ccnt'l.!nts
of tho: alleged regiHe;d deed or dec::! of TVaqf, it cannot ~e said that she w;.s
acting 3S a "'f"tu:olli of the wad plopc!"ty.
Phamabi v. Abdulla ildusa Sc:it, A.I.R. (1914) Mad. 7:4, referred to.
The ;m:>bnbilitie3 arc that after obtaining Letter of Administration to the
estate of her deceased husband, she had arrogated to herself the duties of the
mar.ager of the l\!osque known as E -Gyaing Pali which had been constructed
by her husband. This fact will not prcve thst the suit lands beiong.:d to the
waqf.
.P. K. Bose (Advocate) for the Appellants .
.Hla Nyunt (Advocate) for the respondent.
U SAN MAUNG, J.-Tltis appeal by Maung Thaung Pe,
"legal representative of his deceased wife Ma Tin Kyi and
by Ma Si Si is against the judgment and decree of the
District' Court of Mandalay in Gvil Suit No. 13 of 1955,
where the learned District Judge gave a decree to the res-
:pondents Saya Mya and 3 others declaring that two pieces
of land known as Holding Nos. 30 Kagyi and 30 Khagwe
in Block No. 161 of Pyigyi Kyetth~ye Quarter, Mandalay,
formed part of a piece of land formerly known as Holding
No. 30 and that it belonged to the Muslim community as it
was the site of a public mosque; that Holding No. 55 of
Block No. 168 also belonged to the Muslim community as
694 . :~'::fiBNRMA I,.~W REPORTS
:~T- '
~-~- it was the site of a Madrassa (school). A decree for posses-
. sion of these lands had also been given in favour of the
MA Sr Sr ?.1 l" .
AND ANOTHER 1_v us. 1m community as represente
d by t11e pJamtl
'ff-respon-
SAY.AvMYA dents Saya Mya and others.
AND THREE
oTHERs. The facts giving rise to the present appeal are briefly
these. U Kar (now deceased), Saya Mya, U Hnit, U Ba
Chit and U Tin Myint filed a suit against Ma Tin Kyi per-
. sonallyand as legal representative of her deceased mother,
Ma Nyunt. and Ma Si Si for a declaration regarding Holding
Nos. 30 Kagyi, 30 Khagwe and No. 55 aforesaid and for
possession thereof. They said that these holdings had at
one .time belonged to two Burmese Muslim gentlemen
U Shwe Oh and his younger brother U Nyo Glay. About
70 years ago these two persons and their sister Daw Sa U
created a public Viaqf in writing duly registered, dedica-
. ting to :God Holding No. 30 Kagyi and 30 K.hagwe (formerly
.. Holding No. 30) on which stood a mosque and Holding
No. 55 on which stood the Madrassa, or schooL Since
then, these holdings had been shown in the Land Records
registers as " Religious land ". U Shwe Oh beca1ne the
first Mutwalli of the VVaqf properties and on his death his
niece DawMay, daughter of U Nyo Glay succeeded him
as the Mutwalli. When Daw May died, Ma Nyun, one
.of. the childless widows of U Shwe Oh assumed charge of
these properties as Mutwalli and remained so till she died
in September 1953 Before her death she married a Shia
Muslim by the name of U Hla Gyi and had a daughter,.
.the .1st defendant Ma Tin Kyi who subsequently became
a convert to Buddhism. Ma Tin Kyi began to intermeddle
with . the . Waqf properties by letting out the . vacant
portions of the land to tenants. She also mutated Hold-.
irig No .. 30 into her name in: the Land Record registers.
A por~ion of Holding No. 30 now known as No. 30 I(agyi
. w~s occ:il~ied by .the 2nd defendant Ma Si Si in collusion
with MaTin Kyi. Therefore the plaintiffs who had been
authorized by a resolUtion passed at a mass meeting" of
Sunni Muslims held in the month of October 1955 l_1ad t~ ~9~~
file the present suit for declaration and for possess10n of -
.:\1;, SI SI
the Waqf lands. AND ANOTHER
The first defendant Ma Tin Kyi, who died during the SAYAv.MYA
Pendency of the suit and is now represented by her hus- ,.... o THREE
OTHERS.
band Maung Thaung Pe, filed a written statement denying
the plaintiffs" claim that the properties in sui.t were vVaqf.
She said that they belonged solely to her mother Ma Nyunt
and after her mother's death she had openly 1nutated
both Holding No. 55 and Holding No. 30 Khagwe into her
name. Regarding Holding No. 30 Kagyi it was sold by
her mother Ma Nyunt to one Daw Ma Ma Lay who in
turn sold the same to the second defendant Ma Si Si.
Therefore the plaintiffs had no cause of action against
her. She also said that the suit was bad for misjoinder
of defendants and of causes of action and for not adding
.as party-defendant the All Burma Yahanpyo Aphwe to
which Holding No. 30 Khagwe had since been given by
her. She further said that ad valorem court fees should
h aye been paid.
Tpe defendant Ma Si Si said that she had purchased
Holding ~o. 30 Kagyi from Daw Ma Ma Lay who in turn
pu.rchase(i it from its owner Ma Nyupt. ~h~ ~lso cop.-
t~~d~d that in t~e event of Ma Nyunt not ~~~~g fo~nd to
P.~ye a valid tftle thereto she was nevert}leles~ prqt~ct~d
bysection 4J of the Transfer of ~roperty Act for pflyiQg
purchased the suit land (Holding No. 30 Kagyi) bona fide
from i.t~ osten~i~1e owner.
On the pl~~qings the le~rn.e9 District Judg~ fr~roed 4
pr~liminary i~s~~ rela~ipg to the alleged ~isjoinder of
pa_rPes an(i ca~s~s of ~ctio~, maiQ.tainapility .9f tP.e s.t,
~utpdel).cy of .th,e stamp affi.x~d op. th~ Pl~i~~ t;i~q tl).~
~~cessity f~n: ~#g ~e All Bur~a Yahanpyo a.p:Pwe a
party-qef~~d~nt. Ule 4th pr~liznin.gy i~~e ',V~S poj: cqp-
s.i<J.e:t~d. -(!g~r(lip.g th~ r~t t4~ l~~rp.ed Pi~Hict Jy.gge
h~~
. .. . .
th~t
. ~~e
. bi:!-4 .. . -- Qf paJ1ies ang .ca~$es
. ..: peen ~isjoind~ '
c.c. of action, that the suit as framed- was npt maintainable as
1963
the provisions of Order I, Rule 8 of the Civil Procedure
fu~~r.A;~\~~R Code had not been col1!-plied wit.1. and that the pbint
v. should h:J.Ye been stamped ad \:a!or('r;l . On appeal against
SAYA MYA
AN!) THtu!E the order of the District Comt the late High Court by its
OTHERs. order in Civil Miscellaneous Appeal ~o . 20 of 1956 point-
ed out that the most important po!nt-1mo1nd i;1 111( osc
was whether the properties claimed by the pbintiffs were
in fact '. \ oqf. Accordingly th.e suit was remanded under
Order 41, Rule 25 of the Civil Procedure Code for a find-
ing on tbis all important issue. A further appeal was
taken by the plaintiffs to the Supreme Court where, how-
eve;:-, a compromise was arrived at in these terms :
(a) th<2t steps should be taken to compl~ with the provisions
of Order I, Rule 8 of the Ci\i! Procedure Code.
(b) that the question of misjoinder of defendants and causes
of action and sufficiency of court-fee should be deferred
. unti1 after ev~dence had been ld by both the parties
to the suit; and
(c) that th:; nnme of Daw Ma \!;; who w ac; o:-igir!.:~!:y im-
pleaded as 3rd defendant in th~ suit shcuid be struck
off from the plaint.
When the proceedings were returned to the District-
Court r 3 issues as may be seen from the. judgmerit now
under appeal, were framed by that Court. However,
the learned District Judge held in spite of the observation
of the High Court in Civil Miscellaneous Appeal No. 20
of 1956 that the issue relating to the alleged misjoinder
of parties and causes of action, sufficiency of court-fees
and the necessity for making the All Burma Yahanpyo
Aphwe a party-defendant should be decided before going
into the merits of the plaintiffs' case. Therefore in spite
of the fact that he had examined witnesses cited by both
the parties the learned District Judge did not go into the
: me:r:its of the case but answered these three preliminary
issues in favour of the defendants. The plaintiffs again
appealed and in Civil Miscellaneous Appeal No.4 of 1959~-
697
a Bench of the late High Court consisting of U Ba Nyunt c.c.
<~nd U Aung Khir-:::. Jj ., remanded the suit to the District
.
Court f or record mg . fi n d'mgs on Issues No. I and 2
1ts MA S! Sr
AND ANOTHHR"
which are in these tern,_s : SAY;:MYA
(1) Whether Palitaga Haji U Shwe Oh, his brother U Nyo AND THREE
OTHERS.
clay and his Si$ t~r Daw Sa U mack ~ public Waqf by
a regi:;terec~ deed 1n writing of the land known as
Holding No. 30 (now 30A and 30B) i<1 Block No. r6r,
Pyigyi K.yetthaye West, Mandal<1y, together wjth the
mosque and outhouses standir.g t hero:1 ::::nd of another
land known as l-Ioiding No. 55 in B;xk No. r68 of
Pyigyi Ky etth<.ye West, Mandalay, rogcther with the
Madrassa c r Schc ol building standing ther~on as alleged
in par~gr:\~h 2 of the plaint ? An! t he:::! properties
public 1-ru~r properties ?
(2) \',htr :1 :~r :::;e suit lands lnve beea conti;:uousl;: used by
the \ !usli.~~ p L:b:ic for prayer and d ucation ii<; alleged
in paragraph 3 of the plaint? If so, f rom what time
to what time ?
Thes~ issues were subsequently answered by the learn-
ed Di?trict Judge in favour of the plaintiffs and the suit
was re-submitted to the High Court. However. before
another Bench of the High Court consisting of U San
Maung r:nd U Plyint Too, JJ .. the p2.rties filed a consent
application asking the return of the proceedings to the
District Court to decide the case after answering ali the
ether issues involYcd except Issue Nos. I I. r 2 and I3
which were v.-aivcd. The present appeal is against the
judgment anq. decree which followed the decision of the
learned District Judge on the other issues which were in
-the main decided in favour of the plaintiffs.
Of the ~everal plaintiffs in the suit the only one who
gave evidence was U Kar, now deceased. He was about
8o years old when he was examined in the year I958.
According to him the mosque standing on Holding No. 30
was built before he was born. As regards the Madrassa
(school) standing on Holding No. 55 it was built when he.
was about r8 years of age. The creator of the Waqf
-698 aURMA LAW REPORTS
~. ~r. . ~~~-.:_:. .. .,
c .c.
1<)63
U .Shwe
.
Oh
. .
was the~first Mutwalli. In fact, there \vere
two Waqfs which were effected by the execution of the
A~i\\~~T~~R vVaqf-nama. u Shwe Oh died about 40 years ago, h is
SAYAvMvA younger brother U Nyo Glay having pre-deceased him by
AND THREE about 5 or 6 years. Before U Shwe Oh died h e called
OT HERS.
the Muslhn elders of the locality and entru s~e.d \:o them
the mosque and the school. These elders were U Nyunt,
Ko Esa, Ko Har Dun, Ko Hman Gyi, Ko Tun, Say a Kar
and H.aji Ali Khan. All of them were dead at the time of
the filing of the present suit. These elders looked after
the school and the mosque after the death of U Shwe Oh
until Daw May, daughter of U Nyo Glay, obtained letters
of administration to U Shwe Oh's estate. After the death
o( Daw May, Ma Nyunt, one of the wives of U Shwe Oh
and mother of the rst defendant Ma Tin Kyi obtained
letters of administration to the estate of U Shwe Oh. She
then. looked after the mosque and the school. The school
which was in a dilapidated condition was dismantled by
Ma Nyunt at the beginning of the Japanese occupation of
Burma. She, however, promised td build a new school
in place of tb.e old. As regards the mosque it was in
ruins because of allied. bombing' just prior to the Japanese
evacuation from Burma. Later Ma Nyunt mutated both
Holdfng No. 30 and Holding No. 55 into her own name.
$he marr{ed one Shia Muslim gentleman and the first
d~fenda'!lt Ma Tin Kyi was the issue of this marriage.'
Nf$1 ~yu.'nt sole! the northe~:n portion of Holding No. 30 to
Ma si' si: . She inade a . ~ft of . the southern portion, on
which the rhosg;qe ~~s sitilaty, t~ ~~~ d~~ghter Ma T~~ K0.
Sh~ also had tenants living on '9oth Holdings No. 55 and
No. 36 and.
- ,
made
use of the
{ ~
~~rits ~e~eiv~d therefrom
. \ ~I ' ~'"'l ' \ ' ' I
V{ithout spending any sum on the upkeep of the mosque ..
Beca~se of tile 'conduct of Ma Nyunt aJ;ld of h~r da~gh~~r
. Ma tin Kyi 'after the .death of Ma Nyunt, he and th:e other
. . h~d to file the present suit for. declaration
.pimntl.trs . . and.,
pos~ession.
BURMA LAW REPORTS 699
Now, although U Kar spoke of two registered deeds
evidcr.cing the H'aqf executed by U Shwe Oh and his
co-donors he had not really seen them executed. He had A~~~;~T~En
not even seen them after their execution. He said that SAYAv.MYA
after the death of U Shwe Oh the deeds evidencing the AND THREE
Waqfs came into the possession of Daw May, a niece oTmRs.
of U Shwe Oh and that he had seen them once or twice
in her possession. He. however, admitted that he had
~ver read them and could not say whether they were
executed on sramped papers. Therefore U Kar could not
in fact gi,e .>ny cogent evidence regarding the execution
of t he tied t >;- <!ceds of \"\ aqfs w h ich ' ' e re said to ha,c
been executed by U Shwc Oh and his co-donors.
!\.Ia Ma (PW 1), daughter of Daw May said that the
deeds of \\'aqfs t;ame into her possession after the death
of her mother and that they were destroyed during the
fire which took place during the Japanese evacuation
period. However, this witness could not say that she
had read these two deeds herself and could therefore give
no evidence regarding their contents. All she could say
was that she had shown them to the Muslim elders. This
witness also corroborated U Kar in that Ma Nyunt rented
out Holdings No. 55 and No. 30 after she obtained letters
"Of administration to the estate of U Shwe Oh, and that
-she spent all the mo!_l.ey she received without doing any-
thing for the mosque.
Contradicting both the main witnessess U Kar and
Daw Ma Ma is A. K. U Tin (PW 2). According to him
there was only one registered deed evidencing the crea-
tion of the Waqf by U Shwe Oh and his co-donors.
Furthermore, after Ma Nyunt had obtained letters of ad-
ministration to the estate of U Shwe Oh, she spent some
of the money received by her as rent from Holding Nos-
30 and 55 in paying the Moulvi who officiated at the
mosque and in defraying charges for electricity consumed.
4
. i:700 BURMA LAW"~REP.QE:-J:$;;
c.c. this witness, however, had to. admit that he had himself
1963
not read the so-o1lccl registered deed of vVaqf relating to
M ... St St both Holding Noc.;. 55 and 30. He could not also say
AND ANOT!:!J;
v. whether the deed in possession of Daw Ma Ma was
SAYA MYA
AND THREE registered. Haji Maung (PVv 6) corroborated deed of
OTHERS.
vVaqf in respect of the mosque .:md the school. He thus
contradicted both U Kar and Daw Ma Ma. He is in tum
contradicted by another witness Daw Htay (PvV 3),.
accordingto whom the Waqf relating to the school was
created about 6o years ago while the 1cV aqf re1ating to the
mosque was created many years earlier. None of these
witnesses, however, actually knew of the execution of the
deed or deeds of Waqf or their contents. \Vhat evidence
they had given before the Court was merely on hearsay.
In fact, we have carefully gone through the evidence
adduced by the plaintiffs regarding the existence of the
registered deed or deeds of VIaqf and we find that while
most of the witnesses were speaking from hearsay some
who said that they knew of the existence of these deeds
had not actually read them so as to enable them to give
admissible evidence regarding their contents. In this con-
nection the decision of the Privy Council in Ma Mi and'
another v. Kallander Ammal (1) may be usefully cited.
There. it was held that oral evidence of the contents of
a . document is admissible as secondary evidence under
section 63 (5) of the Evidence Act only if the witness has
himself read the document and .could speak to its contents ..
Tested by this standard there is no admissible evidence
whatsoever regarding the contents of the alleged deed or
deeds evidencing the creation of the W aqfs relating to the
mosque and the school.
The learned District Judge who .answered issues No. r
and No. 2 fully realized this fact. H~, however, relied'
:upon section 188 of the Principles of Mahomeda.n Law.
(x) I.L.R. V Ran. 1.8 (PC).
701
by D. F. Mulla, 14th Edition . which is in the following c.c.
I.,S:;
terms :
MA S! SI
"\\aqf by immemOl'iCt! li'' .- l f ' ,: ,1d has been USed from ANDANOTHI!R
time immcmor!ai ;._., ' ;c:i!~ -~::s purpose, e.g., for a SAY~~~-MYA
:nosque or a bur! ~: )!l vlmj c;r f:r the maintenance of .~No THREE
a Mosque, then :!w .::n:~ ~.. b:: user waqf although OTHERs.
t here is no c.-:.ic-.:u: t< .::; ~-:,:-~~~;; dedication."
Undoubtedly. in the Jb,:ncc of direct evidence
circumstant iaI c\idence !~ JJ ::, i;;.;: t)~,_-. i:1 pro6f of the
existe nce o f :-~ ':.<:qf. !:. ...; :... c:, : .-. ~. : \. l\(! ,1/m Cit Ali
a;;d c t.;~t. ::. .,~t : ~ ; .. ~;.; : . ... '"": _ : ~~ . . ... "": ; <: t ti ~.:d t t~~ ~ a ..._,:aqf
may. in the- .absence oi d.ir\?ct t ., ide nee (j i dedit J <ion be
established by c\idence of user. To i.hc sJme cfiect j s the
d.ictuln in Umar Din and others v. Mst. Aislwn and others
(3). However. the correct note was sou nded by \fon roe,
j., in K. Raushan Din and others v. H. Mohamed Sharif
and others (4), where the learned Judge observed :
"The learned counsel for the appellants cited many cases
in support of the plaintiffs' claim to show that a waqf may
in the absence of direct evidence of dedication be established
by evidence of user and that if land has once been dedicated
as a cemetery it must aiways be regarded as a cemetery,
unless it becomes unfi t for such a use. These propositions
. are well supported by the cases cited, of which I need only
mention 1921. Lab. 303 (3), 1930 Oudh 245 (2), and I accept
them as settled law; but the user from which dedication can
be impHed must be clearly established and must be of such
a character as to be consistent only with dedication."
[See also Mazhar Husain and others v. Rao Bahadur A diva
Saran Singh (5)]. In our opinion when the existence of a
certain fact is sought to be proved not by direct but by
circumstantial evidence the standard of proof necessary
is that the fact established must lead to the only reason-
able inference possible. This is what Monroe. J., had
meant by the observation which we have quoted above .
.(2) A.LR. (I9jO) Ot d\ : 4 (4) A.I.R. (1936) I ahot e 8 :~ . 88.
( ~)A.I.R. (1921) Lahor'! "~"~ - (s) A.l.R. ( :) P c .., ~
702 BYlfi!A LAW REPORTS r t~93
.... :-;.:"'"' ......,:
---. --- - -
Now, what are the facts ? There is superabundance
of evidence to show that the mosque which was built by
~A~~T~~n Haji U Shwe Oh and his co-donors had been opened for
v. public worship since time immemorial. Among the per-
SAYA MYA
AND THREE sons who regularly worshipped at that mosque were the
OTI;lF.Rs. plaintiff U Kar, A. K. U Tin (PW 2), Haji Maung (P\V 6).
Haji Ismail (PW 7), Mr. S. K. Razak (PW 8) and others.
There is also evidence to show that Mouh,is had been
employed there. Moulvi Haji Ismail (PW r6) said that
he had been a Moulvi at the Sooratee Mosque since the
past 30 years and he personally knew the Moulvis who
officiate-d at the mosque now in suit which was known
as the. E-Gyaing Pali. According to Ma Ma Gyi (PW 4).
her ovvn father U Law had acte-d as Moulvi at the mosque
in suit for about 20 years since she was about 10 years
old till she was about 30. .At the time she gave evidence
her age was 62. Accordingly, although direct evidence
is Jacking, circumstantial evidence regarding the existence
of a Waqf so far as the mosque itself was concerned must
be regarded as conclusive, as immemorial user had been
established.
The same cannot, however, be said of Holding No. 55
on which sto.od the Madrassa or school, built by U Shwe
Oh. Many witnesses had undoubtedly come forward to
say that they had studied at that school during their
childhood. They were Haji Ismail (PW 7), S. K. Razak
(PW 8), Haji 'Shin (PW 10), U Myit (PW II) and U Ohn
Shwe '(PW 13). However, although U Kar claimed that
the school building was only dismantled and removed at
the beginning of the Japanese occupation period :there is
no cogent evidence to show that .the school itself stopped
functioning about 40 years ago. This fact appears in the.
evidenee of Haji Shin (PW ro) and U Ohn Shwe (PW 13).
Fl.lrthermore,.:according to U Soot (PW 10) the school was.
llismantled by Ma Nyunt, mother of Ma Tin Kyi soon
after .the Burmese-Muslim riots which took place about
BURMA LAY/ R~!'ORTS
25 ;. :>.<::; :1go. As it is not at J!l :1cccssary for a Mad::Jssa c.c.
1 ~:5 :;
or .. ,.. co be V\laqf propert: t 0 enable it t.n ft:nction, . . _
I., - .
,, . ~ ,
.
, . ._- .... , ~ f' 11. f ,. f "' . ' ';:') , . -, '
.,<.~: o a ~v.aq 1n .)o ,1; . , ..:c SL, ,....,;,Jt '' ~"
t- T.. ~
'""" .~
c.Jn-
-J
i\ jA ~! ~~
A:'-ID'"'oTHER
cernt>ci can hardly be said to ha,c been established by the s,m:'MYA
evidence on record. Besides. there is cogent evidence ad- AND THHEE
OTHERS,
duced by some of the witnesses for the defence to show
that Ma Nyunt had been collecting rents from the two
buildings .situated on Holding 1\o. 55 These witnesses
are Maung Th~mng Pe, legal representJti,c of ti1e deceased
defendant Ma Tin Kyi, and Daw Saw (DvV 5) who had
been a resident of the locality since she was about r8
years of age. She was 71 at the time she gave evidence.
The eYidence of these witness~ is corroborated t>y the
admissions made by the deceased plaintiff U Kar and
Da\\' ~-1J ~1a (P\V r) who said that Ma Nyunt rented out
the premises situated on Holding No. 55 and herself en-
joyed the proceeds. There is also evidence to show that
Holding No. 55 was sold by Ma Nyunt to Ameena Bibi,
wife of Hafiz Fazul Karim in the year 1940 and that a
contemporaneous agreement to repurchase the land was
executed by her and Ameena Bibi. This step was taken
by Ma Nyunt as she was unable to pay municipal taxes
which had been assessed on this holding. Extracts from
Land Records Register No. r-A show that although this
land appeared in the name of Madrasa-Mohamedia in the
year 1928-29, it was mutated to the name of Ma Nyunt
in the year 1929-30 and it remained in her name ever
since that year. Therefore, although in the map of the
holdir.b the land is shown with a green border as that
devoted to religious purpose, we are unable to hold that
the plaintiffs had succeeded in proving that a valid '\rVaqf
had been created in respect of this holding by U Shwe
and his co-donors.
The case of Holding No. 30 is more difficult to decide.
In the Land Records Register 1-A it appeared since 1928-
29 in the name of Ma Nyunt (Pali). In the year I940-41,
-...
- ~.
BURMAIAW~GRTS
- ......... _.....z; "---'- .......
~-
it was mutated to the name of Ma Nyunt's daughter
Ma Tin Kyi on account of the execution by Ma Nyunt of
AN~~~~T~~R a registered deed of gift, exhibit 20. It 1vas then divided
v. into two holdings 30 Kagyi and 30 Khagwe, the northern
SAYA !VIYA
AND THREE portion being marked as 30 Kagyi and mutated to the
oTHERs. name of Ma Si Si. the 2nd defendant in the case. The
registered deed of sale of this piece of land to Ma Si Si was
executed by her aunt Daw Ma Ma Lay (D\V 3) who had
herself purchased the land from Ma Nyunt during the
japanese occupation period, also by a registered deed.
This deed was said. to have been lost during a fire which
took place as a result of bombing.
N~w, between Holding No. 30 Kagyi and 30 Khagwe
there. is a wall which formed the southern boundary of
30 Kagyi and L"1e northern boundary of 30 K.hagwe. The
portion marked as Holding No. 30 Kagyi had. prior to the
time \Vhen it came into the possession of Da'v MaMa Lay,
been in possession of U Soon Thin, a race-horse breeder.
U Soon Thin is no,\ d~ad but his son C. \bung \faung
(DVV 2) in ghing c\idence said that since c:bout r 2 years
before the last \Vor!cl \ V;.<r his father took a lease of this
land from. Ma Nyunt and built a house thereon. Later,
during the Japanese occupation period when the land was
sold by Ma Nyunt to Daw Ma Ma Lay (DV'l 3) and her
deceased husband U San Hla, they took a lease of the house
which his father had built on the land. Subsequently,
when Ma Si Si purchased the land from Daw Ma Ma
Lay she continued as their tenant of this house. Later,
he quarrelled with Ma Si Si and accordingly dismantled
this house. A new house was built by Ma Si Si on the
site.
Th~s witness also said that in the area south of the
wall, namely, Holding No. 30 Khagwe, commonly known
as Mosque land, his father useO. to breed horses. The
Mosque itself was deserted since about r 8 years before
the outbreak ~ of the Second World War. Because of
705
neglect and disrepair it had com z- to th~ present ruinous c.c.
1963
st;1tr.. .::s may be seen from the photographs exhibited in
:.'lh ~: ! Sr
th ~ c::'> e: ,\~ D-.'\ !'OTHI!R
admitted th:lt u Soon Thin bred
i~.o Soo:: (PW rs) S!IYAt 'i-.-rvA
horses but he was una~le to say that it was within the ..:.:n rnP.sE
1
area .Rnown as Mosque land . U Tl1aik (P W 5)_ on the OTHBns.
other hand, admitted that in the v.1cant land north of the
Mosque U Soon Thin kept his race-horses.
Consequently, it is most surprising, if, as tke plaintiff
U Kar had contended . U Sh\-ve Oh before his death had
locality, the Muslim commun ity would have permitted
the misuse of the Mosque land ior such a long J?eriod.
The fact that they had done so strongly militates against
t he truth of the story that the whole of Holding No. 30
on: ,.-:: i::~1 tl~c l'.1c-::::t!e :s :;i: :J.::: ;.-:::s '..Vaqf property .
On Holding No. 30 Khagwe also there were barracks
which according to some of the plaintiffs' witnesses like
Daw Htay (PW 3) were meant for the residence of poor
people. rent free. However, there is overwhelming evi-
dence on the record to show. that after Ma Nyunt, mother
of Ma Tin K)i, had obtained letters of administration to
U Shwe Oh's estate she had let out rooms in these barracks
to tenants; and, according also to the plaintiff U Kar and
Daw Ma Ma (P\V r) ?\Ja ::\yunt herself enjoyed the pro-
ceeds of these barracks. Therefore, so fa r as the la::1d
on which the Mosque is situate it has not been established
l-;r i7f\n-~~mori2. l usc~ t-~~t it \ \ ":a <; '. \ !i ~.; ~ ? ~G?: ~t:.- , not\Yitll-
standing the fact that i..-1 the map it is shown by a green-
border indicating religious property.
It has been contended that since Ma Nyunt had assum-
ed the duties of Mutw_alli of the Mosque she_ must be
deemed to have been acting as a Mutwalli in collecting
rents from Holding No. 30 Khagwe and Holding No. 55
and also in letting out to U Soon Thin the portion known
as Holdi11g No. 30 Kagyi Therefore, the action of
7.06 ~ ;;BURMA LAW REPORTS
!~
Ma Nyunt was consistent with the plaintiffs' story that
both Holding Nos. 5S :1r.d 30 were vVa11f property.
1
M ... '-' sx
AND :\ !":(r!'HZR
However. thout:h
-
there is nothin!!
o
ia Mahomedan Law
SAYA~~'IYA J;o prevent a -woman from performing the lay duties of
.wo -rlinsE the i\1ut>valli of a \,fosque, [vide Kassim !-f(!s~a n v- Hadra
OTHER~. Begum .(6) and Mt. Moideen Bibi Ammal " Rathnavelu
Mudali (7)], there is nothing in the evidence to show that
Ma Nyunt was in fact acting as a Mutwalli of the Mosque
because there .vvere provisions in the deeds of wqaf to
enable her to ,act as such. In this connection the decision
in the case of Phatmabi v. Abdulla Musa Sait (8) is ap-
posite. , There it was held tha~ where a female claims the
office. of mutwalli of a mosque as a hereditary right there
must be evidence to show that such a hereditary right
was either intended by or recognized in the original de-
dication. Accordingly, in the absence of any ~dmissible
evidence on record to prove the contents of the registered
deed or deeds of Waqf, said to have been executed by
U Shwe Oh and his co-donors, it cannot be said that
Ma Nyunt was acting as a Mutwalli of the Waqf property.
In point of fact the language of paragraph 4 of the
plaint, shows, that at the best Ma Nyunt was a Manager
de sontort o f. the Mosque known as the E-Gyaing Pali
situated on Holding No. 30 Khagwe. This paragraph
reads :
. " . . . Palitaga Haji U Shwe Oh acted as the first Mut-
walli in co-operation with the elders of E-Gyaing Quarter.
He died about 40 years ago. Next Mutwalli was Daw May,
: daughter of U Nyo Glay and mother of 3rd Defendant. On
Daw May's death, Ma Nyun who was one of the childless
. widows of Palitaga Haji U Shwe Oh, assumed charge of the
same Public Waqf Properties as the last Mutwalli."
The ev.idence in the case tends to show that the appli-
. cation of Ma Nyunt for letters of administration to the
estate .o f U Shwe Oh was not uncontested, and that when
(6) A .I.R. (1920) Cal. 8oo. (7) A.I.R. (t92i) Mad. 69.
(8) A.I.R. (1914) M .td. 714.
BURl'v1A LAV\' REPORTS [107
she did obtain the letters, she tried to undo the work of
."'~ ..,
\ .' .-.. . ::.. '"
.. ,' ,,:,ter of U "-'}'O G!?y t,> exl1ib;t
' v l, .. 9 which is 1\.1 . s c:
1
... ... ' :" .
a true copy of the extract from the Diary in Suit No. 54I A..~~~K~T;.~R
of I 924 of the Subdivisional Court of Mandalay and S AYAv.MYA
evidence of Daw Saw (DW 5). So, the probabilities are A::-;D Tl! REE
that on the strength of her getting letters of administra-
OTHERS.
tion to the estate of U Shwe Oh, Ma l\'yunt arrogated to
herself the duties of the manager of the Mosque known as
E-Gyaing Pali, which had been constructed by her httSband.
This fact will not prove that the whole of Holding No. 55
and Holding No. 30 belonged to the Waqf .
For these reasons we are unable to support the finding
of the learned District Judge on Issue Nos. r and 2 wi_th
the exception of the Mosque building itself which we have
already held to be \Vaqi property as proved by immemo-
rial user.
In the :result the appeal succeeds in part. The judg-
ment and decree of the trial Court declaring that the
whole of Holdings No. 30 Kagyi and 30 K.hagwe and
Holding No. 55 are "'vVaqf property are set aside. Instead
~here will be a decree declaring that the Mosque known as
E-Gyaing Pali is public property in respect of which
possession should be given to the Muslim community as
represented by the plaintiffs in the suit.
As regards costs we consider that in the circumstances
of the case 'the most equitable order for us to pass would
be that each party should bear its own costs throughout.
708 'j3t.J
......... _..
_ , ~
APPELLATE ClVIJJ
Before U Smt Jiau:!J, ].
c.c. MAUNG \IYA THAN AND :\:'\OTHER (APPELLANTS)'
IC)63
Oct. Il o
v.
u TUN TIN ,(RESPONDENT)_.*
Possessory ti 11-Hit l>y holder of possessory ti: .-,. ~7i,?.<t mere purchaser-whether
mailltail!af>!<-"' mrt!ssity of possession _fl)>" t . , . :'11:'"Y period of 12 years.
The Pl.l'::'"; H~,;pondent s..<ed the D :!<.. ':~ :\,-,pellants for their eject
ment fro:n 1h .,ni'. bnd.
Ac:.,r..:i:::: t". r;"':~~
t>la!ntiffhe bec::-.rne th~.. , . .,~ ;h.' ~nit land by obtait, : ~~ !
it as :l ~if: ~-!.".~,.1~
n:11; "P.T." the origin~i ,..,,.n .~ ~~ .! !,i:; !~rnnCfather) at'i.d thn C
he ,,_.a" i: ~ "- <.:m of the suit land tiil - , ~ . . : :- -.;; b.;-fore the d:\te of ,,~<i !
when h:~ ~- ;-t :! .1 1\'!'\ hecau!\e of insnr;rf'nt ;1-: ..... . .: :.....! h~d lef!' the ~:un~ ,,- :~: 1
his l:1lf-.im:r. ..!~" !a !urn had left the vill ~!!,-: ~ 11..,c :~ :-~h e >"n',.;;~:1 1 tr~~tm.:> 1 t
in IJT9 B.E.
T !w n . :",:~-.:, ...,;.~ppeHl!.nt.; contended '
h:;d ;~bC!n:::n~t'.:: t~:.c suit !:lnd; :?.0':.~ ~h~" c
Ji:-.,~l J ~' cel~ -b~t of the said" P.T." h~.i " ..
The :rid jud~te held that as the gift t<> ;'-:..- p; ,;~ ::1 w~ :1or .:videnced b ::
a registc-r'!c! dt"rd: jt \\'as invalid in la\v ~1:1\: .5 :~:-:1is;:cd the suit.
On .-\ppe<\1 by ti~e Plaintiffs, the. lower .'.,-.:-;! .:te Cou rt decreed the suit on
the gro~u'ld th:lt a sa it based on posse:-:sory t: ~ : \s in~intainablc ?.gainst a mere
trespasser.
On Iuri.h.:r .\ppt'al by the Det"-.ndan;; ro rh~ Chief Court:
Held: Tl;c Pbintiff had been in pos:<"ssion eit!v~r by himself os: through
his licensee, his h ~ lf-sister, till abcut -1- y ;:11s hcfor-e the date of suit.
Accordingly, the conclusion :miv<'d at by the lower Appellate c o urt is
correct.
Ismail A1ifj v. Jfahomed Ghou.s, I.L.R. zo Cal. 834 (P.C.); Maung Naw v.
Ma Since Fbnut and one, 8 L.:S.R. 227 (FB); Nisa Chand Gaita and others v .
Kanchiram Eag:wi, I.L.R. 26 Cal. 579; Nga Tha Zan v. Surtder Singh, III.
U .B.R. 125; Nara)ana Row v. Dharmac!r.ar, I.L.R. .26 M ad. , p. 514, referred to.
It can be tah-en as settled l.aw that it is not necessary in order to maintain
a suit for eje-ctment based on a possessory tit!~ th?.t the plaintiff should have
been in posses-sion of the s:.~it land for the statutory period of r2 years or more.
In the case now under consideration if the plaintiff's story is true, he had
been in possession for more than I2 years.
* Civil Second Appeal No. 44 of 196z, against the decree of the Additional
District Co~rt of Pyapon in Civil A9peal No.9 of r96.r, dated 3r st May 1962.
709-
Asstuning that h~ was in poss.ession for n) more than xo or I I years by C.C.
himself, n:1d through his licensee, his half-~i,: ,. , .. l~c would still have the right 1963
.t n ejc.>ct !ht" d <!fend2nts . ;',I .\<:!\C-l'viYA
~via .Sa;c; \". ivlaung Sf!:. G!m and a1U', X! f .H. R. _. t 5 ; Nla P<lla Z on a11d t:~o TH.-\.'l .\~D
\' . ll,ia Pan I and cnl', I. L H. \' Rzn . I 5-0, ;:~l< c:c,! t1. ,; ;-:OT HER
"!~' ..
U T vN TtN.
U K.yaw (I) (Ad\oc He for the appellants.
U San Myint (Adrourc) for ~::1e respo;H.!cnt.
U SAN MAU1\G, j .-In Civil Regular Suit No. 21 of
1960 of the. Township Court of Bogale. the plaintiff
U Tun Tin who is rhe respond.ent in the present app-'!al,
~ueci r:~~ . :cf,..-:;1 .1 : .. . (n~:: .~ :vtaun6 \;,.\ ~1 : :~,~ :: ~11.:~ rv:a
S.1w Tin fo~ their ~ ;:.: ~ r:.1 en t from ~he suit : :r: l -,::ich is. a
g.:mlcn in Khul2 n-.:t\\'ZIZU \Vest Village with in tile jurisdic-
tion of ).lyingagone village Headman. This garden ori-
_ginally was a house-site belongir:.g to the deceased U ?o
Tauk who migrated to Upper Burma about 18 yea!s ago
and died there a few years later. The plaintiff claimed
that he became the owner of this garden in succession to
U Po Tauk who gave it to him through loYc a11d affection,
he being a grandson. He was in possession till about 5
years before the date of the suit vvhen he left for Rangoon
because the area was infested by insurgents. He, how-
ever, left the garden in charge of a half-sister Ma Phwa,
who also left the village for Rangoon about the year 1319
B.E. for the purpose of having medical treatment for her
eyes. During her temporary absence from the village,
the defendants Maung Mya Than and Ma S;;-.w Tin built a
house on the suit land and would not vacate when, on
his return t o th~ ,iEag~. he askeli t!1em t o do so. Hence
the necessity for niing the present suit. The defendant-
appellants Maung Mya Than and Ma $aw Tin, on the other
hand} contended firstly that since the garden land had
been abandoned by U Tun Tin they had eveJ.y r(ght to
take possession as it was not assessable to land revenue ;
:they also contended that Ma Saw Tin being a lineal
descendant of U Po Tauk she had some sort ofch1im over
the land which originally belonged to U Po Tauk.
MAUNG MYA
rfHi\I'Ii i\N'D
0 n tne
, p.:.e<l.u.lngs,
l rl' l t- 1
t,le l11CSt 1m~or ... a11t lSSUe~ rnvo;.r (; Q
ANOTHER \'.:ere v.'her:her the plaintiff b.;d ::::!i:v sort of tit~ t' !lY e: '1::
u Tc~ Tm. suit land by having been in posse~sion thereof for :::any
years and if l":Jt. w t1ether t he zkfer:dants had the r!:;' ';t :-."'!
squat upon it when they found it practically ab.andcne~~.
After hearing witnesses cited by both the parties the
learn~d trial Judge held that the plaintiff's story that the
suit land originally belonged to U Po Tauk and his 2nd
wife Daw Hla Bone, and that when U Po Tauk migrated
to Upper Burma 18 years ago 3tter the death of Daw Hla
.&one, he gave the suit land to plaintiff U Tun Tin who
xemained in possession thereof till he himself left for
Rangoon, was true. However, the learned trial Judge held
that since the gift of the suit land by U Po Tauk to U Tun
Tin was not evidenced by a registered deed it was :invalid in
. law and that, therefore, the plaintiff who could only
succe~ on the strength of his title and not upon the
weakness of the defence, must fail in his suit.
The plaintiff U Tun Tin appealed and the learned Ad-
ditional District Judge of Pyapon by his judgment and
decree in Civil Appeal No. 9 of 1961, now under appeal,
decreed the plaintiff's suit on the ground that a suit based
. on. possessory title was maintainable against a mere
trespasser. Being dissatisfied with the judgment and de~
cree of the Additional District Court the defendants have
preferred this appeal under clause (d) to sub-section (r) of
section IOO of the Civil Procedure Code.
Now, the parties to the suit and some of the :witnesses
cited by them are close relatives. U Po Tauk first rnar-.
.ried Daw. Tar who died about 40 years ago. His issues
by Daw Tar were U Tha U, father of the plaintiff U Tun
. Tin and Daw Ein May, mother of defen~e witness Ko B'C}
Mya.lng {DW r). When U Tha U died, his wife married
one 'l!Po Sat and the issue of this marriage was.Ma Phwa .
BURMA LAW REPORTS . 711
(PW 3) half-.sister of the plaintiff U Tun Tin. The defcn- ~f
d ant Ma Saw Tin is Ma Phwa's own daughter and is there- .!..!
fore, a niece of the plaintiff U Tun Tin. She is no blood- l'.~~.~~ ~~A
relation of Ko Ba Myaing who, however, considered her ANonfER
v.
to be his own niece and accordingly gave her and her u TuN TIN.
husband permission to occupy the suit land on the ground
that he, as grandson of U Po Tauk, had a claim thereto.
It has been clearly established by evidence adduced
for the plai:r:ttiff that after .t he death of Daw Tar, u Po
Tauk married one Daw Hla Bone and t hat the plaintiff U
Tun Tin resided \Vith them till U Po Tauk migrated to Upper
Burma. J fe,, ycJrs .1ft;:- r Da,., 111.1 Bone\ death. U Tun
Tin then continued to be in possession of the suit land
until he shifted to Rangoon about a year before the out-
break of the last \Vorld 'War leaving his half-sister Ma
Phwa in .charge of the garden. About 6 years before the
date of the suit Ma Phwa's husband Ko Aung Nyunt de-
molished the house in the gard~n and took the .materials
away without protest from anybody. Ma Phwa herself
came to Rangoon about six years ago to have medical treat-
ment for her eyes. \iVhile she was away from the village,
her daughter Ma Saw Tin and son-in-law Maung Mya Than
<Occupied the suit land and built a house thereon with the
permission of Ko Ba Myaing, son of Daw Ein May, sister
<Of the plaintiff's father U Tha U.
According to U Tun Tin, after the death of Daw Tar
an<;! before his marriage to Daw Hla Bone, U Po Tauk gave
his son U Tha U and his daughter Daw Ein May their share
of inheritance so that they had no claim whatsoever to the
suit land. This fact was not specifically denied by Ko Ba
Myaing (DW I) who only said that he had no knowledge
ofjt.
However, as held by both the Courts below U Tun Tin
had been in possession either by himself or through his
licensee Ma Phwa of the s uit land till about four years
before the date of the suit, when Ma Phwa's own daughter
712
c.c. I\1a S<lw Tin and her husbar:d \f<.ung Mya Than squ.:tttcd
1963
on the sui~ land and ht!ilt :l h~!ISe thereon withou. t obt:tin-
MTHAN
ACNG AND
MYA ;~:t,
.;.! ..... ..c.
"".[""IJ pcnc-:,.,.,
.;.~
,.,: ..;,.,v l-:1:'J''1 r; ....( lln TI'n or ~....u-:-~... r-'h\' '~
.. ) ..... ....
-!. ."... \ ... I! - .a. a. ... ".-
ANOntEn !n t:1csc cin:umst~mces the k -:orned. Judge of the Adc~ itional
u Tu~ TIN District Court held that ~nsscssory title in U Tun Tin
havinz hech cst.~L~islKc.: :1~ c .,,~:-J. r~:::~~:..in a suit for eject-
ment against the defendants \1a Saw Tin and J-.,1aung Mya
Than.
.
is correct.
In mv ooinion, the conclusion arrived at hy him
~ '
No-.~, in [()mail Ariff v . Nfa!wmed Ghous (r) the Privy
Caunci! J'::ld that la\\-ful possc:;.:ion of lcmd is sufficient
evi(~(H .' o( right as owner, ?.S apinst a person who has no
title wnatever. and who is a mere trespasser, and r"Mt the
form :-r can obtain a declaratory d'crce ::1gJinst t hC' latter
as to hls right arid an injunction rcstr.:tining him from inter-
feri!lg with his possession. Relying upon this dictum 3
Full Bench of the late Chief Court of Lower Burma held
I n re Mauna Na,w v. Ma Shwe Hmut and one (2) that mere
.previous po~ession is sufficient to support a claim for
posse.ss~on against one who has dispossessed the plaintiff
when the def~ndant has no title himself. However, a Bench
of the Cakutta High Court distinguishing the case of Ismail
-Ariff v. Mahomed Ghous (r) held in Nisa Chand Gaita and
others v. Kanchiram Bagani (3) that mere previous posses~
sion for any period short of the statutory period of 12 years
:Y4lfno~ entitle a plaintiff to a decree for recovery of posses-
sion in a suit brought more than six months after disposses-
sion, even if the defendant could not establish any title to
the .disputed land. This decision of th~ Calcutta High
<;:ourc was followed by the Judicial Commi~siont:r Qf Upper
B~rma in Nga Tha Zan v. Sunder Singh (4) . . ' .
,. .:,:..':T he decision of the Calcutta High Com{ ~bove cited
was dissented from by the Madras High Ccitirt in Narayana
(r) I.L.R . 20 Cal. 834 (PC). (3) I.L.R. 26 Cal. 579
tz) 8 L.~.R- 227 (FB). (4) III U.B.R. 125.
Row ,._ Dharmachar (5). There it was held that possession
is un-d er the Indian, as under the Engli!:h law, good title
Jg.linst all but the true owner and that prior -
possession of l\TIA~;c M:A.
K..l\ ANv
t he plaintiff is su:1icicnt !itle in an action of ejectment even !1:-:oTmn
if the suit be brOt~:,{:t mere than six mcnths after the act u Tu~ TJN.
of dispo~sesslon c o mpla~ned of, and that the wrongdoer
cannot successful1y re-; i~,t th~ suit by showing that the til!e
and right to possession arc in a third person. The Madras
decision was follO\ved l::,: t he Chief Court of Lo'rver Burma
in Me1 Saw v. Mau ng Sh\'. l' Gan and one (6) and by the J.:ne
High court of. judicJturc .1t Rangoon in Ma Pna Zon and
two v. Ma Pan .I undone (7). Ma Pwa Zon's case specific:~l-
ly dissented fr(m1 .'\ga Tha Zan v- Sunder Sinyh (4).
Therefore. it can be taken as settled law, that it is not
nccess.1r:: in order to mQintain a suit for ejectment ba..;ed
o n J p0c: ;;~sory title that the plaintiff should have been in
posses:.ion of the suit land for the statutory period of t2
years or more. In the case now under consideration if
the plaintiff's story as supported by Ma Phwa (PW 3) and
other witnessses, that he became possessed of the suit land
since about r8 years before the date of the suit till he was
dispossessed by the defendants about four years before the
date of the suit, be accepted, he had been in possession for
more than the statutory period of I 2 years. Assuming
that he was in possession for no more; than ro or I r years
by himself and through his licensee Ma Phwa he would,
following the 'decision in Ma Pwa Zon and tv.' a v. Ma Pan 1
and one (7), still have ~he right to eject the defendants .
.-In the result the appeal fails and it is _dismissed with
costs, Advocate's fe~s : being assessed at 3 (three) gold
moliurs. '
(4) III U.B.R. 125. (6) XI. L.B.R. 415.
(S) I.L.R. 26 Mad., p. 514. (7) I.L.R. V Ran. IS-4
APPELLATE CIVIL
BefoJe U San i'>1a<t!lj, a11d U Saw Ba Th!i;:, }].
Sep. 30. NAGINBHAI (APPELLANT)
v.
CHHAGANLAL AND T\\"0 OTHERS (RESPO:\DENTS). *
Ejectl"nent suit- suit against te~~ant and licensee of te11ant-te:1:1:tt !wfd i.:g over-
ejectment of--question of recovery of rent and mesne profits.
The Plaintiffs had filed a suit for ejectment against the rst Defendant as
tl:ieir tenant and -against the znd Defendnnt as the licensee of the rst Defendant
!~ appears that the znd Defendant was the manager of the Ist Defendant and
when the xst Defendant ceased to do business in November 1957, the znd
D efendant continued to occupy the suit room nnd pay rent tnerefor till July
1958. Rent was undertaken to be paid after that date, provided :-cnt rt!ceipts
were -issued in his name. This request was refused by the Plaintiff, and hence
the arrears of rent.
On 4th April 1959 notice to quit was given to the 1st Defendant under
: s.u(x) (a) of the Urban Rent Control Act, terminating the tenancy on 30~h April
1959
The trial judge inter alia held that the rst Defendant "-= responsible for
llrrears of rent due till 30th April 1959, and that the znd Defendant alone was
liable for mesne profits from xst May 1959 H e also held that both the Defen-
-dants were liable to be ejected from the suit premises.
Held: It is clear both from the notice issued to the st Defendant and
from the ftame of the suit filed by the Plnintiffs that it was a suit against a
tenant holding over after the termination of the tenancy and the 2nd Defendant
. was merely joined as a person in possession of the premises in suit as a Jicensee of
the xst Defendant. The rst and znd Defendants are therefore not joint tort-
feasors.
Govert!Jum v. Maruti, A.LR. (1915) Nagpur 35; C. Ah Fong and one v.
Ephr_aim Solonum and others, referred to and distinguished.
Tenants holding over are more or less in the sam! position as tenmts at
-sufferance.
Kantheppa Raddi v. Sheshappa and another, 22 Born. 893; Clumdri v.
Dajl Bhaur, 24 Born. 504; Pusa Mai v. Makdum Bakhsfz a.'Zd others , 31
"All.514; KundanLalv.DeepChand,A.I.R. 33 All. 756, referr:ed to.
T herefore in the case now under consideration both the D efendants and
-its licensee are liable to be ejected because the tenancy had been determined
:according to law under s.r.o6 of the Transfer of Property Act. However,
Civil First Appeal No. 1 of 1963 against the decree of the Additional
D istrict Court or" Mandalay in Civil Regular Suit No. 6. of 1959, dated the
-6th October 1962.
715
the Plaintiffs can only recover rents and mesne profits from their own tenant.
They cannot recover either rent or mesne profits direct from the znd Defendant
who was only a licensee of the r~t Defendant. NAGINBHAI
Gulam Mohiuddin Narmava ~. Dayabhi Chimanlal, A.I.R. (1923) Bombay v.
CHHAGANLAL
398, referred to and followed. AND
TWO OTHERS.
P. K. Bose (Advocate) for the appellant.
S. L. Verma (Advocate) for the respondents.
U SAN MAUNG, }-In Civil Regular Suit No. 6 of 1959
of the Additional District Court of Mandalay the plaintiffs
Chhaganlal and his minor son Banwarilal, who are pro-
prietors of the business known as Pannalal Ranglal, sued
. the defendants Messrs. A. Lookmanji & Company of
Rangoon and Naginbhai of Mandalay for their ejectment
from the premises in suit which were two rooms in the
godown situated on Holding No. 12 A-3, Block No. 598,
Chan-e-tha-zan Quarter, Mandalay. The plaintiffs' case was
that they were the landlords of the 1st defendant A. Look-
manji & Company in respect of the two rooms in suit for
which this defendant was to pay them rent at the rate of
K i2o per mensem, that the 2nd defendant Naginbhai was
actually using these rooms with the permission of the 1st
defendant and that rents from the 1st August 1958 tifl the
30th .April 1959 was due in respect of these rooms. The
plaintiffs also claimed that the building being a new one
erected subse,quent to the 16th February 1959 was exempt
. from the operation of the Urban Rent Control Act, 1948.
. For the period subsequent to the 30th April 1959. the
plaintiffs claimed mesne profits at the rate of K I:o per day
from both the defendants.
The rst defendant filed a written s.tatement aamitting
the plaintiffs' claim and prayed ~hat the suit may be decreed
with costs on the uncontested scale. The 2nd defendant
Naginbhai contended that as the godown in .question w~s
; a reconstructed one, it was no~ exempt from :the operation
5
716
r
c.c. of the Urban Rerit Control Act, 1948 as the cost of recons
1963
truction was less than 40 per cent of the prevailing market
NAc~~HAr .value of the whole building. Rega1:ding the rent Clue in
CHRAGANLAL respect of the t\VO rooms in suit this defendant said that
TWoA;.{'HERS. he was always ready and willing to pay the same but that
it was not accepted by Messrs. Pannalal Ranglal which con-
sisted of three persons, namely Sri Krishnanlal. Chhaganlal
( rst plaintiff) and Mahabir Prasad. On the pleadings the
learned trial Judge framed several issues as to whether the
building in suit was a new one constructed after the r6th
February 1951 and therefore exempted from the operation
o{ the Urban Rent Control Act, whether the defendants.
wer~ jointly liable to pay mesne profits for the period
subsequent to the 30th April 1959 for continuing to occupy
the premises after the termination of the tenancy under
section 106 of the Transfer of Property Act. After
examining witnesses cited by both the parties, tl1e learned
trial Judge held that since the godown was entirely rebuilt
on the existing plinth the cost of reconstruction must be
well over 40 per cent of the prevailing market value and
that 'therefore it was exempt from the operation of the
Urban Rent Control Act. He also held that w11ereas the
rst defendant was responsible for arrears of rent of K 1,980
due till the 30th April 1959. it was the 2nd defendant alone
who was liable to pay mesne profits at the rate of ro -per
cent per diem from the rst of May 1959 He also held that
both the defendants were liable to be ejected from the suit
premises. A decree in that sense was accordin_gly passed
in favour of the plaintiffs.
Now, there is undoubted evidence to show that on the
diss?h;1.tion of partnership of the firm of Pannalal Ranglal
the godown in suit became the property of the r st plaintiff
Chha:ganlal and his minor son Banwarilal, vide deed of
dissolution of partnership, :exhibit (e). There is a1so
evidence to show that the tenant in respect of the two
rooms in suit was the rst defendant Messrs. A. Lookmanji
;:;~
9''63-;
~]!. 'J-.-: B~A LAW REPORTS
& Company. The 2nd defendant Naginbhai was only a c.c.
1963
manager employed by that Company in succession to Wali
NACINBHAt
Maman (a) Ba Kyi (DW r). Messrs. A Lookmanji & Com- 0
pany, however, ceased. to do any business at Mandalay CHa~~~LAL
since November 1957, but its manager Naginbhai continued Two 01HERs.
to occupy the suit rooms and paid rent therefor up till the
end of July 1958. He undertook to pay rent subsequent
to that date provided that rent receipt was issued not in the
name of the Ist defendant Messrs. A. Lookmanli & Com-
pany, but in his name. This request was refused by G. S.
Aujalay (PvV I'), Manager of the business run by the plaint-
iffs under the name of Pannalal Ranglal. Consequently,
there were arrears of rent as claimed by the plaintiff~.
On the 4th April 1959 t"vlr. Verma as Advocate for the
plaintiffs issued a notice to the rst defendant terminating
the tenancy on the 30th April 1959. This notice also
contained a demand purporting to be under section
I I (r) (a) of the Urban Rent Control Act for payment of
arrears of rent due from the rst August I958 till the 31st
March 1959.
It is dear therefore both from the notice issued to the
rst defendant and from the frame of the suit filed by the
.plaintiffs that it was a suit against a tenant holding over
after ~he termination of the tenancy and that the 2nd
defendant was merely joined as a person in possession of
the premises in suit as a licensee of the rst defendant.
The Ist and 2nd defendants were therefore not joint tort-
feasors as contended by the Advocate for the plaintiff-
respondents. Consequently, this case is distinguishable
from Goverdhan v. Maruti (r) and C. Ah Fong and one v.
Ephraim Solomon and others (2) where the plaintiffs were
persons who were wrongfully dispossessed of their pro-
perty.
That tenants holding over are more or less in the same
position _as tenants at sufferance under the English law is
(1) A.l.R. 1915 Nagpur 35 (2) 1948 B.L.R. 325 (H.C.).
irl963
~*:-
clear from the following aeclSlons, namely, Kant"heppa
Raddi v.. Sheshappa and another (3), Chandri v. Daji Bhau
NAci~~H" 1 (~ Pusa Mal v. Makdum Bakhsh and others (5) and Kundan
CHHACANLAL Lal v. Deep Chand (6). Therefore, in the case now under
AND
Two ~THERs. consideration both the defendants Messrs. A. Lookmanji &
. Company and its licensee Naginbhai are liable to be ejected
because the tenancy had been determined according to law
under. section. 106 of the Transfer of Property :\ct. How-
ever, theplaintiffs can only recover rent and mesne profits
from the4 own tenant, namely, Messrs. k Lookmanji &
Company. They cannot recover either rent or mesne
profits "direct from the 2nd defendant Naginbhai '-'ho was
only. a licensee of the 1st defendant.
, In this connection, the decision in Gulam Mohiuddin
Narmavala v .,Dayabhai Chimanlal (7) is apposite. fn this
case, the rst defendant held over after notice was given to
him to vacate the suit property which was let out to him
by the plaintiffs. He sublet the premises and in addition
to the rent ~eceived a premium of Rs. 1,250. It was held
that the plaintiff was entitled to recover from him the
rent as well as the premiums which he had received from
his sub-tenant .
.In the result this appeal by the 2nd defendant Naginbhai
succeeds in part. The decree for his ejectment is con-
firmed. The decree for the payment of K 12,550 as mesne
. profits. frqm the 1st May 1959 till the date of the decree
. will be s~t aside. Both the plaintiffs and the 2nd defend-
ant rpust bear their own costs of the suit and of this appeal ;
~dvocate fees being assessed at five gold mohurs.
(3) 22 Bombay 893. (s) 31 Allahabad 514
.{4) 24 Bombay 504. (6) A.I.R. 1933 All. 756.
. (7) A.I.R. 1923 Bombay 398.
719
APPELLATE CIVIL
Btfore U San 'J..fa!lng,J.
P. L. A. ADAIKKAPPA CHETIL'\R (APPELLANT) c.c.
1963
v.
Oct. 22.
p. ABU BACKER KAKA. (RESPONDENT).*
Execut on of decree-settlement of sm(ll/er (I mount in satisf(lctio1f of decree-
pnr.;isionfor execution of original (11/IOUilt 011 default--whether can be el!forced
The Plaintiff/Appellant had obtained a money decree against the Defendant(
Respondent and on execution of the decree, a settlement was arrived at whereby
the Plaintiff agreed to accept a smaller sum in full settlement of his claim and
there were further stipulations that on defau!t of payment of the instak-nents
which were agreed upon, the Plaintiff would be entitled to execute on the basis
of the original decree.
Sub~equently the Plaintiff attempted to execute on the basis of the original
decree on the ground : hat rhere W:lS a default in the payment of the instalments
agreed upo01 and after d ue enquiry the trial Court concluded there was a default
and crdered execution on the basis of the original decree.
On Appeal by the lXi<.-ndam. the District Court ordered that payment
should proceed on the ~ oi the compromise decree as payment of the full
decretal amount in default of regular payment was a stipulation by way of
penalty.
Held: Under the tenns of the said compromise, the Plaintiff had, in truth
and substance agreed to a concession in favour of the Defendant and was not
stipulating for a penalty. The District Judge was therefore in error in disturbing
the order of the trinl Court.
Chimna v. Chunnilal and another, A.I.R. (1957) Rajasthan 378, referred to
and followed.
U Tin (Syriam) for the appellant.
Respondent in person.
U SAN MAUNG, J.-In Civil Regular Suit No. 20 of 1960
of the Subdivisional Court of Insein, the plaintiff
P. L A. Adaik.kappa Chettiar who is the appellant in the
present appeal obtained an ex-parte decree for a sum qf
K 3,ooo with costs on the uncontested scale against the
Civil Second Appeal No. 39 of 1963 against the d.ecree of the District
Court of Insein in Civil Appeal No. 22 of 1962, dated 15th January 1963.
720
'- . ...
c.c. defendant-responder:t P. Abu Backer Kaka. The plaintiff
~ ~ 1963
~, ~ then executed the decree in Civil Execution Case No. 32
P.L.A.
A'DAIKKAPPA of 1960.' In that case the parties came to a s.e ttlement
CHBTTlAR
; !i-1-.v.
in the follovving terms : .
P. ABU (a) The plaintiff would accept from the defendant
BACKER
. KAKA. a sum of K 2,350 in full settlement of his
claim under the decree.
(b) In terms of the agreement the defendant paid
the plaintiff K 850 as first instalment and
agreed to pay the balance of K r,soo in month-
ly instalments of K roo from October r96o
each instalment to be paid before the end of
the first w:eek of the month.
(c) In the event of default in the payment of instal-
ments the plainti~ would be entitled to execute
for the amount due on the original decree less
the amount akeady realized. The property
given as security could be sold in execution.
Subsequently in Civil Execution Case No. 3r of 196r.
the plaintiff sought to execute for the whole decretal
amount less the sum already paid on the ground that the
defendant had defaulted in respect of the monthly instal-
ments agreed upon in the applkation of compromise filed
in Civil Execution Case No. 32 of 1960. The defendant
however filed an objection to this application for execu-
tion on the ground that he had not defaulted as alleged
by the plaintiff. An inquiry followed with the result
that the learned Judge of the Subdivisional Court came
to the conclusion that there had been a default on the
part of the defendant and that accordingly execution
should proceed in respect of the amount due on the ori-
..ginal decree less the amount already realized.
The defendant being dissatisfied with the order of the
' Subdivisional.Judge appealed to the District Court of. Insein
awl' rhe l~ned District Judge. by his judgment .in Civil
~~
~URMA LAW REPORTS 7. ~
.'.:
~A..ppeal No- 22 of 1962 held that execution should 'proceed
only in respect of K 268 calcula_ted on the basis that
K 2,082 had already been paid against the. sum of K 2,350 AD~i~~PA
which was agreed upon by way of compromise in Civil CH~IAR
Execution Case No. 32 of 1960. P. Asu
BACKER
KAKA.
The plaintiff being dissatisfied with ti1e judgment of the
learned District Judge has filed the present appeal on the
_ground that the learned District Judge \Yas in error in
holding that that part of the compromise re1ating to the
payment of the full decretal amount in default of regular
payment of t he instalments as they fell due was a stipula-
tion by way of penalty.
In my opinion, there is ample force in the contention
of the appellant. In Chimna v. Chunnilal and another
(r) a decree was passed on a compromise to tbe effect that
in a suit between the parties for a sum of Rs. 3,0737
they had come to an amicable settlement for a sum of
'Rs. 1,700. This amount was to be paid in two instalments
of Rs. 700 and Rs. r ,ooo and it was stipulated that if the
defendant should fail to pay the sum of Rs. 1,700 on the
due dates, the plaintiff would be entitled to recover the
amount _of the suit from the defendant. It was held that
the decree-holders when they compromised their claim for
. a larger amount by accepting Rs 1,700 only, to be paid
,on certain specified dates with a stipulation that in the
event of a default of payment of any of the promised
'instalments on the stipulated dates they would be entitled
.to recover the entire amount sued for, had in trutl1 and
substance agreed to a concession in favour of the judgment-
debtor and were not stipulating for a penalty. I am in
entire agreement with the principle enunciated in Chimna
cqse and I hold that :the learned District Judge was in
~error in disturbing the order of the Subdivisional. Judge.
(r) A.I.R. 1957 Rajasthan 378.
c.c. In the result the appeal succeeds. The judgment of
1963
the Disttrict Judge appealed against is set aside and the
P.L.A.
AOAII<KAPPA order of the Subdivisional Court restored with costs:
CnETTJhR Advocate fees in this Court being assessed at three gold
v.
P. ABV roohurs.
BACKER
KAI<A.
723
CIVIL MISCELLANEOUS
Before U Bo Gyi, C.J., and U S an J1ormg, J.
TAlK GW AN COMPANY (APPLICANT) c. c.
1963
v.
Oct. 5
MR. N. B. SEN GUPTA AND TWO OTHERS (RESPONDENTS). *
Certiorari-writ of-application by new tenant of premises from landlcrd obtaining
~tctment decree but subject to an order of rtstitutiot~-decree for ejectment a
cOtlditional decree-s. 11 (1) (a) and s. 14 (1). Urban Rtmt Control A ct-
transfer deemed to be during prnden~ of the s11it- s. 52, Transfer o] Property
Act- transfe:ree also bound by order of restitution-question of repairs in
excess of 40 per cent of t:al~te--irrelevant.
The Applicant who wa. the new tenant of the suit premises had applied for
a writ of certiorari as th c Sub-divisional Judge had refused to enquire whether
!'he cost of repairs m:~de by him was in excess of 40 per cent of the marJ<et
value of the suit oremises.
Pre,-lous to the Applicant, the tenant of the suit premises was the ISt
Respondent. The :md R~pondent was the landlord and he had obtained a
decree for ejecunent and arrears of rent against the xst Respondent. Sub-
sequently the 1st Respondent had been forcibly ejected from the premises and
the 2nd Respondent had thereafter rented out the premises to the Applicant
who then made enensjve repairs.
In the meantime the rst Respondent 1\ad been successful in his appeal
against the order for ejectment and after payment of instalments due regarding
arrears of rent, had obtained an order of restitution in his favour.
Ulrimately the 1st Respondent applied for possession of the suit premiseS
to the Sub-divisional Judge and the application was opposed by the Applicant
on the ground that he made extensive repairs referred to above and accordingly
the premises was now exempt from the provisions of the Urban Rent Control
Act.
As stated above the objections put forward by the Applicant were not
acCepted by the Sub-divisional Judge and hence this Application for writ of
C;ertiorari: -
Held.~The decree for ejectment passed against the xst Respondent was
merely a conditional decree under s. I I (x) (a) of the Urban Rent Control
Act read with s. 14 (x) thereof. Therefore the transfer of premises by the
znd Respondent to the Applicant was during the pendency of the suit within
the meaning of s. sz of the Transfer of propetry Act.
Consequently not only the znd Respondent as decree-holder but also his
transferee the present Applicant was bound by the order of restitution. The
. fact that the Applicant had made extensive repairs to the premises alleged to be
in excess of 40 per cent of the market value is quite irrelvant to this proceeding.
The Application for a writ of certiorari was therefore dismissed.
"' Civil Miscellaneous Application No. 44, 1963 against the order of the
Sub-Divisional Court of Bassein in Civil Execution Case No. 9 of xg6x, dated
27th May 1961.
~:fURMA ~AW REPORTS,
'Aye Maung for the applicant.
'TC~M;;;;N G N. Banerji. Ba Tin, and Khin Sein (Government Advcc-
v. ates) for the rst, 2nd and 3rd respondents, respectively.
MR.N.B.
SEN GUPTA
AND
TWO OTHERS.
U SAN MAUNG, J.-This application for a writ of cer-
tiorari is to quash the order of the Subdivisional Court of
Bassein, dated. the 27th May r96r in Civil Execution Case
No. 9 ~f r96r of that Court. By that order the learned
Subdivisional Judge rejected the application of the present
applicant Taik Gwan Company asking him to hold an en-
quiry with a view to consider whether or not the premises
let out to them by the 2nd respondent U Jone Bin was
ex~mpt from the provisions of the Urban Rent Control
Act of 1948,. in view of the fact that they had made such
extensive .. repairs thereto, that the cost of reconstruction
was more than 40 per cent of the prevailing market value
of the whole building, vide Ministry of Finance and Rev-
enue Notification No. 35, dated the r6th February 1951.
There is a very long history behind this application
and .it had been set out in extenso in Special Civil Appeals
Nos. 8 and 9 of 1959 of the late High Court, Rangoon,
in connection with the appeals filed by the present appli-
cant Taik Gwan Company and the 2nd respondent U Jone
Bin agains~ the present rst respondent Mr. Sen Gupta.
However, a brief history such as that given by U Kyaw
Zan U, J-. in Civil Second Appeal No. 8r of 1961 against
the order of the District Court confirming that of the Sub-
divisional Court dated 27th May 1961 in Civil Execution
Case No. 9 of 1961 will be quite sufficient for the proper
understanding of the present application.
In Civil Regular Suit No. 7 of 1951 of the Subdivisional
Court of Bassein, the present 2nd respondent U }one Bin
obtained .a decree against the present ISt respondent
Mr. Sen Guptc:t for his ejectment from a room in the pre-
. mises known as No. 50, Strand Road, Bassein, the decree
BURMA LAW REPORTS -~
' .
,...,.. :.
being one under section II (I) (a) of the Urban Rent ~-f"
. h . 9 3
Control Act, 1948. U Jone Bin also obtained m t at smt -
f . f f . TAIK GWAN
a decree ._or payment o arrears o rent amounting to CoMPANY
K 3.330 by instalments. Under section 14 (I) of the Mn.N.B.
Urban Rent Control Act, the Subdivisional Judge also or- SEN A~;:PTA
dered that the execution of the decree should be stayed Two oTHERs.
if the instalments were paid as ordered by him. Mr. Sen
Gupta appealed against the judgment and decree of the
subdivisional Court but the District Court of Basse'in con-
firmed the ejectment decree in its Civil Appeal No. 2r
o f 1951 but reduced the amount payable as arrears of
rent to K. 2.840. Mr. Sen Gupta's further appeal to the
High Court was unsuccessful.
In Civil .Execution Case No. 9 of I95I of the Sub-
-divisional O;m_rt of Bassein, the decree-holder U Jane Bin
took out execution and the judgment-debtor Mr. Sen Gupta
was forcibly evicted from the premises in suit. Sub-
sequently on the 3rd February 1953 U Jone Bin rented
'OUt these premises to Taik Gwan Company. Mr. Sen
Gupta appealed to the District Court against the order
of the Subdivisional Court for his ejectment from the suit
premises and in Civil Appeal No. 2 of 1953, the District
'Court set aside the order of the trial Court and directed
it to fix fresh dates for payment of arrears of rent by
'instalments as 'the original dates fixed had elapsed when
the matter was pending before the High Court. U Jone
'Bin then appe;1led to the High Court against the order o'f
the District Court but the High Court in its Civil Second
Appeal No. 27 of 1953 not only confirmed the decision
'()f the District Court but fixed fresh dates for the payment
of the instalments as the original dates for payment had
1apsed long ago. The High Court also ordered that the
ejectment order be rescinded if the defendant paid the
instalments as fixed by it. The judgment-debtor then paid
1:he instalments fixed by the High Court and applied for
restitution of the premises, damages and mesne profits as
726
c.c. against both U Jone Bin and the present applicant Taik
1963
Gwan Company. The Subdivisional Court then ordered
Tc~~1:1:'~ restitution of the premises as against the decree-holder
MR.v:r:t B. U Jone Bin and the appeal by U Jone Bin to the District
SEN GcPTA Court was dismissed in Civil Miscellaneous Appeal No: 3
7:wo ~~Eru;. of 1955 of that Court. The District Court also ordered
the 'Subdivisional Court to hold an enquiry as to the amount
of damages payable by the decree-holder U Jone Bin to
the judgment-debtor Mr. Sen Gupta. As against the order
of the District Court U Jone Bin appealed to the High
Court and his appeal was dismissed in Civil Second Appeal
No. 97 of I955 of that Court. The appeal under section
2c of the Union Judiciary Act was also dismissed b.y the
High Court. Further appeal to the Supreme Court was
also dismissed.
Subsequently, on the r rth April 1961 the judgment-
debtor Mr .. Sen Gupta applied to the Subdivisiona1 Court
for possession of the premises in suit. This application
was opposed by the present applicant Taik Gwan Company
on the ground that since they had made repairs to the
premises to the value of K 28,400 the Court should hold
an e nquiry with a view to consider whether the premises
in question was exempt from the operation of the Urban
Rent Control Act, 1948 in view of the Ministry of Finance
and Revenue Notification No. 35. dated 16th February 195r.
This application was rejected by the Subdivisional Court
and the ,appeal to the District Court was dismissed. Further
appeal to thiscourt was also dismissed by U Kyaw Zan U,
J. in Civil Second Appeal No. 8r of 1961
Hence the present application for a writ of certiorari:
In connection with the present application, it is con-
tended by the learned Advocate for the .a pplicant Taik
Gwan Company that the order now sought to be quashed
-is a speaking order as the learned Subdivisional Judge could
not refuse to .make an enquiry with .a View to consider
.whether the premises in question was exempt from the
operation of the Urban Rent Control Ad. in view of the c6c.
19 3
Ministry of Finance and Revenue Notification No. 35, dated TAlK GW.-\."<
16th February 1951. We are unable to accept this conten- CoMPANY
tion of the learned Advocate. The decree for ejectment Ma. "N. B.
passed against the present 1st respondent Mr. Sen Gupta SEN ~uPTA
was a cohditional decree under section I I (r) (a) of the Two oTHERs.
Urban Rent Control Act read with section 14 (r) thereof.
Therefore the transfer of .the premises in suit by U jone Bin
to the present applicants Taik Gwan Company dul"ing the
;time when the matter regarding the rescission of the decree
was being considered by the District Court and the High
Court was during the pendency of the suit within the
meaning .of section 52 of the Transfer of Property ~ct
read with the explanation thereto which enacts that " the
pendency of a suit or proceeding shall be deemed to com-
mence from the date of the presentation of the plaint or
the institution of the proceeding in a Court of competent
jurisdiction. and to continue until the suit or proceeding
has been disposed of by a final decree or order."
Consequently, no.t only the decr<holder U Jone Bin
but his transferee the present applicants Taik Gwan Com-
pany were bound by the order of restitution. The fact
.t hat in the meantime the applicants Taik Gwan Company
had made repairs to the premises costing them no less
than K 28,400 is quite irrelevant to this proceeding, regard
being had to tile nature of the conditional decree obtained
by U Jone Bin against Mr. Sen Gupta.
For these reasons we consider that the learned Sub-
divisional Judge was quite justified in refusing to make
any enquiry with a view .to consider whether the cost of
repairs exceeded 40 per cent of the prevailing market value
of the premises in question. In the result this application
for a writ of certiorari is dismissed with costs ; Advocate
fees being assessed at five gold mohurs.
.
BttRMA
. LAw RriPoirsf~ ~ ~:-~:
CRIMINAL MISCELLANEOUS
Bejo1e U Bo Gyi, C.J. a11d U San A!aung, J.
c.c. THAKIN MYO NYUNT (APPLICANT).
1963
Oct. 22.
v.
THAKIN .ru (REsPoNDENT)_.*
Contempt of Court-publication of advertisemeuts in nercspapers relating to arc
issue itl a pending suit~<lJhl!ther amounts to contempt-technical contempt
v;hether sufficient--mcessity jo1 interjere11ce 1ci:h the cause of justice.
The Applicant together with the Respondent \\'Cre def<':1clants in a suit for
di\solution of partnership. The Applicant hnd made common cause with
the Ph:int iff in the said suit and had also a~kcd for rendition of accounts by
the Respondent who was the Managing Partner.
One of the issues involved in the said <uit was whether the Applicant and'
the Plailltiffhad left the Partnen;hip as comcnded by the Responden1:. Inspitc
of this fact the Respondent had inserted advertisements in three newspapers t<>-
the eff~cr that the Applicant and the Plaintiff had ceased to be partners sine<'
the dac-.: nf the advertisement. It was therefore contended that this action of
the RE~pondcnt con$tituted a contempt of Court as it was designed to influence
the mif'ld of the trial Judge and also to prejudice others.
Held: Regarding the question whether the publication constitutes contem pt
of Court. one had to bear in mind that contempt proceedings being summary
. and a very :~rbitrary method of dealing with an offence should be sparingly
in~tituted and therefore a person should not be convicted for contempt unless
his con victinn is essential in the interests of justice. Accordingly there must be
something more than a technical contempt which tends in a substantial manner
to interfere with the ccnrse of justice or to prejudice the public against one of
the parties to a proceeding.
The Queen v. Gray (xgoo) 2 Q.B.D. 36; In rc Read and Huggonson (1742)-
2 Atk. 291. 469; Rex v. Parkei (1903) 2 K.B.D. 432; Molumdas Karamchand
Gandhi and Mahadeo Haribhai Desai, (1920) 58 I. C. 915; In the matter of
Subr:ahmanyan, Editor and others, I.L.R. 25 Lahore xu; Subrahamanyan case,.
Civ. M;isc. Application No. I I of I952 of the late High Court, referred to.
. In examining the circumstances of the case it is to be seen tluitthe Respondent
was not only faced with a civil suit against him but also found himself to be
the subject o.f several criminal proceedings by some of the other parties to
the ~uit, and others who also claimed to be partners. Newspapers reports
which ten4ed to blemish his character bad also appeared! In. these circwns-
~ces, he _felt impelled i:o vin!licate himself by publishing the advertisements.
* Criminal Misce.Ilaneous Application No. 49 of 1963. Application prayi~
that necessary action may be taken against the Respondent for having commi~ed
tJ:te offenj:e of contempt of Court.
BURMA LAW REPORT~
complained of against the Applicant and the P laintiff, whom he felt were at C.C.
the bottom of the suit against him, and \\'as im tigating others to take action 1963
against h:r.:.
The pl:blications complained cannot be considered, by any stretch of M ;ra~rN
. . .
1magmat!cn, to h nve b een d eSJgne
. d to m . d o f the Ju d ge trymg
. fl~1 cr.cc: t l,. e mm . ">O YUNT"
11
the suit. ~or c.m it be said to tend to infhlenc~ the trial Judge. The publication ThAKIN Pu.
may, howe,er, tend to create in the m inds of tltc newspaper reading public, an
impression fayourable to the Respondent"s ve r:;i.. n of the story. In that way
it may technically amount to contempt of Cou;r.
However, as it will not in any way inu:rfcrc with the course of justice in
the trial of the suit which is now pending. the :~p;>lic;tion fails and is dismiss::d.
H~tnt v. Clarke (1889) 37 \"{.R. 724 a' p. i!S, referred to.
U Tint for the applicant.
Kyaw Myint (Advocate) an'd Hla Thin (Government Ad-
vocate) for the respondent.
U SAN M .WNG, ].-This is an application by Thakin
lvlyo Nyunt the 2nd defendant in Civil Regular Suit No. 149
of 1961 of the late High Court (now pending before the
Rangoon City Civil Court as Civil Regular Suit No. 585 of
1962) for necessary action under section 3 of the Contempt
of Courts Act against Thakin Pu, who with five others
were concerned in the said suit for dissolution of a partner-
ship firm known as Burma Pearl Fishing and Culture
Syndicate and for accounts. In that firm Thakin Pu was
the Managing Partner. The applicant Thakin Myo Nyunt
though a defendant in the suit had made common cause
with the plaintiff U Tin Nyunt and he also asked for dis-
solution of partnership and for rendition o'f accounts by
Thakin Pu.
One of the defences raised by Thak.in Pu was that both
U Tin Nyunt and Thakin Myo Nyunt had already left the
partnership and that therefore the plaintiff U Tin Nyunt
had no cause of action against him. Accordingly one of
the issues involved was whether U Tjn Nyunt and Thak.in
Myo Nyunt had left the partnership as contended by
Thakin Pu. In spite of this fact Thak.in Pu had inserted
advertisements in three daily newspapers, namely,
730
~~- "Ahtauk Taw ~." Hanthawaddy ;; and" The Guardin" on
THAKIN the 3r~ May 1963, 6th May 196~ and 6th May 1963
Mvo NYUNT respectively, to the effect that U Tm Nyunt and Thakin
Ta:~~ Po. Myo Nyunt had ceased to be partners since the date men-
tioned in the advertisements. The applicant therefore
contends that this action of the respondent Thakin 'Pu
cmistituted contempt of Court as it was designed to in-
fluence the mind of the Judge trying the suit and also to
prejudtce mankind against him and U Tin Nyunt. He
.. 'therefore prays that action should be taken against the
respondent.
Thakin 'pu by his counter-affidavit and the counter-
affidavit of his Counsel Dr. Ba Han admitted that Civil
Regular Suit No. 585 of 1962 of the City Civil Court,
Rangoon, was pending against him, that one of the issues
involved was whether the plaintiff and some of the defend-
ants bad left the partnership long before the date of the
suit and that he did insert the advertisements in the news-
papers alluded to by the applicant Thakin Myo Nyunt.
He, however, contended that the newspaper advertisements
had to be made in order to dispel from the mind of the
public the jmpression that he had been indulging in mal-
practices. in connection with the affairs of the Burma Pearl
Fishing and Culture Syndicate. This was necessary
because several criminal cases had been filed again<>t him
by. U Tin Nyunt the plaintiff in the civil suit in question,
Thakin Myo Nyunt and Daw Khin Win (who were defend-
.ants. mthe same suit) in connection with the affairs of the
Burma Pear:I Fishing and Culture Syndicate. On the r rth
.of March 1963, one, U Kyee Myint reported to the police
.tliat . he (Thakin Pu) had cheated him by taking K s.ooo
.~om him OD: the representation that he would be made a
:Partrier in the synd~cate. After making the report to the
police U Ky'ee Myint gave a press conference about the
case to .th.e. reporters a t " Uber:ty Hotel " and this fact
appeare~ in the "Oway ". On :the :zzth of .March :1963,
~X:L-\.EPORTS
":rAJ>
both " Hanthawaddy " and " The New Light of Burma " c .c.
1963
carried repo!"ts to the effect that he (Thakin Pu) had
absconded with Kyats fourteen lakhs' worth of pearls M~~~NT
because a warrant for his arrest had been issued. I-Ie THARrNPu.
v.
accordingly surrendered himself at the Botataung Police
Station. Subsequently, during the hearing of his applica-
tion for bail, U Tin Nyunt and Thakin Myo Nyunt showed
the keen interest taken by them in the matter, by be!ng
present in Court. Therefore, he felt impelled to insert the
advertisemen ts in question with a view to dispel whate\cr
misunderstandings that might have arisen in the minds of
the newspaper reading public.
~ow, regarding the nature of the advertisen~ents
inserted by the respondent Thakin Pu in the " Ahtauk
Taw, .. Hanthawaddy" and "The Guardian" in the
several dates mentioned above he began by saying that
the Burma Pearl Fishing and Culture Syndicate was a
partnership firm constituted in the y~r 1954. In the year
1956, owing to the activities of the insurgents the business
declined to such an extent that the partnership was heavily
in debt. Thereupon, several of the pq.rtners left the part-
nership by sending him written intimations to that effect.
Among them were U Tin Nyunt and Thakin Myo Nyunt
whose letters to him he had reproduced in the advertise-
ments. Later, however, when the affairs of the Syndicate
improved . owing to the assistance rendered to him by the
Government and by his friends, U Tin Nyunt and
Thakin Myo Nyunt conspired to cause misunderstandings
between him on the one hand and the Government and
the public .on the o~her . They also tried to compel
him to pay them money by indulging in blackmail :.
To illustrate, he was reproducing two letters purported to
have bten written by U Tin Nyunt to one U Kan
N~nt to. the effect that he had since learned.
that. U Kan Nyunt w.as also one of the partners who had_
contributed K s,ooo -towaros the share-capital and that
6
!'Vr-3,2-.:.
lt:~:~
BURMA LAW REPORJ:'~
~:;..~~--- ~ -- -..:.~t--";11fl~~-:: .. _.~;..:_ .
,.._.
; G<G U Kan Nyunt stoo'd to gain about three lakhs kyats as his -
1963 .
share of the profits. Another v;as a circular letter written
Mv~~v~J-."T by Thakin Myo Nyunt to U Kyee Myint (who had reported
THA::_;NPu. to the police that Thakin Pu had cheated him) ; U Kan
Nyunt (the addressee of the letter written by U Tin Nyunt)
and eight others informing them all that he had learned
that they too had contributed K s,ooo each towards the
share-capital of the Burma Pearl Fishing and Culture
Syndicate. that a suit had been filed against Thakin Pu and
others by U Tin Nyunt but that their names did not appear
in the array of defendants, and that if they were interested
in the matter they should contact him on any day at any
time between 8 a.m. and ro a.m. and 6 p.m. and 8 p.m.
Thakin Pu's advertisement concluded by saying that hjs
friends need not be unduly alarmed regarding the state of
affairs of the Burma Pearl Fishing and Culture Syndicate.
It may be mentioned in passing that the ten persons
appearing in the circular-letter written by Thakin Myo
Nyunt had been made party-defendants by U Tin Nyunt
in the plaint filed on the 5th of March 1963, about r6
months after the date of the original plaint. It may also
'be mentioned that one of the allegations of U Tin Nyunt
against Thakin Pu was that the latter had surreptitiously
written to the Registrar of Joint Stock Companies, Burma.
that all the partners of the Syndicate except his wife had
left the partnership, and that t11is action of Thakin Pu was
taken with a view to defraud the other partners and to
enjoy the benefits of the partnership by himself alone. The
defenc-e of Thakin Pu to these allegations was that the
original parmers had in fact resig~ed, that a new partner-
ship was then formed by him and r8 others and that in th~
new .partnership also all the partn.ers had subsequently
resigned leaving only himself and his y.rife as partners.
Thus, Jt would seem that there had been allegations of
fraud by U Tin Nyunt and those who made common cause
wfth him against Thakin Pu, and counter-allega.t ions of
733
blackmail by Thakin Pu against U Tin Nyunt, T!nkin Myo ?9~j
Nvunt and others. T
- The questiOn
. 15. : Does t l1e pu bl'ICatlon
. 1
comp,.:; l f HAKIN
;n~~< o Mvo NvuNT
constitute contempt of Court and if so, whether action THAR~ Pu.
should be.taken against the respondent Thakin Pu as asked
for by T11akin Myo Nyunt?
In The Queen v. Gray (r~ the respondent published in
a newspaper-the Birmingham Daily Argus-an article
headed :\ Defender of Decency " which contained scur-
rilous personal abuse of a judge, with reference to his
conduct as a judge in a judicial proceeding which had
terminated. Action was taken against him and Lord
Russc!l of Kill owen, C.J ., observed :
Any act done or writing published calculated to bring a
Court or a judge of the Court into contempt, or to lower his
authority. is a
contempt of Court. That is one class of
contempt. Fmther, any act done or writing published
calculated to obstruct or interfere with the due course of
justice or the lawful process of the Courts is a contempt of
Court. The former class belongs to the category which Lord
Hardwicke. L.C., characterised as 'scandalising a Court or a
judge.'" (2)
In Rex- v. Parke (3) it was held that where, a person having
been charged before the petty sessjons with an indictable
offence triable only at the assizes; matter was published in
a newspaper tending to interfere with the fair trial of the
charge, , the High Court had jurisdiction to attach the
publisher of such matter for contempt of Court. Wills, J.,
in delivering the judgment of the Bench observed:
"The reason why the publication of articles like those
with which we have to deal is treated as a contempt of Court
is because their tendency and sometimes their object is to
deprive the Court of the power of doing that which is the
end for which it exists-namely, to administer justice duly,.
impartially, and with reference solely 'to the facts judicially
(1) (1900) 2 Q.B.D. 36. (2) In reRead and Huggonson (17-f.2) 2 Atk. 291, 4!}.
(3) (1903) 2 K.B.D. 432.
734
c.c. brought before it. Their tendency is to reduce the Court
!963
which has to try the case to impotence, so far as the effectual
THAKlN eli!nination of prejudice and prepossession is concerned.''
MYO NYUNT
v. These two cases were among those relied upon by a
THAKrNPu.
Spedal Bench of the Bombay High Court in the case of
Mohandas Karamchand Gandhi and Mahadeo Haribhai
Desai (4)'. In that case the District Judge \Hote a letter to
the Registrar of the High Court submitting for determina-
tion the question whether the conduct of the legal prani
tioners in subscribing to the Satyagraha mo\cment was
consistent with their duties as Advocates and Pleadt'r<;.
The respondents who were editor and publisher of a news-
papel" printed the District Judge's letter in their newspape:-
together with their own comments to the effect that
" O'Dwyerism " had spread to the length and breadth of
India from Burma to Bombay, while the proceedings against
the Advocates and Pleaders were pending before the High
Court, were held to be guilty of contempt of Court. The
learned Judges of the Bombay High Court held that mere
publication of the letter of the District Judge while the
matter was pending bef{)re the High Court was contempt
of Court but that the matter was aggravated by the scan-
dalous comment made against the District Judge concerned.
This Bombay case has been strongly relied upon by the
learned Advocate for the applicant Thakin Myo Nyunt.
In the . Matter of Subrahmanyan, Editor and others (5) is
one of the cases relied upon by the late High Court in
taking action against the editors and printers of a Tamil
newspaper "Rasika Ranjani" for contempt of Court. Tn
that case the editors and printers were found guilty of
having published an article likely to
prejudice the trial of
an accus~d person which was pend~ng before~ Court (6).
Th~refore it is necessary t{) refer ,~o .t~e Su~ra~m:anyan
case (5). There it was held by a Full Bench o the tahore
{4} (1920) s8 I.C. 915. (5) I.L.R. 25 Lahore III.
(6) CiviiMisc. ApplicaticnNo.u of(1952) of the late High Court.
19@1_~
,: .. .... "
\
BBRM.AW
..
~ ~ ~ ~
REPORTS
.t.o . .......
High Court that if a party to proceedings publishes before c.c.
1963
those proceedings are heard, a plaint, a petition or such
like in extenso with a view to prejudicing the minds of the Mv-r;:N~NT
public against the other party such can amount to contempt fTHA~~ Pu.
hut that if all that was produced were certain paragraphs
from the petition which formed the basis of Counsel's
submissions and the printing of these paragraphs was
nothing more than a repetition of the submissions and there
did ~ot appear anything in those paragraphs which could be
said to be likely to interfere with the due course of justice,
it would n<?t amount to contempt. ln the course of the
judgment the learned Chief Justice said:
" It is clear that anything which is calculated to interfere
with the due course of justice or is likely to prejudice the
public for or against a party amounts to contempt. In this
class of cases the essence of the matter is the tendency to
interfere with the due course of justice. Any publication
which is calcula"ted to poison the minds of Jurors, intimidate
witnesses or parties or to create an atmosphere in which the
aClministtation of justice would be difficult or impossible,
amounts to contempt."
Further on, the learned Chief Justice remarked that con-
tempt proceedings being summary and a very arbitrary
method of 'dealing with an offence should be sparingly
instituted and therefore a person should not be convicted
for contempt unless his conviction is essential in the
interests of justice. Accordingly, there must be something
more than a technical contempt in that there must be a
substantial contempt which tends in a substantial manner
to interfere with the course of justice or to prejudice the
public against one of the parties to a proceeding.
Bearing these observations in mind let us examine the
circ~~stances of this case. The respondent Thakin Pu
agai:nst who.~ a suit ~as ~n filed in the late High Court
for dissolution of the partnership .k nown as the :aurma
Pearl Fishing
.
and Culture Syndicate
.
on the ground that he
.
~
had been indulging in shady practices by representing that
1963 .
- as the other partners having left the partnership he and
THAKIN
Mvo NYLNr
h.Is
..vv..!.C . . partners, a lso .f'..ound h'Im-
u.e were t.h e on1y remammg
~HA~;N Pu. self to be the subject of several crim inal prosecutions by
some of the other parties to that suit, and by others who
claim to be.a.lso partners. Newspaper reports had appeared
which tended to blemish his character. In these circ-
umstances. he felt impelled to vindicate himself by publish-
ing l~tters to the effect that two of the persons whom he
considered to be at the bottom of the suit against him, h ad
in Jact left the partnership, and that these persons were in
stigating others to take action against him. Vt/e do not
.. consider that the publication can, by any stretch of imagi-
nation, be said to have been designed to influence the mind
of:the Judge trying the suit. Nor can it be said to tend to
influence the trial Judge. The publication may, however,
tendto.create in the minds of the newspaper reading public
an impression favourable to Thakin Pu's version . of the
.. story. In that way it may technically amount to contempt
of .C-ourt!. But we will be guided in this matter by the
.. observations. of Harries, C.J. in Subrahmanyan's (5) case
.. referred t.o .above and by the following passage in Oswald's
Contempt -of Court, Third Edition, pages r8 to 19:
"In dealing with an application to commit the publisher
of a newspaper for having published some observations on a
..case while the trial was pending, which were alleged to tend
. to prejudice the minds of the public against one of the defend-
ants before the hearing, Cotton. L.J. said, ' In my opinion,
no 'application to commit for contempt ought to be made
unless. the offence was of so serious a nature as to render the
exercise of this summary jurisdiction necessary to prevent .
.interference with the course of justiCe ; and though there is
. here technically a contempt. I cannot see any such fear .of
..Serious int~rference with . the course . of justice, or prejudi~
.to .the defendant as to justify the Court -i n interfering by this
summary and arbitrary process:' '' (7) .
~--~--~------------~--~~---- ------------
I I x. {7) Hunt v. Cla~kdr889), 37W.R. 724 at p . 725
. (S) J.L.R.,zs. Lahore
737
\Ve do not consider that in the case under consideration c.c.
1963
the publication complained of will in any way interfere
\\ith the course of justice in the trial of the suit now M~N.:NT
pending before the Chief Judge of the City Civil Court, TH~;N Pu.
Rangoon. For these reasons the application fails and it
is dismissed with no order as to costs.
738 ~..MMA;!TjW REPORTS
CIVIL MISCELLANEOUS
Before U San i'-laun;:, and U Tun Tin,JJ.
. c.c. u SOE NYUNT AND ANOTHER (APPLICANTS)
1963
[une 14. v_,
. THE COLLECTOR OF CUSTOMS AND TWO OTHERS
(RESPONDENTS).*
Sea Custvms Act, s. 167.4-burden of proof-no necessity of prima facie proof by-
sea customs authorities-illegal seizure-zchether vitiates proceedings-
comparison' with s. 259 of the :English Act and s. 178A. of the Indian Act-
. pusumption of honesty of Collector of Customs, Burma-but not bound by
Evidence Act-jtt1zctions of superior court in considering writ applications-
not a Court of Appeal--non-application of Amnesty Order, 1963-goods
seized not in personam but in rem.
The customs authorities had taken action against the Applicants on the
seizure of certain gold discs in a vault i~ the Applicant's Bank as each of the gold
discs bad a hole in the middle and there were Chinese characters inscribed
thereon on the presumption that they were smuggled goods.
The gold was subsequently confiscated by the Collector of Customs who
held that the Applicants had not discharged the burden of proof imposed on
theni 'under s. x67A of the Sea Customs Act. The order was upheld by
the successive higher authorities and hence this application for a writ of cer-
tiorari.
Held: section 167A of the Sea Customs Act makes no reference what..
soever to the manner of -seizure of the goods, the importation or exportation of
which had been prohibited or restricted under section 19 of the Act. In fact,
the Sea Customs Act itself recognizes the fact that goods liable to confiscation
under the Act may be seized by .persons other than ~hose mentioned in section
i78. For instance, goods liable to confiscation under the Sea Customs Act
may beseized under section x8o by a police officer on suspicion that they have
been :stolen; Goods liable to confiscation under ti:).e Sea Customs Act ~n also
. be 'Seized by excise officers.,
"U Tun Aung & I qnd 4 others,-Civ. Misc. Application N9s. 130, 133,. 157,
197 of 196o and No. 35 of 1961; Kantilal Gorhandas Sh_ah v. The Assistmz't
. Collector ' of: Cust~ms, (1951) B.L.R. 244 (S.C.); Daw Nyunt Nyunt,
No.
e <;:iv.il M~sc. Applicatiorl.: 109 of 1962. Application fo~ direction in
. the nature 'i:>f certiorari, ~gainst.the order of the Collector of Customs of Rangoon,
dated 7th . 06'-...obe~ 1959 and ~cinfimied by the Financial Commissioner
{Comm:.erce) intl by the Hon'ble Minister for Finance artd Revenue dated
x.8th Jiffie 1!)62.
DmJJ Th!In Than and Mc. Tin Jliin ,.. Tlzr !Jon'blc !ltliuistn far Finance and c.c.
1963
Revenue and z others, Civ. !\lise. Applic3tion :\n. .:;6 of 1961 of the late Supreme
Court, referred to. U SoE
NYUNT AND
Assu~1in:; th~t the seizure of th~: ~old made hy the officers of "the Army,
ANOTHER
l3ureau of Special Imestig-ation un...i ;h.: Police Department in the case now f).
under consideration is ilk~ral, thi ;; fllC't alone w: ll not ,itiatc the proceed- THE
ings taken by the Collector of C ustoms for ooof~:Sation of tho: gold in question. COLLECTOR
OF CusToMS
Queen Empress v. /'{qa T ,'i;_; lht~, (r89:;- r900) P.J.I..ll. 369; Kyin Sein AND
(a) Maung Slme l'Vlya , .. Tlu Fin~mce J,fiaisur and tm:~ others. ( H)S9)B.L.R. 196 TWO OTHERS.
(SC); Mi Hauk v. Kin~ l:'mf'l"TO"T, IY L .B.R. n1; ,\ .!!a Pr- Tiw and anotherv.
Queen Empress, ( 1897-1 <JO 1 l l. L' .B.R. 239; /Yiaung Sat: ,\1yin , .. King Emperor,
I.L.R. 7 Ran. 7II; Aun:: .~ : m. &i,. v. The King, (IQ.p ) , R.L . H. .:;.:;: . r~ferred to.
Where the search 1:1 t!k-:;21 persons participating in the search render
themSelves liable for d= .::> for trespass but the illegality of the search does
not effect the ques:.ion "~'-'he!' the person whose place was searched has com-
mitted the offer.cc i( pro>:--,:'ly which cannot be legally possessed is actually
found in the course of l hC' search.
Regarding s. 167A o! rhc Sea Customs Act. it may be compared to s. zsy of
the Customs Consolida ion Act of 1876 and s. 178A of the Indian Act.
Rez "" Cdre~, (195<) 1 .-\11. E.R. 203 at pp. zos/2o6; R. v. Kakelo, (1923)
2 K..B- i93 ; R. v. Fit=gcrald. (1948) unrep; referred to.
It is noticeable that in India the burden of proof under section r78A of
the Act would only arise ,if the goods in question had been seized in t~e reasonable
belief that they _were smuggled goods. The same phraseology does not appear
in section 167.-\ of the Sea Customs Act of Burma. Nevertheless it is a fair
presumption .that Collectors of Customs are honest in the discharge of their
duties and that they would not take out proceedings in respect of any goods
the importation of which has been prohibited or restricted under section 19 of
the Sea Customs Act unless they as reasonable persons believe that such action
was necessary. . But in coming to that conclusion they would not be necessarily
bound by the provisio~s of the Evidence Act.
Sltermal Jain v. Collutor of Central Excise and Land Customs, Calcutta,
A.I.R.(I9S6) Cal. 612 at p. 623, referred to.
The Chief Court is not sitting as a Court of Appeal over the decision of
the Co).lector of .Customs and those authorities who confirmed his decision
T.C. Basappg v. T. Nagappa and another, A.I.R. (1954) (S.C.) 440, referred
to.
In grant~ a writ of certiorari the superior Court does not exercise the
powers 'ofanappeiiate Tribunal. It does not r eview or reweight the evidence
~pori whlcii the determination of the inferior T ribunal purports to be based.
It demolish~ the order which it considers .to be without jurisdiction or probably
erroneous but does not substitute its own views for those of the inferior tribunal.
Sev.:pujanrai lndrasanarai Ltd. \. Collector of Cr~toms and others, A.I.R.
(I959)
. (S.C.) 845, referred
. to.
Regarding whether the provisions of the Amnesty Order covers the case in
question assuming that the order passed against the applicants was p~nal in
nature the applicantS cannot claim to have the be.nefit of the Amnesty Order in
view of paragrnph 6 of th:-.t O rder which excepts those offences :;r::J!ving
evasion of revenue from ;h,; o peratiOil of the Amnesty O rde;:. But, there is
clear autho rity fo r rhe v i{\\ ~hat the action taken by the Collec tor of Customs
N YUNT AND \.vas one in re1'n again.st rhc:.~ goods stized and r~ot i'l P<:rsc;zan: as aga:nst the
ANOTHER applicants.
v. In the result 1h c app!ic;;tion fails.
THE
COLLECTOR
oF ~~~ToMs Khin Maung (Advocate), for the ;;tppl innts.
TWO OTHERS.
Hla M~ung (Government Advocat<>). for the respondents.
U SA'< M AUNG, }-This application by the applicants
U Soc Nyunt and Daw Khin Hmi, traders of No. 8o,
Edward Street, Rangoon, is for a writ of certiorari t o quash
the order. of the Hon'ble Minister for Finance and Revenue
dated the r8th of june 1962, wherein the Minister con-
firmed the appellate order of the Financial Commissioner
-(Commerce), dated. the 26lh of Ja nuary 1960 in. Appeal
No. 4 Ah Ka-136/59, dismissing the applicants' appeal
, against the order of the Collector of Customs dated the
7th of October 1959 by which tl1e Collector confiscated
I o .. gold pieces weighing 22 to las, 6 annas belonging to
the applicants. The facts giving rise to the present appli-
cation are briefly these :
About the middle of December 1958. a search party
of officers from the Army, the Bureau of Special Investiga-
tion and the Police acting under .t he orders of Government
examined the properties deposited in the vaults of the
Rangoon Safe Deposit Vault Ltd. In the vault leased to
the applicants U Soe Nyunt and Daw Khin Hmi they found
ro.gold discs weighing about 22 tolas and 6 annas. Each
of these discs had a hole in the middle .and there were
Chinese characters . inscribed thereon.. .On. the .presump-
,tion that they were smuggled goods the officers concerned
forwarded these gold discs to the Collec.t or of Customs who
..took .out proceedings for their confiscation .under Ar.ticle
8 of section 167 of the Sea Customs .Act read with sub-
section. (3) of sectio~ 9 of the Foreign Exchange Regulation
741
Act of 1947. On notices being issued to the applicants c.c.
1963
to show cause \vhy .the gold .
belonging to them should U SOE
not be confiscated the applicants stated that these gold Nt,JNT AMD
discs had been purchased by them in lots of twos and AMo:~
threes during the year 1946, 1947, 1948 ctnd 1949 from c Ol.LllCTORTHE
the .dealers of gold in Shwebontha (formerly, Mogul op CusToMs
Street) where they were sold in the open market. The Two A~~HERs.
applicants could nnt. however, produce any ':ouchers in
suppor-t of their sr.ltC!~:cn t and their cxplanJtion \\=-as that
since gold was fr::tl:: imported into Burma prior to the
e nactment of section 9 of the Foreign Exchange Regulation
Act of 1947 and .1lso .1 few years subsequent to 1947 under
permit, they did not think it necessary to ask for asy
voucher from the dealers of gold. This explanation was
however unacceptable to the Collector of Customs who
held that the burden of proving that the gold in question
had not been smuggled into Burma lay upon the applicants
as provided for in section r67A of the Sea Customs Act,
and that this burden had not been satisfactorily discharged
by them. He accordingly confiscated the gold but did not
impose any penalty which was also provided in the third
cqlumn of the schedule under section 167 of the Sea
Customs Act. Under section 183 of the Act .t he Collector
gave the applicants option to pay a sum of K 5,000 in
lieu of confiscation of their gold. This sum was paid by
them.
Being dissatisfied with the order of the Collector of
Customs the applicants appealed to the Financial Commis-
sioner (Commerce) who, however, holding that the cir-
'Cumstances showed that the gold had obviously been im-
ported into Burma and that the applicants had failed fo
discharge the burden of proof laid upon them by section
167A of the Sea Customs Act, dismissed the appeal. In
.so doing he also pointed out that action had not been
taken personally against the applicants but against the
:gold which was contraband.
74-2 -~ ~-- !}~~A LAw REPORTS ....
. Th~~applicants ..then applied to the Hon'ble Mininster
for Finance and Revenue to set aside the orders of the
NY~N~o:\ND Financia-l Commissioner and the Collector in revision but
ANOTHER the Minister by his order now sought to be "q uashed dis-
v.
THE missed the application.
COLLECTOR f h 1 . }
oF cusToMs In support o t e present app 1cat10n t 1e app 1cants.
}.
T"vvo ~HERs. U Soe Nyunt and Daw Khin Hmi filed affidavits to the
effect that the gold discs were purchased by them at the
. gold skops in Shwebontha Street in lots of twos and threes
in the years 1946 to 1949 and that they did not ask for
. any vouchers as gold was then bought and sold freely
in the open market. They also said that they deposited
this
.. gold in the safety vaults during the year 1958, not
because the gold had been recently purchased but because
i t had occurred to them only then that it would be safer
there-
The Deputy Secretary of Finance and Revenue Minis-
try, however, had filed a counter-affidavit to the effect that
inquiries by responsible officers of the Ccstoms Depart-
. ment had revealed that the gold discs of the character
seized from the applicants were never sold by the dealers:
.of gold in. Shwebontha Street. On the other hand, they
originated from Kowloon, opposite Hongkong and were
usually purchased to be given as birthday presents or wed-
ding gifts -Accordingly in view of the fact that the appli-
.qmts were unable to produce any vouchers "in support
of t~ir story the burden of proof which lay upon them
. under .section r67A of the Sea Customs Act had not been
discharged by them.
In support of th~ present application . the learned
Advocate for .the applicants had relied upon -the decisions
iri the cases of U Tun Aung and one and four others (r!
for . writs of certiorari. There the learned Jw:lges s~en~ed
. to have ,held that unless there was a seizur~ o~ goods by.
(r) Civ. Misc. Application Nos. 130, 133, 157, 197 of 196o and
No. 35 of 1961. .
officers of Customs Department or by other officers duly
emploved in the prevention of smuggling and the officers
" U SOE
so seizing the goods concerned had evidence before them NvuNT AND
showing prima facie that the goods in question had been "'"'~~aER
unlawfully imported and were therefore liable .t o con- c OLLECTOR
THE
fi.scation the burden of proof under section r67A of the or cusroMs
Sea Customs Act would 'not arise. In this connection it TwoA~HEas.
would be useful to quote the following passage o~ their
judgment:
"T,he 'terms of section 178 of the Sea Customs .-\ n ;"tre
clear. Before the officers designated in the section can exercise
the power of <;cizure conferred by the Act the things to he
seized mU$t be liable to confiscation under this Act'. 111
the context of the present cases the gold must be liable to
confiscation under the Sea Customs Act. Consequently, the
officers seeking to exercise power under section I 78 of the
Aa must have .before them evidence showing prima facie that
the goods in question had been unlawfully imported and was
therefore liable to confiscation. In fact, it is only when
there is such prima facie evidence that the provisions of
section 167A of the Sea Customs Act placing the burden of
proof on t he person against whom action is being taken will
come into operation.' This is in consonance with the decision
of this Court in Kantilal C:orhandas Shah v. The Assistant
Collector of Customs (2)."
However, in a later decision, viz., Daw Nyunt Nyunt,
Daw Than Than and Ma Tin Win v. The Hon'ble Minister
for Finance and Revenue and 2 others (3) the seizure of
gold was not made by officers of the Customs Department,
but excise officers who had no duty to perform in relation
t~ prevention of sm.uggling gold into Burma. The gold
was seized from Ma Tin VVin whose baggage was searched,
pre:sumably on suspicion that she was smuggling opium.
It was then sent to tbe Collector of Customs for necessary
a'crio~. The Collector ~cting under the provisions of
(z) (1951) B L.~. 244- (S.C ).
(3) Civ. Misc. A;>;:>lication No. s6 of I96I of the late Supreme Court.
'" '1' . -~c;
. c.c.
1963
Article 8 of section !67 of the Sea '' _..,..,.-
Customs A.ct read with
section 9 (3) of the Foreign Exchange Regulation Act, 1947,
NY~...~o~No confiscated th e gold which '".reighecl not less than 20
. ANO:.HF.R pounds and 9 3~ ounces. The appeal to the Financial Com-
THE missioner and rhe application for re\ i<;ion ro the Hon'ble
CoLUCTO'R
oF CuSToMs " r .
!Y!lnlster f or rmance and Revenue bcmg
. un<;uccess f u1 D aw
Two A:;:HEas. Nyunt Nyunt. Daw Than Than and !v1a Tin \i'Vin applied
to the late Supreme Court for a writ of certiorari to quash
the orders of the authorities concerned. It was held by
the Supreme Court that because of the divergent stories
told by Daw Nyunt Nyunt, Daw Than Than who claimed
'the gold to be theirs and Ma Tin \Vin to be their courier,
a!ld. by Ma Tin Win who first said the gold belonged to
her ; and also in view of the applicants' failure to show
satisfactorily from whom the gold \vas purchased the order
for confiscation was justified with or without the applica-
tion of section r67A relating to the burden of proof.
In our opinion, in the case of Daw Nyunt Nyunt, Daw
Than Than and Ma Tin Win (3) section r67A of the Sea
Customs Act could not be ignored as without its provisions
there would be no proof that the goods had been smuggled
into Burma contrary to section 9 (3) of the Foreign Ex-
change Regulation Act of 1947.
Now section I 67A of the Sea Customs Act reads :
"If in any prosecution or in an~ proceeding in respect of
' any goods, the importa'tion or exportation of which has been
prohibited or restricted under section 19, any question shall
arise whether such goods have not been imported or whether
no attempt has been made to exporr such goods, contrary to
such prohibition or restriction. then in such case the burden
of proof the~eof shall be on the accused or on the person
against whom the proceedings are opened."
This section makes no reference whatsoever to the manner
of seizure of the goods, the importation or exportation
of which had been prohibited or restricted under section
(3) Civ. Misc. Application No. 56 of t96x of th~ late Supreme Court.
19 c: the Act. In fact, Sea Customs Act itself recognizes 1~6~
the fJct that goods liable to confiscation under the Act .
' by persons oth er t 11an t h ose ment10ne
may 'oe se1zea d m NvuNT
l' SoANn
section I78. For instance, goods liable to confiscation ANc;~ER
under the Sea Customs Act mav be seized under section c Ta .
~
1"
r8o by a po,1ce r.r.
Oi"ncer on suspiCIOn t h at t h ey h ave been o~>OLLCTOR
cusroMs
stolen. The decision in. the case of Daw Nyunt Nyunt, Two A~~.HERs.
Datv Than Than and Ma Tin nin (3) also established the
fact that goods liable to confiscation under the Sea s~stoms
Act may be seized by excise officers. Accordingly, the
argument th.1t only such goods Js Jre seized under section
178 of the Ac: on prima facie C\idence being available
to the effect that they \Yere liable to such seizure can be
the subject of proceedings to which section r67A of the
Sea Customs Act would be relevant, is not acceptable.
Assuming that the seizure of the gold made by the
officers of the Army, Bureau of Special Investigation and
the Police Department in the case now under consideration
is illegal, this fact alone will not vitiate the proceedings
taken by the Collector of Customs for confiscation of the
gold in question. In this connection it is only necessary
to refer to a series of decisions beginning with Queen
Empr~ss v. Nga Taw Aung (4) and culminating with Kyin
Sein (a) Maung Shwe Mya v. The Finance Minister and
tvio others (5). These are Mi Hauk v. King Emperor (6),
Nga Po Tha and another v. Queen Empress (7), Maung
San Myin v. King Emperor (8) and Aung Kim Sein v.
The King (9).
Where the search is illegal persons participating in
the search render themselves liable for damages for
trespass, but the illegality of the search does not affect
the question whether the person whose place was searched
(3) Ci\. Misc. Application -No. s6 of I96I of the late Supreme Court.
(4) (~893- 1900) P.J.L.B. 369. (?) (I897-I90I) I.U.B.R. 239
(s) (1959) B.L.R. 196 (SC). (8) I.L:R. 7 Ran. 77I
(6). IV. L.B.R. IZI. (9) (I94I) R.L.R. 552
..
REPORTs~'
~ - ~~~ --+~'";.;.: .. ~
A6~
71:.~'"*
----.--.
iBDRMA
!!'!"-
LAvv c!J,f:BF-~~ii
~---:~,..-~_,-?!F :;:
-. ..--
,~ O--~,i
has committed the offence if property which cannot '"b~~
legally possessed is actually found in the course of the
U SoE
NYUNT ANiD Search. .
A:<~oTHm Regarding section I 67 A of the Sea Customs Act which
tlo
THE is analogous to section 259 of the Customs Consolidation
or- cusToMs ct 01!: I 876, t I1e decision
C-:>L!..ECTOR A . . m . t l1e case o f Rex v. coh en ( ro)
TwoA:i'HERS. is most apposite. There it was ~held that: "Once it is
proved that a person was in possession of dutiable goods
on whfch he has not proved that duty has been paid, he
may, 'if he gives no explanation of his possession, be con-
\iicted of unlawful harbouring. If he gives an explana-
tion, the jury should be told that if it either satisfies them
that he did not know that the goods were uncu stomed,
or leaves them in doubt whether he knew, he should be
acquitted."
In this connection the following observation of Lord
Goddard, C.J., may be usefully quoted. The learned Chief
Justice in delivering judgment of the Court of Appeal
said:
"To pro\e a consciou-; h:l~r.ng !: "ouid u ~ua!ly he
enough to show th2t g~s w~ ich we:e subject to duty were
found in the po~on of the Jrcused. lf they are found
i!'l his house. wJrehout:> or other p\<1re under his contrcl.
that wou 1d establish a prima facie case that he knowing\::
harboured them, though, no doubt, he could rebut this by
pro,ing that he did not know of the:r presence., for instance.
by showing that someone had 'dumped' them thet:e without
his 'knowledge or privity. Once it is proved that he knowing-
ly harboured goods subject to duty, section 259 throws on
' him the onus or proving that the goods are, in fact, customed.
To do this he would have to prove that the duties had actually
been paid, or, at least, that they had been declared and that
the customs officer.s, in the e>eercise of a discretion wttich, a~
is w~ll known, they are allowed, had permitted the goods t9
enter. The latter case would probably seldom arise andcould
only .0.ccur in the case of a small ,amotint of S,Pirits, tobacco,
jewellery or the like, and we need not deal further. with this.
.(ro) (1951) I All. E.R. 203 at pp. zos, zo6.
BURMA:LAW WORTS .
In a case such as the present, unless the .ac~us~d is.or know~ G{
the actual importer,: SQ that . a receipt Jor._ the _payment of I9 3
duties .can be produced or first-hand evidence of p~ymen't T U SoE,
given, it would pr~hably always be difficult, and'oftet:timposs- N~~~a::o
ible, for him to . prove ;:t~tual payment. Though _the powers v.
. o( Customs officers are always used with discr.e#on, it .is in co~~OR
law possible for them to require anyone, be he trader or not, QF Cu~ToMs
who has dutiable goods in his possession to .s how. t~a~ du~y Two A~,:>HERS- .
'bad been paid. If the person challenged cannot prov~ .P~Y-
_r,nent, it does not follow that he must be 'taken: to have
i:ommitted the offence of what for convenience we vvill call
. unlawful harbouring. He will not be guilty unless he knew
that 4uty had no't been paid. The prosecution having proved
'that the accused was in possession of dutiable goods in such
:circumstances as would entitle a court to find that he 'tvas :.
-consciously in possession of them and 'the accused having .
.faile? to prove that the duty had in fact been paid, there is
'then, in the opinion of the court, an onus on him. t? give
. :some explanation of his possession from which a jury' rtl.ight.
, ipfer that he did not know that duty had not been paid, It
:must be for him to give this explanation b~cause the 'facts
reljting thereto must be exclusively within his knowledge.
There is, in fact, a shifti11g of the burden of proof, and in
considering the amount of evidence necessary to shift the
biliden of proof the court has regard to the opportunities of
l<nowledge with respec~ to the facts to be proved whiCh may
'be possessed by the.parties respectively : see Stephen's Digest
of The 'Law of Evidepce, I2t~ edition, article 104. That this
applies to criminal :2ases no less than civil is sho"Yn by R. v.
Kakdo (n). . :'..
A siwple way of proving lack of knowledge is to prov~ that
'the goods were bought'.in the ordinary course of 'trade. If a '
'man b_uys a box of cigars in a shop at the ordinary price,
-why should it be supposed that he knew they had been
s~'!lggled, if, in fact, they had been? In the cour-Se of his
. ~um_J?lng- up the deputy chair~an quoted a .pasi~ge. from a
.recent judgment of this. c;;ourt in R. v. Fitzgeral~ (I2), in.
:whiCh .I ~a~d: :
. .If a inan buys s~mething from a tfader iri tli~ ordinai}f; .
. . . w.a"y {it does not m.atter. whether it i~ . wholesale. or retail).
. ' . . . .
..,., . 7
. f48'
c;e. i!'you :wdU:Td P.r~umi ;tliat'ne~na:S< bought- :it~honesrl~: and:. .
~2~~- ... ' -ihaf'1he duty ml'it has been paid: ,
. lf. SQB . .
''Nit1NT' 'AND: It ~.ciuld, perhaps, have been more accurate.) I had said:.
... 'A~p1f~:. li tha{ he ~ad no kriovvledge or reason to believe 'that the
. :"! .. .'!~. d.uo/ha~ not been .Paid." HaVing arrived thus far, it appears;
. . TKB
coiil0r.oR to the court that counsel for the Crown was right in . his
oil:'cifsT&Ms S~b~sion. that. th~Se C~SeS are closely analogOUS to those
AND
~6. otaans: of .receiving stoien goods . when . the evidence relied on f~r
'tRe Fosecution is merely _possession of goo_ds recently stolen.
That has always been held to be prima tack eVidence. of
guilty knowledge, or m
other words, to raise a presumption:.
of guilt, so that if no expl~ation is given by the r.e ceiver
.t he jury are entitled, though, not -compelled, to corivkt. On.
the other hand, if the'.e>..'planation given either s~tiSfies the .
j~ry or raises a doubt Jn the~r minds as .to guilty knowledge,..
the defendant is entitled to an acquittal. A case 'is never
proved if ,the .s um of the . evidence leaves th~e . jury i~l--dbubt.
.So; in the. .present dass of cas'e, once it is proved t liat the
accused was l<nqwingly in: possession of dutiable goods which
he .has not proved had paid dUD', if he givesno explanation..
.he . may be convicted. of har"!>ouring. . If he does give an
explanation, the jury should be told that if jt eithezA'satisfies.
them that he did not know the goods were uncustomed Of
leaves them in doubt whether he knew, he should be
acquitted.' "
Section 178A of the Indian Act which was inserted
by Act 21 of 1955. two years after section r67A of the
Sea Customs Act . of Burma was inserted, reads :
"178-A. (x) Where any goods to which this section applies
are seized under this Act in the reasonable belief that they
are smuggled goods, the burden of proving that they are
srin~ggled goods shall be on the person from whose
sion: the goods were seized.
(2) ~. section shall apply to gold, gold manufactllli:
.aiariion9s and otP.er; precious stones, cigarettes and
. and any. other goo~s which the Central G~vern;ment
notificatipn in th.e Official Gazette, specjfy in this
:; \. .: \.. .: .J::: . . .
; .. It is.:hbti~.eable;;that in :.India th,.e burden of
s:ectio~ ~'l8;A :9f ~he. Act yvould only arise if
i~_-qustion- had <be~ii seized in 'the .re-a-sort'abl~:.:l~etief:that ;:~~
they were _srriii~gU~a' gd"ods. The: sani~ phtaseolQgy ,does ._ ..
. not appear ii( s~t1on . 1.67A qf the Sea'_,Cus.t6iris Act of N~~~~~~
Burma. Neverth~ies~, it is a fair presunipflmi :that' Col-_ ANP:~
lectors of Custorils "are honest in the discharge: of :their ~:s.
:, . ., ". ' . . , : COLJ:.ECTOR
duties and :that_they would not take out proceedmgs_m ~i:: C:t:i~f:>l'ds
respeCt .Of any '~goo_d; the impOrtatiOn Or e){p6rtatJOR Of TWO~~HBR~
;Which has been~ prohibited or restricted tinder ~ect~(:m 19 . . ' .. . '.
Of .the
{. . .
Sea ..Custdins
'' .
Act, unless :they as reasonable persons~ .
plieve that such action was necessary. But in coming _
to -that ~oncfusion they would not be necessarily -bound
by the proyi~ions of the Evidence Act. Irf this connection
the_observations .of Sinha, J. in_Shermdl ](lin v. Coirector
of .Cen~ral ExCise _and Land Customs, Calcutta (i3) . are
most ' apposite~ The learned Judge said : . . .
" The question i$ as . to wh~ther: upon these facts, the
customs authorities were entitled to come to the conclusion
. that the gofd was contraband and that the provisions of the
Land C~stoins Act and the Sea
Customs Act and of the
Foreign Exchange Regulation Act were violated. So far as
the onus of proof is concerned, by a recent amendment in
the Sea Customs Act (Act 21 of 1955) introducing section
178A and the Land Customs Act, (Act 35 of 1955) incorporat-
ing section 178A the onus is now upon the petitioner to
prove tha~ the gold w~ not contraband. . Mr. Roy points
out that these amendments had not come into operation at
the relevant ~ and thcirefore we have to see what the
position-is, without their help. Thei:e is a con1lict of authori-
ties on the point as to whether the. c~ authorities are
.an administrative body or a quasi judicial body. Even .
assuming that they are . an adm~strative body having quasi
. judi~ial functions, it cannot be sa~d that they . are _strictly .
,bound l:>y the provisions of the Ipdian Evidence Act: I{ the
authorhies had -to prove,. according to the strict provisions
bf the indian Evidence Act;. that particular g~ods> :s~sp~dted :
t6 be contz:aband, were _in fact st>, then ..they :c6uld: rl0t
. ~:iJt.ceed ~n: ;mpst caS.e$, and,-. the , task of ,co~t'"ollihg .: i~e
.,. ...... _.:. ' . ;, .. . .. .. . . : ..... : .
.<x'~)- ~.{R.-.(~9S6):Ciil_::62I l!_t p. 6z3.
'():c.
1
! sfuuggfing' of contrabal).d' goods : woul.d. b~come. impossible~
' 9'~~- .Th_~t. :of course, do~, not mean that th~y c~ act arbitr~~)y
-u.sos . or upon.. no evid~nce at all except mere suspicion. It is a
'N~~~P. . . maw~r depenc,Ui)g on''t he facts of each ca~e." :
. . .v . . .. . . ' ' . ' . .. '
Tit;. ,;... 'We..have examined the proceedings of the Collector
:~"C~~j~~ pf ~C\lst~ms and we find that the Collector had depute.d .
.: "w::~>. . :: r~p,~nsible ofikers to make _inquirfes "o/he~er th~ . g9ld
T~ ...o '!~. dtscs. $"UCh as those seize~ fr-<?m .;t~e appli~an;~ w:er~..eyer
0
sold in Shwebontha (formerly..Mog~l) Str~~t." j-I~ fo.u~.d
;t hat no such gold ,-was -;~ve~ solQ. .there. , ,l}e ,. then;. f9ujiq:
.o ut that the Chinese -charac.ters inscri~d-.on . these'..:gold
discs showed. that they were ~anufact~red: il?-. ,l(owl90~,
qppqsite Hongkong. Further inquiries reyea~e.d . tb.at:,they.
w~re_ n~ver ~.legal t.~nder ." a_~ywhere bu~ werf?. ~s~d. A~
birthday presents and wedding ,gifts. These facts. and:the
. ~bsent,e of ~ny you~h~:r:s .~n . ::;uppqrt . of .~h~ . ' appiic~nts'
.s.tpJ.y\ha~. they bought_~e gold froin the _gol~ dealers in .
.Sl}webol)tha Str~et were, in. our .opinion, sufficient to in-
:duce . a .reasonable .belief in the mind of the Collector of
:Customs that the goid was liable to seizu"re under ali-tide
8 0f :sectionI67 of the 5 ea.Customs Act. .The proceedill:gs
for the -confiscation or' the goid were justified, arid the
burden of proof had rightly been laid upon the applicants
. under s.ection 167A of the Sea. Customs Act~
In any <;ase we are not sitting as a Court of Appeal. over
,.the decision of the Collector of Customs , and ..of those
authorities w ho confirmed his decision. , Jl'l.this:cennection
the"aecision in the case ofT. C. Basappa V.:~ r. Nagappa and
~-a~otb'ei '(i4Y may.be usefully .quoted. :.~J:h~:re it was held
~.h~t in. g!ariting a Writ of certior9-ri the.-$\lperi9~ :Court does
} i.ot exer.ciseth{p6w~rs of an appellat~~TriDunat ,,:. It do~s...
. no~ r~Vi,e;w ,or r~~reighr the evidence upon, ~hih ~he deter-
:~IJ.:.li"natioiJ, of.th_inferior Tribunal Pl:l.YP9fo~ 1 .tp.,1>e ..based. . It
:demolishes theYerder which it considers; to, be , without
~ jnrisdiction or. :palJ.J~bly er;roneous. lDut ;does hot (~ubsdtute
_ , _ ~- 0 .. . . . ' ~-
(q.) A .Z.R. (r9S4) S.C. 44o:
!.":
BURMA LAW .REP0RTS.
:{~''own Views .for those .of the inferior.'tribunar.. ; ![See also : r;6c.
Sewjmjaiiraf':lhdrasanatai' Ltd. v: .Colle'Ct.o r of<U$.~Qm,s '<lQ.d :. ~ .J
1
. h b d d h u . so~
'"'thers . (IS), where t e a ove eos1on . was : qte :~wt.. !:';lyui:rr .ANo
~-:lp.p
. roval.] .. " .. .. . ~oii~.
. ' .i ;. ,.,, .
It has been'argtied that the provisions of.the A.IPn.~ty .-Ti:fs..
.COLl.EGTOR
Ord~r of the Chairman of the Revolutionary Council dated O;-'i'r c;~.~lYis
the Ist of April 1963.are applicable and that therefore the :T:wo%iHGR~~-
or.der or the Collector of Customs should be quashed. .
However, assuming . that the order passed a~ainst the
applicantS was penal in nature the applicants cannot daim
to have the benefit of the Amnesty Order in view of
paragraph 6 of that Order which excepts those offences
involving evasion of revenue, from the operation of the
Amnesty Order. But, there is clear authority for the view
that the action taken by the Collector of Customs.vyas one
in rem against the goods seized and not in personaJl! as
. .against the applicants. [See the case of Sewpujanrai
Indrasanarai Lid. v. Collector of Customs and others (IS)
.already quoted above]. There it was held that a distinc-
tion must be drawn between an action in rem and a pro-
ceeding in personam and that section I67 (8) 9f the Sea
. Customs Act contemplates a case where the C?ffender (~he
smuggler, fqr example) is not known but the goods in
. respect of which the contravention has taken place are
. knoWn and have been seized. and that the point to note is
that .so fa:r as the confiscation of the goods is concerned,
a
it iS. proceedi~g in rem and the penalty is enforced against .
the_go.ods whether the offender is known or not known, the
order of confiscation under section I82 of the Sea Customs
Act operating directly upon the status of the property
which u!].der section 184 transfers an absolute title thereto
tO. t_h e Goyernment. . . . . .
. For these reasons we consider that the Collector -of
-C~stoms had jurisdiction iri the case now under considera-'
tion forth~ action taken by hiffi u~dersectibri
. . . .
167 (8) of
(zs) A:I,R. (r9s8)' S.C. .S4~ .
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~ . . . ... . . _It is a P.lJ~ciple of natural equity, which . p.1)1s~
be un1versa1ly-applicable,. that where one man allows another-
to hold hlm~~lf' o'Ut a5. the owner of an estate, and a thi~d
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th~ b{!}!er' that be is the real owner-~> the man who so allows
fue 'either fo hold himself out sh<J.ll not be permitted to
rec:ove~ ~pon his secret title, .unless he can overth~o'w .th?:t
. pf . the . purchaser by showing, either that he had direct.
:: noti'c~; oi' soinethlng which amounts to constructive notice, .
...0 the:.rear title. or that there existed drcumstances' which
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78 BURMA 'LAW REPORTS
. It is said, ' Ignorantia puris now excusat:' But
in -that maxim tlie word ' jus ' fs used in the sense of
denoting general law, the ordinary law of the country. But
,when. ~e word - j~s' is used in the sense of denoting a
private right, that maxim- lia~ no application. Private right
of oWnership is a matter of fact; it may be the result also
of matter of law ;-d:>ti.t if parties contract under a mutual
mistake and misapprehension as to their relative and :respec~
tive rights, the result j.s, that that agreement is liable to be .
set:'aside as having proceeded upon a common mistake." .,
P o c o c (- C: 'l r,: c c c o c e
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Rerr on Fraud ~nd Mistake, Sixt h Edition, 0':>GJ~P j~O Cit,~
GSd?~o1roo:1,6: G~Tro:>:Groweu
" If an agreement be entered into between two parties in
mutual m.lstake' as to ~eir relative and respective rights, 'either
of them is entitled to have it s~t asj.de I2). . Where, for
instance, a party entered ~nto an agreement with a-q.other to
take a lease of what in fact was his own property, both
partie$ being under a common mistake as to their respective
rights, the transaction was set as;ide (3). So, also, where a
man had sold another an estate which in truth belonged -~o
him~ and the conveyance was completed, the Q:>Urt reseinded
. .
(x) (x867) The Law Reports, Vo. II, pp. 149, 170 .
. . (z) Cooper v. Phibbs, .L.R. .2 H .L. 149; Beauchamp v. Winn, .6 ibid. ~33 ;'
Butlerv.Fair.'tlough,(igr?) V.L.R. 175 (Can.). -
. . (3) ..Cooper v. Phibbs, supra; Jones v. Clifford; 3 Clt:,p. 779, 4-5 L.J. en:'
8o9.
,sk:i.
(4) Bingham v. Bingham, x.V es. xz6; Janes. :V.''C.l.tff".a.td/3h.D ..7..9~
Ch. 8o9; see Debenham v. Sawbridg~ 1; (I5)o1!):z q~. ~tp. ;.x?-9 . . ;. .. : \
(5) Lansdowne v. Lansdowne, Mp~e . 36$~. cit. 2 }. ~d W . ~os.
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~~ ~~~r&1rocf: ~oS~~-~roo:>~n
. ' .
" The question is what effect would the coiilDltinica~on
have on the minds of the persons to whom it is ad<fress~d.
That is the test as laid down in this House. It is :only a
matter of cop1~on ~ense, as A. L. Smith, L.J. observed, All
that is requir~- is that a communication proceeding from the
debtor, made seriously, should give the creditors. or . anY' qf
the. creditors to understand from the state of circu~~ces
as djsclosed at the' time that the debtor has suspended or
that he is about to suspend' payment. If it ccimes to this- I
borrow the . illustration from the judgement of Fry; I,..J. in
In re Lamb {4), which was referred to by Lord Selboll!e:fu
Crook v. Morley t5}-that the debtor has said in effect I am
in a position at tlie' pre5ennir~ent in which ids iiripossible
for me to go on paying my creditors who may 'apply to me
in 'the ordinary coUr-se of trade, and if I pay tlie 1irSt: who
-apply there will be nothing left for the rest,' that is an
intiination tha t he Will either immediately suspend payment
o th-at he is ~bout to suspena . payment. as soon as he
reaches 'the end' of his. resources." . . . ,. .
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improper-. u.nless the, order of dj.scharge was perverse or foolish
or was based' upon a...recor,d. of evidence which was obviously
incomplete. In determining wheth({r the order of the -
... of \ 1~
Magistrate disallar.gin~ the.. aacu~d w.as. ' foolish or perverse;
it ought not io be sufficient to pick out holes in his judgment
o~ matters of. ~e.r@;J, ~ut wh;1t is t~, b~ ~~n ~ w.~w~: ta..IAAg
a. broad view of ~;lt~ri~ pojnts ~~q,~i~~.;. q~c;~~q,~ i~. ~e: ~ase, .
ap:g~ on co~ge~tion ofi tlie whole;. of tJ#.
e.v,id~!,l~ ~~ ~rder
coul9- have been passed by a. jud~e, fairlx cuj.cl impar.tally
dealing. with the: ~e. ff~Ither ing_ui.cy shQuld b~ iui~e!taken
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order of the.. t.1~g!s~~ l}laY. ng;, C.Qtmn~d i~ ~ the
District Magi~O:"\~e. tpe ~~istr:ate. l!laz J!lax- not haveot:
attached too much importance . to t!te ~~SJ:eP.~Pf;~e,; ~4 too
little to the probabilities, but unless the order can be said
to; the pervers.e o;r. fQolish, it will, not be ~I)t~~rc.d vath.'
. f.ilrth~r uiq~!o/, s.tt9P'l4. ~o't, ).?e he~4. Ipet;elM b,e~~. th~
. f~~~sional Cou~t th~nkS that 'in ~~ !n~~es~. of ju~tice' i~
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~32 BURMA LAW ,REPORTS
Discretion of Court
as to declaration of
status or right.
..
.I9,63:J 833
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0 C'
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"livery country . which; extends its hospitality to. an alien (J:rnpO)a
can withdraw it and send him back to his own country. Gcoolg
Every Power, has the right to .refuse to permit
an alien to $.&
J
,
enter the State and. if it permits an alien to enter, to annex, .fw--:>~?c
wliat conditions it pJeases to such permission and . expel or aao?Y.IS:ti
_deport him from the State at pleasure. This principle iS : G~:ofu
propounqed and followed by English and .An\erican Courts
and is in conformity with the p_ractice of everj sovereign
State."
.
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(x) A.I.R. (x96o) Kerela 212. (z) B.L.R. (x96o) _(H.C.), p. sox
BURMA LAW REPORTS 837
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::n~~ In re Pandstow . Total Loss and Collisio~ Assu;ance 2:~~ Jl ~,;::::.
As~~Ciati~ii.\(2)):~ :.'; . : .' ~ :.:~: .
"Held, that altltough the business of the associatio~; :ii~ct~;
no,t. for it&. ol,lject the acg~$ition of. gain ;by' Jtlie ~soCiation,
it .h~d. for:)is.~_,c;>bject the acquisjt:ion of: gaihi by ii:rdividuai
;JPeiDQ~rs,;; tpa~. is it .consisted of .more than' twenty~rmeinbers
OlPc,i. ~a~ not :registered, its formation was forbiddeli:'hj:ithe
Conuxmies Act, r862, s. 4; ti;tat th~ Court, therefore.aouldilot
recoginise it as having apy legal existence, ..and that the.
order fot. winding must be discharged." . '" '- ::. ..... et
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.. P~asad v. Nagar~al~rl;g~hi;__1,;;.;
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"Where an ~socla'ti:6n' or more. than "twenty; ~~ons: ~
formed in contravention of s. n Iz) of Companies Act the
ana-~a.:Clciiql is made by some members of such illegal associa-
tion against another m.ember on the footing that the associa-
tion 'should be treated as legal in order to give r,ise-.to a
liability to rendez: accounts in respect of the transactions of
the association such a claim is clearly untenable, where a
plaintiff comes to court on ~negations whjch on the face
. :._ ... ... :-.;t----1 . . .......~
--~ -- . i -
(t)' I:L.R. (t932J;{tofl~~~l"i~#';:}i. igo. -(2h<?.G~~C'~tyA.I~i.":-;:--;;,. .
(3) A.I.R. '(1959),'Supreo1e Court, p. 559,
13
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" In apptoachfug the consideration af this- q~~ae'tl:.- t~M
Lordships CaJVlOt assume ~at there iS. a right of appeal fri
every matter which comes under the consideration . of a
Judge; such right must be gi.ven statue; or: oy some1 by
authority equivalent to a statue~- .
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~ " 53.. Except a~ ~thel!Vise provided by this regulation :
(1) A CivilCourt Shall not 'have jurisdiction in .any m.at-ter
~~Clli ~e 'Presjdent'' or -a Revenue 01fiaer 'is ~-
.pow~ed ,by or under t)lis Regulation to dispose o~
or . t*e cognizance of the ma~er jn w.liiCh lh.e
Pre,sid~t or any' Reven~e Officer exercises any
:.power$ vested in liim 'bY or under thjs 'Regulation ;
. ap,d :in ;pa_tacular : -
.{2) .. Cjvil Cour.t .$hall riot exercise jurisdiction ove.t: any .
of the following matters, which sbaU. be cognizal?).e
. . . ~ exclusively by Re~en'ue. Officers, namely:
~i) any question as to the .limits of any State lanq ; .
(ij) ~y claims to the ownership .. pr possesSion of any
$tate. land, or to hold such 'land free ~f::}atid,.
revenue or at a favourable rate of Iana~re:venu~ ,
or to establish any upon, or other 'interes.t lien
~n. such land, or the rents, profits, or prodqce
~ thereof;".
=>e~?.:" Gcijj~~~;=~~~~
__,--==::,.-. . :'1 (" .
o :': -~-c. ,~~:.~Q)ro~l! .
e::U?eit' -~J ~. '"') r i . : ..: .
=>~r.;_; :, . ; ".~li.~ . Deputy Co_IDmi~Sioner, . ~e . Collllllissioner o~ ~he
&.<f. -~ . . .. I;>tVl$1~n and the .Fmanc1al Comm).Ss~oners were all acting
e=~S~<:>1 . on behalf of th:e Government and as Revenue Officers of the
.?.'2 :.: . : Governmen!. The functions which they were exercising and
2
&.~~~::: "the question which engaged their attention .i n suc}:l. procet<d
'c. -~;;.4:a: ;;fiigs, are ittno way different from those which an owner o~:.
t~~lf~~-0::
_,/@3!1:":pm<:>: :.: ~\ piecl' of Hma would . be engaged in or: be exercising ~when'
~;gzt:~1i : ..;~bout to grant a l~ase of his land' to ano'ther perspn. T.here"
was no 'question .of the exercise of judicial or quasi-judi~ial
function."
. . . "";\ . . . :. . J . . : .. . .~:~:-
e.P..--No. 43 H:C.R., 223-65-I ,soo ~ 68-Mono.-].luo {L ).
BURMA LAW REPORTS 851
~PELLATE CIVIL
Before U San 111aung, J.
DA w HPOON soo (APPELLANT) C.(;.
196j
v. Nov. 5
DA w
.
MI MI. GYI AND ONE (RESPONDENTS).*
Ejectment suit::;-suit agajnst purt11er i11 individual capacity where tlze tenant is
'the part[lerslzip-non-validity of 11otices sent-right of wife of deceased
partner to stay in suit premises-definition of " tenant " in the Urban Rent
Control Act.
. .. 'fhe Ist Respondent/Plaintiff had filed a suit for ejectment against theeznd
.-:-..:respondent and the husband of the appellant on the ground that the 2nd
!\." Tespondent who was her tenant bad sub-let the -premises to the husband' of
'tlte appell~t.
The suit was decreed against both defendants. .._
One of'the issues which arose on the pleadings was whether the real tenant
W!l$ one Byan Sein Mob & Co., of which at one time, the 2nd respondent
, wa~ a :I>.artner and the husband of the appellant was the senior partner.
Helcf Th~ lease clearly mentions that the tenant was Byan Sein Moh & C~?.,
and when the znd respondent executed the document surrendering the premises
be als.o signed as '' Byan Sein' Mob". This sho~ clearly that he was not'
-a teiitnt .W. his individual capacity.
The f;ct that the firm of Byan Sein Moh was not registered will only prevent
.:the. 'firm from suing anybody to enfor1=e a right arising from any contract
. entered into by it with a third' person, It will not invalidate the contract, of.
1eas.e. ,_.
...Thus the notice sent by the 1st' respondent/plaintiff to the znd respondent
-and' tti.e husband of the appellanr, was invalid in iaw. 1
' ,.. '
Held further: The appellant, as the legal representative of the deceased .
partner, is entitled to remain in possession of the suit premises a$' the word
~ tenan~" as defined in the Urban Rent Control Act, includes a legal repre-
-senta~ive of the~ tenant ~s defined in the Civil Procedure Code.
T . P. Wan (Advocate) for the appellant .
..
T.fum Maung (Advocate) for the respondent.
U SAN MAUNG, J.-,ln Civil Regular Stti.t No. 564 of
r957 of t4e City Civil Court, Rangoon, the plaintiff P aw
~ Civil Fjp;t appeal .No. 44 of 1962 agaitll!t the decree of the 3rd J udge.
City Civil ~iut of Rangoon in C.R.S. No. 564 of 1957, dated 5th J uly 1962.
BIJRMA ' LAW' REPORTS
c.c. Mi MI 'Gyi, who is the:Ist responde~t ih the present -appea~
. . sued the 2nd responcie:rltl Sw'ana?<hid~ '!{a Pyit, husband of
1963
_.DA';'8~J>?0 N the present appellant Daw Hpoon Soq. for their ejectment
: .Mv M from the premises in suit, being the ground-floor of house
D Jt;W I I
~n .. No. 13; .Kyaiktan, Kemmendine, .Rangoon~ on the ground
AND/~~E. that Swana was her tenant and ~at Swana had in con-
. :traventioh of the contract of tenancy s-qb-let the premises
.
. .in;:~qudiclon' to Ka Pyit, the suit befrig cmi un8:er. section
rr (r) (a) of the Urban Rent Centro! Act, 1948. The suit
was decreed ex parte against Swana .and affer hearing
evidence, as against: Ka Pyit. Ka Pyjt died during the
pendency of the sui.t and his wife the present ap pellant
Da* Hpoon Soo was added as his heir and leg'al repre-
sentative. ~~~: :./:~
The plaintiff's case was that the pr~mises in questtor( '
were .let to Swana on the condition that _h e would ,not
part with the posseSsion of the same to any other person
. J?ufthat on or about i9th.November 1954 Swaria informed
: :her in writing t hat he was giving possession of the said
premises to her in pursuance of. the terms of the contract
of tena:ncy. S-v,varta had nevertheless sub-let these pre-
mises to Ka Pjit without her permission, and he had .
. accordingly contravened the terms of tenancy and should
be .ejected. His sub-tenant Ka Pyit was added as' a pa.r ty
. defendant as he would be .bound by the decree as against
Swana. .. . .. . ... :.
The defendant Swana filed his written stateil;lenf deny:..
iu'g 'tha:t he was tenant of the premises in question as ai- ,
leged by th~ pl$,tiff. He said ~hat .the tenant was a .
Chinese firm known. as Lim Sein Moh and that he was
merely an employee of thai firm. He also said that the
. ....
firm was dissolved. on or about July 1954, and S() he sur~
rend~ed the premi~es which still r,e~ain in th.'e occupatl9n
a
of 'Ka P:Yit who was partner of th.e dissolved firtiJ..__ K~ .
Pyit ha{been.paying an9. the plaintiff..had, been accepting
inrent "respect of the premise$: :.
:T!i(a~t~uc!#it ~~ 'ryjt by liis wrrti~ll -~'4ie~e~.t dn~ 6,6.
tended''th~t:
. ' ,._...
ille (defendant Swi:ina
. r.fr ' ! (; t .J L . :- ...
was n'o t. tlie ~eiiant ' of . I'9..H63 --::
tl ~{~.,, .,.~ '1...
ihe 's~~ P,~e~i~~! m J?i~ 'in~vid~al ~apa~~.:' 9n ~~~. ?th:~r DAw6 ;?o~
hand, the t~n~ts : were Byan Sem Moh C01;11;pa.ny .for v.: .
whom '$wa~a~W'a~ : acrlng..in entering intp .t~~: C_Qntract 0~ DA~K~I MI
tenaricy::. dH~iil~lly there were six partner$ ~in :the firm AND oNE.
of ByanYsein)Aoh of ~hom Swana was one'.' ''. d~'ili.e ):St
1uW.I954 t#ree of the partners inc;:Iuding sw~~f.: Ief{'_t~e
firm so that the partnership was continued by the three
. remaining partners. Accordingly, the surrender of .tlie
lease if effected .by Swana did not bincl any of his co-part-
ners wlic{ cdntinued to carry on the business of the firm.
The defend;int ka Pyit as a sen.i,or partner was actually-ill
occupatihri-of the .suit premises ..
After. the 'death of Ka Pyit, his wife t)?.e appellant
.baw' Hpoon Soo filed another written statement which:
~as .es'sentially the same as that filed by her decea~ed
bUSb<lJld. . .
On ihe pleadings the most important issue involved,
was whether or not Swana i~ his indiyidu~l. capacity or
the firm _of Byan Sein t0oh was the tenapt '?~11the .plaintiff
Daw Mi Mj Gyi. Swana was not cited as a witness either
by .Daw Mi Mi Gyi or by Ka Pyit. Daw Hpoop Soo,
howe;v~r, in giving evidence stated that the six original
partners were. Swana, Kim Lwin,. Yin Choon, Ka Pyit, .
Yaung Kyone and Kim Hlaing. First Kim Hlaing and
Yaung Kyone left the firm leaving only four partners.
Th~n Swana left leaving her husband and two other per-
sons, Kim ~wjn and Yin Choon as partners. Of tJlem,
her hw;band is now dead and the two other persons are
in Chin~. __
The plain off Daw Mi Mi Gyi in giving evidence. said
that her: ~eiJ,ant was the 1st defendant Swana and that
Byan Sein ,Moh ~Qmpany in which name the ten,ancy was_
taken. -..yas -~~rely the n~e of a shop of which Sw~na
was tli~ sole. proprietor. Her brother Maung Tin Maung
~UFJ\1A LAW llliPORTS
;-~ ~w 2). ~d h.er si~ter Da.w Ma Ma Gyj, als9. ~ai4 that. ~yan
~:-!. Sein. Moh w.a.s the name of a shop of which Swan.a wa~
DAWs!:~OON .th~ ;sole p;roprietO!. However, the aefendant's versjon .~f .
DA~ : 1 ~~the' stqrr, i.S,. ~qqngly .corrobora~ed by the doc~ment of
. KYI . lea~e .:9f "Yvhich Exh,!b.i t "m" and (Exhibit I) are counter-
ANP oNB. par~:.,. Then~, i.t js cle3.!ly mentioned tha~ tl_l.e tenant. was
Byan $ejn M0J:1 Compa)ly. No doubt Swana sig~ed on.
b~harr:'of 't he tenants but . h~. did not s,ign l).is own name
but Wr~e fhe name "Byari Sein Moh ''. Vlh~n Swana
surrendered the premises by executing the d9CUID~J;lt. Ex~
hibit" " he also signed himself as "Byan.Sein Moh ".:
. r "'f.ro:o/, tt .S~ap.a had been sigirlng the docume~t of le~.~i'
a~.#U.as letter surrendering the suit premises to the .pla(J.l;o.
.. :' , . ' . .
ti.ff in 'his . own name as Swana, there would have been
so~.~ subst~ce in Th~ plaintiff's allegatiori tha t Sw~ria . ~ .
4n ~ndi\jd.ual ~n4 not as a m~mber of the firm had ..e.niere~ .
fhto.th~ :cohtraet
of .lease with 'her. However, the fadf
:that 'Sw~mr :~ote .. " Byan Sein Moh both in Exhibi~, .
" m ": tile document of .lease and jn Exhibit " ~ , the.
letter ..sup-efid~ring i:hc lease shows clearly .thaL he was
~o:Jije~~~~~t..~ iPs indiVidual capa:ity. .. <: . ; ;
Adnnttooly, :the firm of Byan Sem Moh was not re-
gistered. That fact will on.ly prevent the firm from suing
anybody ~o enforce a right arising from any contract enter-
ed into' 'by it with a third person vide section 69 of the
Pattne;r~hip Act. It will not _jnvaHdate the contract of
lease E~ibit "m" and ~xl_l.ibit I) which .are. co~n.ter-
~ts . ., . . . . . . , '.:
1
[n Uris view of.the case, the notice sent by, the pl~ntiff
. Daw }:.1i Mi.. Gy.i ':to s wana and Ka Pyit on .the footing that:
swi:ind };'as~ lier tenant and Ka Pyit! . the sti~tep.ant :
-o($wana !s. invaJid in law, ..even if they h~d been ~erved
oh ~h~ addreSs~ <:oncernea. . ...
The :<:refendant-appellant Daw Hpoon s8o ~ t4e)ygal
representative 'Of .the deceased partner ~ entitled to rel!la~n
in p~ssess~tm of t'h.e suit' premises as the . word ." t~nant ,:,
~ .. , . . . . ' . . ' . .'I , ' ..
as defin~d in the Urbe~ Rent. Control Act, 1948 includes ~~
. a legal representative of. the tenant as defined in the Code .. -
. . . DAW H POO
. of Civil Procedure. Under section I I .(r) .(a) of the U!ban soo N
Rent Control Act,. 1948, she can only be ejected for non- 0 ~~- M
. . . AW --mJ
payment of arrears of rent lawfully due. Of course she Kvr
Call a~SO be ejected if the plaintiff Can base her SUit Oll any AND ONE.
other clause of section I I (r) of the Act .
succeeds. The judgment and
In the result the appeal
deer~~- ~ ~he tri~l Court for the ejectment of the d~fendant.:
appe1~ant Daw Hpoon Soo as legal representative of Ka Pyit
are ~et As~<Ie with costs. Advocate fees being assesse.d at
thr~e gold_mohurs.
Dec. ro.
. DR. Y. C: GULATI {RES,P.ONDENT). *
()
~ ..!-.f:~ ; !:;~ : ~ ,. I ~~.-~ (:[. :.;: / :' ~ 0
,__.f.Ji!flP-:;,1 ,q.nd_; tenant- maintaiuability ~~ ~~t If{: ,_fpSf~1i~n. ; by {esf~'f 5~af~N,
' 'lessor-olwbilities of lessor under s. 198 of' the Trcitlifer of Prop_erty Ac~~ :
: ~ . . . . 1 ... :' ; .:;~~-:.) :(:.-" .~ , :-~ : ~ \ ~ ::
. _ lfeld: Where the lessor himself has .ouste.cl, tg.e l~ee . !roq1 .the preiD;il!e~
Ii!ased !!'c/him l:l.Uring the contimiance bf the Ie:i~;<J1suii:.!or possession 'l:iy tb~
Jessee against the lessor will be maintainable. . ' ! ..1 ( (' ' ~ : ''
Md. Fazihzzam.an v. Anwar Hussain, A.I.R. (1932.) All. 314; and
Bishm0
Sarup v. Abdul Samad, A.I.R. (1931) All. 649,referred to.
Among the liabilities of the lessor asenumerated ins. xo8 of the Transfer or'
Property Act, are that he is bound to put the lessee in possessi:m of the property
and be deemed to contraft with the lessee that he may hold the propertY. during
the time limited by the lease without interruption.
Reshi Ram (Advocate) for the applica~t.
Md. ]affar (Advocate) for :the respondent.
"
U SAN MAUNG, ].-This application for reVlSIOn is
against the order of the learned 4th Judge of :the City Civil
court dated the 27th August 1962 in Civil Regular Suit
No. 848 of 1961 wherein the .learned Judge carne to a
finding :that the suit filed by :the plaintiff-respondent. .
Dr. Y. C. Gulati as against the defendant-applicant Daw
.Khin Khln Sein was maintainable in law. . If was Dr. Y. C.
Gulati's case that he had been the tenant of Daw Khin
-Khin Sein of a garage since the month of April 1955 on
a, monthly rental of K so that he had been paying rent
reg~larly :to :the defendant and that on. the 4th bctober
1960 me
defendant had without any cause or reason
* Civil ReVisiQn No. 44 of 1962, against the order of the 4th Judge, Citv
Civil Court of Rangoon in Civil Regular Suit No. 848 of 1961.
lo.ckediup.Jt:h:ri gatag~ ;wh~e he had1 b~eri keeping hls,sal0cip . r~.~~
carr andstlfuS:1deJ:niveLhim of.the ~e .of the.garagel Ghe ...
of;-t he defences;raise& by the defendant;applieant,w~s nh~t ~!: ~:
the plaintiff's .suit for>posses~i0n w.as ..notJmairitainable iri on, i..Y: C:.
la:w. ,i This:ile.d. to the.framil)g .o f a: preminaryissue~ which Qiui:,.Tr.
:W.aS,; subs.equently. ~ecid'ed . by.) the learned. triaL :Judge :in
favour of theplaintiff. Hence the present application:f.Qt
revision.
In my opinion, the learned trial Judge was quite rjght
in the view taken by him that the contenti&>n of the
defendant that a suit under section 9 of the Specific Relief
Act was the only suit which could be filed by the plaintiff,
was untenable. Among the liabilities of the lessor as
enumerated in section 108 of the Transfer of Property 0
Act are that be is bound to put the lessee in possession of
the property and be deemed to contract with the lessee,
that he may hold the property during the time limited by
the lease without interruption.
Accordingly, where the lessor himself has ousted the
lessee from the premises leased to him during the con-
tinuance of the lease, a suit for possession by the lessee
against the lessor will be maintaina15le. In this connec-
tion, the decision in the case of Md. Fazihzzaman v. Anwar
Hussain (I) may be cited by way of analogy. There it
was held that the lessee is entitled to enforce his right to
obtain the possession of the land leased to him so that
he may enjoy its usufruct, by ejecting another in posses-
sion of the property leased out to him, and that there is
no reason why he should not be all0wed to enforce his
right against' another person who is holding under his
lessor, who is bound to put him in possession.
In Bisben Sarup v. Abdul Samad (2) it was held that
a suit by the plaintiff as lessee against defendant who is.
continuing in possession is maintainable without a proper
(x) A.I.R. (1932) All. 314. (2) A.I.R. (1931) Al1.649.
BURMA LAW REPORTS
. .
c.~. ejec~~n~ ~~it haYing been brought by tlr~ lessbr Himself
.:!_! when the ~essor is impleaded as andther defendant. This.
DAW KHIN
kHiN SEm cas.. ~11 us.t rates t h e, f.a ct .that the Iessee can sue hi s 1essor
e .u '
DR. vY. c. "for possession of the property leased to ltim.
G-crLAri. For these reasons, . .the application for revision js dis:
. niissea: With costs, Advocate fees being assessed at 2 Gold
Mohuts.-
BURMA LAW' REPORTS
APPELLATE CIVIL
Before U San Maung; J.
DAW MAl S~IN (APPELLANT) c.c:
i 963
v.
Nov. 27
U. KALI AND ONE (RESPONDENTS).* .
r
Lil]z~tationAct- Articlei"l42 1 144-Article 142 restricted to cases of dispossessi9_n.
arid discontinuance--no abandonment by plaintiff- ArtiCle 144 ap.plies..
: In a suit for ejectment, one of the defences raised was that the defendant
had been.in possessio~ for more than the prescriptive period of 12 ye~rs _an4
hei:i'c e the tuit *as barred by limitation.
Jijia: As to whether Article 142 or Article 144 applies to the present suit,
it i~ ~lear that Article 142 will apply only when the plaintiff's prior possessi~,n
has been lost.by dispossession or.discontinuance. :
.. ~ J. ~
Sulaiman and 2 others v. Ma Hla Bi. Civil Second Appeal No. s6 of 1953
of the. late High Court; U Chit Tun v. Daw Ngwe Tharmg, Civil First Appeal
No. 9 of xg6o of the Chief Court, referred to and followed. ...
In the pr!lsent suit the plaintilf nevet abandoned the suit:land. There, was
no Jf!~pQ~~~s-~ion or ~iscontinuance of posses.sion with~ th~ mean~ng of Ar.t icle
14i_of f!ie .Limitariori Act. . _ . . .. . . . '
AriicTe 144 ~pplies, and ihe defendant ha:l Mt proved adverse possession.
for more than 'the stet:.~ tory period of 12 years.
W. Kyin Htone (Advocate) for the appellant.
Tin ~ye (Advocate) for the respondent.
U SAN MAUNG, ].-In Civil Regular Suit No. r6 of
1960. of the Township Court of Henzada, the plaintiffs
U l<;:lli and Daw Baw U, who are the respondents in th~
present -.appeal sued the defendant-appellant .Daw Mai.
Shi!1..for .her ejectment. from a po~tion. of Holding No. so
of I959;6o in Tagundaing . Kwin, Myowa West Oksu,
Henzada Town, on the ground that thyy were the owners
of the suit land and that the defendatlt had trespasst:;d,
---,----------~----'~'---,..-..:..._ ___ .. - -...
...,..........:....~
* Civil Second Appeal No. 84 of 1962,.ageinst the decree of the District.,
Court of Hen~ada in Civil Appeal No. sof 1961, dated 12th June 1Q6~. .
BURMA LAW REPGRTS
, ' 4 1
c.~. thereon .since a15out the month of May 1949 when Henzada
19 3
- . ,.
town was un der ...v.t.e-t
'f. . ,c .I . I . d .
swa)t l'Q:t 'M'!l tlf~p oure msurgents.
DAsw~1 Th~ defence of Daw Mat Shiri w<;1s th~~ even assuming that
u ;itu . the plaintiffs were the - ~~ers of .the suit land she had
AN~ oi-IE. been in poss~sidn. ofih~(pottfoh' 6c~~~fe'd by her since
the.month of Tagu, 1309 B.E:' (Match-April 1947) and that
therefore :the plaintiffs! suit. whi.ch was. filed on the 29th
~t April 1960 was barre~ by liltlitation, she having been
in--possession for more tha~ theprescriptive period of -12
years.' o
On the pleadings twoissues were framed as to whether
or not the plaintiffs were tlie owners o~ the suit land ariQ.
whether the defendant was in adverse possession of the
p:mtion occupied by her for more than r 2 years at the
date of :the plaintiffs' suit. After hearing witnesses qted
by both the parties the learried trial judge came to the
conclusion that the suit .land belonged to the plaintiffs,
that :the defendant trespassed thereon only during the year
1949 and that, :therefore, the plaintiffs' suit for ejectment
was not barred by limitation. In the result, the plaintiffs'
suit was decreed with costs.
o Now, regarding .the plaintiffs' title to the suit land
there is abundant proof. u Kadone (PW r) the then
Headman of Nyaungbin-zay within whose jurisdiction the
suit land was situate, said that the plaintiffs were owners
of the suit land, that it was assessed to la~d revenue -in
:their :names an~ that when they shifted to Taungyar-gyi
Village about 3 miles away nearly zo years ago 1n o!d~r
to cultivate paddy lands the suit land:was occupied bythe
plaintiffs' relatives, namely, their grandson Aung--Sein arid
.their .nephew Aung Gyaw. When the 'Kar~n insurgents
rose in re~ellion against the Govennp.ent .t he plaintiffs tJ
~ali a nd: 'Daw Baw .U left Taungyar-gyi village and
migrated to the south still ~eaving Aung Sein and Aung
Gyaw in charge of the suit land. The defendant Daw Mai
Shiri ' who had hitherto been sta}r:ing in K6iiegyi village
<'"'
86i...
G. C.
ea~e 9~. ~11~ suit. :~aJ;l:d,~l;>C?-ut t}le-Awmth..~f tcaspn-Nayqrw. i963
I:ti;I ; ~E.;: (Apz:il~May.::J919~ .. ~. B.'1- . ~~ (f?,W .~): whose 0Aw.. ~~
ho~e,}~)tbont ,.J.5~:Y.M.~ away.from t4~ ~~~~ 1l<md ~orro~. .. SHIN'" -
'/}~ .
:ra~~-' ;$~J~~dm~~ ~~~garding_ th.e -,p~ail}#ff~' .q~erspip u KALI
ANDO~ .
~l?-~J~9~ ~Wl~ ,thct.. t~rt:.'tp,at:,about 29 :re.ar.s ago ~~ey. ~sb;i~t~
:t9, Ttl~P&Y.Ii~%gyi yi;ll~g~ to cultiv~~e P~44Y lal).d tpere. 1~ay~
l.qg l Ap.ng ;?,~~~h~~.s\ . .t\.1.\~& (;Y,a:w.,: th~ir r:ela~ye~ . ill,t<;};l.arge~
He ~~-~Q- ~~f:lf9~q~t~~ til~ headman that it w~!).op.ly..aJ.?gqt
~~$PI-\oi3.H, l}:f.:.,_tha~ . the. d~fendant <;:arne and .OCp.lpjeg:~
pq~t\9IkRJ..r!JJ.~ ~uit ,laJJ.d. . . . o ': , ~-
Maung Aung Sein (PW 3), son of Aung Gyaw . s;~iq
:thfl;f.)1~ ; ~~ a, grandson (meaning grand nephe~) of- the
p~$.It:iff$,.and that when the plaintiffs who owned the suit
la~q ..shffl:ed to Taungyar-gyi village. he was in posses~ign,
()f the suit land together with his cousin U .San Dun a~q
Ma Mya Zai. When the Karen. insurgents rose in arms.
:against the: Ggvernment he, San DuJl at:J.d Ma Mya Zai w~~~
intern~~L!>y the Government. Later, when multi-colour~
insu:_rgents <?Cc;upied H~nzada to~ they were released
from. custoq.y,. s~bsequently, the )defend,ant came an<~
squatted on a portion o f the suit land. He did not object
to her presence and even collec;:~ from her a portio~ of
the r~y~n~e which he ,had to pay 9n behalf of U Kali <!.IJ.d
D~w:.~~.W: u.
; . Acc.9,~di.ng::to Mr. B.. K. Sen .(PW 7), an Advo~at~ wlw
h~d\.~~iied.. at ._ Henzada for more than 30 yea],!s, he . ~w,~~
in Henzada when :the multi-coloured insurgents pc,c;:,up~~9.
the town on the 7ili
or 8th of April 1 949 The adrninis-
:tratiqn of the t<;>'wn by- the Government was Withdrawn
till after the insurgents had left. That' was abo~~ the ,
month of July 1949.
Daw Mai Shin in giving evidence said that . she had to
leave her native village of Le-ti-gone when the Communists
and the Karens rose in rebellion against the Government.
She and her husband dared not stay any longer at that
village as her husband was the President o( th~ local
C:9 she came tel Hefizadi th& mtllti-coloiir&
APP.Ft. Wheb.
D ; ~ . insuig~n~ h~4 not yet oc~upied the ~.town. . She at fiisf
96
A~~rn AI stayed -at' -Kongyi village before coming on the suit land
v iALI whic~ was during the morith of Tagti 'r30'9 B.E .. (Match.:.
..:N-o oN-E. April 19-:1;7). Her witness tJ Po Wa (DW r); however;_
said that the defendant came :to-occupy the suit land about
_two months after Burma became an: independent country:
A;nothet. Witness Kyaw Nyei;n (bW 2) said that both he -
and~ baw Mai Shin carne :to Heiizada about one or tWo
months Mfore the multi-coloured insurgents occupied 'the
town. . .
: Now, if the plaintiffs' witnesses were _to be believed:
it was only during 1949 that the defendant Daw Mai sb.ii{
came to occupy the portion ef the suit land from whidi
the plaintiffs-:s ought to eject her. If the defence witnesses
be believed, she came there a few months' after the 4th '(:;{
J~nuary 1948. Both the Courts below accepted the p~ili_p..:
tiffs' version of the story and in view of the dictumo:f
the late High Ccitrrt <?f Judicature in Ma Pyu v. K. C. Miti~
(r) the findings of fact by the two Courts below cannot
be disriti-bed.
:.' ,As :to whether Articles 142 or 144 of the Llin.itation
Act applies to the suit now under consideration . the
observation which I had made in Sulaiman and two otHers
v. Mp. Hla Bi (2) and quoted with approval by the Chief
Judge U Bo Gyi in U Chit Tun v. Daw Nywe Thauily ' (3)
may be usefully repeated. There I said : . . . .
. '
" : ... It is d ear from the language of Arti<;:le 142 of ~!'\~
Lifuitation Act that this article is restricted to
suits' which
are in. terms -and substance based on plaintiff's prior possession
which had been lost by dispo~ession or discontinuance:
Where the .plaintill' dc-cs not plead dispossession a:nd i:? is not
found ~hat He was actually dispossessed on a certain date, ~he
:: su.lt would ~11 u;nder Article 144 and not .Article 142.'~
(x) LL: R. vI. Ran. s86.
(2) Civil Second ..A.ppe-al No .. s6 of t9S3 of the h .t e High Court.
{3) Civil rirst Appeal No.9 of l96o of the Chief C.ourt.
BURMA LAW REPORTS 0
86~
[U Chit Tun v. Daw Ngwe Thaung (3) was in turn cited c.c.
1963
with approval by a Ft,11l Bench of this Court in Civil First DAW MAl
Appeal No. 6 of 1962: U Kan and one v. Kalachand and SHIN
tl.
one]. U KALI
In the case now under co~ideration the plaintiffs never AND ONE.
abandone.d the suit land. It was left in charge of their
, dose r:elatives Aung 'Sein, Aung Gyaw and San Dun.
Jbereafter,, when Aung Sein and San Dun were interned
- - by the Government, ~he defendant took the opportunity
-of squatting .on a portion of the suit land. Consequently,
there was neither dispossession of the plaintiffs nor dis-
<:oritinuance of possession by them wjthin the meaning of
Article 142 of the Limitation Act. o
Article 144 applies and the defendant had not proved
adverse possession for more than the statutory period of
12 years. In ~y event. this question regarding limitation
is only academic, as on the proved facts the Courts in
Henzada must be deemed to have been closed within the
meaning of section 4 of the Limitation Act from the month
of April 1949 till .the 31st of March.. 1961 in view of
section 2 of Act XIX of 1950. The plaintiffs' suit wbjch
w~~ filed on the 29th of April 1960 was well within time,
eyep assuming that the defendant came into possession of
the suit land a few months after the 4th of January 1948
as deposed to by her own witnesses.
. . In the result the appeal fails and it is dismissed with
costs, Advocate's fees being assessed at 3 (three) gold
mohurs ..
(.~) .ivil First Appeal No.9 of 196o of the Chief Court.
Before U SanMaung,J.
c.c. DA
. .
w. NYEn\l
.
'kli~N
. .
(APPELLANT)
.
1963
. ;
v. . . . . :,.
,MESSRS. JAFFER BRQS.. LTD: (RESPONDENT),~-.
0
. , :::- : . . .: . .r .-:
Fral,ld- qbjection in a later .suit t~ set aside d tkcree ~n aformer suit on gTO!!-ndS qF
. ' 'Jraitd~fraud intrinsic to tiUJ}ormer mit~iatef suit noi maintainaole: . ' .. .
:< ~he-respondent
.. had filed a suit in1:95:~'ai.;~t
the Appellant, praying ; ~d~i
others 'for a declaration that the sale deed in favour of the appella~t in respect of.
the suit lands was nuU and void as the sale was Benami.
A decree was :passed ex-parte against the appellant in that suit in 1959
.Subsequently in 1961, th~ appellant filed the present suit for a declaration
that the ex-parte dec~ee passed !lgainst her iti the previous suit was null ancr'
void; as the same was obtained ag.ainst her .bY fraud and .bY making of false
statements.
. The: learned trial Judge however dismissed the suit.
c Held: 'In 'the . previous suit,. the appellant by her written statement fhad.
raised the very' sa me points raised by her in the suit under appeal. 'l'he (raud
and falSe statements 'alleged by her were intrU}sic in nature and not extraneous- '
to tJ:ie previous trial: . Th~refore, the suit under appeal is not maintah1able:
in Ia~. . . . : . ,
K.E. Musthan v. Babu, Mohe11dra Nath ; Si11gh I. Ran. p. 500, referred tO-
Moreover in the case now under consideration the appellant cannot seek
. to agitate the issues which she had already tri~d to agitate in the former .suit~
the mere allegation that the statements' made hy the plaintiff in' the former
:~~it$,. wer~ fals.e. ' . . . . . ' .
. . . ,M.'A.~M'aistry v. ;Abdul Aziz Rahmen( v. Ran. ~471; and Gopatir . antl
a.riOt'hef v. AbclUl AziZ, IX Ran. i35, referred to. ...
KyaW Htoon (Advocate) for the appellant.
Hl~ Pe (~) (Advocate) for the resp~ndent.
...: : ... : .
U'SAN:'MAUNG, J.-This appeal by Daw Nyein Khin, the
plaintiff ih CivilRegular Suit No. 3.59 of 1961 of the City
* Civil First Appeal No. z6 of 1962 against: the decr~e qf the 4th Judge~
City Civil Court, Rangoon, in C.R. Suit No. 359 of 1961, dated 3'1 st May 1962.
BURMA LAWREP6RtS sos:
. . ..
Civil:cour.t,-Rang oon~- is agamst the J'udgment and decree c.~:
' . 19UJ
of that . .
Court
;
dismissing
.
her
-
suit. against the defendant-:
;
: .. : --._. _
' . DAW NYBIN'
respondent Messrs~ Jaffer. Brdther~ Limited a5 represented ~-
by ' M. _D-. Ebrahii:n; ,its alleged Manag}ng Director, The-.... ~~as;~. .
facts' ,.giving rise to the present appeal are briefly th.ese. J:A'FfiT-JlaQs~'
.
. .
In Civil-::Regular
... .. .
Su_it No. 61o
.
9f 1951 of
Civil Court; Rangoon, Messrs. Jaffer Brothers Limited which
the City
.
.
'JD .
~.::7was a'_ private limited company incorporated ui\,def .the
Companis Act,:sued by its Managing Director Mohamed;
Ebrahim .the then defendant Ma Nyein Khin for a declara-
. tion that the registered deed of sale dated the 13th July .
1950 by which the four pieces of leasehold land in suit
were sold to her for a sum of Rs. soo by M. E. A. Jatf~r
(deceased) was null ana void, for cancellation of that deed
and for an :lnjunction restraning the defendant from un-
lawfully obstructing the payment of rent to the plaintiff
by the tenants residing on the land. The plaintiff's case
was that the suit land belonged t<? it and that these lands
had been let out to tenants who had been paying rent,
that on the 13th July 1950 M. E. A. Jaffer as Managing
Director of the Company purported to sell to Ma Nyein
IQlin, who was no other than his second wife, the four
pi~c~s. of leasehold land in 'sui_t for a consideration of
Rs. .50.9- that M. E. A Jaffer had no authority whatsoever-...
tQ sell th.ese lands and that the sale was benami and fqr
no :consideration whatsoever, the lands being worth, :-in
fact, abou.t Rs. ro,ooo- The then defendant Ma Nyein
Khin filed a written statement denying that the sale was
b.e nami _and without consideration as alleged by the thin
plaintiff. . bn the other hand, she said that her husband
M. E-. A. Jaffer as Managing Director of '-the then- pl~tiff
company had ~psolute authority to sell the sui~ Ia11ds and
that the sale of these lands to her was bona fide and !or
considerati<?n., She also co~tended that the plaint was
i!lsufiidently stamped and that Mqha~ed Ebrahim was
not the Mahaging Director of the plaintiff comp~y.
:866 "-
BURMA LAW REP:ORTS
. . .....
~;Z Although the suit was filed on the 24th May 1951, it
DAw NYEIN dragged on for ~everal. years for the reasons noted i_ Q. the
K.ilrn ... diary of the proceedings. On the 3rd February 1958~ .how
~~s. ever, Ma Nyein Khin's Advocate U Kyaw Htoon withdrew
JAF~JRos- from the case on the .ground that he had no further in-
structions from his client. So the case was ordered to
proceed ex-parte against Ma Ny~in Khin. The ex~parte
hearing was also a pro.tracted one, so that judgment was
passed only on the. 3oth October 1959 in favour of the-
.then plaintiff. company, Messrs. Jaffer Brothers Limited.
Th~ evidence led by the plaintiff was to the effect t hat
Messrs. Jaffer Brothers Limited was a private limited com-
p~ny consisting of Mohamed Ebrahim and his .s on
,. M. E. A~ Jaffer, that M E. A. Jaffer was the Managing .
Director and Mohamed Ebrahim was the Director .of the
company, that the suit lands which had been purchased
by the company were a.t the time of their alleged sale to
Ma Nyein Khin by M. E A. Jaffer worth not less than
Rs. ro,oo:O that both M. E. A. Jaffer and his wife Ma Nyein
Khin
.
did not have the means to purchase the same as they
~
w~re entirely dependent on Mohamed Ebrahim. for their
food-and lodging. It was also shown that on the death
of M. E. A. Jaffer, Mohamed Ebrahim who was the sole
surviving member and Director of the company became
its Managing Director.
On the 2-2nd July r96o, nearly nine months after Civil
Regular Suit No. 6ro of 1951 was decreed against her.
M.a Nyein Khin filed an application to set aside this decree.
on the ground that she did not take any interest in the
hearing .of Civil Regular Suit No. 6ro of 195i as she was .
u~der the il;npr~sion that this suit would be withdrawn
in the. same way as another suit which had been filed
against her by Mohamed Ebrahim, viz. Civil Regular Suit
No. 948 of 1950 of the City Civil Court, Rangoon, which
was withdraWn on the 3rd February 19s8. The reply
of Mohamed Ebrahim to this conten~on was that the oth:er
BURMA LAW REPOR'rS 867-
suit"
. .
which was against Ma Nyein Khin in respect of the c.C . '
196 3 .
prerpises of Jaffer Bro.t hers Limited Kerosene Office was ' , - .-
with<lrawh <lS the building w~ _demolished by the Munkj- DA~~~m
p~l.'C?rpor~tion _and it was n?t worthw~ile to proc;~~~ _ .Mi:;;~s~~~~- .
with that sui~- That fact, said ~o}lamed Ebrahim, ~as JAFFlll\-Jh,os.
n<? e~cuse for Ma Nyein Khin hot :taking interes~ in 'Civil LTD.
Reguiar 'suit Nq .. 6ro of 1951. .
. The. ~pplication 'of. Ma Nyein Khin ~o set aside_the
ex-Rarte _decree passed against her was <llsmissed by tne ..
Ci~y q :vil Court on the ground that firstly, tP,e applicatiqn .
di;;ci9s~ no sufficient cause for setting aside the. decree
arid secondly, it was hopelessly barred by limitati9J?.-. Ma .
Nyein Khin appealed to the late High Court against the
order ._of -t he City Ci\ H Court ref~ing to set aside the ex-
parte decree against her, bu_t th~s appeal, viz. .CivU Mis-
~ellaneous Appeal No- 7 of 1961, was subsequently dis- -
missed as withd,rawn on the 8th June 1961.
On the 4th.May I)6I Ma Nyein Khin filed the suit now
under appeal . . It is for a declaration tha_t the ex-parte:
decree passed against her in Civil Regular Suit No;- 6~o
of 1951 of..the City -Civil Court, Rangoon~. was niiiJ; and,:
.void. In her, plaint it is stated that she was the second I ' .
~fe .of. M..E. A.. Jaffer who died on or about the 26th , .
July x950, tha.t prior to his death M. E. A. Jaffer :was :
Manag~ng Director of Messrs. Jaffer Brothers Limi~ed o f .-.
which M.D. Ebrahim was one of the Director, that Messrs.
J~ff~~ I~rQtl~ers _Umite i itself ceased to exist since .the. da~e ,
. of t~e death .of M. E A. Jaffer in 1950, that prior .to. his
dea~ ]vf. E..A. Jaffer ti:S Managing Director of the company.
sold _the four pieces of leasehold land in suit to her for (
sump Rs- 500 by a Iegistered deed of sale dated the 13th.
July .1950) that after the death . of M. E. A. Jaffer,
M..D~ Ebrahim alleging himself _to be the Managing Directo:t:
of_Messrs. Jaffer B_rothers Limited instituted -Civil_Regular
Suit No. 610 of 1951 of the City Civil Court, Rangoon,
asking for a declaration that the registered deed of sale of
2
8'6.8,
. '
.
f~ the sui~ lands in her favqur was null and void, that afte~
DAw~tN sh~ }:l~d filed her Wt'itten statement. in that suit the 'trial ,
vRaiN:: f 'Was p:rot;racted and through misunderstanding '!ler
~:~~; ! Adv~at.e withdrew from the case on the. 27th February:.
J~~~t\:.'~~~ r~s~ . ~-q{!-. ex-p,arte decree was passed against h_e r on th~;,;
~' 3qtq-_O<;~:ober 1959. This ex-parte :decree should be _s~t,; !
aside, 'she -said~ on the ground t~"!t the same was obt!lip~ .
ag'1jps~- ~~r by fraud and by !?lakin~ _ o f false state~IftS~
n~w,ely {i~ that M.D. Ebra~im was tJ;le Managing . Dil;~ct?~
ofes~s. J~ffer Broth~rs Li-rriited; (ii) that M. ~ A: jqff~1 .
h"'q n~ a~thority to sell the pr-operties in suit ; . ~n~ (ii~)L
that a~ the date of the suit Messr-s. Jaffer Brothers Limite,<! ,
w*~~j~r jp . ~xis~ence. ' _
The -defendant M~ssrs. Jaffer Brothers Limited by its :
Managing Director M9~amed Ebrahim filed a written state~ ;
m.ent contesting the plaintiff!s suit. Therein it is stated
inter aliq. that as the fraud and false statements. alle~ed
by: -~a Ny.ein K.hin were of !ln intrinsic natur~ which liad
alr.eady-:been alleged or should have been alleged in -Civil
Reg"Ql~- .Suit No. 6ro of 1951, the decision in that case'
op.e iated as res judicata and no suit to set aside the ex~par.te
d.er~ ~w.~- maintainable. The learned 4th Judge of the
City Ciyil Co\lft who tried the suit accepted this plea of.
the ~efen~~t: Messrs. Jaffer Brothers Limited and dismis-
ed the plaiiuiff Ma Nyein Khin's suit. Hence this appeal. <
'Now,'from the f~cts narr-ated above it is 'clear 'that.-:r
'M~ ~~Nyein Khin by her written statement in the previCilii !.
.suit h~d nised the very points now sought to be r~ed:}
<b.y:tier. ii).' the suit :undex: appeal. The fraud and false staie.: :
n:lents: :aU.eged by her .--were intrinsic in nature and not
eXtff:l~U~ to the previous trial. Therefore, the sui~ no)V _:
und~f .appealis not majntainable in law. In this COhQ.eC-:
tion, >'the decision in the case of K. E. Musthan v. Babi( .
Mohendra Nath Singh (r) is apposite. There it was h~ld
(1) r~apgoon, .page soo.
BURMA LAW F.EPORiS S69
that where .a decree has been passed against a pady by a C.~.
prqper!~OtJit, it is not open :to another Cour:t to entertain :tY ~~;~
a ~itt() s~t .aside a decree when the sole point is whether A~~if'.
th,tf ,Gpurt -w~. wrong .in believing .t he evidence called be- . . l.d-~~'
fo)\~ it-; ~n~ .th~t: a sui_
.
t to set aside a decree on the ground li\~:,J.tos.
of;~:r.;n~Q .i~.:. maintainable only when the fraud alleged was
extraneous to the._ previous trial.
. lll'riourse :of the judgment in the above-mentioned case,
Beasl:ey~
. . J::obierved at page 5"o4:
.
.:-
' ,! .
' ~
.. , ~The test to be applied is, is 'the fraud complained of not
, ~m~t~m~ tl;lat was i~cluded in what has been already adjudg~
ed by the Court, but extraneous to it? If, for instance a
,.Party be. p;eventeq .by his oppon!!~t from conducting his .case
pro~rJy i>y tricks or misrepresentation, that would amount
to fraud. Applying that part of the judgment to the present
case can it be said that the Court has not adjudged whether
'the evidence complained of in that case was true or f<\lse?
It certainly has decided that that evidence was true. How
then can it be said that the giving of false evidence was a
matter which was extraneous 'to what the Court has decided."
Thi~ observation applies with equal force to ~he case now
u.nq~.r consideration. In M A. Maistry v. AbduJ. -$iz
R.ahman (2) where it was held that the dismissal of an
applica.tion to set aside an ex-parte decree for failure to
fu,rn,ish security does not bar a suit to set aside the decree
as, !laving been obtained by fraud, a Bench of the lat~ 1f.~h
~owt of ]\ldicature observed that where the fraud a.l~
is merely the fact that perjured evidence had been giv\n
in the previous case, this was not a sufficient cause for
bringing_ a suit to have the decree in that case set aside.
The case of K E. Musthan v. Babu Mahendra Nath Singh
(1) was cited apparently with approval but distinguished
on the ground that the defendant inK. E. Musthan's case
had applied {or and failed to have the ex-parte decree set
(2) :V Rangoon 471.
BYRMA tAW REPORTS
c.c-.~ : aside. on the ground that summonses werenot duiy s~rved !
19 3
~- on hiin- In .Gopatar and another v. Abdul Aziz (3) It was
Di(~;J;.;~if held ;by a Bench of the late Hig~ Court of judicature ~hat
~ ~: . - a previous decree cannot be set aside on a mere .g eneral;
Ml!SSM . .
JAf'f''l.iif1Bi~os; allegation o! fraud or collusion, thus enabling a pa_rty t~
L'Fo. reagit;ite iii the subsequent su'it issues in the originaf'siik
in which the decree had been passetl against him.
.The t:Wo decisions above-mentioned are also relevant
to ~how that the plaintiff in the case now under consis:lera- .
tion cannot seek to agitate the issues which she had already
tried to 'agit:ate in the former suit on the mere a:llegation
that the statements made by .the plaintiff in the fphnet
suif-weiefalse. . ' , .
.>.':Iritl\e result the appeal fails and it is dismissed with
co.Sts. ; A<,lvocate fees being assessed at five gold mohurs~.
.
- - --.. -- -~---------=-~~~--'-~-'"'
(3) IX Rangoon 135.
BURMA LAW REPORTS
. APPELLATE CIVIL
Before U San Mauug J.
DR. R. s. GREWEL (APPELLANT)
, MESSRS. THE PA~L
v.
PHARMACY, LTD. (RESPONDENT).*
-
D~c. 13
Limitation-suit for damages based on ad-interim injunction and breach of Wtltract
-Limitation Act, s.4z- suit to be filed within 3 years from ilate injunction
fiJQI f)(JC(Jted-Limitation Act. Art. 1 JS-three years from breach of contract-
Limitation Act, s. 23-continuing wrong--nature of.
. The Appellant had entered into an agreement w~th the Respondent Phauns,cyi
..under which he ha,d set up prac"ice in that Phal'fl\acy. Subsequently .. ~;e to
disagreement between them, the Respondent had filed a suit for il\funciion
: 4!gainst the Appellant in J9S4 An ad-interim injunction was at first given
. against the Appellant ~twas vacated on 6th August 19S4 The said suit was
~t~n'u.t~y ~smissed on 13th August 19s6.
, . 0~ 3oth March 19S9, the Appellant filed the present suit for damages
. against the Respondent. The trial judge however dismissed the s~it on the
,. gro~nd that it was barred by limitation.
On Appeal :
H eld: .in so far as the present suit is based on the ad-interim il\iunction
issued against the Plaintiff/Appellant in the former suit, it is barred by limi~lltion.
The ad~interim injunction was vacated on 6th August l9S4 and under Article
42.Qfthe Limitation Act, a suit for compensation for injury caused by such
. i.J\i~,~n~on must .be filed within 3 years from the date on which the injunction
cease4 .
'Harlnder Singh v. Anant Ram and others, A.I.R. 1939 Lah..6, referred to
and distinguished.
Mohi~i M ohan Misser v. Surendra N,arayan Singh, 42 Cal. s~o,.referred to
and- followed.
Held f urther: Regarding that part of the Plaintiff-Appellant's suit for
damages for breach of contract between him and the Defendant/Respondent
the latC\t date fro~ which time would begin to run would be from 1st J une I9S4;
that is the date from which Pbintiff/Appellant was prevented from entering
_~ pre~ises. for his practice. Article us governs the Plaintiff/Appellant's
s~t.
Civil .First Appeal No. 7S of 1962, against the decree of the City Civil
c ow.t of ~~oon in ~i,!l Rc~lar S~i ~ No, ~u) of 9S?
:
BURMA . LAW REPORtS ..f1963
C.C. Regarding the f~ther contention that even if Article I I 5 applies, the s\fit is
1963 within time because the breach alleged is a continuing one, s.23 of the Limita
DR tion Act s~?-ould be referred to: Tne"fubt:S .M 'ine.case do not estaolisll.. th~'t
~imW:EL8 a continuing breach such as that contempla.ted in s.23 can be comniitted by
v. the Defendant/Responde~t. ,;.'
Tr;!~;:~L Sarat Chandra Mukherji v. Nerode Chandra M'l{kherjee, 156 I.C. 396; and
P~j.l'oiACY, Moti Ram v. Ham Raj and others, ~~:;I.<::. , :JOJ, referre9 to and distinguished
,'llm:i. Jogat Kishcre Pd. Narain Singh v. Pormeshwar Singk and others, A.t.R.
(I9SI) .Patna. 348, referred to and followed.
:- I ' ~ , l - 'I ; ~~
K K.. Sen (Advocate) for the appellantl.
. li. N. Banerji (Advocate) for th~ r~~p6ncie.nt.
. u SAN J:-In ' Civii :Regular Suit No. 219 of
MAUNG,
.o;r~s9 of the City Civil C9urt, Rang<:Jon, ~he plaintiff Dr: 'R. S.
Grewe!, who .is the appell~ri~ jn,"th:eJm~sent .app~l, ~~~d
the defendant, Messrs. The Paul Pharmacy Ltd. of Mogul
Street;:Rangoon; for the recove':ty of K' 9',oo6'ai -co'mpensa-
tiqn oi: damages for breach o{ contract. TJ?,e pi~irinff's
. ~~ was that after his retirement from Go!Verninen,t $'6rv~~e.
.q,s ~ Cjvil Surgeon he had acqu1reti good. :reputation a as.
private medical practitioner in Rangoon, that: <luring
Febrtrary 1951 tlie defendant entered into an agreement
wl~p "h im in the following ' terms': ' ' ,.
(1) That he should attend the defendant's dispens~ry
daily from 9 a.m. to 12 noon and from ~:)>:..:0.
to 4 p.m.. except on holidays in a room .a1loth:~d
for the purpose; .I i ':.~ :;;.':.,
(2). That for. so long as he was offering, liis 'Alliable
services there he would be paid a net'c'oiwniis-
sion of 25 per cent on. the gross val-ue of the
. . . .
prescriptitHi's
. . ~ .
given by hiiri .I: . : ' :::
. <"
:..
: (
(3t That alf his prescriptions, for so lqng as he was
offering his services to the defendant, wollld
be given to the <Iefendant no matter whether
he at~ended t~Ie .Pat~entS ctt .. the phar~acy or
outside it ; . .~ .
BURMA LAW REPORTS
'(4)_That he would be entitled to put up his.s\gnb6~td .. ~19~~
~c.
outsid: the premises an~ .. . ;,~~:~
.(5) That thiS arrangement .should be a perl!l~~nt G~~iL
= ...
. one terminable only in case of his.disablijty or' _,.... "' 'f .
death.
. .
However, during MPrch 1954 after he had t>e~ .atterid
. ing .th~ d~fendant's pha-rmacy for about thr~ years'<l~~~
,agreement arose between him and the defendant.owi~g ~o =
.t:~e i exorbitant charges having been made on the p:r~crip
. tions ,given by him and the insolent conduct by the def.e~(l
. al}t to his patients. When told to discontinue th~s ~Clking
of exorbitant charges and insolent condud tow~ ..ffis
p-atients the defen'd~t had maliciously .and withou.t ~m'y
.reasonable o r probable cause asked him by a letter _da~ed
.27th March 1954 to shift .fr0m the room allotted to him
.in the ,dispensary. This he did under protest. ~e .~e~d
~J,lt sub~equently filed on the 12~h June 1954 a suit in the
.City .Civjl Court, Raf!goon, for injunction restraining .him
froQJ. entering the premises of the Paul Pharmacy Ltd. an.p.
1 ~hjs . ~uit ,was dealt with in Civil Regul-ar No. 844 of 1954
..~~at _Court. An ex-parte ad interim i.njunction of'der
was issued against him, thus preventing him from us,i1,1_g,
the room which had been allotted to him. This suit for
'irijunctioh and the ad interim order, he contended, was
~~xati@tis and had been brougpt against him on frivoidus
-grounds. The ad interim order was vacated on tli~
6th A~gus~ . 19.54 and two 'days later he announced in .the
)o.cal daily..riamely, the New Times of Burma that he was
'r~min.~ his practice at the Paul Pharmacy during the
usua.l hours from 9th August 1954. The next day a reply
.in. the same paper was .published by the defendant denying
that he could resume his practice in the defendant's pre-
'iriises. The suit for injunction was finally dismissed for
default on the 13th of August 1956 and the present su.it
for dam~ges W<\S filed by him Qn the ~oth M~ch 1959,
-BURMA
. i ".
LAW.REPORTS
' .
: [.!963
.
.' ' .
.
~~ , .~e~~ . ~han three .years .l~ter ... , He daimed . spe;oa1 damages
.,_ __ of K 2;100 as. enumer~ted in his plaint, and general damages
oRE'~l!L tothe extent of K 6_,900. .
Da. R . .S.
., " . '. . . . . .. .
.T~~~~L ' .. .._, T~e d:ef~iidant, whid(is' a : privat~ limited company,
'IH.\~&(:y, filed a written statement by one of its managing directors,
!:<.'!P .Mr. T. K. :Paul. Therein, it is ~on tended that at the plain-
tiff's. request he was allowed to have his consulting"room
.in t~e premises of the defenda'n t for which he was not
..eparged -any ren~.- He Wiis t9 share the consufting rQ~tu
:ffith 'Dr. Sarin, using the ~alrte h!rn
by turn. The. -defend~.
aJ:}t adl'l'\itted h;aving sent the notice dated tP,e 27th March
.1 954 asking the. plamtiff ~o q~it but denied that ~he dispute
~ l>etween the plaintiff , and'' the defendant arose because of
. e}to!bitant cha~ges. op . the prescriptions given . by the
l plaintiff and of 'insolvent behaviour towards ~e plaiJ\tiff's
pat!en!S'. ' Regarding the filing of .this suit for injunction
a nd the . applicatioli for ad interim injunction, the a efendaht
'C~ntended that they :~ere necessitated by the phnntfff's
:a:~:n~uc.t~nd were ~ot '.ftr~o~ous or vexatious a_s allege<l'by
i the 'plaintiff: The defendant denied th~t' the plainqff
'sii1!ered any damages and that even if the pla:indff' had :a
c~use of action against the defendant it was b~rroo by
limitation. '
On the pleadings the learned Chief judge of the CitY
Civil ;;Court, who tried the suit, framed the following
.~~ues : ... . , . .. .
... : ( 1) What were the . terms of .the . ~erbaf ~gr~em~~~
under' which the pla:in~ff carri~d bi{ li1k
practi~e at the premise~ of the 'defendant :firrii.
m.aki.ng use of a consulting ro6m thereib?
I . . : . ~
. (2) _Whether the plaintiff shifted from the aforesa~d
room voluntarily or because o f the letter daled
27th Mar.(:h 1954 giv:en to him by the d~fqn~-
ant firm? . .
BURMA LAW REPORTS : ~75
(3) whether the defend;mt .firm h~ denied . the ~.c.
.1963
plaintiff access to the consulting ;roc;>pl' in
question? And, had l:).e, thus being unapl~ to ~c~~r
perform his part of the contract ~nter~'l i~fo ~y;!t~
with the defendant firm? . . , ..f-r.~l~ 1Ag;
.IJ~ . .
.(4) Whether because of. the denial of the _access to :~~-D.
the consul$g room, the plaintiff had suffered
gener~l and special damages, in all amounting
to K 9,ooo?
.(:5) Whether there is any cause of action? .
. . (6) . Whether
,.- ' .
the suit js barred by limitation~
. .'.' :
' A~ the hearjng the plaintiff and two witnesses .dteq..~y
. him were examined, while T. K. Paul, one of the Direc;w.:r:~
.of the defendant company gave evidence on behal~ of:J be
defence. The defendant also examined one wi~esS..
Among the documentary exhibits were the correspori4. .
~nee which had passed between the plaintiff and the defend~
ant at about the time the dispute arose. betwe~n them.
The learned Chief Judge of the City Civil Court, .however,.
. held that as the suit was prima facie b~rred .by limitati.p~,
J~e need not go into the other .issues framed. by hjm . lh
.:.the result the plaintiff's suit w~s dismissed w~th , costs, ..
hence: this appeal.
In this appeal, the learned Advocate 'for the plciintiff-
appellant ha:s contended, as he had also sought to contend
in the Court below, that although the plaintiff's . suit .is
titled as one for compensation or damages for breach. .of
contractit is also based on the fact of an ad interim .injunc-..
.tion beirtg issued against the plaintiff in Civil Regular Suit
.No.-. 844 pf 1954, which was allegedly a vexatio~s .and
frivolous. suit. Taking this latter aspect of the c,ase:first. .
l agr~e with .the learned Chief Judge of the City Civil Cout.t
that the plaintiff's suit is barred by limitation. 'f!l~ ad
interim :injunction issued to the plaintiff was vacated on the
vth _Augu; t 19$:1:. and under Article 42 of th~ ~irnitat\Qn
~~~~~- .!Wet:a suit f6r compensation for injury cause'd 'by.:~udl an
. -i)~kd>. f'!~nN~ction must be filed_within three years from t~e-.d~te
. ..i~~\l.&t. 'on:
'w'hkh the injunction had ceased .. A'ccordingly, the
i)t~)'\;>. 1pteient suit which was filed on the 6th March I 9.59 is
.':~,'f~L hopelessly t)'me barred.
c~t{~y .
. '~ : . .._~_: In this connection, the 'iearned Advocate'< for the
'pla:intiff-appellant has contended that the limitation 'began
. ; cinly from the date on which defendant's sUit for injunction
was .:distnissed for default, namely the r3th' 'A.ugust 195'6.
In this connection, he has cited the c;ase of ~6.Nri.d~r Singh
.v. Anant Ram and others(~. I have carefully 2onsidered
' the case cited by the learned Advocate and I atn :of the
,;~p'initm that the facts in that case are distinguishable from
'>the 1..present. Accordingly, there is no escape from; the
provisio~ of ArtiCle 42 of the Ljmitation At' and-:Jimit:a:-
: tiun 'Yould. li.egin from the date when the inj1:1.ncti<;>.:q. had
-ieeased. h.:
. In this connection, the case of Mohini 'Mohan -M'isserv.
'Slltetidta Narayan Singh (2) which was relied 'upon.by:ilie
plaintiff in the Cit,y Civil Court is apposite. There, it was
h&ld tbat no suit lies for damages against a defen'dant fdr
-ma1idously and w)thout reasonable or probable -cau:se
obtaining a perpetual injunction which was subsequently
-<lissolved on appeal. This decision js clear on. the,.point
that .the plaintiff cannot base his suit for damages On ~tJle
:fad of the suit for injunction against him having been diS'-
~zyiis'sed. ; ':d ;ii
. !"; R-egarding that part of the plaintiff's suit for :damages
ifor bt'each of contra'ct between him and the :d~fendailt
ic6mp~y, I consider that decision should rrot be ba.S'ed~n
the pleadings alone and that the evidence bearino1Pt~e
isstrei ishouid have been considered. However, as thl:!
~learned ~ial Judge had recorded all the evidertce adduced
by the parties to the suit, I shall, 'as prbvided for 'in Or<:ter
~- - . .
)
~ . :
; '1'9~]
l . \
. :IXL(kul{
. .. . .
24 ._or. tfi~
.
civill>~otedille Code,&ea'
.
'With
. .
>su'ch :....'o.c.
1963
:.:~~~~~~-~ .',~~ -Pl~11i~'s. case was that __ ~~e~-~~a~g~m'eht .~;.,~'Rts .
.... set out Iil ltiS plan~t
"' ...--. ' .. ; .. . . was to. be .a permanen~
.
one o~ly 'Giui~aL
' . ". . . . .. ,}.:.;.' \
tet'rliii:)a'ble '.ib. case of his disabilitY' ot death. . Ort tli1s , ;,M'~.
-~ ~~~t 'ne' Is I}9t supported by any witness cit~d~ b)fniln . .-gtt~::
. 'Qfl. the:other hifnd it is dehied by the defenda:rlt'S witheSs, L'rh.
' 'f~ K wrth who~ the plaintiff had eritered :u:pori fhe
J'iui,
: :ahcinghfu~ht iii question. This witness said:. "it is not
~'\:r~{tii~t 'the contract between us was a :p~tmah~j:lt t;he
te:r)Jlinabl~ only in case of plaintiff's 'disability or dea'tli."
-~~~ow/ :let us _see th~ nature of arrangemen~ bet~een the
t
~~tiff. aria the' defendant wjth a view to consider '\Yhbse
f . I ~ r '
<s(-bry is true, the plaintiff's or the defentlant't. Dr .. to~J:\ia
1 w~o .wai. c4ed by the plaintiff, said that since .i 94 7 li~ h~q
a consul~& . room in the premises in whic4 the .Grand
Pharmacy stood: Froll_l_I947 to 1958 the Gr~nd Pharrri~_cy
.. 'gave hiin 33 ~- per cent' on the value of the prescriptions
;.,ii~pensed by them. . Regarding tees for onsultation,
; operatidrl, injection, visiting, etc., witness Used to take
, th~'rrt oft hiS OWn rjgiJt. . In regard to other ph,atmdcies a)~o,
aodors wbo used !to
practise there us.t!d .to coilec't 'fees:on
~'.!a(:d6\in(of -~onstiitatfo!i~ .dperation, injection; . visitS; ::Ctc.
,: .Mer V{jtli 'rgard to ptesctlptions, they wer.e paid j3 ~
, -'pe~Lcent ;6n: _ the value. . : -.
.,.. ' rherefor~. the probabilities lire that th~ plaihtltf's.
:_-:~rrahgeih~~t with the defendant c'ompap.y 'wa~ alsO 'ort a
-.~Sihlilal-' 1 bas'is, the only difference 'bdng that _the pl~dntiff
' wfis pai~ . 25 per t 'ent' only, inste~d of the usual '33%. frer
-~ ~enr: ori the value of .the pr~s<;riptions. The -pi;:uniUI
--~~D;iittedly ~hared the consulti~g room inside ~ prenii:$es .
.. of 'th~~aul Pharmacy Ltd. with- Dt. Sati~- ~: tts~((it
.. :OOf~r~, ?J:~:.:and after p.m. : The plamtiff;~~~~f :~~ed .
d
the co~ulting room 'from 9 a.m. to 12 noon jllld 2 '.p,,.m:.to
---4 p.m: ' According' to T K~ Paul, other _doctors wfio l#ld'
pratti~eq ~n. 'tlie pre!Jljses' of the defendant comp:ahy w~e
~Jni~latJy~Vaid 25 -per cent OP. the vafu~ of the prescriptipn~.
BURMA LAW REPORTS
. .~;;' . These were Dr. Mazumdar, Dr. Hal<.lar and Dr.
Sarin. .:A
x)i . R~ s. . contract ~uch as that tried to 1;>e set up .hy the plai~tf~,
,_._ GliEWiiL . W.hidi WaS tO endure Until death Or oisabifitJ Of. th~ ~oitor
. :.fl. . . .. . . .. . ' l . ... f .;
Ml!s~s. . c:oncerned, s~ems to be a ~h.ing unknown 'in ~l;le -~~dlc;al
'l'..U&~<P.AUL ' ' , . ' . ' . " . . .
PaA!tMXev, professi~n of this city. Therefore, it would require ;very
, ",'-'~liltn.~ s~ong evidence on the part -of the plaintiff to prqv~ tliilt
. i. .
.
. . hlS : own contract with t]).e defendant .company;
permanent one. On. the evidence I am not sa.tisfi.ed
' ..... J ! . . .
..
vya.c;\: a
. . . .
. .. - ....t.ha~
/
t ...
: .
the. .plaintiff . has . succeeded . ip. disch~rging the burden
.
.. proof ~o Jl'eayjly cast upon. him.
' )I .
.....
: . ... .
........
.
of
, ~ ' t
The correspondence between the plaintiff .an~ ~he
managing oirector of the defendant company,:.' n":~U.e\y;
-] .. K. Paul, shows that wher~as the pia'intifr'.had been
~ a~cusing defendant of making exorbitant charges 'or,.of
. :h~ving -been rude to his patients, the defendan~ had been
co~sistently denying that there . was- any tr\,lt~_ i~ . th~e
._charges. Then on the 27th of March 1954 th~ man.aghtg
director of the defendant company wrote ~p' the pl~hitf
saying: "We are in pressing need f.or some accom'Jjlo~a
~ tion .f~r ouroffice-work ana we shall. be very mu~h . oblig~
if,you will kindly.see your way to shift elSewhere.a~.yopr_
earliest convenience and inform all clients, patients ap.d'
. f~iends accordingly." To this. letter the pla.i ntitf s~-ri~' a
reply dated 29th March 1954 saying that the defenda~t's.
notice to quit was not bona fide as the defendant was nev~
- ' ' I
'iii need. of accommodation as ~tate~ in its letter. In. ;y.,e t
.. another le~ter dated the 19th April 1954 tl:te. '111ctnagf_ilg
..dii'eetor of tHe defendant company stated: ''':Yqu ;~~re
permitted to attend our dispensary fqr certaj~ h()ur$ .iR a
. day on basis of c-ommission on the value 9f your.presc~lp
tiohs, and . we do hereby give .yo~
.. notice that th~. ~i.m'is~ion
is h<:freby cancelled finalfy with effect from.J.~~e, .I9..$:-t"
., . . .
Acco.rdiqgly, there could be no question of p)~i~tiff~s ev.e r
~ , I rt , , , I . ,
. entermg ~he defendant's premis~s subsequentt.o th~-- ~St ) of.
.June i954, and he was .further preventeq from doing ,'so
.. by th~ q4 in.teriJ:i injunc~ion i~~u~d a~~in$t' ~im .:on 1 t~e
BURMA LAW REPORTS
uth.)~ne 19s4 i~ CivirRegular Suit No. 844 of 1954 ~led c.c.
1.963 .
~agaji1$t)~iJ;ll by t~e .defendant. - ..
' N~~:)~r the purpose of limitation under Article 115 no~!;{
ot'the 'Lilliitation Act the latest data from which tim~ M~~:,_: ..
wbuJd
'
in.
i:kg
. tO run would be 1St Of june 1954 and,
in :QlY
.TH'E P.Auj.
J?i~ARM...CY,
..6~ipioh~ Art~Cl~ IIS go~erns the plaintiff's suit. It s_ay~ . ~~
t~~! a _ suit for compens~tion for the breach of any COiltract, .
express~d or implied, not in writing registered ~nd. 1iot .
s~cially provided for must be. Qrought within three .:Years
frb~- tb.~ 'date. when the contract is broken or where the'
b~b.,~~ -~is 'c<)ntin~ing, three y.ears from the_date wl,len it
ceases. It is.contended qn behalf of the plaintiff-appellant
th~t e~en .if Artide 115 of the Limitation Act applies, the
pi~ntiff's suit is in time as the breach of contract ~n the
part of th~ def~ndant is a continumg one.
. In: this' connection, section 23 of the Limitation .Act .
shohl~ be ~ef~~ed to. This section enacts that. in the cas~
o(a .q~~tin~ing 'brea~h of contract and in the case of ~.a:
. c.onrlnui~g .-m:.ong jndependent of the contract, :a . f.re5h...
perio9 of l~mitation hegins to run .a t eVf!ry momerit ,~f the
tilh~)~rtrig which the breach or the wrong, as the cas~
... m~f !
.~:
Jie::continues~ .. '
q '
~ .. . ; :.'
.
.
.
...'At? to what .con~titutes cQntinuing wrong _the.following
:?a~~ e in',~oint: ln Sarat Chandra Mukherjii v. Nero(J.e
Ghdndia Mukherjee (3) it was held that where the plaintiff
h~s a right. to use the land on which certain shedS have
been erected, .as a' p_assage and these sheds are obstructing
his pass'age way, there i$ a continuing wrong. . . . .
h~ Moti Ram v. Hans Raj and others (4) where the
J?(a1n~ff obtained an injunction forbidding the defendants.
~-from building their house in such a way as to interfere
With the passage of light and air through certain ventilat.ors
constructed in the plaintiff's house, and the defendantc;
dlsobeye<i
. .
the
:
injunction in that they had built their
.
house
<> 16a r.c. 3o3.
..
BURMA LAW REPO~:ts
~<;: i~-,s~s~ ~\ Vf3.{ that o1;1e .<?~ the,.ve~tila_tors ha~ _been. <;!~s~, 1
~>u and another mterferred With, 1t was held that the case was
DJ~~;~;.~; o~<: of C?-n~ip.~ng_~reach a_n<:I.no li~it~ti~~ p~~?~~~~~P~.UF~:i
M"':t~~ . :.)n, ip:y PJ?ii}i9~ ... the .facts: in 1~e case .now \l,~~e:;r' 5Rn\'
1
l:r.~1~!' si4~fa~o~~- go not establ~h t}la~ a continuing p{~~~~ ~)~~~}1;
.h~~~-'<~'! a~ !~,af ,cont~mplat~d in. section 23 of ~h~ q~ta~ion. -!}S~ ..
c~~r.?: ~omp1itted by the defenc!.aJ;lt.~ The ~s~ rpyr~. ~ef.r~x;;:
!s,
in, p~:n-p.,t . that cite<l;. by. ~~ . ,I~rned. ~dy~c~Ie :~9-~ , ,WJ.S. ~
d~\~1\~an~-!~~pqndent." . It -js fagat K:ishore_. P~: . ~?trK~3 .~
snmp Y .r,arrpeshwa~ Smgh and_ophe~s (5) I~. ~M)\ ~mK1
fo~ re<;oyery ;ef money . in respec;~ .of realisati\m _ l;>yr, th~, ,
d~~e~~~o~~r of __the d~~I:~t~I.:. ~~~s tw.ke. ove~ .~n.~:~ t~~: ;
lea11n~ Jp.dge~ of the P~tna I;llgh Court helq th<lt ~Q~ . S4l~
T ~;. 1
.. J 1 'ty~,.
1 , ; : 4 }
w.~~ ;o~~ ~o~. q~m!lges f9~ bt:e~ch of an j~p~ied .conti:~ct ~X!!
th~ decree-hol<ier to g~t th~ pay;ment~ c~r~fied an<). n9~ FR.}
e~~s~t~}h~, ~eqee~ thar the ar~icle ai;>,Pli9_bl~ 'Y~~ ,1 r~ lof '
th~}~I~f~tion Act and that the breaCh toqk pla~e .~1;14. -~n~i.
con$ideration failed as soon as the decree-holderdid )some~
th\ng )ticonsistent Wi~~ the carr0..ng.: out _o f ~o~~r~1;,' '
1
th:
i.~;}o?:e~h~~g neg_apvmg it~, p~rf?rm~~~e br N.r~< ;';:::;';';,;
1
~~~ th'~ ~as~ n<?'.Y ~ndey ~on~iderat.io~, ~ ~~NU~~P.1; ;;
had by his notice dated the 19th April :t9,54;,. ~~fi~itelf.r
canc~lled unilaterally the arrange111~~~ entered i ~tC:l
, I. 1 ' . , .~
between.'it ~nd the plaintiff witll effect fio.m the' I~t N,n~-
r9:s:4:J~us negativing the pe:rforina~ce of his pa.~t 1cit.f~t:
co'/Nti.et.: ~ :: ~' . : ' ,,)( ,
. -~:: 1 ~ .;_. .~ : . . . : : : l .r-; -: ~s:..rl .
. ..,f9~, t.hese, r~asons,I consi,der that ~he learned J\id~~ ,pf. ;
the City Civil Court had rightly dismissed the .plai,nW(:: ,
app~llant's suit as barred by }jmitation. In the res~lt ~~C.
ap~~~l. 'fails and it is qismissed with. costs, Advo<;:~~~:~ f~~~- ,
befng asse$se0. at ro Gold Mohurs, .. . ;
~, .. r ... ~ t : \.,d
. BURMA LAW REPORT$
om_GINAL CIVIL
Before U il{qung Maung, J.
FSOOF HASHIM
0 0
MEHTAR AND THREE OTHERS
~ r:; \ ~ 1
. . . ~ 0 .:
. (P.\tAINTIFFS)
v.
.:M.J.. F.JASH~~ ME.HTA,R :(P~FENDANT) *
{ ,,,, i : . . . . . ' :.
Te,!f~2"!!f1. ~o/.~r'cti,o_n~co~;~fir~atfon of ad in.terim ~nir~nction-tempo~arjt i ";Jf;~~.-:
" ' ' ' 'tiOn to restrain defendants from sellmg p/amtijfs' shares of Oil, ': ' ''
-~ J; .
' ':Pta~tfu's. and the Defendant w~re co~owners of the suit oil wellS apd tJv;:
D(!iendaiit 'liad: -been extracting. tlie oil; as. -~gent ~f th,e plain.~s.' 0~ t~' ,;.
ap_n\i~#Pl\ ?.f t~~ p);l,inti(fs in their sujf for accounts an ad intf'.if!l .ir.~~cti91l
ha,4.be~I.\fl~'?e4_ 'r~t~~.i,ni~ w~ defen4a~t from selling the pla~W~. sqar~~ .., 0
of:tl\.e f 01 extracted. . . ' . ' ( 0
"
~ .; ...... , ..... f . ~ : ' i . . ,,..
Wl).ere ~he questi!>n befQr~ the court was whether the ad inteljm .~n.iunction:
shliilt(f' ht c1ii.!iriiu;d : - :
:;:Hktflhn vie~' of the fact that the par~ies were in bitter dispute andhav'.e
0
:
e~c;n fil~ . cOI}.t.emP.~ ,proce_ed.\ngs agains,t ~ach other th~ fear o(,t}.le p!ajl)~~~ :.
tb1<\~ 1~e .~~ffr;~~nt Wi~ not: ~oo~ a~t~r tl).e!r ~nterests pro~er~y i.s not !!W~g~~~~ ~
pn exaggerated or an tmagti:Jary one. It wdl therefore do JUSUce to tl;ie plam-
. 1iffs ~ith~ut~.doing injustic;e -to the defendant to confirm the injuncti~n -ord:r :
d~~i;qg jtpl( ~~?~fl9Y. ~f. fhe ~uit. _ . . .
: ~. -~ ~ ; ... ) : t 1 ~
Venkatrain and Kyaw Myint (Adv9cates) for th~. p).~intifi.s.: ::
' '
rU.n ~~~:iti-'.(Ad:Vtic~te)
J ~ . . .
~}: ;:
for .the defendant . .
H~.~
; " 0 ~:lVf:A:uNG MAUNG, J.-
The plaintiffs are co-owners ot '
some oil wells in Yenangyaung with the defendant who: ,
{.
haS' also 'been -actually; operating the wells and extracting :
th~ oila~ agent of the plaintiffs under a power of attorney'
given -to -hjm by them. The defendant is also the brothet .'
of:pl~intiffs 1 _to 3 The plaintiffs allege that the defen~<
dant has not been rend~ring them true and honest -a~counts !
.BURMA LAW REPORTS
: ~9;; and tha~ he has not been tendering them their rightful
-. - _shares of the earnings from the oil wells. On the appli-
. ,J:~~~ :~ation of the plaintiffs an ad interim injunction has been
~~~To\Jl.Al'!o issued restraining the defendant from selling the oil which
THkl!I!QTHERS I
. . fl::~.: ~
h h f h. 1 . 'ff
t:onst:J.~tes ~ e s ares o t e p amq s.
The ques~10n
- . now.
_AJ..J. ]:I~~~ !I:' is. whether the ad interim order should be confirmed
. MBHTAR.
':: ; , pending fina) deCision of the suit, or whether it should be
-vacated.
..
fn Civil Reguiar Suit No. 33 of 1963, three plaintiffs
sue ~he same defendan~, i.e., Ali Hashim . M~htar on
siniiHrr grounds.- The subject matter of that sui_t-is .t he
.
sh~res of the plaintiffs in . oil extracted from
. oil wells. of
which they, along with the defendant, are co-owners. . In
that .s ujt also the defendant has been operating as age:ht
for me plaintiffs and it is alleged that he has f~il~ ~9
render true and faithful accounts and tender .t he proper
shares of the earnings to the plaintiffs. An ad intf!iJirJ.
in]unction was also issued in that sui.t and a similar
question has arisen as to whether the order should:. be
confirmed or vacated. Si.nce the backgrounds to ij},~ tW~
su1ts are the same, the defendant is the same and similar
questions of fact and law are involved, arguments on the
questions of confirming or vacating the injunction orders
have been heard .together.
It is the plaintiffs' allegation that since July 1950 full
and faithful accounts of receip~ from sale of oiJ and of
th.e payment of taxes and rates have not been rendered
by the d~fendant. The plaintiffs say that they have, each
of th~m separately, been receiving monthly paymeril:s
fro:rn, the defendant from December 1955 to July .1:961, .as
ea~ings for their shares. They allege, .however, that th~y
sh_ould have received more, and that ~he accounts gi.V,en ..
by_~~e ~ef~ndant were no.t honest. . ~ :.
The first, second and tltird plaintiffs along with some
of the pla.intiffs in Ovil Regu~ar Suit No. 33 of 19.6 3 .h~d
BURMA tAw REPORTS
appointed the de'fendant as their agent to bail :o ut oil from ;9f3
the .wells and sell the oil produced therefrom in the - -
market,
and for his labour the defendant Wa5 tO receive , HE~OOPASlnM
liis..,. fee. The fourth plaintiff in this suit similarly ~aT~ Al'JD
1'HRJ!B OTHl!RS
appomted the defendant her agent. The powers of . "
attorney were revoked by the plaintiffs in May 1962 by A~i!~~~~M
lett~r.s addressed by them severally to the defendant, and
neW agents were then appointed by the plaintiffs to act in
the;plate of the defendant.
In ~pplying for ad interim injunction the plamtitts
al}ege that not only has the defendant failed to render full
and faithful accounts, he has also been selling the oil at
prices far below the prevailing market rates and that
therefore their interests are being greatly prejudiced.
The. defendant strenuously protests against confirma-
tion of the injunction order. He states that full and
faithful accounts have been rendered to the plaintiffs and
pay~ents have been regularly made to them of their due
shares. He files copies of receipts given by the plaintiffs
. ;. ~o. him in acknowledgment of the monthly payments he
. has -~ade in lieu of their shares over ~lie years: He al~o
points out that jt is his duty to submit accounts only at
th~ iend of the calendar year .and that he has rendered
. accpunts even up to April 1963. He acknowledges that
there "are monies to be paid by him to the plaintiffs and
expressed willingness to make the payments and to settle
the accounts with them. The defendant also maintains
that the suit is bad for non-joinder of necessary parties
~cause the oil wells are jointly owned, not by the plain-
tiffs alone, but by over 20 co-owners in all, two of whom
are abroad in the Philippines and in Mauritius. U Tun
Sein, learne4 Advocate for me defendant, concedes, how-
ever, that the shares of the plaintiffs and the o~er co-
owners in the oil wells are distinct and separate and that
his,~nent has therefore been able ~o pay each <;>f ~he co-
owners th.e earnings due for his share. On the question
3
884 BURMA LAW REPORTS
.;
c.c. of !!on-joinder, U Tun Sein also submits that .all those who.
1963 ,
had 'signed the power of attorney appointing the defen- .
EsooF
HAsHIM dant as their agent should join as plaintiffs in the . suit.
~~:-~~~~ But as each plaintiff represents a distinct and separate
Hv: ., interest and each has acted on his own in granting the
ALI ASHlM .
MEHT~R. power of attorney to t h e d ef end ant and 1ater m
revo}dng
the power, it is arguable whether. the mere failure to join
together as plaintiffs of all those who signed and executed
one power of attorney appointing the defendant their
agent is necessarily fatal to the suit. U Tun Sein would,
of course, be at liberty to raise the issue of maintainability
of the suit as a preliminary issue of law later on if he
wishes .
On the face of the pleadings, the affidavits and the-
counter-affidavits and other documents which have been
-:_put on the record, it appears that the parties are genuinely
at issue over several facts and these can only be deter-
mined after the evidence has 'Qeen fully led in the trial.
There may be issues of law also, some of which may be
med as preliminary issues while the others can only b~
prQpel'ly
. determined after the facts have been gathered.
jn:. .
U Tun Sein for example argues that the suit is time-
barred. The plaintiffs are asking for accounts from 1950
and it remains to be .s een whether the cause of action in
regard to the earlier accounts has been affected _by the
law of limitation. But the cause of action in regard to-_-_-
the later accounts is surely saved and on the face of things_:
therefore it cannot be said that the suit is entirely barre~
by- limitation. U Tun Sein frankly concedes this .
Another point which U Tun Sein makes, and this is
an important point from practical considerations, is that
the defendant, equipped with skill and experience has
been extracting oil from the welis over many years . for
the plaintiffs as we_ll as other .co-owners. The defendant
BURMA LAW REPORTS
states that he has reh'aqilitafed the oil :wells. ~ter ~e war c. c.
196~
and he has also, on behalf of himself as well ~s the plain- EsooP
tiffs and other co-owners, been extracting oil and ma:rket~ H"sHIM
ing it. It is neither convenient nor practical, according .!~~~:
to the defendant, to have two or three agents operating v.
. d . f
t he same wells, f or extractJ.on an processmg orm an MEHTAR. ALI HASHIM
indivisible operation ~ich should be entrus.ted ~o : one
man only. Also, after the oil is extracted, ..royalties and
taxes have to be paid and since these are assesslid on the
total extraction he has to be paying these dues for the
plaintiffs' shares as well, even though the injunction order
has forbidden him to sell their shares of the oil. Again
the defendant states ,that he is under a contract with the
buyers, executed in 1960, and if he fails to discharge his
obligation to sell all the oil that is extracted, he wjll be
liable in damages for breach of contract.
. Mr. Venkatram and U Kyaw Myint, learned Advoeat~
for the plaintiffs, state that their clients are willing to
pay their share~ of the expenses, taxes and royalties to
the _defendant. They only wa:nt to res~ assured tl).at their
shares. in the oil will be protected and, i~ sold. in tb:e
~ar~et, they will be sold at the correct prevailing market
,P!i~es.
Without going too deeply into the merits of the main
suit, ~t is apparent that the plaintiffs have a valid cause
of action against the defendant and that the parties are
at issue on several questions of fact and lay which need
to be tried. Plaintiffs have asked for injunction against
the defendant to restrain him from selling their own
shares .in the oil. They have not asked for ail injunctioo
to restrain the defendant from Operating the oil wells al.:
together. Thus the injunction order should not prejudice
the interests of the -other co-owners including the defend:
ant. The plaintiffs fear that the defendant will not look
after. their interests properly. In view of the fact that
BURMA tAW REPORT$
e.-C. the' ~arties -are-jn bitter. ilispute and have even. filed con-
. ~~~- teD?-pt proceedings against each other, the fear is not al-
. :S~k . together an imag~nary or exaggerated one. It will there-
=-~~ fdr' do jUstice to the plaintiffs, without doing injustice to
!~=~:iii ,. .fue defendant, to confirm the injunction order driring. the
H:L-v ; n2\SFII M
_ ,Mi~x~ . pend.ency of the SUlt. I W1'}} therefore order accord'mg}y. .
.. . . .: .. The practical problems posed ~y the injunction order,
to which the defendant has pointed out, however, should
also- be solved if possible. - The plaintiffs maintain.' .that
they are not concerned with the contract of sale which
the defendant: has signed since they have already repudiat-
ed his authority to act for them. However., rhe contract
w~s Signed hi 1960 lo.ng before 'the authority .o f the de-
as
-~eildant agent was withdrawn and perhaps the .plain~
tiffs :were aware of the contract and approved of it. .This
) s a question of fact whiCh must await :the trialfor det~r~
!fuination. At this s.tage arrangements should be _made,
1f '':Po~sible~ to protect the defep.dant from the risk of
for
~ction breach__ .o f contract. . As the defendant points
out .the~:e fs also t!J.e. question o{ expenses, royalties and .
t~xes of whiCli the"plaintiffs must bear their share . . Again
the , plaintiffs; shares in the oil may run'. 'the .risk of loss
or damage if they are stored up for long without being
sold. U Kyaw Myint and Mr. Venkatram say that appli-
cations are being filed asking the Court to pass suitable
orders in order to get these problems out of the way .and
those applications will be disposed of when, they come
before me in their proper time. In J;he meantime .I can
only observe that it may be in the interest of all the parties
if they -can come to some agreed. arrangemeni as to' how}
during the pendency of the suit, th~ -shares of the plaintiffs
hr' the oil may be disposed of. how the expenses, royalties
and t'axes due' on the shares m;:ty oe .deducted, and the
~~r~~c~ of th~ . p-roceeds of sale _dispose~<o(o~ <Ieposited.i,
'. .~.. . .. ~ . . . ... :. .
BURMA LAW ~PORTS
APPELLATE CIVIL
Before U San Maung J.
ISMAIL AHMED MADHA W AQF (APPELLANT)
v. Nov. -~6.
. UKHIN MAUNG
. AND Two OTHERS (REsP()NDENTs):*
. . . ' .
Dilmissri of suit-jaz7ure to give notice under s. So C.P.C. against Defendant noi
. --~ .: :neussal'y as party-defendant-proper course to strifie out said party" :an~ ~rocee~
with suit.
The Plaintiff filing an ejectment suit against the first two Def~ndant;
m
h\ld :a"dd~d :as co-defendant. the' Controller. o!'Rents. Ranioo~ : a.s:p~- -ha-4 Wl ed
to take action against them under s_. x6AA ofthe Urban Ren\ Co~t~ol;;A.ct.
The Plaintiff had however omitted to give the statutory notice required under ~'C
8o.ofthe Civil Procedur~ Code. . - . . ' . _
., ';l'h~ tt;ialJ~dg~ dismissed the whole suit because'o~ the said omission.,..
On Appeal:
. .Held: The refusal of the Controller of Rents t~ take action against the
fitst two Defendants under s. x6AA of the Urban Rent Control Act is no.
ground why he should have been added as a _party-defendant. His presence
l:lefore th_e Court was entirely unne~essary even as a proforma defendant. .
. 'A_~~- (a) Hanull~ v. u Par Sein and two others (x96o), B.L.R. zs6 .
(HC), referred to and followed. . . ,
The Cont.::oller of Rents could therefore have been struck out and, the suit
a1iow~d to .-proceed.
.Th,e suit .was accordingly remanded.
-~ ~ . .
Ch0.wdliury for the appellant.
. .
Mauna Mauna Aye, Ba Thaw and Toe Mauna (GOvernment
Adv6C:ates) for the respondents.
U SAN MAUNG, J.-In Civil Regular Suit No. 491 .of
196i Q{ the City Civil Court of Rangoon, the plaintiff '
Ismail Ahmed Madha Waqf by its Managing Trustee '
A:-E. Madha sued the rst.
and 2nd defepdant-respondents
.
.-. Civill"irst App~al No. 17 of 1962 against the decree o_f the 4th Ju,age, q~
(::ivii Co1:ut of,Ran~~on in Civil Re~ar Suit No. 491 of 1961 Qated Ifth.l\1ay
.,.,..(,.";.. "/ ' . .. . . . .. . . "f
888 mJRMA LAV\t REPORTS
..c:c. U K'hin Maung and Madam Chwa Shin for their ejecment
1963
from ' the premises in su~t fo! non-payment of arrears of
. ' ..>' .
~~~ rent and for alleged breach by'UKhin Maung of the obliga-
MADHA WAQP tion of. tenancy :the suit be~~g one under section r2 (r) (a)
u i{HIN of the Urban Rent Control Act, 1960. The plaintiff added
~~~~~~ aS' a co-defendant. the respondent Controller of Rents,
" Rangoon, Without having issued the statutory notice re-
quired by section 8o of. the Civil Procedure. Code. The
!'earned qial Judge holding that the whole suit was bad
because of this failure to issue a notice under section. 8o
of the Civil Procedure Code to the Control.l er o~ Rents
dismissed the suit with costs. Hence this appeal.
-1
.,Now the plaintiff's case as set out in the plaint is briefly
a:s "follows : -
.. : r .
The -W aqf was the _owner of the premises knOV\'ll
as No. 264, Lewis Street, Rangoon and the rst defendant
U Khin .Maung was tenant in respect of Room No. r2
thereof ~t - a rental of K 45 per mensem. In Civil Regular
SUit Nci. 1099 of 1956 of :the City Civil Court of Rangoon
the plaintiff Waqf_.sued U Khin Maung under section rr
(r) 0 (a) of the Urban Rent Control Act of r948 for his
ejectment for failure to pay arrears of rent, the suit being
under section r r (r) (a). Madam Chwa Shin sought to be
made a party-defendant .to the suit on the ground that the
tenancy had been made over to her by U ~hir.i. Maupg...
Her application was rejected and a decree for ejectmenr -
was p.assecl. :against U Khin Maung This decree was sub-'
sequently rescinded under section r4 of the Urban Rent
Control Act, 1948. Thereaf:ter in Civil Regular Suit
No. :527 of 1957 of the City Civil Cour.t, Rangoon, Madam
Chwa Shin--sued the plaintiff Waqf for a declaration that .-
she-was a sub-lesfee of U Khin Maung. This suit was
dismissed and the appeal by Madam Chwa Shin to the
late 'High Court was unsuccessful.. Thereafter, the.
plaintiff Waqf tri~d t9 tnQVC? the C:ontroll~r of Rents;
BURMA LAW REPORTS 889
Rangoon, to take actions against U Khin Maung and
Madam Chwa Shin under section 16AA of the Urban Rent
Contro. 1 Act and f or summary eJectment, 1'f necessary, of AHMBD
0
ISMAIL
Madam . Chwa Shin from the room in question. In the Mws:.WAQP..
meantime,
the Urban Rent Control Act of 1948 expired
Mu KmN
AUNO AND
by efflux of time -and the Controller of Rents did not pass TWO oTHERS.
any orders on the appli_cation filed by the plaintiff Waqf.
Consequently, the present suit under section 12 (r) (a) of
: the~ Urban Rent Contro~ Act of 1960 had to be fiJed, with
the Controller of Rents as a proforma defendant against
whom no relief was asked for.
. The defence of U Khin Maung was that he had during
the interregnum after the expiry of the Urban Rent Con-
trol Act of 1948 and the coming into force of the Urban
Rent Control Act, 1960, .assigned the tenancy to Madam
~hw~ Shin under section r.o8 of the Transfer of Property
. Act. Accordingly, the plaintiff's suit against him was not
only not maintainable but was also bad for misjojnder
qf. defendants. The defence of Madam Chwa Shin was
that she was willing to pay rent to the plaintiff in view
of the fact that the tenancy had been validly assigned :to
0
her and that in any exent the notice terminating the
~enancy was bad in law as it was served on U Khin Maung
a,nd . not on . her. She also contended that the suit was
b~d: for .multifariousness. The defence of the Controller
of Rents was that the suit was not maintainable against
him and that it was also bad for want of statutory notice.
Now, merely because the Rent Controller had hot pass-
ed an order on the application made by the plaintiff Waqf
against. U Khin Maung and Madam Chwa Shin for neces-
s~y .a ction under section 16AA of the Urban Rent Control
Act 1948, this was no ground. why he ~hould have been
a~ded as a party-defendant in the present suit under sec-
tion 12 (r) (a) of the Urban Rent Control Act of 1960.
His _pres~?ce before - the Co!Jrt wa~ entirely unnecessary
'
BURMA ~LAW REPO.RT~- [-19~3
'
~~-- even as, a proforma defend,ant. Accordingly, the ebs~rya -
, . -tion 'i nade by me in Ayanulla (a) Hanulla v. U Parsein 'and
fSM;tiiL
AtiMw. two others ( r ) 1s
. apposite.
. There I sa1"d :
M.cli.\.WAQi .. ' .-
u.'K.~;N ' .. :The contrary view is, _however, to be found in the judg- -
M-.a.mio ':AND ment of another learned Judge of the Patna High Court,
TW:OLOTHjlR~~ namely, Meredith J. in Boyini Kanaanna v. Pedini Rmlinaam
Subudhi (2). There the learned Jydge after referring to the'
~'case law on the subject gave the following interpretation .
' of ~-e \'iews of. the Privy Council in Bhaachand Dagadusa_; ':.--
The 1ecretary of State (3). He observed: _.r.~
.. ,, ..
" In the Privy Council case it was merely laid down
. that the provisions of section 8o must be strictly_observed,
and that the Bombay view to the- contrary was 'Wrong.
As I read the judgment, their Lordships were ' ca:reftii to
leave the particular question, which we are now ~onsi"
, dering, open. According to the statement of fact the suit
.w.as against the Secretary of State, the Collector and .;he
District Magistrate, all public officers. But however that
may be, as appears _from the second last paragraph of the
judgment, an attempt was made to distinguish between
the effect of section 8o in the case of the Secretary of'
State and in the case of the Collector, and to argue that
even if it defeated the action as .against the f~rmer it'
would fail to protect the latter. Their Lordships rejected,
this contention but on the ground that the suit had .been
throughout a jo1nt proceeding for the purpose of getting
a joint declaration that the Government Notification in
question was bad as the foundation of everything subse-
quently done, and, in the circumstances without the pre-...
.sehce of the Secretary of State before the Court, the 'n:otifi.ca- .
tion could not be assailed, and if it stood as valid, the
--Coliector's .action could not be successfully impugned.
T:hus, they rejected the contention on the express ground
.that . the SecretarY. of State was a necessary party.. to .~he
action to make it maintainable, and no other ground was
. mentioned. Moreover, in the next par~graph their Lord~ .
ships said, 'Whatever may be the case between other-
- (x) 1960, B:t:R. 256 (H.C.) : (2) A:I.R. 1948. P~t. 1J7
(3) A.I.R. 1927 P.C, I76,
BURMA :LAW REP.ORTS,
.
parties, as against the respondents, they. .(the plaintiffs)
must fail.' " . ,.r-.
W1t great respect,- I am of t he optmon
. h that th. e. VIew
._,_
U:ll'o.en lsMAtL
AHMED
by Meredith, J., is correctexposition of the law as lajd down.. MADRA WtQF
by the Privy Council and to be preferred to that of Rowland, u ':{ut.:N
J., in the two cases referred to above. MAu~9:';.Nn
TWO -d'tHERS.
" As pointed out by Meredith J.,
the true test in cases of
this kind is whether th~ suit would be niaintainable as ag~inst
the private -individual without impleading the official who
. . requires a riotice under section 8o of the Civil.~rQ.G~dure
Code. In such a case, there is no reason why the official-
:.. should not be struck out and the suit allowed to proc~ed
:. -~gainst the private individual in. whose c~se .rio 'nptiCe u,nq~:~; 1
section 8o is at all necessary." .
..For the reasons given therein I would .se{ ~sid~ :the
qecree of .the City Civil Court, Rangoon, .dismissi~g:. the
p1aintiff~s suit .and .under ' Order XLI, Rule 23 :of.t he. Civil;
P.rocecture Coi!.e rem;:~.nd the suit'. for trial . in. Jiie; )igh.t. of
the remarks made above. The learned trialJ.~dge s.h ould
s'tnk.e out the na:me of the Controller of Rents from the .
.,i<lY. of def~ndants .. :
There will be no order as to costs ofthis' appeal. ~'A
certificate for the refunq of .~ourt-fees p~d on.~~ m,ez;nq-,
randum of appeal will be issued t o the plaintiff~appellcint
.under sectie>R ~3 pf the .Court Fee~ Act.
. . .... . r .
~
BURMA,-LAW. REPORTS [~5)~3
APPELLATE CIVIL
Before~ U- San Mazmg, J.
JAGARU (APPELLANT)
v.
N_ov. I_1 u PO NAING (REsroNoENT). *
E}edment su'tt_;,ight ofd~fendi::nt to question tiile of alleged landlord'_:.:absence
: . of attornment--no estoppel.
. ': ; : ..... : . ) .
. _: In a suit for ejectment for arrears of rent the defendant had c6iitended
a
thai-he was t~nant ofthe plaintiff's' predecessor in title and ;was 'never ii t~nant
of the plaintiff.
. Meld: A tenant is not estopped from questioning the derivative title of t4e
Plaintiff who is suing him.
Deena Bandu .Gan v. Makim Sardai- LXIII Cal. 763; Kri~hna Prasa~
Lal' Singha Deo v. Barabon, Coal Concern Ltd. (1938), I Cal p. r;
DauZat Ram.v: Havel Sliah anti aiw'ther A.I.R.. (1939), Lah. 49; and -.Par~ih.
Kaur.and others v.'. Gian chand .A.i:.R. (194o), Lab: 341, referred to. . ~.'
_Also .. the plaintiff has not produced satisfactory evidence to show that'~he
defendant had attomed to him after the purchase of the land. .
Accordingly the relationship o_f landlord and tenant has not been established
between the plaintiff and the defendant . . The defendant is thel'efore ~ot
estopped from denying tlae title of the plaintiff 'and . as wen as h is statUs' ~~-.
Jamijo~d of the suit land.
U Pyu (Advocate) for the. appellant.
N. R. Majundar (Advocate) for the respondent.
U SAN MAUNG, J.-ln Civil Regular Suit No.. 5 of'-r96r .--
of the Township Court of Pyu, the plaintiff Jagani. who
is the appellant in the present appeal sued' the defendant-
respondent U Po Naing for ejectment and for recovery
of K 364 said . to be due as ground rent for 33 months
from May 1958 till . 31st January 1961 for occupying. as .
his tenant a house site in the land kno-wn as Holding
No. 86 of 196o:6r, Pyinb_one Kwin~ Pyu Township~ The
Civil Second Appeal No. 51 of 1962 against the decree of the District
Court of Toungoo in Civil Appeal No. 7 of 1962 1 dated 19th June 1962,
BURMA LAW REPORTS 893
defe~ce of U Po Naihg was denial of ihe tenancy a:s also ~9f;
of the plaintiff's alleged o~ership of the . suit latrd. ; - ..
According to the defenda~t he had been occupying the JA~~u . ,
house site in question as tenant of its real owner who was u Po NAtNc.
a Chettiar and that the plaintiff Jagaru who had repre-
~ented himsel~ ~o be agent of the owner had been collect-
ing rent from N:m _a t t'b.e rate of K 4 per mensem. He
haP, ceased to ,pay this rent when the plaintiff claimed to
be the o~er of the suit land by virtue of its purchase
from the Chettiar. In this connection the defendant con-
te~ded_.that as the plaintiff was a foreigner at the time
of the alleged pur~hase, he could noi have validly become
the owner of the suit land.
' 9~ the pleadings several issues were framed, name1y
(a) wh~ther the plaintiff Jagaru was the owner of the suit
land ; (b) whether the defendant was the tenant of the
plaintiff of the hou'se site occupied by him at a monthly
rent of ~ I i p~r mensem ; <l?d (c) whe.ther the plaintiff
had in a pr~vious suit before the Village Court obtained
a decree for rent a.s against the' defendant in respect of
the house site in question. After ex~mining witnesses
0
cifed by both the parties the learned trial Judge came tO
tne ' ~D.elusion that the defendant U Po Naing was the
ten~ of the pl~tiff and 't hat he was consequently estop-
ped' by section 1 16 of the Evidence Act from denying
thetitle 'of the plaintiff to the suit land. He accordingly
d~ the plaintiff's suit with costs. The defendant ap-
pealed and the learned District Judge of Toungoo by his
judgment and decree in Civil Appeal No. 7 of 1962 set
aside the judgment and decree of the trial Court and dis-
~ ~he plaintiff's suit with costs. In so doing, the
learned District Judge held that since the plaintiff only
cia.imed a derivative title from the Chettiar, the defendant
wlio was admittedly _tenant of the Chettiar was not estop-
ped from de_nying the plaintiff's title to the suit land. More-
over, 'the plaintiff had failed 'to prove attornment to him
BURMA LAW '.REPORTS
0
fg-f:;. py:~h~ . def.en~ant. Y> Po Nai~g. . con~~g.u~nto/t _hJ~, ~u~;t ~or
. ... . . . arrears of rent did, not lie. . ..
]AGAR'U, .' : , ' . . . ,. '
;,' 0 >. c .-The: plamtiff bemg dissatisfied :With the. JUdgmept and
~'~~ ~W~~:, deere~ of the Djst.rict Court has .prefe:rred. .the pres.eA:t.
. appeal. ; . . .. ~ .
. Now, it is common gro:und ~:l:1at the por;~q~ : of. 1a:~4
on which .the defendant u Po l'!,aing had bu_ilt ~ hou~~e;
f0rmerly. 'belonged to a Chettiar who had built ~ . g.odown
thereon. o After :that godown ha~ been -destrqyed.f, ;til~:
tlefe.n dant -Q Po Naing hu~lt a house on the ~ite of 't 4e
godown and p~d regular ren~ to the Che~tiar: ~e piain-
.Jiff .~daitnetl 'that he. had pur~hase~ from !he: Q).~tti~r: the'
godown as well as the site Ot:J. Which it stood and , th~t,
. su~sequently the defenda11:t U Po. Nain~ ,.had . p~i~..-'him.
rellt.. The. defendant U I'o Naing however. s~id .tJ:la~ what;i
yer payment he might have ,made to the plaintiff or :to
. hi.s ; br,9 ther Ram: Sane}J.i Verma was in the ..ca:eacity: as,
ageh~ .of th_ e Chettiar as represented <by ,them, .and nof
itLattornment to the plaintiff J~garu as his landlord.
. - Jagan;~ himself had not given evidence m the case,
al~ough he wa~ easily available as a witness.' His broth.e r
ana age:p.t Ram Sanehi Verma. said that after the p~chase
byjagaru of the godown and its si~e fron1 the Chetti~r,
the defendant U ~o Naing occupied the site of the godown
and haq paid his brother Jagaru rent for the same.. When
the defendant defaulted h~- was sued in the.Vi,llage :0ourt
and a decree for K 48 with costs thereon was P.assed
again~ him. The present suit had to be filed as the <:le~
fendant had failed to pay the arrears of rent {or the pe;r{od.
Sl:lbsequent to :that for which the decree was obtained' in
.t he.Villa:ge Court. . " . ,
. Regarding the Village Court decree, the defendant said
that the ..memberfi .o f the Village Court were not trying .
the matter a~. a suit for rent, but we~e :~cti!lg as m~diatof.s ..
Ho;vvver:, ill' this..conneotion tJ:le .~ertified copy 0f :the judg, .
nwnJ of theiViUage Courtwhi<;h -fs pt:,Qved.: ~y tb.~ v~9en<;~:~
BBRMA LAW-REPORTS 895
of Ko Ohn .
(PW fJ; the "then clerk of.the .Court.ml.ist be e.G-.
~9Q
tak-en -as : authentic. _- Therefore undoubtedly .there was a .- .-:-
decree agamstthe defendant u Po Naing in favour of the .. ),:~...R:u . .
t~.
plaintUI: Jagani for .. rent. . t7 Po.NArNc.
However, ih spite of the existence of this decree'it-i~
eg~n, to ~he defendant U Po l':faing to con~end in _the pre2
~ent ..suit that he was never a tenant of Jagaru, . although
~~ wa~ a -tenant of ~he Chettiar, the alleged preO.ecessor~in~
title _6f Jagaru: Iri this connection; the follo~ng-_ deci
~i~ are apposite. In Deena Bandhu Gan v. Makim Sardar
( 1 fit was.held that a tenant is not estopped from qu~<?n
ing the derivative title of the plaintiff, who is suing him,
the title being derived from a person who had iriducted
the ~enant upon the land. To the same effect is the ob-
servation of the Privy Council in Krishna Prasad Lal Singha
Deo v. Baraboni Coal Concern, Ltd. (2) See also Daulat
Ram v. Haveli Shah and another (3) and Parkash Kaur
and others v. Gian Chand (4).
In the case now under consideration, the plaintiff
Jagaru has not been able to adduce ~at:isfactory evidence
to the effect that after he had purchased the suit land fr~m
the Chettiar, the defendant U Po Naing had attomed ~o
him as his landlord. On the other hand, the evidence of
.his own witness U Po Kyu (PW 2) would indicate that
after the plaintiff had sued the defendant U Po Naing at
the Village Court, he attempted to effect a compromise
between them. Whereas the plaintiff asked for rent of
K 6 per mensem the defendant was willing to pay only
K 4 So nothing came of the attempt at compromise.
The evjdence of Sitaram (PW 3) also showed that the
defendant refused to attorn to the plaintiff because the
latter would not conse~t to taking ren..t at the rate of
K 4 per mensem.
(1) LXIII Cal. 763. (z) (1938) I Cal. p. r.
(3) .A.,i.R. (1939) L:~.h. 49. (4) A.I.R. (1940) Lah. 341.
-~9: 6:
0 . :BURMA. LAW REPORTS
s;;
~96f
.c;_ : ln these c.ircumst.ances, it. cannot be said
. that the-re-
1:.:~~;.v:~-u lationship of landlord and tenant had been establish~d in
so far as the plaintiff Jagaru and the defendant uPo Naing
Po NAING.
. U.):.' . ' .. ' _; are concerned. Th . e def endant 1s
not estopped f rom
. . deny-
.
ing the title of the plaintiff Jagaru as well as of his status
as landlord of the suit land. ..
On the evidence adduced in cthe trial Court~ I ag~ee
with the learned DistriCt Judge that the plaintiff had not
succeede'd in proving that the portion of the suit land
on .yvhich the defendi:mt's house site stood really belonged
to hirri. . In .the re5ult the appeal fails and it "is dismissed
with costs; Advocate fees being assessed at ~hree gold.
m6lhurs.
EURMA LAW .RBPORTS 897
CIVIL REFERENCE
Before U San Maung, U Saw !3a Thein and U Kyaw Zan U, JJ.
MR. D.. 1:1 .COZ~NS (APPLICANT) .: =c:t.
.. 1963'
. . \'. . Dec. zr:
--- .GOMMISSION~R
..THE . . OF INCOME-TAX, BURMA,
.RANGOON "(RESPONDENT).*
J!urma Income-tax Act, s. 4B (a)-meaning of "not ordinarily resident"-
positive concept-divergence of views.
Held: In order that an individual is." not ordinarily resident" in the taxable
territories he should satisfy one of the two conditiqns laid down is s. 4B. (a)
of the Act and under that section what has got to be considered is the assessee"s
residence in the taxable territories and not as residence outside the taxable .
territories.
Manibha S . .Patel' v. Commissiotter of Income-tax Bombay Nort/J (1953).
. XXIII I.T.R., p. 27, 'referred to. and followed. .
P.B.I. Bava v. Com~issitmer. of '!~come-tax; Mysore Travencore Cochi11
(I9SS);XXVII I.T.;R. 463, referred to and 'distinguished.
Held fur.ther: The term." not ordinarily resident~ referred to above is, a
posative concept. If the legislature had not intended the term to be a positiv~
concept there was no necessity. for the use of the invef'ted commas.
Messrs. Rowe and Co. v. The Secre{.(fry of Statt for lt1dia, XI L.B.R. :~99
~t .P '3o6, referred. to.
T.h~n .Aung ~or the applicant.
. Ba
:- . Kyaw
. (Government ..Advocate)
. . . .
for the
.. respondent.
. . .
<, U SAN MAUNe, J.- In pursuant ~f the order of this
.,., . dated the I 5th May I963 in . Civil Miscellanous
Court
-.;~
. A.p,plicaqo~ . No ... I so. of .I 962, the Income-tax Appellate.
.
Tribunal, Rangoon, has referred the following queStion
of law for .consideration:
.
..
0: ,...,, ".Wllether.on the facts and in the circumstances. of the
. .. ca.Se the _applica~fjassessee w:as in law ordinarily re5i~~t ' .
I '
Ci~il R;ference :No. 13 of :1963 against the order of the Jn~ome-tai.
Aopellate ~ounal, Rangoon, in: Reference No. s .of 1962, dated rzth June r.96~.
~VRMA tAW REl'ORTS
c.c. or ' not ordinarily resident ' within the meanlng of section
1963
4B {a) of the Burma .In~ome-tax Act."
M~t.D.H.
CozBNS
"~
The facts giving .rise to the present reference are briefly
THE CoM-
MISSIONER' these. The applicant Mr. D. ti ~ Cozens came to Burma
OP. J;ij~qME on the 27th February 1954. Under section 4A of the
TAX, .:'.J;l'!ffiMA 1
RANGOON. Income-tax
. .
Act,. he was resident in the Union of Burma'"
for the assessment year 196o-6'r. The Income-tax Officer
.
made as~essment 'for 'the assessment year 1960-61 corres-
ponding to the accounting year ending the 30th September
1960 on an income of K 1,21,327 which ii1cluded'a' foreign
income of K 2,500 viz. K 7,000 minus sta'tutory allowance
of K 4.500. Being dissatisfied with the order of the In.2cime~
tax.Offi.cer the applicant went up on appeal to the Assfsqmt
Commissioner of Income-tax contending that the ass~s
J;llent having included his foreign income of K 7/:ioo not
brought into Burma, it would appear that he had be.en
treated as . " ordinarily resident " in Burma whereas he
sh~:mld have been treated as " not ordinarily resident "
Within the meal}ing . of clause .(a) of section 4B 9f ~he
Burma Income-tax, Ad. The Assistant Commissioner of
Incbme-tax held that the applicant had not been resident
in Burma in nine out of ten years preceding the account-
ing year ending the 30th Septet:nber 19~0. but that .he had
been in Burma during the seven years precedi.ng . that
accountii)g year for a total period of more than two years.
Accordingly he had satisfied the first but not the second
con.dition rien~oned .i n .clause (a) of sect~on 4B and as
t~e~~ tw<? conditions are c~mu_lative he was an " oidiD:a:tili
res~dent: ". .theref9re the . applicant's appe~r was dis-
~~~: . ~
f I ' o "
The applicant appealed against the order of the 'A~sis-
t.ant ~-Commissioner or' In.come-tax to the Income-tax Ap-
p~lt~t~ :rhJ>l!.~aL _B_~rma: The J~ibunal Jqund that tpe
applicant had not been resident "in the Union of Burma
in "nine out of the ten years preceding th'e accounting yea~
BURMA LAW REPORTS 899
enaing the 30th September 1960, but .t hat he had been
in the Union of Burma during the seven years preceding
the accounting year ending the 30th September 1960 for Mco;>~~
a total period of more than two years. Accordingly, .the THB ~oM
applicant had not satisfied either of the .two conditjons MISSIONER oF
. B d .h .h ~ INCOME--TAX,
mentioned in c1ause (a) of section 4 , an t at .t erelore BURMA,
ne was an "9rdinarily-resident ". In coming to this con- RA."'oooN.
elusion the-Tribunal relied upon the decision of the Bom-
bay High Cour.t in Manibhai S. Patel v. Commissioner of
lnc;ome-tax, Bombay North (r) In _the result the appeal
was dismissed. The applicant then applied to the Tribunal
to refer to this Court the question of law mentioned above.
The Tribunal however relying upon the commentary
under sectic;m 4B in the law and practice of income-tax
by Kanga and Palkhivala elaborated how the applicant
did not satisfy either of the two alternative con<lll;ions
mentioned in clause (a) of section 4B and refused to refer
the question proposed to this Court on the ground' that
it was a pure question of fact. This Court had, however;
on an application being made to it under section 66 (2) of
the Burma Income-tax Act, directed the Tribunal l'o ~efer
to this Court the question of law involved and this ques~
. tion has now been referred for consideration.
Now, clau~e (a) of section 4B of the Burma Income-tax
Act reads:
"(a) an individual is 'not orqinarily resident' in the taxable
territories in any year if he has not been resident in the
taxable territories in nine out of the ten years preceding
tha~ year or if he has not during the seven years preceding
that year been in the taxable territories for a period of, or
fo! periods amounting in all to, more than twO'. years."
Regarding the meaning of :this clause there has been a
s.h.grp ~vergerit of opinion between the two High Courts
in India. In Manibhai S. Patel v. Commissioner of Income-
tax; ~ombay North (I) which had been relied' upon by the
. (x). (1953) XXUI I T .R. p. 1.7
-- ----... - -
4
900 'BURMA LAW REPORTS
C!.C. Tribu11:al, it was held that in order that an individual is
19()3
'.' not ordinarily resident " in a taxable territories h<:: should
~~~~;.;~ satisfy one of the two conditions laid down in section
Tmi"coM- 4B.(a) of .the Indian Income-tax Act, 1922, and that .under
Mtssw:-~eRoF the section what has got to be considered is the assessee's
INCOME-TAX,
BuaMA, resi'dence in th e taxable terntones
. and not h'IS res1"dence .
RA."'GOON ;d . h . bl .
outsl e t e taxa <J terntones. .
In that case it was common ground that :the assessee
did not S<!tisfy the first condition, but it was contended
that he having been living in Africa for four years out
of the preceding seven years and was in the taxable ter-
ritories for about three years had satisfied the second con-
dition. This contention was rejected by the Bombay
High Court.
In P. B. I. Bava V Commissioner of Income-tax, Mysore,
Travancor.e, Cochin (2) the High Court of Travancore,
Cochin came to a diametrically opposite conclusiGn from
that of the Bombay High Court. There it was held that a
person is not ordinarily resident in any year in Travancore
under section 6 (a) of the Travancore Income-tax. Act,
-r r 2! corres"?onding ro section 48 (a) of the Indian Income-
~ax Act, 'r922 unless he satisfies both of those conditions
which make a person ordinarily resident, viz., (i) the con-
dition that he musthave been resident in nine out of ten
years preceding that year and (ii) the condition tha.t he
~!lUSt have been here for periods of more than two years
during the seven years preceding that year. It was_ also
held that a person is " not ordinarily resident " ih any
year if he has not been " resident " in nine out of t~e
ten years preceding that year ; and that he need not estab-
lish that he was " not resident " in nine out of the ten
years. The decision of the Travancore, Cochin High Court
was cited with approval by v. S. Sundaram in his com-
mentary under section 4B of the Indian Income-tax Act,
1922 in the Law- of Income-tax in Indian Eighth Edition.
(z) (1955) XXVII T.I.E. 463. -
BURMA LAW REPORTS 90l
> The fundamental difference between the two well-
known commentators of the 1aw of income-tax in India
~s that whereas according ~o Kanga and Palkhivala the ~~~~~
t~rm "not ordinarily resident" appearing in clause (a) TaE:CoM.-.
of ,section 4B is a positive concept, according :to Sundaram jtssioNBR oF
tt-is merely the negative of the term " ordinarily resident ". ~~~~~~
After a very caref uI co.ns1'deraoon 1,...,.
we .l~-ve come ~:~9 t h e RANGOON.
conclusion thai the interpretation of clause (a) of section
4B . of the Indian Incometax Act, 1922, corresponding
~o clause (a) of section 4B of the Burma Income-tax .Act,
:9y t~e .Bombay High Court and as explained by Kanga
.4nd. Palkhivala in the comme~tary und~r thaf section is
the. correct one. For one thing it does not involve inter-
preting the word " or " as having the same meani~g .,as
the .word " and ". Furthermore, if the legislature had
:not intended .the term " not ordinarily resident '.' to be
a'positiv:e concept, there was no necessity for the use of
:tbe inverted 'Commas.
In this,connection we.wou.ld like to quote the following
_passage from the judgment of M~mng Kin, J. in Messrs.
,~<>we~ Co. v. The Secr~tary of State tor India (3) which
. G
_rel.a~ed to a reference under the Income-.t ax Act VII of
j9r8 .~ . The le~ned judge said:
a
"' It is commonplace that in statutes of taxation the
imposition of a duty must be in plain terms (4) ; such a
statut~ must be construed strictly and the onus lies upon
the Crown to shew that the person whom it is sought to
tax falls clearly within its operation (5). In Par.tinotoD, y.
Attorney-General (6) Lord Cairns says: 'I am not at all 5ure
that in a case of this kind-a fiscal case-form is not a~ply
sufficient; because, .as I understand the principle of all fiscal
legislation. It is this: If the person -sought to be taxed
comes within the letter of the law he must be taxed, however
'great thP. hardship may appear to the judicial mind to be.
--------~ ~ ----------------------------~--~
(3) XI L.B.R. 299.atp. 306. (4) (1913) 3 K .B. 212 at p. 219.
- {s)J~go8)/K8. 7os at p. 709. (6) L.R. s H.L. I co-ac p. 122.
. 902 BVRMA LAW REPORTS
cic. On the other hand, if the Crown seeking to recover the
:963 tax, cannot bring the subject within the letter. 'Of the law,
M'a: t>. H. the subject is free, however apparently withi1,1 the spir.i~. of
cozilN~ . the law the c~e m~ght otherwise appear to be. In other
: .TJii! v~~M~ words, if there be adrniss~ble, in any statute, what ~s called
. "Jii!iSSI<;>:NER OF
INcOMBT.AX
an equitable construction, certainly such a construction is
. : i!ti.IIMi., ' . not admissible in a 'taxing statute, where you can simply
R-t.N~N . . . adhere to th~, jYOras of the st~tute '. These observatip~s
were cited by Collins, M:R. in The Attorney-Genera,Z ir. The
E.arl of 5elborne .(7) and the learned Judge. proceeded to say:
'Therefore the Crown fails, if the case. is not brought within
cpe words of th~ statute, Interpreted according to 'their naturaJ
meaning ; and if there is a case which is not covered by the
''Statute so interJ>reted that can only be cured by legislation,
. and not oy an attempt to construe the statute benev.olently
in favour of the Crown.: "
'
:~earing ~hese observations in mind, we are of the opinjop
,th<J.t in the two cases from the Indian High Court ci!:ed
above the approach made by the Bombay High Cour.t was
the right one.
.In the case now under consideration, .the applicant .
. Mr. Cozens has arlinitte<lly not satisfied the se~on'd c01i- .
.. ._dirioii. laid down in clause {a) of section 4B of the Burn:la
Income-tax Act. As regards the first condition laid down
in that clause he has failed to show that he had been
: non-resident " in the Union of Burma for nine out of
. the ten preceding years. He did not then~fore $atisfy
:that condition also. Accordingly, our answer to the ques. . ..-
:tion referred to this Court is that he did not come Within
the definition of the term " not ordinarily resident "' giv~
ih clause (a) of section 4B of the Burma Incom:e-~ax Act~
Th~ applicant must pay costs of this reference ; .t\,dvo~;u:e
:fees being a.ssessed at ten gold mohurs. .
BURMA t.;AW RPORTS :
CIVIL REFERENCE
Before U San Maung, U Saw Ba Thein and U Ky:zw Zan U , J.J.
MESSRS. NORWEGIAN AFRICA AND AUSTRALIA UNE C.C.
"i'96j
LTD. (APPLICANT)
v.
THE COl\1MISSIONER OF INCOME-TAX, BURMA,
RANGOON (RESPONDENT).*
Income-tax Act- s. 10 (2) (f:i"l-claim by shipping c01tpany of initial depreciation-
Right of Income-tax Officer to assess u:ithozlt havi>:g recours11 to Rule '33-
Depreciation on ships which did not come to Burma-reason f!Jr "allowing
deprecia.tion. Income-taxA, t, s. ro (z) (iii)-intirest paid out;ide Burma"7"
-meaning of " business connection " -dependent on facts of each case. "
ln assessing the income-iax payable by the Applicants computation of the -
assessable income was made under Rule 33 of the Incom:-tax Rules read with
s. xo of the Act.
No initial deprectiation was given in respect of certain ships belonging to'.
the assesseee company. Of the;e some of them (in:ludiug n~w ship) h~d
never come to Bu~a during 'the year in que;tion.
The main question therefor~ was what depreciation allowance should be
made to the assessee company. .
The other questi.on referred to was regarding the 'lnt~rest which was paid
outside the Union of Burma.
Held: If the Income-tax Officer is of th.e opinion that such a'rriount
cannot be computed except in the ma.nncr provided in Rule 33 he must maJ<.~
lhe cotl)putation in accordance wi~h the provisions of the Burma Income-tax
Act as provided in that Rule.
Where there are ships which had never come to B:.trm'l during the year in.
quel'tion it is open to the Income-tax Officer to ignore such ships, and :o
compute. if he can what amount of income profits or gain-. had accrued to the
no~- resident shipping company by plying' the ships whichhadcome to Burma.
In that case he need only consider whether he should give the annual 5 per cent
depreciation in respect of the ships which actually came to Burros..
Great Eastern Shippir.g Co., Ltd. v. The Commissioner of Income-ta~,Burma
Civ.i,l Refqence No. I of 196o of late High Court referred t<".
. However if he decides to assess the non-resident shipping company on
the basis of its world income because of the provisions of the Burma Income-tax
Act, he is obliged to give 15 per cent initial dcpreciatioo in respect of newly
Civil R~ference. No. 10 .of 1963 ngainst the order of the Inco~e-tax
Appellate
.
Tribunal
. I
of Rangoon in its Appeal No. 46 of 1961-
.
, dated the 29th
Octo.ber 19.62. /
. C;C. installed ship~ and also to consider whether he should give 5 per cent annua 1
. . 1"963 depreciation for the other ships which never came :to-Burma.
--'-
: . MESSRS.. . The iogic of the situation which compels the Inomce-tax Officer to allow
~ORWEGl~ initiaf depreciation on the newly installed ships which never came-to Bkma is
AFRICA AND that they being more modem and faster and more efficient will be abie to
Aus1;_R;\LlA . c~ili:rlbut~ g~eater profit to the shipping company. . . .. . .. .
LINB- LTD.
.b:.:: . The next point to remember is, that the amount of-depreciation which :Bu.rm3
. THEiCUM'- has to bear is i-n proportion to the freight earnings in Burma as against the total
Mtssibi:-:BR OF receipts of the non-res-ident shipping compall" from its world, business.
. lNCOI'viE-TAX,
BURMA, a
' In.. taxing statute an equitable construction is not adniissi!:>le . an~ . the
.'R ANGOON. words of tJae statute have to be simply adhered to. ' .
Messrs. Rowe fSi Co. v. The Secretary of State for India, XI L.B:R; 299 ;
(1913) 3 K.B. zrz at._p. zr9; (1908) 1 K.B. 705 at p. 709; Partington v. Attorney-
General, L.R. 4 H.L. xoo at p. xzz ; The Attorney-GJneral v. The 'Eatl 'of
Selborne, (19oz} 1 K.B. 338 at p. 396, -referred to.
Held ju.rther : Regarding the question of interest, the. proviso to s. ~o (z}
(ii~ of the Burma Income-tax' Act would only apply to interest paid outside
0 f tlie Union of'Burma if there is " business connection" between the shipping
company and the lenders of money. This expression" business connection '
depends on 'the particular facts of each case. As the required information
ha5 not yet been given by the Tribunal the matter is referred back to it for a
further statement.
U Paing and Hla Taw :(Advocates) for the applicants.
Ba 'Kyaw _(Government Advocate) for ~he respondents.
c
U SAN MAUNG, J.- In Reference No. 13 of 1962 arising
out of its order dated the 29th October _1962 passed in
Appeal No. 46 of 1961 :the Income-tax Appellate TribunaL
Rangoon, has referred ~o t.his Court the following questions
~f law:
(r) Whether on the facts . and circumstances 'of-~he
tase the sum of K 42,99,o66 was an. <tll6w~ple
deduction as ini~ial depreciation . for . ships
under Section ro (2) (vi) of :the Btirmaolncome~ .
bx . Act read with Rul_e 33 of the Burma
.IncQllle-~ax Rules.
(2) Whether on the facts and circumstances of the
~ase :the-sum of K !_,62/)72, was an a_llowabl~
deduction ~s interest on borrowed . capital
nt.:1RMA tAW REPdR.t~
.
under Secti0n 10 (2) (iii) of the Butma Income. . c.c.
I3
tax Act , read with Rule 33 .of the .Burma
MESSas.
Income-:tax Rules. NORWEGIAN .
M.~ii<t.-. ,\N~ .
: The facts _giving rise to the present reference are AJJSTR,o\LlA .
LINE L'Jl~~
brieflyt~ese : v
THn coM~
. . For ~he assessment year I960-61 the applicants Mlsslc:r-;rn .c;F
Messrs. Norweg~an . A-'n1....1ca and Austra1"1a L'me Ltd ., wh"1ch IN("O,l\IE-TAX,
BuRMA,
was a shipping company, was assessed to income-tax and RANcooN.
super tax on an income of K 92,297. The c~mp:u~ation
of the assessable income was made under the provjsions of.
~ule 33. of the Burma Income~tax Rules rec:ld _with section
lo . of the _.Burma Income-tax Act. In making. it ~he
Income-tax Officer disallowed the following items :o
(I) A . sum of K 42,99,066 on account of Initial
DepreGiation claimed under section 10 (2) (vi)
of th~ Burma Income-tax Act and
.(2) A sum of K 5I,62,672 on account of interest
paid outside the Union of Burma vide. section
IO (2) (iii) of the Burma Income-tax Act.
: , fb.e ~sessee appealed under section 30 of the Burma
lncome~tax. Act to the Assistant Commissioner of Income-
_tax and u~der section 33A of the Burma Income-t~x to
the . I~come-tax Appellate Tribunal, without avail. The
:assessee then asked the Tribunal to refer to thjs Court
.the two questions of law said to have arisen out of its
appellate order with the result that thes~ questions were
referred to this Court as already mentioned above.
. Regarding question No. I, it would appear that out of
.~ shjps belonging to the assessee Company whi.c;h . came
to Burma and earned freight amounting to 134.674
;during the accounting year in question, 4 ships w.~r~ .over
"2b years .old a.nd therefore no depreciation was daimed
in respect of them. However, in connection ~th the 4
"comparatively new ships, " Tai Ping Yang ", " Tabor ",
. I
0
c:c: ~ Tyr" and " Trinidad '' which were respectively instal-
1963
- led in the year 1958, . 1952, 1954 and 1943, :the assessee
N!~J;iN Company claimed depreciation at the rate of 5 per cent
:Ai>RICA.' ANo per annum. The assessee Company also had new ships
AuspiA'LIA
'L\im D rD> installed in Oslo, Norway, {or K 28,660,443 during_the
Talif!CoMi. y~ar ending the 31st of December 19:59 and claimed initial
7J~6:~;.i%! d~preciation therefor at 15 per cep.t. Not a single on~
-R~~uR.MA'~ of these new ships came to Burma during the year in ques-
ANcooN.
tion ~.. The~ question is what depreciation allowance s~ourd
be made to the assessee Company.
In the Great Eastern Shipping Co. Ltd. v. The com-
missioner of Income-tax, Burma (1) where the q~estion
referred was f' Whether on the facts and circum~tances
. of the, case the sum of K 23,91,868 was allowable deduc-
.tion as initial depreciation for the ships under section
to'(2) (vi) of the Burma Income-tax Act read With sub-
section (3) of section 42 of the Income-tax Rule,' ' a Bench
of the late High Court which included two members of
the ptesent Bench, after a careful consideration of the
Cjttte.stion involved answered it in the affirmative. In that
case it was observed<-:
41
"The vjew taken by the Income-tax. App,ellate Tribunal
that the ini'tial depreciation allowance under section zo (2> (vi)
was only admissible to 'local industries ', is not warranted
by the language of that section. Moreover, it only stands to
reas0n tha't if a shipping company which is not a resident
company in the Union of Burma is to be charged incomet.a x
by virtue of section 42, sub-sections (z) and (3) of the'Burma
Income-tax Act and that as a mean of ascertaining the actual
amoun't of income_ profits or gains accruing to it, recourse
should be had to Rule 33 of the Burma Income-tax Rules,
. initial depreciation should be allowed for the newly contru~t-
.; 'ed ships in its fleet."
In the case now. under consideration, the Tribunal had
observed tha:t W~!e seems no question ~hy this country
(z) Civil Reference No. z of 196o of late Higfl Court.
907
should give full 5 per cent depreciat.ion on ships other
than newly constructed ones, and 15 per cent on newly
constructed ships when these ships may be earning freight N=~:W
not only from this country but from other countries as AFmcA AND
AUSTRALIA
well. As regaras newly constructed ships, the Tribunal L1NB LTD
.qgserved .that unless_it is shown that these ships actual~y THE vCoM~
c~me to Burma to earn freight during the accounting year MISSIONER OP
'- lNCOli!R-TAX,
lP.; q~estion, no initial depreciation allowance can be given :B:uR?gf _
to them. In our opinion, the Tribunal had not. clearly RANG N
.appreciated the observations whjch we h:td made in the
-Gre~t Eastern Shipping Co. Ltd. v. The Commissioner of
lf!COme-tax, Burma (I) quoted above. It is therefore
necessary to give further explanation on .the questipn in-
volved. "
. Now, Rule 33 o~ the Burma Income-tax Rules js only
an enabling provision ~,- It reads :
"33 In any case in which the lncon:te-tax Officer is of
opinion that the actual amount of the income, profits or
gains accruing or arising to any person residing out of the
Union of Burma whether directly or indirecty through or.
from any business connection in the Unioo of Burma cannot
be ascertained, the amount of such income, profits or gaifls
for the purposes of assessment to income-tax may be cakulated
on such percentage of the turnover so accruing or arising ~
tl}e Income-tax Officer may consider to be reasonable or on
an amount which bears the same proportion to the total
profits of the business of such person (such profits being coin-
pu~ed in accordance with the provisions of the Burma Income-
t~ Act) as the receipts so accruing or arising bear to the
total receipts of the business, or in such other manner as the
Income-tax Officer may deem suitable."
. .
If the Income-tax Officer considers that he can compute
the actual amount of income, profits or gains accurlng or .
arising to any person residing out of the Union of Burma
without haviilg recourse to Rule 33, he is perfectly at
li!->erty to i~ore i.ts provis.ions. However, if he is of the
.9.08
opinion :that such...ainount cannot qe cotnpute(h except
in the manner pro~ided in. Rule ~ 33, he must:' make , the
1\it:SSRs.
NORWJ!GIAN computaqon in accordance ~th :the provisiom:s of the
AFRICA AN.D
. AUSTRALIA Burma Income-tax Act as provided in that Rule.
LINE LTD. . .
t;. Now, let us assume that a shipping company ha:s 4
.M~io~~R~F entirely n~w ships installed and put into comniission dur:..
. ~~~M;. ~TAX, lng the accounting year in quiStion, and 4 other snipS
~URMA . .
.R);t<f.?pN. which are ~omparatively old. Also assume tl:lat out of
tqe 8. -sbips, only one comp'arativeiy old ship comes to
:earn fr~ght in Burip~; whil~ the 4 new ships and 3 other
ships were .earning freights by plying to and fi'om other
!x;>rts in the world. .for the purpose of conipittirig the
~~ount of income, profits or gains accruing or ~ris~:hg
t9 the nqn-resident shipping company through or from
'any business connectiqn in Burma it is open to the Incpme-
tax Officer to entirely ignore the earnings from the 4 new-
ly installed ships and 3 other ships belonging to the Com-
.pany, and. to compute if he can, what amount of income,
profits or gains had accrued to the non-resident shipping
company .by plying the single comparatively old ship be-
:tween ports in BUrma and ports in foreign countries. In
dlat case he need only consider whether he should give
the annual 5 per cent depreciation in respect of the ship
which actually came to Burma.
However, if he decides to assess the non~reside_nt ship-
ping company on the basis of its world income, because
of the provisions of the Burma Income-tax Act, he is
obliged to give 15 per cent injtial depreciation in respect
of the 4 newly installed ships and also to consider whether
he should give 5 per cent annual depreciation for the
.Qther (3) ships which never came tq Burma. .
It may be asked what logic is there in a situation whiCh
compels. the Incom.e.::tax Officer to allow :initial \deptecia-
tion on the'' f newly installed shipswhich never came' to
Burma and whj:ch . only pJje.d 'be~eeri ports: in' foreign
IIDRMA LA\V REPORTS-
countries . . The: explanation is this' : . These 4. rtew1y in~ c.c:
1963
stalled ships bei:hg more modern, will' be'faster and..'thus
~ble' to make more trips a year and therefore ea'rij. m~re N~=~N
{n._:~pme for tli~. non-res1.dent shipping COinp~y' : F~rther- A:hucA'ANP
- . . ATJSTRA'I:ii<
more, heJ.ng . neW:. .shlps, they. will be more 'efficient . and LINE .(;fo!
thus contribute to .economy in running and ma~ntenance TatcoM.:.
expenditure.
. The
.
net f/'t-otal resuit will be greater prc>fit to Miciit>~~ 'o'#
INCOMB-TAX'
the_shipping :c ompany. . . ~ . ~iffi.~~r '
' RANCO'ON\
.. ..J~~ ~e~~ point
tq rem~n_:1ber is, ..that .t]l~ ~Qtmt of
depreciati'on: \vhich Burma has .t o bear is in pro.pq_rti9i1 t9
~ ~!eight e~rn~ngs . in Burma as agains.t th~ : totaJ:_r~<;~ipts
qf ~he non-re~ident shipping company from "J.t:S :~orJd
business. .
~ '!:'~.
. : l, ~
~1 . In this connection~_ we ~ouid- l~ke .t o q~pt~ ,the,fMlqyv-7
!ng passage J.rom-.the -judgmei)t of -~aupg Kin?;J. .i~ -Messr~
J{c:w:e. and. qo .. v., T!ze Secretarrof. St.ate for IIJ.dia-._,(2}. vv:Pi9h
yve . ;recen~ly- citoo-.)~- another. .case. : The -.learne.d .Juqge
said .:
.... , ...
:a
." .. " it iS coin~bn place that .in St~tUteS. of trocati_on<the
unposfti.o'n of -a duty filUst :be in J>Wn' te'iiflSr(3) ;::Stith. a
statute must be construed Strictly and the o;nu~ I.ies .upoJt the
, _Crown to shew thatthe person whom it is sought;;to ta~dalls
clear~y within . its operation (4). In Partin9.tori ,v.
Att~r.ne.y
penera{ ($') Lord Cairns says : ' I am not at all .s~re t~~i iri ~
case oJ 'this kind-a f)scal case-form is not amply suffic'jet)._t;
becaus~. a5 I understand ~he principle of. all fiscal 1egislation,
it 'is ibis: If the person sought to be taxed comes :witliin -t he
:letter of't:heilaw he,roust be taxed; however great the hardship
~ay appe~ . to th.~ judicial mind to be. On tP,e 9~~r h~;nd; .
: if the Crown. seeking to recover the. tax, canno.t: bri1;1g -lhe
subject-within the letter of the law, -the subject is free_. 'how:eyer
at>paren.tly :within the spirit_of the law the .c~~.-~}g~t ~the~
wise appear to be. In other words, if tll.ere Qe a4mis~ible, in
any statute, what is called. ~n equitable ~ons'truction~ certainly
such ~ construction is not admissibie in a taJting statute;
(-..) X.L.B.R. z99. (3-) (191'3) 3 K .B.-2t2 at p. ZI9
(.~) (~58) 1K.n. 705 at p. 709. (5) . L.R. 4 H .L. too at p. 122. ' !
.
~Uru.A:A 1AW .REPORfs
c-.c. whe:r;e you .can simply adhere to the : words of. the. s"!t:atute '.
....' I9bJ
;
,.-_-
'""'\
MBSSRS.
Th.'ese observations were cited by Collins, M.R: in :The.
Attorney-General v. The Earl of Selborne .(6) and the Jeamed
NOl\~QIAN "
ARRICA AND Juqge pro~e~ded to sa.y: Therefore the Cr9wn . fails, if the
AUSTRALI'A
case is not' brought witbin the words qf 'the statUte: interp~eted
LI!"B (.TD.
t'. according to their natural meaning ; and if there is a case
'{'HB 'Cq~-
which is not covered by the statute so interpreted that can
1'!flSS,I9N~ n.F. only "be cured by legislation, and not by an: attempt .to
lN~~~.i.
. ,; . . > construe the statute benevolently in favour of the Cro:wn! ~'
RMc;;p.qN.
0
For the reasons given above we would answer question
." No. I in the affirmative. . ,
As regards the second question, we would refer. the
Tribunal to our judgment in Messrs. The Bharat L.ine Ltd.
V. The Income-tax App~llate TribuJ?.al, Rangoon . and
0
another (7); Although the present Reference was mad~.
a few months after our judgment in the case of Messrs.
Barat Line Ltd. (7) the Tribunal has not given us any in-
formation . likely to assist in coming to a conclusion
whether the question referred should be answered in the
affirmative or in the negative. As we liave already point-
ed out, the proviso, to section 10 {2) (iii) of the Burma. .
:lnc<m1e-tax Act would only apply to interest paidoutside
of the Union of Burma, if there was " business connection "
between the shipping company and the lenders of money
within the meaning of that expression' in section 4i (1)
of the Burma Income-tax Act. This expression "business
connection " admits of no precise definition, and therefore
the question must depend upon the particular facts of
each case. Information is also necessary to -show whether
the pers<;ms-making the loans to the assessee company had
no other connection with that company than the m_,ak.ing
of isolated loans to them, or whether they were regular
financiers so that the success or failure of their own.money-
up
lending b~e~s was inextricably bound with the success
(6) (1,.902) I.K.B., 3:38 at p. 396. .
(7) Civil Misc. ApP.lication No. :2.1 of 19~0 of ia~e .l!igb Court, Ran~oon .
BURMA LAW REPOR rs 911
or failure of the assessee company. Information is also
necessary to show what degree of control, if any, the
persons to whom the interest had been paid, had in the N!~~~,.
affairs of the assessee company. AFRicA Al'ID
AUSTRALIA
Therefore, as proyided for in section 66 (4) of the LINE LTo.
(1,
Burma Income-tax Act, we would refer the matter back to THI! CoM-
the Tribunal to make 4 further statement in the light of ~~~~~~~F 1
the remarkS made abOVe. . . . . n':IURMA, .
""'NCOON.
912 BURMA'.LAW .REPORTS:
APPELLATE CIVIL
Btfore U San l.Viaung, J.
MG KYIN MAUNG AND ONE (APPELLANTs)
;;
v.
MA wAING KYI (RE.PONDENT). *
LeaseJwld land-sale of part at execution sale- express Provision not to ~ub
dit:ide- effect on execution sale-rights of purchasers-claim by prescriptive title.
Part of the suit leasehold land had been sold in an execution sale in spite
Of .an express prohibition in the lease that sub-division or transfer was not to
be made without the consent of the Deputy Commis~ioner. The execution
sale., was in .respect of a decree obtained against the wife of the original lessee,
.the plaintiff's father, and the defendants had bought the land at the s 1le.
Held: There is clear authority to the effect that a general restriction on
assignment does not apply to an assignment by operation of law taking effect
in invitum, as a sale under an execution, and that even if there had been a
provision in the lease for forfeiture or for re-entry by reason of an assignment
in violation of its provisions, it would not have the effect of invalidating the sale
,..
in execution, which had always been held not to be of itself a breach of a co-
venant 'not to assign.
Golak Nath Roy Chwodhury v. Mathura Nath Roy Chowdhry, I.L.R. (1893)
XX Cal. Z73o referred c to.
~owever, though the sale was valid, what the defendant had obtained from
tile purchase was the right title and interest of the seller (the wife of the original
lessee). As a Burmese Buddhist wife of a subsisting marriage, she could not
claim rpartition ~f the suit land as against her husband at that time. Therefore
at the time of the purchase the defendants also could not claim partition of the
suit land against the original lessee. All that the defendants could probablY
claim in a suit properly framed against the original lessee, was joint possession
of the suit land as well as of th~ house standing thereon.
As the defendants did not fil ~ a suit but squatted on the land, their posses-
sion at the inception was little b ~tter than that of mere trespasser s. However,
since they had been in possession for about 13 years, they had ob tained a pre-
scriptive title thereto as against the plaintiff as successor-in-title to her father.
Obiter: As the 25 years lease expires in November, 1964, it would th.en be
open to the Deputy Commissioner concerned to grant a lease of the"suit land
either to the pl~ilitiff in her own right or to any other pei:son as he pleases.
The position of the defendants so far as that lease is ooncerned might well be
different.
* Civil Seco'nd Appeal No. 43 of 1962 against the decree of the District
Court of Toungoo in Civil Appeal No. 8 of 196z, dated 14th Juae 1962.
BURMA LAW REPORTS . 9.1.l
Aye M_aung .(Advocate) for the appellants c.c.
1,9(!3
MAUNG.KYlJ'(
N. R. Majumdar (Advocate) for the respondent. MAUNO ANO:
ONll
U SAN l\4AUNG, J.-In Civil Regular Suit No. 2 of 1961. ~ .
of the Additional
. Subdivisional Court of Pyu .the plaintiff WAIN~ Kvl. .
Ma Waing Kyi, who is. tlle respondent in the present ap-
. peal, sued the defendant-appellant.s Mg Kyin Maung and
his mother-in-law Daw Shan for possession of a i>Ortion
of Holding No. 43 of 196o-6r in Htangon Ward, Pyu Town,
which measured 138 of an acre on the ground that the
defendants were trespassers thereon. The plaintiff's case
was. that she was the owner of the suit land, which was
leas~hold, in succession to her father U Chit who was the
original lessee and tha~ the defendants who had trespassed
upon a portion of this land and erected a house thereon
had refused to vacate when asked to do so.
The defendants. by their written sta"tement denied that
the plaintiff was the owner of the whole of Holdit:lg No. 43
as alleged l?y her. . On th~ oth~ hand, they .said that the
southern half of this land together w~th the building there-
on had been attached and sold in execution of :the decree
against tlle plaintiff's mother Daw Htu in Civil Execution
Case., No. r of 1946 of the then Subordinate Judge, Pyu.
and :the same had been purchased by them. After the
purchase, half of the suit land and the building situated
t4~reon were duly delivered to them by the Court and the
plaintiff'~ father U Chit who knew of such delivery did
not .object to the same. Since then they had been in
actual physical possession of the properties purchased till
the time. of the KNDO insurrection when the building it-
self was destroyed by fire. Thereafter, they .built a house
on the portion of the suit land which hild been sold to
~hem till the r6th of May 1961, when the plaintiff suc-
ceeded iri dispossessing them of a portion of the land
which they, had purchased. As for the. transfer .of. the
914 BURMA LAW REPORTS
c.c. lease of Holding No. 43 to the plaintiff, the defendants
1963
contended that on the death of U Chit his ffife Daw Htu
~~~G~~ with whom the plaintiff was living and not the plaintiff
o'NE
v.
herself. was the heir. In .these circumstances .
the de-
MA fendants contended that the plaintiff had no right to eject
W;.u~c KYI. th em from t h e portion 4ti.<. ~
w h"ICh t hey were occupymg.
The plaintiff in reply contend.ed that she, and not her
mother Daw Htu, was the real heir of U Chit as Daw
Htu had during the life-time of her father committed
adultery and left her father's house. As suc)l Daw Htu
had lost her' right in the joint property of herself and
U Chit. Regarding the alleged purchase by the defendants
ct a half-portion of the suit land and the building thereon
the plaintiff contended that what the defendants had~een
able to obtain was mere symbolical possession as :the house
was then in the actual physical possession of her father
and herself. Accordingly, the only remedy for the de-
fendants was to file a suit for partition and separate pos-
session of the porti'on purchased by them. Instead, they
had trespassed upon the suit land and should therefore
~ ejected th~reirom.
On the pleadings many issues were framed of which
the most important were those relating to the allegation
that the plaintiff was the owner of the suit land in succes-
sion to her father U Chit and the allegation that the de-
fendants were owners thereof by virtue of their purchase
at the court auction. An i ;sue was also framed regarding
the legality or otherwise of the sale in execution of the
decree against Daw Htu and the delivery of possession
in pursuance thereof. After examining witnesses cited
by both the parties the learned trial Judge came to the
conclusion that the properties sold at the cour~ auction
to the defendants were the southern portion of Holding
No. 8 (now.No. 43) and the house sitUated thereon and
that therefore the defendants were rightfully in possession
of' the portion from whi.ch they were so~ghf tobe ejected.
BURMA LAW REPORTS 915-
Regarding. the contentio~ .of the plaintiff that s1nce her .:::c6:
' 19 3
m0ther had committed adultery she had ceased- to have w ,...,k ...... ,.
any:interest in-the.joint .property of herself and -her hus- Mo.~a~~~,.
band U -Chit,:: the learned trial Judge came fo the con- oNE ,,~
" ,
.tlif.
elusion" since .there had been no decree for divorce w Ai;;;," K~-z;..
on:...the gtomi~ :of the wife's adultery, the suit land and -
the.'.builGing there6n coa.tinued to be the joint property
otU~Chif arid his wife Daw Htu till the date of U Chit's .
de~ith and that therefore Daw Htu's right, title andiri.terest
. coulc;l be V:alidly .' sofd in execution of the decree against
her,. .rn: tlie result the plaintiff's suit was dismissed with
cost'S:
~e plairit~ff Ma Waiag Kyi appealed and the learnt!d
pistrict Judge of Toungoo by his judgment in Civil Appeal
N9 ~ of 196i se~ aside the j~dgment and decree of the
trfal,Court.and decreed the plaintiff's suit with costs. In
th~ bpihion of the learned District Judge, since one of
the conditions of the lease granted by the Deputy Commis- .
s~dJier was that. no 'portion of the land s~ leased could be
sold -without the consent of the Dep'U.ty Commissioner
vide p~ragraph 5 of the lease agreement, Exhibit Kagyi,
the auctioti" sale in execution of .the decree against Daw
Htu was invalid in so far as it concerned a half-portion
of;the suit-land. Accordingly all th~t the defendants had
su~~eede_d. in ~~u~hasing was the house situated thereon,
an.d since the house had already been burnt down they
h(\d no-r~ht..whatsoever to remain on the suit land. There-
. fore," they. should .. be .eje'cted.
~ Now.~ it is common ground that at the time of the
exeeutiQn sale of
. the . southern half of the suit land and
. the building thereon, the house which was sold was in
ao'tua1 .physical possession of the plaintiff's father U Chit
W\th .whom the plaintiff was then living. Accordingly
th.e delivery .of possession .as stated by the defence wit-
U:SS M,a:uo!L 1:!ya Thaung .'(DW 3), . Process Server~ was ..
s
BURMA LAW REPORTS.
c.~~ ~, merely symbolical. This was in the year 1945:-46. There-
19 3
' ~ .~. after, U Chit became an insurgent and went underground.
=~~~ ~puring the year 1948 the house was burnt down by the
~ :.:
0
. Kar-en insurgents. Taking advantage of this fact, the de-
M:': , f~ndants Mg Kyin Maung and D!:iw Shan move-d . to the.
w....\fNc;T
: #>'-'\:~
.so'!).t
' h ern portion
. ' of :th e su1t
. . 1and and erected a '"'uouse
- < th.ere-
on, On .the return of U Chit intq the legal fold, he did
not file a suit for the ejectment of the defendants. He,
however, tried. to move tile Subdivisional Officer to this
end, but the defendants were not ejected. 'After the death
of U Chit the plaintiff Ma W aing Kyi succeeded in having
the lease, Exhibit Kagyi, mutated to her name on the
grop.nd. 'that she was the sole surviving heir of U Chit.
Her mother Daw Hfu who was living with her, apparently.
did not contest her application to the Deputy Commis-
sioner. After . the lease had been mutated to her name
the plaintiff Ma Waing Kyi filed the present suit for the
ejectment
. ~
of the defendants.
Now, p~agraph 5 of the lease, Exhibit Kagyi, reads :
" Withou~ first . obtaining such consent {meaning the con~
;ent of the Deputy Commissioner) not to subdivide the said
. 1and or to part with the possession of transfer or sub-lease .
a part 9f the said land."
Paragrap~ ~ of the lease provides that on breach of any.
of 'th~ covenants by the lessee; the Deputy Commissi~n~:r
may immediately and notwithstanding ~he waiver of any
previous breach or 'right of re-entry, cancel the lease and
take possession of :the land, etc.
However, there is clear authority to the effect that
a general reStriction on assignment does not apply .t o an .
assignment by operation of law taking effect 'in invitum,
as a sale undet a)J. execution and that even if 'there :had
beeh a provisi<?n inthe lease for forfeiture or for :re-ent:r:Y
by reason of: ali' assignment in violation of its proVision,
it ..woq.l~l l.1Qt haye th~ ~ff~ct Qf inviUid;:tti:Qg the sale in .
BURMALAW REPORTS
c:P -.
execution, which had always been held not to be of itself I-.,v3
a breach of a covenant not to assign. [See Golak Nath ---:- ~ '.
Roy Chowdhury v. Mathura Nath Roy Chowdhury (r)]. ==~~
The execution sale by which the defendants purchased ?;.~.:..
the 'sou~he:rn hal:f <?f the suit land as well as the house w...~~~~K~~;;
on which it i~ situate was undoubtedly valid, However,
what had really succeeded in obtaining was the right, title
and interest o~ Daw Htu, a Burmese Bubdhist wife in the
joint property of herself and her husband U Chi..f. As
a Burmese Buddhist wife cannot claim partition of the
suit land as against her husband during the subsistence
of the marriage between them, so also the defendants
who had purchased the right, title and interest cannot
claim partition of the suit land as against U Chit in whose
name the lease stood. All that the defendants could pro-
bably claim in a suit properly framed against U Chit, was
joint possession of the suit land as well as of the house
standing thereon.
Instead of filing a suit, the defendants squatted on the.
southern portion of the suit land by tapng advantage of
U Chit's absence and of the destruction of the house stand
ing on th~ land. The defendants' possession at the incep
tion was a little better than that of mere treapassers. How.
ever, they have been in possession of the portion occupied
by them since the year 1948, so that by the time the
pres~nt suit was filed on the 2rst of June 1961, they had
obtai~Cd a prescriptive title thereto as against the plaintiff
Ma W;:rlng Kyi as successor-in-title to her father U Chit.
Accordingly, the defendants cannot be ejected by her.
However, the 25 years' lease granted to U Chit by the
Peputy ~Commissioner expires on the 28th of November
1964. It-would then be open to the Deputy Commis
sioner if he so elects, to grant a lease of the suit land
either to Ma Waing Kyi in her own right, or to any other
(1) I .L.R. (1893) ~.Cal, zn.
c,Q.::.< per-spn he _ple~e~ . . !Jl.e po~i~on. oft~~ d~f:en~a~~~- in:-s.o
~:::_ far-~a-s :ti\at lease. is concerned might wei.l be diff~rent, . :;
M~f~::.~1 . -In t~e result the appeal -succeeds. - ~e-judgroent: an~ : .
M ~~~~~dqcr.ei.-of the _D.~$tr:ict. Court-of ~oungoo_. ap~-~~~.d -?g~!J.st .
6
. ;~ti~: . .a~f _set:-~sidi an<l those of t:h"e trial ~~UJCt .restor~d:. V\:1tP.";
W~~;~~~to~t:S __.tnrcnighout~ Advocate's fees in this ~ourt :b~ing ?S- )
. se~s~ at 3. ~$-ee) _gold mohurs- .. .. - , ,..
. BURMA tAW REPORTS
APPELLATE -ciVIL n Ku A:i\ T
O~J:-li'i.'. .~J.
.. ~
Before U pan M_artng,
.. . . .. J. . ~
(iY,f liVJ' "
1?f..
' ... MNUN:GTHAUN_G NYUNT ANti ONE (APPELLA"N'l:~)~ -:
. . . .... .,' '....?.I.
&.c,
~.
J'6it9
. .. v. 1;.;r~rY
NofJ. r3
-.:...DAW SEI.N YJl':t..ANI?
.... ... ..., . .. . ..
~ ~
o_N E
. .. {REsPqNi>oo~).
.. ... . *- .:
-~' .. : :-.
::F;orfeirur~.:,:-dtta:"mination ~! tenaJcy by setting up adfJerse iitie~ang~ i,j .l(uo
1929-:-S.. IU..{~ oj -Transfer of Property 'Act-requisite of'iofi.ttm:n~tice
. indicp#.ng 'fntentiO.TJ to determine lease.
-
... : .: . ::-.; . . : . . .. .. ' , _. ~ .. . . _- - -.... ~ . .,
, - 'I;Pe,.l?.IJ!irltifi$/respondents had filed a suit for ejeetment..against -the'~Pl)J;l
. ants/defendants and the suit was 4eereed by both the trial court and lower
tippelfat'i coUrt. :. . r
.-
- , - ' - ~ ~ - ...... .)
' ,. " . ... . ..- ... ~
.:.:une-:of.tb.e. issues ~a~ecl'f~ the appeal ihat' since the'der~~d~ts Md was
t;et up-an-adverse title.shice"'956, the tenancy must be deemed to haqe"ter.Uiio.'itM
by.fo~i~n;, aJ?.d t~terefo~e ~~ ~~ent suit based. o'? the :etati~h~p.~f.~ji
lord and tenant was riot mlun'tal.nable, and' shoulq Jiave_l)~n l;lrougnt againSt
'themas~tr~Passe.JS . .: -: - - : . : : : :: ::.'-.7
: :Hetdi s; th~ am~Ciment
to clause (g) or s. ; i.x the ~i ;fr:n~:r~r ~-.p~;;;,:ity
~A,ct i.n..~9i9to :determirte a ten~cy by for'feit\l're a nqtii:e l~;si>r~ rromthe.
, ~e II!S~_eE;. .of his intel}tion to determine the lease because o forfeiture-.i s nec~-
s-~~- . . . - .. .. <": ~.-
~ : Nilmadhab Bos~ and.oth~rs v, A11!111ta Ram Bagdi, (t89798)II .(;:.:W.N~S5;
KhaterMistri v.: Sadruddi Khtin;I.L.R. (1907) ~IV Cal. 922; _' Muha.mm!.zd
. ~bi]t,d'4!iijv. Sh:aik4.iiabidur Rdhmali ani:l others, XLVI. C. 64z; and .lfliapuz~li
.Pakruqdin.Bqhri and. others v. Mulla Fidasli Sultanali 'Bohri; A:I>R : ('11)38)
~iig. i62, referred to and distinguished. .. ,
:~ TPe -only nQticesent tq the defendants subsequent .to 195~ w!'5- ~'h :~h
April 1959 and this was not a notice contempla,ted under S :xII (i) Df the
Transfer of P~rtY Act. ~. r. .. '
- "' "'; ... .. . . ....... ~ ..... -;~~---. :
Besides, a "tenant" as defin~ in the Urban Rent COntrol _Act, 19t8
~includ~ ... every pcrion remaining in possession of the prtmrs<:s :lct to:iilm
.after. the . termin:rtion of.. the tenancy or lease with or without th.~ ~~t)Of
~e .Ja:nd!~f?-'~ .Accordingly, .even if the te!lancy, ~f ~e "e~~~t!'-,~:!'*-en
.detenrul:ted.l>.Y a, notice un.der section 1I I (g) of the Transfer of Prdp-ertjXct,
tl\,e P!a'ir!tiffs -m~t necessarily sue the defendants as " tenants ;, a.s defiiteii~
t~e. Urb~ ~en~ Control Act, 1948, and not as trespassers. 1'1!e yla~~~
suit is ~r~ly maintainable in law. . ., . . .. . ::
~). . .. .. . " ... ~
-~- :-CiVil 2nd~:Appeal''No~ 33 of 1962, againt th; de:ree AuditGi[J "Of."~he
Distriet..J.l.ldge:of-Pegu,-;'nCivil-Ap.J!cal.
.~ ... :~ t ......... .._.!.-..... --- - . ~_ .... - - Nt-."S .. 3.11Je~~~~~;x,g~i)
.- .....ob9!>i.
'
', .C:~. Ba Shun (Advocate) for the appellants.
: '?"3'
~.tM. .m-ti:: M. Cassim (Advocate) -forthe respondents.
'l;Tfiw.No
~:}~ U SAN MAUNG, J.-ln Civi.l Regular Suit No. I I of
it.~-~~E:~ 19.9 of .the Township Court of 'Pegil, .the -plairitiffs: Daw
~.ifb'\b::ONB. Sein Yin and her son Maung Maung, who are the respon-
. - . dents in the present-appeal suede:the defeJ?.dAA~.:-appellants
: Maung Thaung Nyunt and his Wife Ma Kh.in Hla for their
. ,.,ekcti,neat from the .house site in suit which was a :piece
(?f land known as Holding No . 52 of 195.8-59. in Pa:p..Hlaing
Strand Ward No. 12, Pegu. OkSu, Pegu Town. .' lJle p~ain
tiffs' case was. :that the ~uit land was let out to ~~ . defen-
d ants in or about the year I 947 by the late U My~ huspand
,of:Daw Sein Yin. and father. of Maung Maung at .a rental
' 0~ J{ 30 per mensern to be eomputed aCC!JTding .tO, 't1;,le
~Erlglish calendar m9nth. Subsequently, as the sui~ ~alj.d
.was reqUired , by U Mya for the erection of. a .. buiJdi~g .
therepl). ll,e. filed an application qefore the Assistai,lt Cqn-
~roller. 9f Rents, Pegu, for permission to sue tne defen~a:q.t:.
~u~der Section I I -{.r) (d) 'of the Urb~m Rent C~mtr~l ..~c_t, .
1948: His applieation was, ~owever, rejec~ed l?y, :the
:~~si$.t:<!-nt Coritrolier a:t?-d the referene tO th~ _ Subdlvisipnal.
judge~. .Peg'u, was also unsuccessful. l-ie then fi.led . an
' application before the la.te Supreme Court for a Writ of
cei-ti'orari to qua5h the orders of the Assis~ant Rent Con-
~oller. While this appl.iCation was pending U Mya rued
~u1d the plaintiffs being hjs heirs and legal_representatives,
b,eeame th.e la!ldlords of the defendants , by ope!at;ion of
law. The order of the Assistant Ren~ . Controller :was
qtjashed by :fue )ate Supreme Coirrt and ..the proc~edings
.. refurned ,to this officer for decision .in .the l)ght'; 'ot;<the
: Supreme Court's remarks. This time, a perp1it : was
' granted by the A~istant Rent Controller and'the refere~!;:e
.to the Subdivisional Judge; Pegu, by the defendants was
u~suq:::essfur-= .'(he pJaintiffs .thereupon seryeda n6tice-
da~ed'-l
. the 9th ofApr,iJ~r9s9-teriniriat,ing
. the 1enancy . ~th
BURMA LAW REPORTS
effect. from the end of April 1959 and. calling. upon. the .:J:-~.
. . ~963'
defendants to v~caie as the suit land was required bona .:.-:--:--
: fide for the purpose of erecting a building thereon. As ;~~~~tfG.
!he de~endants refused to comply with this notice ilie~:~~~IA!jo
- pre~~n.~ .suit had tQ be filed against them. .. -. . . n -~. '
... Th d ~ d b th . d . .<~AWtt SEtN
d.;))]ui.Nn-mis.
. e e1en ants y ell wntten statement a mJtte
: that
. .
_. they :wen~
. . .
originally the tenants of U Mya.
. however~ contended !hat .the relationship of landlord arid
They,
-.
' tehan~ terminated on the 27th of October r 91;9. when U
Mya and the rst defendant Maung Thaung Nyunt entered
. llito . an agreemen~ to purchase the suit land for price a
of K 3,500 of which K 1,ooo was paid on that oate.
. Therefore, they contended that Ule plaintiffs' suit which
had' been filed against them on :the basis that tbey. were
the ~nants of U Mya was not maintainable in law. They
' also contended ~hat on the death of u ,Mya there: were
sUrviving W,m not only Daw Seiil. Yin and Maung Mauilg
but also a daugh_ter by the name of Ma Tar and that the
plaintiffs' sul_t; was bad for non-joinder of a necessary
par_ty.. .. . .
On the pleadings severa~ jssues were framed of whiCh
Jhe .mo_st .jmpor.tan.t was .whether or not the defeltdant .
Maung Thaung Nyun! and the deceased U Mya had, on :the
27th ot .October 1949, entered into an agreement to .sell
the sujt land to tile defendants for a sum of K 3,5"oo of
which K 1,ooo had already been paid as advance. Two
other issues were also raised as to whether or not Ma Tar
was a necessary party to the suit and whether the .suit
land .was required by the plaintiffs bona fide fqr :the
: purpose of erecting a building thereon. . -
Regarding th~ first of these two issues no answ~r was
given ~ jt was waived by the learned Advocate for the
. defendants. Obviously, on the death 9f U Mya hjs wiq~w
Daw Sein .Yin was the h~ ~o his property. subjec~ to .the
. claiin o( th~ Orasa for a one-fourth share. Regar~ng ~e
~cia!f'issue as. !Q w.b.e~er P1ere was an agreement:'to
~2-~ .
lv~
BURMA LAW REPokrs
. 0
"C:.c. sell.the land as contended by the defendants the 1earne<I
19 3
. _'.' :~ trial 'Judge af.ter examining witnesses cited by both the
.
;,~iJtrc parties came .to .the concl.usion '.that -ili:e defendants 'had
(' N~T.-.ANo, failed to prove that this agreement, Exhibit I, was 'in-fad
<:oNE ' . . . .
..~ :fi; executed by. the deceased U Mya. Regarding the bona-fit!e
.,:jf.J.tf'%.~ requirem~t of the suit land for the purpose'bf: ere~ting a
' b~ilding thereon the learned trial Judge on ~he evid~rlce
. adduced came to the conclusion mat the plaintiffs .Q-~9. Ito
i. house of their own to Jive jn; that thev hadtlie }Ueans;to
b{rild: a Ilouse on ):he suit land and th~t they ita~ tak~n
sufficient steps to .this end.' In the result, the pJaintiffs'
suit was decreed with costs. ... .
Th~ defendants appealed ~nd the learne9. Judge of t1;1.e
A<klitional J?istrid Cour.t of P~gu by his ju~gmen( a11;d
. decree . in Civil Appeal No. 5 of 1 96! agreed w.ith - rhe
. findings of. the ~ial Cour.t and dism!s~ed ~he d~fenclaJl~'
appeal wi.th costs. Hence the present app~al. : ~
Now, jf the present appea.l had.mere.ly been one utruer .
-section 100, sub-section (1) of ..the Code of Civ.il.ProtedU;re
the finding of facts by the lower appellate Court.-would
.be fui~l 'if .t hat Ceur.t had 'before !t eV:idep.c.e .:wlii'ch 'if
belkved, would support such a finding-. However; 'as tlie
appeat is also one under section 18 qf .~he Urb~n ..Rent
Control Act, 1960 (corresponding to : section "1 of the
1948 Act) an appeal lies to this Court. both ori facts -and
in. law. Accordingly, I have carefully ~gone thtough:'the
evidence relating to the alleged execution of the agre~en.t
for :the sale of the suit land, Exhibit r~ and I.must ~ say
: .t'b.at I. <:tgree with the reasons given: l?Y. ~he tW<?: Courts
below for coming to Jhe conclusion .th~t: the::exe~uJion. 9f
.. lhis. document had not been proved: According.. :tiie to
.. 1st defendan.t Maung Thaung Njun~ when 'tliiS"-d'ocument
. was . executed by u Mya at the ..IatteF's ~tiouse. b"aw...se~n
Yin was a.Iso presen~. If so, it is difficult to understand
. w,hy Daw .sein .. yin was not. a sjgna~ory_ thereto::co.n~jd~
.J ni ~~'~ ~~ a . B~rme~e Buddhi~t.: wi~: .sE-.e :1}~~~ ~:.~.!~~
interest in the suif }aha. No witness was present at .1:4e "C'c
,1~63
. time of the execution of Exhibit I. Two witnesses ha:ve ~~.
.. been cifed by the defendants to show that ~they. saw-:-t"l#s :;~~~ .
. -doc~mertt jn possession of the defendant: Maung 1haung urNYQw:-i~o
~ Nyunt and th;at Mavng Thaung N~t .~ad told ~~e!ll~.-t~at !~::li
~-it was an agr~etnent of sale of the suit land- ~~e{:u.ted- qy ~Y.~=:s.
-U Mya: .. T.P.ese witnes~es are U Mya Maung .( DW. 2-) -.~~ci
: P.~w , Tii1-. Shw~: (P.W .3) How~yer, as the state~~
given by these two persons were merely in the-p.ature ~f
!" adinission5 made ..by Maung Thaung Nyunt in his- ovffi
r:favour th~y are . madmissible in evidence-. No doub,t,
.:when U Mya filed his application before ..th~. -Assis~t
- Controller of Rents on the 28th of January l.956 -for.:a
r.pet~t to sue th~ defendants und~r -section. '1-~- (~):(d.fpf
the Urban Rent Control Act, I948, the first defendant
Maung T)laung N~nt contended before this ~ffice!-- ~t
because of tile e:xis~ce ot the ,agreeme1;1t for .s~~-:Of--~e .
: suit land to him b.y U Mya the permit applied ~or should
hbt be granted to U Mya. Nevertheless, considering .that
: U Mya had denied haying .~ecuted ..thi~ document; <?Pe
wou~q. have e:xpecteq that. as -e4!'ly aS:> the -year. I9s6 .t);le
: first d,efendimt Maung Thaung 'NyUnt wo~ld have nlal. a
~sq.it- .f or: ~p~ci.fk perform_ance ~f. contra_c t .for J].le sal~ ~pf
~ the suit . land to him. -This step -was .not ... taken
: by Maung Thaung_ Nyunt at any ':time :prior to th~ &ie
~ of the. filjng of. the present'suit or 'subsequent"'to' that:date.
, fur~h~rmore, l\1aung . Thaung Nytini had nOt -takep..~-~~y
steps to prov~ the genuineness of the signature pf tJ -Mya
on Exhibit r by the evidence of a Handwriting..Expenr:. ln
. these -cirCl:lm.Stances, l am not prepared. to . say: -thai the
: ~~n~ Judge5: of the two COurts below .were. wx~kg .~n
: not~ccepdng Exhibi~ I as-genuine; .... --~-~-- ,
~. : Theiearned Advoca.t~ for the defenqant-appellan~:h~
-strongly contended that since as early as the- year . 196
. ~e defendants had set up a title adverse to that of .the
pl.aintiff&Amd. ihejr P.~ede'~es~qr$-jn~ntle -ihe tenancy.-must
' , r .
: .c:c.
. ...J963
be -deemed ~o have termi-nated by forfdto.r<:(under section
.I I I ~g) of the Transfer of Property 'Act and 'that ther~fore
,-.:..-.......
_; ~~c the pres~nt suit brough on the basis of the existence. of
~~-N~:~ANo :~. reJatio~ship . Of landlord and tenant iS nO~ maintainable.
. ~.-~.\~~siiiN : Th~ .suit should have been brought .o~ -~e- ba.si~ ~at t~e
.lil'm<A'Na.DNil._ defendants were trespassers on :the smt land and smc~ :;tts
value W3.$ about K Io,ooo the ;fowliship Court had no
jurisdiction to fry .the suit. The court~fee jpaid on the
plaint was also insufficient:
In this connection, i.t must be noted that' such a
defence as now sought to be raised was neVer set up in
. the_.wrj_tt.en statement tiled by :the defendants. Moreover,
most of the authorities cjted by the learned Advocate for
th~ defendar;tt:appeUants are either distinguishable trom
t4e present case or have ceased to be valid in view of the
amen<4n.ent to daus~ (g) of section I I I of the Transfer of
)'roperty 'Act. by A~t No. 20 of I929. .
In .Nilmadhab Bose and others v. A:nanta Ram Bagdt(I)
it was held .tha~ the .rule that a denial of the relationship
c;>f ).~uidlord and tenant did not entail a forfeiture did not
apply where tJ?.e denial was given effect to by a ~ecree of
. tile Goirrt. ln Khater Mistri v. Sadruddi Khan (2) it was
held t hat where in a previous suit brought by the plaintiff
against the defendant for rent was dismissed on the ground
raised by llte defendant :that :the plaintiff was not his
landlord the plaintiff in a subsequent suit was entitled to
-sue the defendant jor his ejectment on the basis that: he
was a trespasser. These two cases are 'distinguishable
~rom the present.
Tn Muhammad Abdul Latif v. Shaikh Habibur Rahman
. an(:f'othei:s (3) it was held that iri order to determirr~ ' a
~~nancy on the ground of denial 9f title by the
tenant it
was ' riot necessary_~hat any notice s~ould be givep. or a
prescnbeQ, act shou.\ci. be done by the l.and.lord and that
.. ... '
- -- (x) (t89798) II C.W.N. 755 (z) I.L.R. (1907) XXXIV Cal. 922.
. . . . .. . . '(J) . XLV I.e: 64a. . . .. . . .
.. fiURMA LAW M~6tt'fs
~ .it. was ~ufficient if something was done by the landlord ; . ~f1 .
to show :his intention to determine the lease. Howev~r, '0!; ;, .,
~ t,h~s de<;ision was given in l;he !ear 1918 prior ~o thelf,,::~iX~:~
amendment to clause .(9) of section II I of the Transf~r ft~.r;;no
o~ Propery Act ~y J\c't No. 20 of 1929. ,-1;~i~:S~
.. .~ In "Ahamadali' Fakruadin Bohri and others v. Mz.{l!d.''f;u~J.NooN.
~. Fid_aali._ ?:~Jlianali Bo~r! (4) purchased a house and ask~d
:, f)~ wh<{ ~as a t~nant of his predecessor to attorn to Wtp..
. D tepudJ.aied -pstitle and set up a title of his own. On
p..continUing.. to set up his own title P served him with
:"a 'notice to vacate the premises in the event .of his not
payirig.. tlie ~rrears of rent and on his refusal to do so
brough( a suit for recovery of the house from D. It~was
- helcl that section 7 (r z) (cc) of the Court Fees Att did not
: apply, that coiut-fees should be paid on the market-value
of 'the property and that is also was the value for the
purpose of jurisdiction. In this connection the I~arned
judge (Vivian Bose, J.) observed that the fact that an
option was left to .the defendants to co.ntinue.. as tenants
. by paying up the arrears of rent coul~ make no diff.e~~n7ce
. .to the fact that a clear intimation was given to the dtfep-
.. dants to vacate if they did not choose to exercise; t})e
; option
...
' " . .
Of remaining as tenants. . . ...
. In the case now under consideration no doubt accofa-
. irig to the plaintiffs' own story notices had been given
by U Mya to the defendants to vacate for failure to pay
alil'ears of rent. The first notice was .in 1950, .in resp.ect
~ oCwhich Exhibit " > " is the Burmese translation.:of
the reply given by the defendants' lawyer to U Mya.
. Another notice was given on t;he 30th of September i955,
' to which no reply was given by the defendants. How-
: ever, the adverse title set up by the dt!fendants was orily
. in the year 1956 when U Mya filed his application,befote
\.~e .'Ass)st:aii.t , ton!roller of Rents, Pegu, for a. permit. to
. . . .. , .
. I (.~) A.I.R. (1938) Nag. 16z. - - .. _. -'
fiVR:MA~ tAW~ REPORTS
,'\ .. ..... t .. . 4 - -'
G.C <.t..:.... _.c .. .
~ ,:::.~ &63 f. ~~,. ~R: :: o~ndanfs under .sec~?.n, IJ: \r ):Jd): o~ . the Ur~<1n
d.
. ~~ .~J.{~~ .Gemt.ror.Ad, :1948. Accordingly, .th.eformer notic~s
q~~:~~ ~>~~1\~A by:.:U; ya ."to the de~endants. ~~r~ ~_ie~t:~"<lnt -for the
,<tf.~~~~NDd~~P:!P?~e~o~ ~~owi~g,_. ~a.t . ~~- tenar1cjr~ had :.te.r.min-ated, ~y
,:t~~ forfeiture. .~ . .
...~~~;i' : ,,. The o~:tlY : n;ti~e set:tt t~. th~. def~dants ~s.ubs~ql,leni to
"l . . . . ' ~ - . ' ' ' \ ' .. . ,...
r~h~ .ye I.9S6 is that dated the 9th of April 1959,. Exhibit
:,'.~, .~ o ~-,.,~ . .., T.hisis.~ a .compo~~te .notke ..u.nder,sec.ti9I).... IR6.-pf
~fhe .T:~~psfey o{ J>roperl:y..Ar:r.t.a:n~ Y,'Iider. ~ection. fl (~) .{a}
:;qf.. th~ _ . ur):>an .Rel).t .-Co.ntrol. Ac.t... ' It, was. n9I:a _jlptke
.~~conte.mpJai:ed l?:v.:. sec.rl,<>P..:OJ: I iJiJ) ;of' $e Tr~S.f~i. ..of .ito-
~P~o/.-A.c~ wh~ch-in .so fci..as.J:s. r-e1~an.t. f~r.. tqe._ pr~e~t
_.p.urpose -re,a(k, . ' ... . y:
'-'V r~
~ .. ?
:,-.".A'lease'
' of .inuii:ovea:bie prqperty, detel'll\ines :by
f . -.
forfel.t~e
,-,.-it;i ~~e-:th.~ Jes~ee :renou!lte:S b,i~ ~~h~ac~~ ~as::-5uch~ ;by ~et~wg
--.up. :~ - :title ~in : a.- ~d .,person ;oo~,,by claiming _title' .m . }ai.m;s~
t -'i - . .
, ~ :groy_ided,J;hat the le,ssor :givt.s notice i.n: wri.ting Jo
.
J.~$~e _the
.:,:~oJ:..hts: !~te~u9n: to: peterniine:tht( lease." .. : ~ . :: '
. . ...: . . ...
~
::~:::,'~,)~ f{ iii~~.~( ilii~. th ~~ti~~ .~<?ri_t~~p!a_~~<( ~y s~~~an
..J.f({iJ)_;q (1}1~ Jr!l~J~9f ~!'9P~tY M~ ~ .9.~e. ~~kh . ei~~r
:,~~~slY.::. o~ pJ. . ~~~sa!)': inw~~~~~p~. ID.fC?r~s ~e . !~~$ee
-' tha:t'the tinancy is to he detetmi11ed beca.use of. forfeiture.
Such a not.ice has not be~n sertf i;y-ihe 'plaintiffs.. to tlle
-Faefendiuits.~ - .. ... .. .. -- - . : -- . .
r--. .:Besides; a " tenant "as(I-efined ih Ule Urbalr":Rent ~o}l
;,::tro~Act,. i 948'; fucludes " every person remaining_ hi pos$.~s~
$:siorr::o f lhepremises let to him after. the.: tenhination;pf
};fue:-teliancy or: lease~ with or "wi~hout3he~~assen't ' of ~tbe
.rlqiifil~fd:'' .(the ,underlining is mine)'.. (A(:cb!cijngly even
,jt.-;thefenancy:. of. the ~deff.mcrants li~s been_determ.i.hed...by
~'ta';b.btice' :urfdei section -~ i r (y). 9f':the transfer of Property
'~':Act,: the .plafntiif~ . must ;necessarily ~sue~ Jhe, defeiidant:S.:aS
:>'~~'tenants ~ asdefiried'in' the Urban Rent Control Act, .194~,
til ... .
o:and:mo~ as tr:espa~~ers;.: . The plainwrs' ;sUit:is;.a(X:ordi.ngly
....mai,n~ainable-i_n-l~w.)
.; ( :: ~ ~:;, :.
Regariling tlie bon,a f!c!.e..:r~q~ll:etpe~~ by the plaintiffs c.c.
of the suit .land for ~e - p\irpose--:bf etecting a building ~~63
. MAU.NG :
thereon there is abundaJ1t eVIden~ Jo. show that the plain- THA'~c :
tiffs ~who have no house of their. own. t o uve in have to NYmr:f' 1~'
occupy a rom. in .a. bar,rack inside.,a :sawmill .Compound~ ..,~~~~ ~ ..
t-h at t h ey h ave no o.th er houst:~te of.t h e1r t an t. he yDAW
own 'h S.i!!N
1N-,.,~p;#{'
one now sued. for,. that they haO. ob~ai11ed the approval of .
the . Pegu: munJcipallty to build. a house ~ac~ording to a
plan~ submjttedby' theni; that they .nave ample meansfor'!!.
the consi:rttction of such a lious"e and ~at' they had entered
into;a-;-coritract with a MasterCarpen~er ~o. ~rec't,a buil~&....:
foCf! fu~m for a: sum of K z,soo'as carperi.t~r ch~rges .. ,;_. .:.~;;:;
i Fo~ these. reas~ms, . I: co~jd~r t4-at the plaintiffs ~ ..st
has. been rightly . decreed~ . In the result the appeal faUs
~~...i~ is di~~~sed .with cos~~ Advocate's f.e~s... .kg:.)
as~~soo. at s:{five).9!d ~ohurs.' < -
BURMA LAW REPORTS
CIVIL REVISION
Bifore U San Maung, J.
R. D. RAM (APPELLANT/APl'UCANT)
v.
.. KUNJA MAISTRY (RESPONDENT),. *
" ...
"
Mon&-lender~t . Act, r. 9-expiry .of cerJif.cate during trial-C.ourt: shoziLd. gii.i~ .
reasonable time for obtaining new certificate.
Wtxere.the certifi~te of registration of the- Plaintiff as money-lender expir.e d.
during the pendency of the suit and a new certificate was obtained two days
after the dism~sal of the suit.
-- . Jield: Und~r s. 9 of the Money lendersi Act, a decree can Be-p assed if
the money-len,der can produce a certificate of registration during)he p~ndency
ofthe, suit filed. by him.
; 'In the dri:ufustarices of the cast!, the learned trial Judge should h~ve ~ven.
the Plaintiff reasonable time to produce the new certificate of rEigi>tration
which would be valid at the time the decree is passed in his favour.
N. R. Burjorjee for the appellant/applicant.
Mon. Po Cho for th.e responaent.
U SAN MAUNG, J.-In Civil Small Cause Suit No. 41 of
1959 of the City Civil Court, Rangoon, the plaintiff R. D.
Rain, who has filed the present appeal su~d thedefendant-
respondent Kunja Maistry for the recovery of K Boo due
on the promissory note in suit dated the 13th April 1956.
"fhe pla.intiff's case was that he was a registered money-
lender and that the 'defendant Kunja Maistry had jointly
executed a promissory note wit_h one Anandaw Maistry for
i'l lo"l): of K 700 bearing interest at three per cet:t per
men.sem. For the purpose of fue suit he waived his claim
against
.
Anandaw
.
Maistry
. .and he also claimed interest at
.
Civil Revieiof\ No. I 10 of 1963, converted from Civil F irst Appeal No, 35
of 1962, against the. de-er!IC of the Chief J1,1dge, City Civil Court of Ran8oon in
Civil Small Ca\lse Sq~t No. 41 of 1959, date4 ~9th Ju.n X96~.
BURMA LAW REPORTS
the rate of one and a half per cent per mensem whidi Was ?9~j _
allowable under the Money Lenders Act, I945 The_R 0 R ..
de{ence of Kunja . Maistry was . that .?e . did not _.. K~.-;M
execute the prormssory note m smt . apd . that __ MA~:a . . .--
he . .had merely signed it as a witness to the -:
execution thereof .by Anandaw. \IVhen the case came up
for hearing the plaintiff Jl_. D. Ram admitted that he could
on.Jy produce_the c~rtificate of registration as money-lender
. valid for -the period r8th February . I958 till tke 2-B(h
Nevember 1960. He had no certificate v;alid for the period
sul?s~quent to the 28th November r96d.
. In view of this admission the learned Chief Judge__of ..
the City C-ivil Court dismissed the plaintiff's suit witho~t
going into the merits of his claim against the defendant
Kunja Maisfry. It is now contended that since the plaint
iff, who had already applied for re-registration during. the
pendency of the suit, was able to obtain a certificate only
two days after the date of the judgment dismissing his suit,
the learned Chief Judge of the City Civil Court should have
given him time to proauce the certificate.
Now, section 9 of :the Money Lenders- Act provides that
no Court shall pass a decree on a suit by a money-lender
ior the recovery of a loan unless the money-lender is
registered under the Act and the registration is in force ..
Therefore, a decree can be passed if the money-lender can
produce a certificate of registration during the pendency
of th:e sui~ filed by him.
. In the circumstances of this case I think that the learned
Chief Judge of the City Civil Cou:rt should have given_the
plaintiff reasonable time to produce the certificate of regis.
tration which will be valid at the time the decree is passed
in his fayour. The plaintiff has ~ow filed an affidavit
saying that he has obtained a certificate showing that the
registration as a money-lender has been renew;d on the
. 22n_~ Jun~- -~96~_ and that it WOUld be Valid till the 21St June
1965~ ..
~
RM' .. .. ( ' : T . I. ' ... . ' 'Ji rihr-1:~ "r"t:'l''
BU ' A bJ"k. W :.ru::;n.JA.a:j [r.:3-:
v?.?:;;; C.>'Fhfbrtgli-' ovetsjght ~he plaintiff' R.: D. Ram's appeal had
' ,,;-~:=;, ;r.b eeil:adniitte<l as:such and.heard on ~th.e merits in s.pite of :
9
R. ~~~~---the:-fact!--t:h:at ~he judgment ancldecree were passe~ by_the .
M~~~M Ci~'Q::ivil:b;mrdn ~xeicise of'i~ sman cause powers. :: Th~.:
me-morandum..:of-appea.l is therefore allbwe4 to be cdnY.ert-__
edC~'int<r "an. application fo:r revision. See Ba'chulal. v.
Miiitabal:.:( i). .:
'!qFor:~ the reasons given above, the judgment and' decree .
o(!l;neuia,l; Ccur.t 4ismis~ing the plaintiffs suit are set aside .
arid: :tl:le :suit .remanded to:. the . City Civil Court .for _re- :
a'dlfiis~on ~under its ol"iginal number and for trial according . :
toHaw Jn:the lighfof the remarkS niade above.
:\In :t he circumstances of 'the preseri~ case f consider .t hat ...
the niost :equitable order to 'pass will be that each party
shOuld. -b~ar jts. own: costS in this Cou:d ; Advocate fees
beirig ~~sessed at two gold inohirrs.
';':~ .....
. ::;..;; ~ ' : : ' .. .:
.. ~:-.
(x) Civil Revision No. 21 of 1952 of the late Hi.gh Co\al't.
BURMA LAW REPORTSJ 931
CIVIL REFERENCE
Before U San Ma:mg, U Saw Da Thein ar.d U Kraw Za1J, JJ.
c.c.
THE COMMISSIONER OF INCOME-TAX, BURMA, J96.j
RANGOON (APPLICANT) Dec. u.
v.
MESSRS. CATHAY" PACIFIC AIRWAYS LIMITED
(RESPONDENT).*
Income-!ax Act-~. Io (2) (viii a)-bonus paid to Staff whether aUowable
deductio1z-proviso to s. zo {2) (ix)-tontribution to lJnrecognized Provident
Fund-also not allowable deduction.
Held: Under s. 10 {2) (viii a) of the Burma Income-Tax A,ct, sums shoWn
as b<;mus to staff but actually transferred to the Staff Provident Fund ~ be
appropriated in accordance with the Provid~nt Fund Rules, is not an allowable
.deduction. To be allowable deduction, the sum payable as bonus must be
actually paid to toe employee concerned.
Held also: Contributions to an Unrecognized Prorident Fund are also not
allowab~e deductions. Th~ proviso to clause (ix) of section zo {2) of the Act
is explicit on thi3 point.
U Ba Kyaw (Government Advocate) for the applicant.
U Paing for the respondent.
U $AN MAUNG, J..::_This reference under section 66 ( r~
of the Burma Income-tax Act arises.out of the order of the
Income-tax Appellate Tribunal, Rangoon, dated the 28th
December 1962 in Appeal No. 12 of 1962 . The question
of law referred to this Court for consideration is as follows :
" Whether on the facts and in the circumstances of the
case, the sum of fiK$ 436, 570 i:; a!). :allowable deduction under
sectibn ro (2) (ix} df the Burma Inco~Hi-t:tx A:ct read with
Rule 33 of the Burma Income-tax Rules."
The facts giving rise to the present reference are briefly
these. The respondent Messrs. Cathay Pacific Airways
Limited which is carrying on the business of air transporta-
tion filed a return of income through _Messrs. Allan
Civil Referenc~ No. I I of 1963, against the order of the Income-tax
Appellate Tribunal.of Rangoon in its App~:U N.). 12 of -~962, dated 28th
December 1~62.
6
BURMA LAW REPORTS
' f9f3 Charlesworth.& Company of Rangoon declaring K 91,705
THEe;;~- (subject t<? depreciation) as its total income for t~e p1evious
Mis_st9~ER oF year ~ncting the 30th June 1960 relevant for the ass~ssment
IN'C~~TA.x, yearr96o--6r : The Income-tax Officer, Companies Circle,
~-~~e~ accepted the' a<:counts but considered tnat certain expenses
MESsns. : claim~d by . the respondent were not alfowable for the
CATHAY . . . . . . 'f . h 1 . 4.. H e accord"mg]'y
PAcxi-'tc'AIR putpose ~ o. eomputmg t e tota m~..ome.
w~vs ~TD. added back several items . including HK$ 2oo,ooo shown
~ . ponu~;,t:G expatriate staff and HK$ 236,570 shown as
:-contribution to Unrecognised Provident Furid. In this
conneetion the Income-tax Officer observed that the bonus
which had peen claimed as allowabl~ deduction.represented
.amf>unts whkh wer~ deferred payment transferrf::d to ~he
Staff Pt<:>\li.dent Fund to be appropriated b}r the members
~n a~cordance with the Provident Fund Rules and were
therefoni in. the nature of additional contribution~ by the
_employer to the Staff P~ovident Fund. Regarding the
ProVident :Fund it<relf, it being unre<;:ognised contributions
thereto were not allowable deductions.
The ;:tssesse~ being dissatisfie<l viith the order of the
Jnct>me-tax Officer appealed and the Assistant Commis-
. sioner .o f Income-tax observed that as regards the payment
o f HK$ 2oo,ooo as bonus it could not be allowed under
'section ro (2) (viiia) as that clause required that the bonus.
must be paid .to the employees and to no others. In the
-case .of the.'assessee, the amount said to have been paid a~
bonus, was .not paid to the employees but into the -siat!
Provident Fund to be apportione<l and credited to the
y~imis in~ividual accounts of the employees and as sucli
. \ll(aS 1n the nature of an additional contribution by. the
assess~e to the Provident' Fund. Regarding the Providerit
to
.. Fund itself beirig unrecognised payment paid it ~y way
..
of. contribution !tcould ~ot be ded.ucted.
'. .
.
The assessee . .being dissatisfied w~th the .o:rder of the
'Assistant Commissioner of Income-tax appealed to the;
BURMA LAW REPORTS 933
Income-tax Appellate Trjbunal and the Tribunal by its C. C.
1963
-order dated the 28th December 1962 in Appeal No. 12 of -
T he Tribunal M~o;~~F
:1962 allowed the appeal in tha:t connection. _
()bserved : ..
.
IN;>UR~'J!AX,
" We therefore come to the conclusion that both ordinary
..
RANGOON
v.
.
contribution HI<$ 236;~70, and additional contribution to the ~s.
Provident _:f:und HK$ 2oo,ooo should be taken jnto. ac.count as PAc~~~n
they are nothing but additional remuneration paid to the WAYs LTo.
employees for the purpose of opera'tirig the shipping business.
So far as these two items are concerned the appeal is allowed
just as we have done similarly in Appeal No. 6 of 1962
. .Ceylon Shipping Lines Ltd."
Now, clause (villa) of section 10 (2} of the Burma
Income-tax Act reads :
" (viiia) any sum paid to an employee as bonus or commis-
sion for services rendered, where such sum would not
have been payable to him as pronts or dividend if it
. had nor been paid as bonus or commission."
.
Therefore it is clear that .to be allowable deduction
unaer that cl:mse the sum payable as bonus must te
a.ctually paid t.q the employee concerned, and npt into th~
Provident Fund as had been done in the case now under
consideration.
Regarding the Provident Fund itself the proviso ~o
clause (ixl) of s<7ction ro (2) of the Act is explicit on the
point that lt is only payment by way of contribution by an
employer towards a recognized Provident Fund which js
allowable oeduction under that clause.
For "these reasons we consider that the order of the
Income-tax Officer as confirmed by that of the Assistant
Commissioner of Income-tax )$ correct. The question pro-
pounded will, accordingly be answered in the- uegative.
The respond,ent must pay cos.t;s of this reference ; Advocate
fe_es being ~ssessed at ten gold mohurs.
934 ~BURMA LAW REPORTS
CIVIL REFERENCE
Before U San Maung, U Saw Ba Thein, and U Kyaw Zan U , Tf.
. 0
c.c.
1963
. THE COMMISSIONER OF INCOME-TAX, BURMA
v.
D ec. 26.
MESSRS. PWINT GAUNG AND BROTHERS {RESPONDENT) ."'
B urma I~c01~-tax Acts. 7.3(4)--assessment under-tuhcn can bo set aside-absence
of application 11nder s. 27 of the Act.
The applicant had been assessed under s. 2.3(4) of the Incox;ne-tax Act,
;On applicatjon .to the Assistant Commissioner, the assessment was confinned
013 znd appeal to the Appellate T ribunal, the Tribunal set aside the assess-
ment and directed the Income-bx Officer 1:o make a fresh aese~ssnent.
In passing its order, the Tribunal had remarked thnt the Assistant Com-
missioner's decision was not confined to the queStion of assessment only, and
had given decision also on the validity of the assessment as if the respondent
had led an. application under s. 27 of the Act.
The question for consideration by the Chief Court was whether the
Tribunal had rightly set aside the assessment made under s. 23 (4) of the Act,
in spite of the fact that there had been no application under s. 2.7 of the Act
{or the cancellation of this assessment.
Held: There is a ~rge prep~nderance of~ authority to show that
q~estiol?- referred to should be answered in the negative.
Naba K~tmar . Singh Dttdlluria v. Commissi01zer of Income-tax, Bet;gal, 1944,
:XII I .T.R. 327; U Kan Gyi v. Commissioner of ltrcome-tax, Rangoon, (1958)
B.L.R. 1o72 (H.C .); Chhotelal Gobardhan Das v. Commissitmer of ;Jncome-tax
U.P. f!J V.P., 1953,23 I.T.R. 272; Sir Padampat Singhania v. Commissioner of
Income-tax, U.P. and Ajmer-Merwarea, 1953, 24 I.T.R. 141; teferr~d to and
followed.
Suga_nchar.d Kanhaivalal Rathi v. Commissioner of Income-tax, M.P; and
'Bhopal, 1958, 34 I.T.R. 152; referred to.
Mauladin Ayub Firm v. Commissioner cf Inconu-tax Bombay South,
1959, 35, I.T.R, 449', referred to and foliowec!.
The fact that the Assistant.Comm.issioner of -Income-tax, h!td g~;e into the
question whether the best of judgment assessment .under secti~n 23 '(4) was or
was not justified in the appeal &gainst the quantum of the ass~sment under
section 30 of the Butma Income-tax Act, does not make any cliffer~nce. The
As~istant C~n~issionet wa$ act~ng without any jurisdictio::1 in considering the
Civil Rc:,ference No. xi; of 1'963, against the order of the Income-tax
Appelltte Tribunal of Rangqon in ~efetep.ce No. 9 of r86t, dated 18-6-63.
BURMA LAW REPORTS 935
c. c.
.matter, and this fact should have been ignored by the lncome-tax Appel~te
Tribunal. It is quite wrong to say that because the Assistant Commissioner
had considered the matter over wbich he had no jurisdiction the TBB CoM
Income-tax Appellate Tribunal is justified in going into the same question.
- .
1963
MlSSlO:tiER OP
INCOM;TAX.
BURMA
Ba)(yaw (Government Advocate) for the appellant. v
. MESSRS.
U Paing (Advocate) for the respondent!. Pw.rNr
GAUNG AND
BROTHERs.
U SAN MAUNG, J.-Thjs reference under section 66 (2)
of the Burma Income-tax Act was made by the Income-tax
Appellate Tribunal, Rangoon, in pursuant of the. order of
:t;his Court dated the 14th May 1963 in Civil Miscellaneous
Application No. 52 of 1961. The question of law referred
for consideration by this Court is as follows :
" VVhether in the circumstances of the case the Income-tax
Appellate Tribunal had rightly set aside the assessment m;de
under section 23 (4) where the respondent had not applied
under section 27 an'd where the respondent's appeal to the
Tribunal is against the quantum only."
The facts giving rise to the present reference are briefly
these. The respondents Messrs. Pwint Gaung and Brothers
of Rangoon, were assessed for the assessment year 1957-58
corresponding to the previous year endirtg the 30th Septem-
ber 1957 under section 23 (4) of the Burma Income-tax Act
on an income of K 2,59,583. Being dissatisfied with the
amount of mcome assessed and the amount of tax deter-
minea; the respondents filed an appeal before the Assistant
Commissioner of Income-tax (Appeals), who dismissed. the
appeal on the ground that the income estimated as assessed
by the Income-tax Officer was not excessive. The
respondent then filed a second appeal before the Income-
tax Appellate Tribunal under section 33A of the Act on
the ground that the assessment of the Income-tax Officer
was arbitrary, excessive and unreasonable, and that the
Assistant Commissioner of Income-tax was wrong in having
confirmed th~ same. The Tribunal however bl i~ order
<lated the 8~h February 1961 in Appeal No. 41 of 1960 set
BURMA LAW-REPORTS
.c.c. aside the assesSment and directed the Income-tax Officer
1963
" T c
:a:B OM-
to make a fresh assessment:. In ~}:lis connection, the
. MtsstoNBR oF Tribunal said :
. !NCOMETllX,,
' BURMA " Taking all the facts and circumstancc::s of the case into
. fl
MESSRS. consideration, we are of opinion that a fresh asses~rrient
, PwJNT would! the 'fairer and more proper; and consequently, we set
4GAUNG. =AND
-BRG~Hl!Rs. aside the as.sessment and direct the Income-tax Officer to make
. ' a fresh one from the stage at whjch the return had beeiz filed
.,by t~.e appelfant firm."
~Theq.commissioner of Income-tax, Burma, being dis-
. satisfied with. the order of the Tribunal:.
'section66 (r)':o.f the B~ lnc~tt~a:K'
court the question of law mentioned above, which was
0
said to have arisen out of its order. The Tribunat however,
.
refused to do so and en an ..applicationbeing mad~ .to this:
court under section 66 (.2}-'of the Burma lncome.:tax Act
'the Tribunal was directed: to referto this Court th-questjon
of law involve'~ in the case. .., ' . .. :
:It would- appear from the order of the Tribunal'"dated
::th.e '1'3th June '1961 refusing to refer the case to t;his court
~t)lat 'the 'departmental representative had cited b~fore it
sev~ral rulings to the effect that whtere the assessee.has .not
. <inade an appliCation under section 2Tof the Indian Income-
tax Act-correspondent to section 27 of the Burma Income-
tax Act- for the cancellation of the assessment under
section 23 (4) of the Act, the appellate authority could
only consider the quantum of tax imposed by the .Jnc9me-
tax Officer, and not the question whether the assessment-
was or was not properly made under section 23 (4): These
authorities will be cited at a later stage of the present order.
The Tribunal however distinguished these ruliJ:tgs for
the reasons given in the following passage of its order ; '
"The rulings cited by the Departmental Representative are
very appropriate and w~ entirely agree with his . argument
. that ~];len the tespondent had asked for relief,' .i:e.,.
for reduction of assessment, the .Tribunal Should have .confin.ed
BURMA LAW REPORTS 9.37'
its decision to the quantum of the asSSsment only. We C.C.
- -.~...63 0
1
would have done so if the facts and circumstances of the
present case had been the same as those existed in the cases -MisSIONER
Tim ,CoM-
OP
cited by the Departmental Representative. But they were, INcoME-TAX,
quite d!ifferent and easily distinguishable. ~MA
The outstanding feature of the present case lies in the .M;~!l.
appellate order (d'ated the 14th January 1960) itself, because G PWw.r:
the Assistant Commissioner's decision was not confined to i~~~
the quantum of assessment only. He has, as a matter of fa~t, -
travelled .beyond the subject-matter of the appeal and gave
. qecision also on the validity of assessment as if theorespondent
had filed ari application under section 27 of the Act.''
In the appellate order, the Tribunal went into the m~rtts
of the contention that the Income-tax Officer was wrong
in the circumstances of the case to have made a " best of
judgment" assessment under section 23 (4) of the Burma
Income-tax Act, and thereafter passed an order in t~~ terms
which we have already quoted above..
The question which therefore arises for consider:ation
is, whether in the circumstances of the case the Tribunal
had rightly set aside the assessment mad~ under section
23 (4) of the Burma Ipcome-tax Act in spite of the fact that
the respondents had not applied under section 27 of0 the
Act for the cancellation of this assessment. Now, there is
a large preponderance of authority to show that the ques-
tion referred to this Court should be answered in the
. negative. In Naba Kumar Singh Dudhuria v. Commis-
sioner of Income-tax, Ben,gal (I) it was held that in an
appeal under section 33 (t) of the Income-tax Act from a
decision in appeal under section 30 (z) the validity of an
assessment under section 23 (4) cannot be challenged when
no pr~ceeding under section 27 was taken to cancel tt'le
order under section 23 (4}, and that the right of appeal
under section 30 should be limited as regards sections 23
and 27 to the quantum of the assessment or tax. It was
- 0
(x) 2944, XII ~.T.R . 317.
BURMA-LAW REPORTS
O.~ also ~eld that seetion 30 does not give an assessee the right .
-:> ~.} . ~0 object to the validity of an assessment u'nder section
THa CoM,.
.:MlSSxo'NBR o-F 23 ( 4) w. hen he h au
..t
not tak en any proceed'InK under sectiOn
.
IN'if~AX, 27 to dmcel the order under section 23 (4). The decision
..-M~. cited above was quoted with approval by a special Bench
.PWiNT of the late High Court in U Kan Gyit.}v. Commissioner. of
'GA1JNG 'AND . .
-Ba~. 'Income-ta.x , Rangoon (2}.. It was followed by the Allahbad
H:igb: Court in Chhotelal Gobardh(m Das v. CommissiQiier .
of Jncome-tax, U.P. and V.P. (3).
In' Si!Padampat Singhania v. Commissioner of Income-
tax; :f.J.:P. and Ajmer-Merwara (4) the same Bench of the
Allahaba'd High Court. as the one which decided Chlwte~al
Gobardhan Das's case, observed at page t47=
o . "Mr. Pathak .has urged that in a case where an ; ssessee has
.already made his submissions why he was not able to comply
with the notice under section 22 (4~ and the Income-tax Officer
had held against him and had come to the conclusion that he
. had not complied with the notice and had thereafter proceeded
to -make the assessment under section 23 {4), it would . be
tiseless for the assessee 'to apply to him again under section 2z
for ;reconsideration of th~ .question. an~l in such a case to re-
quire him to file,.an app'.ica'tion unde! section 27, would be to
"ask him to do something which was useless. We do not agree
wjth learned coun~el. In some cases it might be that all the
facts were already before the Income-tax Officer and it was
no't likely that he would change his mind, but in the majority
of cases it would be useful for an a3sessee to have an opportu-
nity to place the facts afresh so that, if the Income-tax Officer
was not prepared to change his mind, the Appellate Assistant
Commissioner or the Tribunal might be able in the light . of
the facts to consider whether there was sufficient justification
for . non-compliance with the notice under section . 22 . (4).
.Before the amendment of sed:ion 30 of the Income-tax Act,
the position was that the' order of the Income-ta~ Officer .
making an assessment under section 23 (4\ was final, -b ut if
. the assessee h~ made an application under section 27 :that
(2) 19:;8 B:L.R. 172. (H,C). : ., (3) 1953, 23 I.T.R. 272.
. ' (4) 1953, ~.j. !.T.R. I4l
BURMA LAW REPORTS 939
h~ should not have been assessed under sec.tion 23 (4) and the
Income-tax Officer had rejected that application, he could
file an appeal before the Appellate Assistant Commissioner, THB Cow.-
MlSSIONER.OF
go up in appeal to the Appellate Tnbunal and even as.k for a INcoM!k:r.\X,
-reference to this Court if a question of law arose. After the ~u-~
.3mendment of section 30 the assessee has now got two rights: ~.
(i) to question tl?e validity of an assessment under section -Pwoo
:23 (4' in the same way as before, that is, py an application Gi,~~~.
0
un~r section 27, ap:Beal to the Appellate Assistant Commis- -
~~oner and further appeal to the Appellate Tribunal. or (ii) if
lie did no't challenge hls liability to be assessed under section
23 (4' he could appeal against the qu2ntum of the -&x imposed
to the Appellate Assistant Commissioner -and the Tribunal.
We have taken this view in Chbotclal Gobardhan Das's case
.(J) and it is also supported by a decision of the Calcutta High
Court in Naba Knmar Singh Dudhuria
v. Commissioner0 of
income-tax, Bengal (1).
We see no reason to change the opinion already expressed
and our answer to the question is, therefore, in the affinna-
tjve."
The dissenting voice came from the High Court of
Madhya Pradesh. In Suganchand . Kanhaivalal Rathi v.
Commissioner of Income-tax, M.P. and_ Bhopal (5) the facts
are these. During 'the assessment proceedings of~ the
assessee, which carried on business at various places includ-
ing Ganganagar, books of account were produced, but the
hooks produced did not include any books of account from
Canganagcw. The Income-tax Officer held that the account
books of Ganganagar had been suppressed and assessed the
assessee to the best of his judgment under section 23 (4) of
the Income-tax Act. In an appeal to the Appellate Assist-
. ant Commissioner- the assessee contended that no separate
books were maintained at Ganganagar and questioned the
fin'cling of the Income-tax Officer that the books of Ganga-
nagar were suppressed but the Appellate Assistant Commis-
sioner declined to entertain that question on the ground
-----------------------------------'-~
(5) ~958, 34 l.T.R. 152.
9.4.'0. BURMA LAW REPORTS
c:c. tliat the assessee had not made any application, under
19~3 . 1
~ . section 27 of the Act. It was hetd by a Bench of the High
MI~~o~-&~~P Court of Madhya Pradesh that in the appeal under section
IN<;,:~~AX.' 30. against the quantum of assessment, the question whether
. ~~ , ~he .Ipcome~tax Officer was justified in holding that the
Pw;:,: books of account were suppressed was-implicit, and it was:
13~'I'~~o lncum'bent on .the Appellate i\ss1stant Commissioner to
decide ' whet~er the contention oi the assessee that the
~ool<.S 6f account didnbt exist was well founded ; therefore,.
an application under section 27 of the Act was riot a condi.
tion precedent to the raising of that contention a$ section
27Was ~n emibling provision for re.opening assess.meht in
~he specific sitUations mentioned therein, and did not apply
to a case where the assessee contended that no books of
0 .
. account were maintained separately for a branch and the
'In<;9.me-t:a.X Officer held that sud1 .books must have been
.maintained.
.. _. Both
. .....
the divergent views were considered by the
B<:nn?ayHigh Court in a later case in Mauladin Ayub Firrrr
v.: :C:orn'missioner of Income-tax, Bombay South (6). Ih
lhai ease~ .in :making the assessment pf the assessee in the
asse:osment year 1951-52, the Income-tax Officer believed
that it was maintaining a separate set of books which had
not been produced before him. He, therefor~, issued a
'notice to produce the second set of books. The ~ssessee
contended that it did not maintain two sets of books an(l .
thai whatever books it had had be.o...n produced and tnere
fore it.could not comply with the notice. As the assessee
failed to comply with the notice, the Income-tax Officer
assessed the assessee under section 23 {4) of the Income-tax
Act ~6 :the best of his judgment. The assessee did no\ apply
under sec;tion 27 to have the best of judgment assessment
:set aside but appealed to the Appell~te Assistant Coinmis-
. si~ner under sectibn 30 and in this appeal questioned the
. 6) L959, 35 J.'IR., .4 94
BURMA LAW REPORTS 941
validity of the [ncome-tax Officer's <assessment under .c.c. 1963
.
section 23 (4) . It was held t hat t h ere 1S
. no d').StinCtion
. . - "
- . T .HB CoM-
between the case where ~he assessee refuses to produce MISSIONER oP
books which he admits he possesses, and the case where IN~=Axj
.~he .assessee refuses to produce books which the _Income- M~.
tax Officer believe9' he possesses but which he cvntends 'h e PwiNT
does. not possess ; and, therefore, in both the cases the basis G:~~~
of the Income-tax Officer's order under section 23 (4) is
that the conduct of the assessee is contumacious. It was
also held that section 27 is wide enough to cover~very kind
of case where the Income-tax Officer proceeds to make a
best judgment assessment by reason of the contumacious
conduct o'f the assessee. Therefore, section 27 applied to
the cas~ then under consideration and as the assesse~ did
not avail himself of the right under section 27 to show
cause and have the best judgment assessment set aside, he
was precluded from agitating the valjdity of the best
judgment assessment under section 23 (4) in the appeal
to the Appellate Assistant Commissioner under section 30.
We have carefully considered this matter and we find
that the view held l>y the majority Of the High Courts in
India and in this country, viz. the Calcutta, Allahabad,
Bomhay and the Rangoon High Courts, is the correct one.
In the case now under consideration the fact ~hat the
Assistant Commissioner of Income-tax had gone into the
question whether the best of judgment assessment under
section 23 (4) was or was not justified in the appeal against
the quantum of the assessment under section 30 of the
Burma Income-tax Act, does not make any difference.
The oAssistant Commissioner was acting without any
jurisdiction in considering the matter, and this fact should
have been ignored by the Income-tax _Appellate Tribunal.
It is quite wrong to say that because the Assistant Commis-
sioner had considered the matter over which he had no
/
942 BURMA LAW REPORTS
.c:c. -jurisdiction the Income-tax Appellate Tribunal is justifi~
1963
in going into the same questiQn .
. ~~~M~P For these reasons our answer to the question referred
JN;=u to thjs Court must be in the negative. The respondents
14.ESsRs. .must.-p ay the costs of this reference; Advocate fees being
. BwiN't
-GAUNo AND assessed at ten gold mohurs. -
' iBRO'l::HBRs.,
BURMA LAW REPORTS 94l
CIVIL MISCELLANEOUS
Before U Bo Gyi C.J. ff U San Maung,J.
THE DAGON SHWE-BA-DEIN COMPANY (APPLICANT)
. v.
Q
- .
N w . 23-
THEOCOURT OF INDUS1RIAL ARBilRATION, BURMA
0
AND ONE.*
,.
Trade Disputes .Act, s.14B-iU.,gal strike dimtissal of workers participating in
illegal st.r ike-s.1,.A-illegal :ockout.-effect of refusal to re-emproy workers
after strike-whether dismissaljustifod-compnsation in lieu of reimtate-
ment--applicatiotl for writ of certiorari--whether proper remedy.
The Applicant was the proprietor of a goldsmith shop and he had dismissed
his workers belonging to the 2nd Respondent Union, because of participation
i n a "sit-down" strike staged by them, from 8th October 1958 until 21st
November 1958, on account of the dismissal of another worker.
On the dispute being referred to the Court of I ndustrial Abritration, the
Court held that the "sit-down " strike was illegal under s. 14B of the Trade
Disputes Act as the matter was pending before a Conciliation Officer; and also
the refusal of the Applicant to re: employ the workers in question after the end'
o! the strike .was also illegal under s. x4A of the Act as the matter in dispute
r~ardingtheworkerforwhom the strike was staged, had already been referred
to the Industrial Court.
Accordingly the workes:s in question were not 'lsrnnted their " strike pay "
and the Applicant was also ordered to pay six months pay for each wo.rRer for.
wrongful dismissal, in lieu of" reinstatement", which was no longer feasible.
On Application for a writ of Certiorari to quash the said order.
Held: Tfie provisions in the T rade Disputes Act of Burma, are different
f rom .the provisions -of s. 24(3) of the Indian Industrial Disputes Act, 1947
where it is provided that a lock-out declared in c;oosequence of an illegal strike.
shall not be deemed to be illegal.
Spencer & Co.,Ltd. and Their Workers, 1952, Vol. I. Labour Law Journal,
469;JeevanLallo &! others and Metal Box Company of India Ltd., 1952, Vol. II;.
L .L.J., p. 869; Mill Manager Modtl Mills Nagpur, Ltd. v. Dharam Das, A.I.R
1958. Supreme Court, 3II.
In the case under consideration, even if the Applicant had refused ta
emploB the workers in question as he had decided to shut down his goldsmith
because of the strike, his action would still be illegal, as under s. 4C of tbe Trade
Disputes Act, retrenchment, discharge or dismissal under such cirNm$Noces,
is illegal.
Civil Mkcellaneous Application No 75 of 1963. Appficatiol) for a writ
of certiorari- by U Khin Maung against the oTder of the Industrial Arbitration.
Court of Rangoon in i~ proceedings No. 31 of 1962, dated 13-5-63.
9.44 BURMA LAW REPORTS
S> C.C. Regarding the contention that the amount ordered as co~pensat:ion was
1963 unduly harsh as the conduct of the workers in question had entirely dislocated
-D the Applicant's business,' the Chief Court cannot take into cognizance facts
T HB . bin the provmce
AGON
SHWB-BA- wh'1ch are o nly w.1t . of t h e App ell ate C ourt. .
DEIN CoM-
PANY
v. Than Tin for :the applicant.
THE COURT
OF- !Nous- c Q
'l'RIAL Hla Thin \Government Advocate) amd Win Kyi for ~he
ARBITRA-
'T!ON, BURMA r~ponaents r and 2.
ANDONB.
U SAN MAUNG, ].-This application for a writ of
certiorari by U Khin Maung, Proprietor of The Dagon
Shwe-ba-dein (Goldsmith) Company, js to quash the order
of the
.. ;:, . Court of Industrial
.
Arbitration,
. Burma, dated the
r3th ef.. May 1963 in its Proceedings No. 31 of 1962. In
that case the petitioner was an association of workers
known .as The Dagon Shwe-ba-dein Company Workers
Asi-ayone and the respondent was U Khin Maung the
presen_t applicant for a writ of certiorari. It would appear
that U !Qlin Maung employed 9 workmen in his goldsmith
shop Qf whom five, namely, (r) Chew Kauk Phein, (2) Ko
K.auk; Ewan, (?f) Lirf Lin Phwan, (4) Che~ Ket Kyan arid
(5) <:;hin Kjm Hoke were members of this association and
the other four were not members. Differences arose
between U Khin Maung and Chew Kauk Pheiii and the
latter was dismissed from service. The dispute between U
Khin Maung and Chew Kauk Phein was referred .t o a Con-
ciliation Officer appointed under the Trade Disputes Act and
altogeth~r 6 -meetings were held before that officers. On
. the 8th of October 1958, four of the members of the as-
sociation, namely, Ko Kauk Ewan, Lin Lin Phwan, Che~
Ket Kyan and Chin Kim Hoke staged a " Sit Down " :;trike
in U Khin Maung's shop on the ground that the at~ifude
taken by U Khin OMaung the previous .'day at th~ 3rd
meeting befo;re the Conciliation Officer was iinsatisfadory.
"' .
U Khin Maung then locked these four. workers inside the
shop; and ,it was only through the intervention of the
BURMA LAW REPORTS 945
police that the doors were opend three times ~ day for
the purpose of supplying with strikers with food. While
th. _e. ": sIt D own , stn
. .ke was m
. progress t h ree more meet- THE o ...aoN
SHWBBA-
ingswere held before the Conciliation Officer in cQnnec- DBtt:f CoM-
.tiori with the dispute between Chew Ka'uk Phein and. . P~~
p Kh~n Maung. They we-,e held on rsth. October r958, ~Br~:~
25th <!ctober 1958 and.the 30th of October 1958. These. TIAL
~i~etipgS -b-ore. nO S~tisf~CtOry reSUlts SO that On t1le !8th TI~~B:-~6.
--.()f Nuv.ember 1958, the dispute between Chew K~uk Phein AND ONE.
and U ~in Maung was referred to the Court of Industrial
Arbitration J:>y the Ministry of Labour vide Labour Brf!ncli
II Notification No. 104 of that date. The workers on
0
reGeiving. the advance copy of this notification decided
. <>n the 2rst November 1958 to call off the "Si.t Down;;
strike- Accordingly, on the 22nd November 1958, :the
four strikers, namely, Ko Kauk Ewan, Lin Lin Phwan, Chet
Ket Kyan and Chin Kim Hoke offered to resume wo~k.
HQwever, U K4in"Maung refused to employ them .o n the
groun5f that they had not yet given back tile articles -.of
gold which they had in their possession. These articles
were returned on the. 27th of November 1958 in :the pre-
.
sence of witnesses, but U Khin Mau~g was ~damant. He
.
refused to reinstate the four workers in question. Accord-
ingly, .after" a considerable lapse of time the Chairman of
the Revolutionary Council in exercise of the p.owers vested
in him by section 9 of the Trade Disputes Act referred
~o the Court of Industrial Arbitration the dispute between
. U Khili Maung and the four workers who proceeded on.
strike in sympathy with their leader Chew Kauk. Phein,
vide. Ministry of Labour Branch II Notification No. 192
dated the 9th of October 1962. The questj.on? referred
:to Ihe Court were :
.
.
.
~r) Whether the Proprietor of The Dagon Shwe-l>a-
dein Company was justified in refusing to re-
employ fhe four workers, Ko Kauk Ewan,
946 BURMA LAW REPORTS
Lin Lin Phwan, Chet Ket Kyan and Chin Kim
Hoke? and
Tim DACON
SHWBBA- (2) If not, to what relief were the said four workers
DElN CoM-
PANY
entitled?
tl.
Tim COURT
oF INnus- The attitude taken by U Khin Maung, Proprietor of
~~- the Dagon Shwe-ba-dein Company"' was that: (a) the " Sit-
. Tn>N~)3oRMA Down " strike staged by the four workers in question on
AND om. . . . . .>
the 8th ~ctober 1958, while the dispute between him a:nd
Chew Kauk Phein was before the Conciliation Officer was.
illegal under section I 4B of the Trade Disputes Act so that
these :workers must be considered to have been ipso facto
di~missed from service ; and (b) that he had already shut
down the work of goldsmith on the 22nd November 1958
when the. workers expressed their willingness to return
to work .so at no question of reinstatement arose.
The Court of Industrial Arbitration held that the " Sit-
down" strike staged by the four"workers during the period
when the- matter in disput~ between Chew Kauk Phein
and U Khin Maung was still pending. before the Condlia-
.l loh Officer was illegal under section I 4B of the Trade
Disputes Act!. Nevertheless, the action of U Khin Maung
in refusing to reinstate the four workers on the 22nd
November 1958 or on the 26th November 1958 was also-
illegal under section 14A of the Act :as the matter in dis
pute between Chew Kauk Phein and U Khin Maung had
-.already been referre~ to the .Industri~l Court. In :thjs.
view of the case the Court of Industrial Arbitration
penalized the vv:orkers concerned by not granting them any
pay for the period for which they were on ah jllega:t strjke.
It also penalized. U Khin Maung by ordering him to pay
6 months' salary
. .. to each of the four workers in lieu of
reinstatement which latter course it 'thought was not .
feasible regard Being had .t o the strained rel~tionship be-
tween U I).hin Maung. and th~se four workers.
BURMA LAW REPORts
The present applica.tion by U KIV.n Maung is for a ~6~
. writ of certiorari to quash the order of the Court of ln- --;-:-a .
dustrial Arbitration awarding .6 mon.ths' salary as com- ~~:~~~N
peQ.sation to each of the four workers jn question. Ptx~~M-
. In support of tbis application the learned Advocate 'i'HE'coti~t
for the applicant has cited ~he case of Spen.cer & Co. Ltd. oF ~~~s'
an.~ Their Workers (I) . There it was held following the ,.;B.~~~
decisions of the United States that the only right of workers Tx:o~~~;.
after ..a .strike that was not justified to be rein~tated ~~
service, was topositions that were not filled by the manage
ment and that it was not an absolute right. It is con
tended that since U Khin Maung had entirely shut down
his 'goldsmith wor~ there was no position to wh~ch tpe
four workers in q\lestion could be reinstated. Anotl>.er
case cited by the learned Advocate fpr the applicant js
that of jeevan Lallo & Others and Metal Box Comp.any of
India L.td. (2). There it wa~ held that the workmen: by
reason of the illegal strike lost continuity of service:
:that the company. was entitled under the Standing Order
to deny to such workmen the privileges such as leave. arid
increments that would otherwise have accrued ~o thein
but for the break in the service consequen~ on such ill~gal
strike, and that the company in acting in accordance with
~he Standin'g Order was not guilty of the breach of any
provisions of section 33 of the Industrial Disputes :Act.
1947. The. third case cited by the learned Advocate for
the applicant is Mili Manager, Model Mills Nagpur L.td.'
v~Dharain Das (3) . . Ther~ it was held that tpe strike of the
workers being illegal the Mill Manager was acting witl$1
his jurisdiction, under the Standing Order, in dismissing:
t hem. o
However, it i~ n~cessa~y . to bear in mind that.in .the
Industrial Disputes Act of I9.47. there is a provisio~ of
'law ~ which is not contained in the Trade Di~putes Act
(t). 1952.' Yoi. x. L.L.J. 469. (z) 1952. Vol. II. L.L.J. p, 869.
1
(3) A.I.R. \958. S:C. 3'11. .
7
.
Q;,f,Q,
', ..
~~@; BURMA LAW, REPORTS
~ooo I, .. - OOM ~ ~ 0 ~ 0 l 0 : 0 O
~f1 ~.o'f.~jU~~e:r :co~;id~r~~on. .~up~se~tiq~- ~3}:of s~~ion. 24
..::..: o!Illi<} J~d'!l~U:i~\ p~sputes Act, 1947, provjde~ :inter-. alia,.
~~"~~~' d!?~.~ ~~A,:-~9~-o~t declar~d:-in' c0ns~quence of ~n; Weg~l
D~~~~~~~< strike ql'_c~ -:S~ke de~lared; i~- cop.s~q~ence :~f an,- ~H~ega.l
~Qbim"r>: 19.S:f-9~.:'.s!H .. n~~ -b~ deem~d _:to. be! ~llegal. .. This: fact .
<i~A~P~5 ~l!s.,t 9:~v~ qeen-uppermost m~.:the :nund~ ~f the J;P.e~bers
~Jrt.!\~ ~h~/fribu~u1.l .and t!'Ie lea~~d .Ju~ges of ,tl}e _Sl!pr~~~
.'t:19I;b t!R.~~ Cotu:t ofIndia who decided the cases cited above. , This.
~!2P~t ~~~~~~l~i~ why in: Sperwer.-&:~co. itd. and Their :Wo~r~e;,s_
. ''. (-i). ~h~ .Tribunal found it necessary.:to follow the decisions: .
o~:~ ~~.: Supreme Court of -.' the United Sta.tes In Jeevan:
J~/lo.,& Others v. Metal .Box Company' oJ India Ltd. :.(2),,
. tiie: Standing .O rder under:. which the company 9-ctecL-.w as
on~.,w;hlch
. . . ... .had been appro.ved by t:p.e W;orkers'
..,; ..
Co~ttee. ..
. ~nci b,ad been:. consistently act~d upon. Jn. these circmp:s,j
. '~n~s, -it was. held that .t he decision of the compa~w . that~
t~~ ~l~gal strike COD;Stituted a l:?reak in. the conti.~uity-.0( ..
senjge did .,not infringe section .33 of the Ind.ustriai:J)~s,
~~~e~}A:-c~ -~hie,~ provides tha~ no ell).ployer shall during:
. the ..pendency:of any. conciliati<?n procee<Ungs or pto<;;ee<l:
ipg~:l?et9.re,a Tr.ihuRal, ~tc. : . . ~ alter, Jo the :prejuifice of'
th~-~primie~- .concerned in -the -disp~te, the conditions :o{~
. ser0c~ applicable. to them .. immediately befor.e :th:e eom.,
me~cemen~ of such proceeding-~?. The . case before . th~'
~upren:i.e Court was whether the management was justified-
in dismissing the. workers w.ho were on illegal -.- strik~: It:
wa'~ .held. that in view of the provisions .in the Stan~ng ... -
Order the dismissals were justified. If should -be' noted- .
t4ai, ~uCh. dismissals were prior to any proceedings being
t<lken: befon~ the Conciliation Officer, etc.. . .
~.In the.c~~e riow under consideration assuming for: t~e:;
sake..~f: argu!llent .that . the refusal . to ~mplpy the- four
wQr~ers was on the ground that.. the.y had to be.retrenched
oi discharg~l
~ . . ....
bee~use U Khin Maung had decided
~ . .. to.-shut:
.. . .
. ~i) (~952) Vol. ~ !"L{ 469. (z) (}952)V ol. II! ~!L:J. p. 869.~
. - " . . . (3) .A.l.lt ' (19-58') I).C.' 331, . .
, ... - -.... . 6.- - ....
:BUI{MA .LAW REP.ORTS .
I..J
down his goldsmith work as a result of the strjke, hi$ c.c.
1963
action would still be illegal 'Cis section I4C of the Trade
Disputes Act.. as sub~tuted by the Trade _Disp~tes (Amend- ~mv~~~N
ment) Act, -i955, enacts that during the pendency of con- Dl!t;-~"""
ciliati{?l\ Pt9~~dipgs . befqre a Board or a concjlj"ation .:t
Officer, or of proceedings before ~ Industrial Court, no ~:\~:~
' l>
employer shall discharge, x:etrench or dismiss any work- .A~'::.A~
man ' lll'VO}Ved ID the . disJ:>tite Under 'reference exCept for TION, BUR.MA
r.easons unconnected with such dispute, and t:Q,en, only; AND oNE.
with the permission of the Board, Industrial Co.urt,_- or ,
q:n~ciliation Officer, as the case may be and that anyth!ng
46ne in contravention of this provision shall be jll~g~l: '
As a matter of fact the finding of the Industrial Abritra~
tloh Court is that the explanation given by U Khln Mati'ng
to the effect that he could not reinstate the four workmeti . l
involved in:the strike because he had shut down his. gqld-
smith work was untrue, and thai it was the result of atr
afte~thought. .. . .....
Therefore the action of U Khin Maung in refusing
to reinstate the four worl~.ers1 . namely1 ~9 - !(,-a1:1~ E:w~
Lin Lin Phwan, Chet Ket Kyan and Chin Kim Hoke is
ill.gal whether section- I'4A or I 4C of the Trade Disp'l!tes;.
Act is applicable to such refusal to reinstate them ...~ It
has been contended that even if the action of U Khin
Maung wa5 .illegal the order of the Court of Irtdustrial
Arbitration.' Was unduly harsh, regard being had : to :tlie:
conduct .bf the four . strikers who had staged the " Sit-'
Down." 'strike in the shop and that it had entirely :ais:;l
loeatcii .bis 'business. However., in .the matter of fsslie'
of writs thisCourt does not take cognizance of f~:ct:S which.
are btrl.y within the province of an appellate Court. unie5s;
the'oraei of the qwisi-judicial.authority sought to be quash:
ed is'without jurisdiction' or is a speakil)g order, :it isIiof
~e ._prac~ice ._of . ~his Court to interfere. . ...,. . . . , ,. :.
. I:or ~Q.ese -reasons tl1e ~pplicatlon fo.r wrlf. of certi(>fllll
is dismiss~ 'with no order as Io costs.
: .
.CJv.lL MISCELLANEOUS ;
\ ~: . ..! ' . ' l. t i ' . '
. :8.efore
. . U Bo Gyi, C.J.
~ ~
(md U S(m Maung, J.
"i.i<NT
G.; C.
r 'l96J!i'r
:Y,:iJAY KUMA}\:M.1JESA~ AND ONE ~APPLICANT)
. : ! : ;. . . (;
. <.;~ . 0 ' y.
Nov~t:l
. ..1'trHtRENT: coNt,Rott'ER
~! t : .' .
~e ONE
~1 '';P: . ~ , , ' . ,~ ~ ! I.J
(REs~oNQENT):
'
*'.
, ..
~-
(:f.lrtio'rar.l...:..;Juestion:wheiher' 'tlk . robm alloted by Rent Controllir w'aJ really:
tJqdant,-.pursory en(jtfjry by. Rent Controller before passing order allbting.
. P,;etni.~es:.-whether ordeY. can 'be qaushed. . . .. . . :
:; ( (1 i1 r j. r.. : ; ' . ,,., ... ~ , : !
. \lVh<;~e the Applican~ had applied for a writ of certiorari to quash the Rent
CoritioHer's oraer 'alloting'the pn;mlses' to the Respondent on the ground that
theirb'6 tb:'was ;ridr;rJally vacant. . ... . .
0
: :_Hiilft.~)t ~s.appaxent that the:qu:estii9n;wliethet or not the room in question
~~<Y.IIQ~~~ ~po1-Jld:paye~ be~ t~ll, l!l:l?je.pt pf a. thorough enquiry !Jn.,the part; .
c:if'#le'ftei}t Contro1ler befoi~ allotiti~ the same to the Responden~.
--:il:N6tifilig oiii' ~ :cJrs6ry ~~q'~iiyr:had 'been made by the Assista;t 'Re'O:t ;
0Qntt_oller:before. he came the cob.i:'Iusion that the disputed room ; .Wa~ to
'llaC:U"lt. '
} ':
. Accotdingly the or.d er is a ".Speaking; ordet " and must be q~ashed.
. \ ~.;. ,: .. ' t !' t .. ~ ~ . . . .., ~ l : : .
-Ytin=llm}g:(2)'(oi the appllcari:~:
. :1. . . . . C/ : .
Hhf..qHm (Government' A"dvocate) and Tin Aye for the
respondents.
: :-U.SAN MAUNG, ] ..-. This application by .Vijay Kumar
M;-jD_esai an4 his wife,: Mrs. Kumar by their duly consti-
tuted agent Mr: N. R. Shah is for the issue of a writ of.
ceitiotari '.to quash the order of the Assistant Cqiitr.oUer
of. Rents, .Rangoon, dated the 1st October 1963,. .'in. his
Prodeedings No. 14-Ai63, allo:tti.ng the room :in displ.(te
to :the!re,Spc;mdent Maung ThalJ.ng Han for his: occupation.
The :applican~s case as stated in the affidavit of Mt. Shah
i,s. tha;t ~h,ey wereothe}enants of a .room _in t;he 'premi~es
.
. . '1
~.
:. . . ') . . ,
. Givil M~seellaneous' Applica.tion No. 64 o(I96J. Applicatio'n. for w-rit of
-~C!eriiordn toqliasli the ' brefetr: Of the A'Ssist~nt' Re'nt. Controller of Rangoon. in
proceedings No. 14-A _of ~9~3 , .
BURM!A LAW REPOR-TS
kno~n ~ No. I473itli Street, Rangoon.... wli'eii they :~9~._.,
:i Jna.
lefffor .-India-this=ro6m was 'kept in charge of their agen'ti ~ o
Mr. Shah. Mr. Shah. ln . turn . d one H . 'A. A. ZIZ
- . . perrrutte . . ;.,
t0 Ml1:M.:t1f1M
M-.,1 ~1
reside tb:er~in . SUbsequently when H. A. 'Aziz f~il~" t0 4N~:ra
vadate when askeo to do so, Civil Regular Suit No.- 40{ of GTH.st~
1 960" of ij).e Rango;n City. Civil Court for hls ejectment :.~~~r.
was filea ana a decree ' was obtained by the applicants ..
acli,ng ''thlougli their agent Mr. Shah: During the :pen~
dency. of the execution .proceedingS against H. A. Aziz;
. "
the -2-nd respondent Maung Thaung Han asked for ahd
onfained'allotment of the disputed room from the AssiS-
tant C0nfroller of Rents on the ground fuaf it was vacant.
Therefore, :the present application to quash the order; of.
the Assistant Controller had to be file<I.
Maung Thaung Han contested ~he application of
Mr. and Mrs. Desai. His story as told in his affidavif was
that Mr. Vijay Kumar M. Desai absconded from Burma
to India in the year 1958 as he was involved in a criminal
case.under the Foreign.Exchange Regulation Acf.. Shortly
after he left Burma his wife Mrs. Kumar sublet the room
to Mr. Aziz. She then went away .t o IItdia. Subsequently
Mr. N. R. Shah filed a suit against Mr. Aziz and obtamea
a 4ecree . against the latter. In these circumstances he
applied for and obtained from the Assistant Controller of
Rents, Rangoon, =the allotment of the room in quesuon to.
him as both Mr. and Mrs. Desai are away in india and
they have not returned to <Iate.
Mr. Shah's reply to Maung Thaung Han's affidavit was
to the effect that the allegation that Mr. Desai had ab-
sconded to India was false and that Maung Thaung Han's
own application for allofulent of the room now in dispute
was made in collusion with the judgment-debtor Mr. 1\ziz.
From the above affidavits and couriter-affidavifs it is
apparent ~ai the question whether or not tll.e room in
question .w~ vac~n~ sho\lld h(lve l>e~n th~ subject of a
-~.(;:~ th0l'oug~ intp.iiiy on W.~ part of .the Ass~st?lJl~ -~~nt.Cc;m~
.: '~9 - ~ ~;rqller -l;>e:fore allotllng the sameJo the resp.ond~t:Ma~_ng
IV~~~f!!~ Jh~ung .I:f.a~. . . So far _as we can :see fro~ ~e, :Pr9~ce~~tig~
. ~.~N 110thing b~t a cursory inquiry -had been . m~4e7~by :th~
-~R-Ewr ~sista~t Controller of' Rents, Rangoon~ befor~ he ,C'!'Q.W-E9
~:~~i ~h~ . cond.~sioli .t hat th.e :~i~puted. "room : w~~ . : v~.q~~~
;A~~or~_ngly, h1s order is a "-sp~aJ9ng ord~r:"- ~n~)'t J:ll~$t
~-~u:ash~d. However, ~e Asislant contr<?,lJer:-:9 f ;~~n:(~
!naY ma,ke a further inquiry into, the ,mat-~et; -~t~J;' giY,ing
fl).l~ ~.O:ti~e to all concerneq. before p~ssing or~~r;-_ q~ !IJ~
app~i~a_tiqn of Maung :Thaun:g H:an fo:t: allotm~nf. ~f t.h~
rpom;in question to him. Let each. p<trty bear. Jts:. <;!WI}
!=P~ of this application. .
BURMA~ -tivW-REPORTs;
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: , ' '52.2 (r) Whenev:~r ~ person is convicted of an offence
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criminal intimidation and it appears to the Court that by ~ch
force or show of force or criminal intimidation any rsori'
has ~ dispossessed of any iminoveable property, the Court
mtty, if it thinks fit, when convicting such person or at any:
time within one month from the date of the conviction, order
the person dispossessed to be restored to the possession of the
same.
(2)
{J) .Ap order under this section may be made by any Court
appeal/ confirmation, reference or revision."
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BURMA LAW REPORTS . 985
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BURMA LAW REPORTS
BURMA LAW REPORTS
C' C'
')I.I09rooo ;SC' OC'()Q C'
::Y.>I.lf 0
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"
." When a plaintiff in the initial stage of the litigatiotf aban-.
dons a portion of his claim, he is riot compellable to p ay
Court-fee in respect of the portion abandont!d under. penalty;
. . X>f having the whole of his suit dismissed..
;;;, r,;: c c:.c: c c c 9 c c9 c ~c c.0 9 . ..
<ft~ ~:t:JO'JCQ':l::02t:JCI 90?0JC~9~1.10?'}0~f':'JOOS ;s OO?OJC~!J~~~
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"Under order 23, Rule r,.a plaintiff has a right to.relinquis~
part of his claim in order .to bring it within the ~o~rt-fee .
paid. Neither permission of the Court nor an application for
am~ndment of the plaint is necessary for $e pmp~se. If
the plaintiff abandons part of his claim, he has only to inti-
.. mate the fact to the Court and the Court haS only to note
it on the plaint. " . ." "
G
(p)
.
co:roc-
L '6
('
" .The Court has sufficient power in appropriating cases t 6
permit amendment of pleading and this power can be exer-
cised till the plaint is actually rejected. 'The circumstances
that the am~ndment of the plaint is s~ught only after the.
Bl)F.trfA LAW-REPORT~ 991
demand for deficit Court-fee haQ. been made cannot stand
in the way o'f the amendment being allowed if it is otherwise
proper. . ."
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266
BURMA LAW REPORTS
ISSUES
(h) Was U Po Sai or U K}~W Nyar the origijlal owner of e
suit Land?
(BJ Who were the heirs of the suit land at tp~ time of
U Kyaw Nyar'.s death?
.(~~ Can the plaintiff appellant file this suit in t~e present
form?.
994 BURMA LAW REPORTS.
(1) +S Bombay -P '75. .
. . . . .
. . ' : n~ec:?JeS?~~t(, (~oyj~~P!I~.o6) ,-: '.: .
1r r
eSOco~:_rcc:_rLo~~ee:c.coft_rro-sok~ksore~~Leooo~es~ce .(lu3s:U?.:J).f... ..
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. ~. ~ .
BUlt~A LAW REPORTS 99lt
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t:~"SC>~:'
(;0'1-:lg
.8
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mj:~n
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o~~Jtl:m;;-:~nt G~:j~'Jt' ot~? t(~.:::n?o:>? m'P:200s OO<J:~:>: romcoo
0 . ~C' C'~ C' C' 0 C' C'
G9!ot t:Jf 00~9J 9 : o:>o9f "t~()GOo:>2ll
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OC' C' C' .
~qs Ojl .JJ ~c. Jj qc.- --..
' < . . The ..more one considers the Dhammathats,.the
greater becomes 'the difficulty. of laying down any precise
ruling as to what fact is essential to constitute the. status of
marriage, when the status begins, and when 'the contract is
compiete. . . After sucli conSideration as I have been able
to give to .the subje.ct, I ani .mdined to think tha.tconsent of
both parti~s is essenti~l to the contract of marriage. "
U]t~ 98:c:l 008~8~oo~u~ 9:m:>:G0,3o:>~ u
o c ( o C' 'l C' c . C'~ o C'. ~.C'
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o5?o:>? o:>'P:20GS OO~:l<p: a:;>mCOOG'J: O?!J{O~-
" . . As to the actual parties to the marriage, it is
iildtibitable tliat their consent is necessary. "
~~ G'J:~-i>: ,G~3:x>a II
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" . As regards the marriage, it is common groun~
that,,: accor~g, ~o Burm~e . Budd.hist I!aw, no ceremony is
',:equisi!e. in orO.er to constitute ~ vaU~ m,.~r:ri~ge. All
that .is necessary is consent on :both Sides to: Jive together as
husband an<! wife. " ~
~6'
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J . L .-1. L A
". : . To const~tute a marriage under' BUimese Buddhjst
Law no special ceremony is .,necessary. But the essential
requirement is the consent of the parties. "
~:- :;q;~ro?:::D2 u
~~.~o5
. ~<
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At (:J)
\ &~o:5:rot-
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''. . , The Jaw relating to marriage : in Burma is ex-
.t~emely lax. No ceremony of any kind iS ~ssent,ial. .
Mutual consent is all that is requited; ,;
, ~ o o c-o r.;: c- .. c- c- c~c . c- c "~ cor,:;:, c-
~9JoO'}~ c;;ro:>ce>rot ~:t:Jro~Jro ~J~cn::netcP ~.JG~:vw i<: ~.Jt:3et.:..:,je
) ... g C" . . .. c .
(
9 : :~c~:~c- . . .
; ,; ;,: ~ . Under Burmese Buddhist Law no ceremony is
.~. .:required in order to constitute a valid marriage. All that is
~ :, n~essary is the consent of both parties. .
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~roGcn~<p' ~"9v~c; Gv:>c~~::o., :; ~caz:;r-- .
" . . . . If a Burmese Buddhis.t couple .go through a
marriage ceremony customary ~o persons in their state of
life, but the ceremony is not followed by co~b.abitatioh, so
~ . ..~
. BtJRMA. LAW R<EPORTS
&OO:MA JcAW _RE,P.ORTS
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~'):~0)') (LA.W and CU.STOMS i-o. BURMA and the BURMESE. Fb:MI_L:Y,) ~ti~i3:~
10911
c. c
10'?~\..l~C
" To-day :it is settled law and cus.tom 'that vi~:al me
.~QJ,l,.S~~t pn wltich .a m~uiage m:u.st :t>e founded is that of\tlte
.p~tie.s thems!!.lves. . . Constnt of the parties. 'to .marry.
their i.ntention to .en~er the status of ~usband and wife
are the large fa.tors in a m.arri~ge. . . One el!!ment of a
:v:lU.i4 JJl.<miage ov.er >Which .s~me .doJ.tbt has b.e.en c~t is
consummat~on. . . A sear.ch for reliable autbority :on the
question was made, only to discover the great dearth.
.N~ither the -~U.s'tOUJ.S or B.J.Umese .so.qety t~ay, 'no.r the
Dbamm.a~b.aJ~ :w.h,ere ,they do .tou~h on the subject; though
lightly, seem to -fully support the decision. "
BURMA LA.W REP0Rts .
'
BURMA LAW REPORTS 1003
" . . We cannot apply 'the principle or practice of
the Dhpmmathats to the changed society without -modifica-
tion ; and in the moulding of the law it is of great importance
that the Judges should modify the old rules in the line of the
present customs and opinions rather than that of a bye-gone
day. . . Care must be taken in applying to cases at the
present . day principles derived from an archaic society and
how materially affected in thejr application by the existing
order of things. . ."
The Burmese marriage is purely a civil and consensual
col!tract even a~ the present day. . ."
A\ C"~ C" OC" ( g "' -~ C" 0
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emP:loyed 'in s~ction. {1Jidic~tes tha,t it ~othil}_gA.,t~., d9,,Wit_q uas
computing the pres,crlbed periG.>d. ..,Wh~t the .section'. ptovides
. i's. that, whde ttl&perlo'd prescribed' e'Xpi'res on a da~ wlien :
. the. <;ourt: iS:closed; net.wi.thstandfn~ .tha.t .faCt, the appJicati()IL
.may be niade on the day that the Court reope'$.; so that th.ere .
rs nofiting :in the section which alters the length the or
prescribed period!; whereas in section 14 and other se~tions
;of a: similar nature in the Act, the direction begi-ns With the
~ords : ' In computing the period of limitation, prescii.b~d
for 'any a:pplica:tion/ certain periods shall be exdud$d.'' .
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1;010 BU.RMA. LAW. REPORTS
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has commen&d, he must permit 'him to remain on till that
term ex:pires."
LIST OF CASES.REPORTED
COURTS.MARTIAL APPEAL COTTRT
Lioofenant Ko Ko Aung v. The Union of Bunna
Maung _ S~ Aung_ v. The Union of Burma
0:) p<>.U~J.~>l
6ZOI . '(-:)':::>) 'l96I JO 06 pue 6gft ."SON Sltl~dy J1U!ul!l;> _
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G3J.IJ S3SV;) dO JSI1 .
~9f3 been rerirltted by ~he !:hie{ o{ Staff General N ~ Wirf on the
.- -sth of January,, 1963.
LII!UTBN.t.!ff 0
Ko'Ko AuNo ~e c~arg~ foc which the appellan.t Lle~ten~n~ Ko Ko_
Tim umoN Aung was convicted and sentenccii w.as for disobeying
oF BuRMA. whlle oh active service :the lawful c<9riunand rof"his superior
officer i,n :that he at Nan~I-fsa-La village, on or 'lbout the
-2 8th of September 1961-, whew orc;lered hy his Company
Commander BC:-68s6, 'Captain De Vauz .to continue taking
comm&nd o{ .a platoon, failed tO do so. In connection
with the present appe'a l the 'a ppellant Lieutenant, Ko Ko
Aung has rriade an application to exami:Q.e two Watralit
=officers, three: Noh-Comlil.issjoned Officers and one o ther
Jalik :to prove tha:t the case against him was false. He
said Jhat he' was unable to -e xamine these witnesses .at the
Summary-General Court-Marti~l \>ecause he had no! been
~ble to i.nterview them with a view to find out what they
could stat:e on behalf of his defence.
Regarding the -merits o( this appJ.icatimi weshall make
an observation later in this judgment. the first point for
consideration js whether j_n -vjew. of :the fact that U1e
offence
~
for which
. .
the appellant
..
tieutenant'
Ko Ko A~g .
was convicted falls within the ambit of sub-paragraph ,(r)-
of paragraph 1 of the .General AlJlllesty Ord~rr promulgated
by the Chairman of the Revolutionary Council .on the rst
of April 1963, :this Cou"F.t .js competent to ,go into ~he
merits of the appellant's case. . In ibis connection two
recent decisions of the -Chief Co'\lrt .are : apposjte: - In
Criminal Appeal -Nos. :3~9 :and .390 ~of.i962, U Z~w Win!'
(ormerly an:Envoy Extraordjn,ary.and Mirrister , Pl~mip6tep.
'tiary of. the Burmese Legaf;ion at Faris appealed ag<ll,~~
'his convictions and sentences :o! one .y~ar.~; ~igo:w~s
tmprisoml).ent each for .off~nces punishable -under . .section
1 (1;) (c) read with sectiop.:- 4 .(2) o~ the S~ppressipn of.
: ~orruptjon Act, 1948 in Crimil)al Regular J":ria,L.:N6~.)3,r
and 82 of -1955 o~ the Court of the 'First. Special .Judg~
. '
(S~AB BSlA), Rahgo~n. . ~e. . ;Ghjef ,Gotirt refused to go
BURMA LAW REPORTS 1031
into the merits of 'd ie appeals on the gro~d that the
offences for which the appellant U Zaw ~in W;'lS
convicted were Within the ambi~of.sub:paragmph (r) of k~EX:
.paragraph I of the General Amnes:t y C>rder abovemen- THBUNroN
tioned. His apl>eals w;.re ordered to be dosed . . Being o~r BIJliMA.
diisatisfied with this pr9cedure U Zaw Win filed an appli-
cation purporting 'o be under section s6IA of the
<;riminal Procedure Code for the hearing of his appeals.
His main gro:und was that the question whet-her any per-
son is covered by sub-paragraph (r) of paragraph I of
the General Amnesty Order could not be decided unless :
(a) t~e person concerned pleaded that he was co;ereq or,
(b) a conclusi~e and final judgment had been arrived at
through normal legal process that he was guilty of having
committed one of the offences mentioned in sub-paragraph
{r) of paragraph I -of that order. The Chief Court, how-
~ver refused to go into the merits of the appeals but
quashed the .convictions of U Za~ Win under section
4 (r) (c) read with section 4(2) of the Suppression of Cor-
ruption Act, 1948.
The reasons given by the Chief Court for not going
into the merits of U Zaw Win's appeals were: (.r) that if
_U Zaw. Win. were found to b~ guilty by the app~llate
Court he could not . be ~entenced in view of the General
Amnesty Order and (2) even if U Zaw Win were found to
be im10<;ent a warrant for his release could not take effect,
he having been released already by the executive authri-
ties under the provisions of the General Amnesty Order.
Accordingly, in view of the law as enunciated by the
Chief Court we must refuse to go into the merits of this
apt>eaJ filed by .the appellate Lieutenant Ko Ko Aung.
In this connection, we would li.ke to mention yet
another aedsion of the Chief Coutf. I.t is made on the
, application of U Zaw Wjn ~or admission as. a Higher Grade
Pleadex:- as he had been relea;ed under the provisions of
P.aragrap_h I _o ! the General t-mnesty Order. A question
I
1034 BUR,MA LAW REPORTS .
C. M.A. The facts of .,the case are briefly ~ese: .'; .
1963
') MAUNG On the 3rd 0~ Oc~o~~ I 9.62 aft;<:r. breakfast, w1ule .
SAN AyN~ the <appellant Rifleman San Aung was writing a letter for
THE u'moN ' Ritliman My~ T~ .hung (PW 2} at. the latter's dictation
O- BURMA. on a box atthe foot of Mya Tun Aung's bed, Rifleman
Mya Thauri:g (PW I) came wijh Rifleman shwe Hla (not
cited) to wher~ the appellant Rifleman San Aung was
seated. Rifleman Mya Th'mi'ng then a'sked sa-n Aung for
a Joan of
the gold chain owned by the appellant 'Rifl~man
sa.n:.Aurig sayirig that he wa:nted ttY wear it for th~putpose
of having his photograph taken. When asking for a? lo.an
' ~:it~~ gold.chain Rifleman MyaThaung expressed himself
itS follows:
"'
e ;, My brother-iri-hiw, please iend me Y.~~ gold chain."
.T he appellant thereupon abused Rifleman My~ 'thaurig
. aiid refused. to l~n4 b.im hiS golci dia:in. He _the_ri . went
t-o the head side of Rifleman Mya Tun Aung's bed where
the latter h~d kepf h!s rifle COii~ciiiling 5 cartridges jii the
magazine. H:e loaded the rifle and shot Rifleman Mya .
Thaung on the leg and the latter receiVed an injilry which
. fortunately provedoto be only a fle~h owoun<;l. TI1e jnjured
. per-son was treated for 7 days & at{ fucr6brp"a'ti~trt at a
militarr hospital a.nd his w~und_ 'Y.as a.ttended . .to for 8 .
more day as a'fi 6utdo6ftp~tief.it B~f6re i't Waf t6Yrlpfetely
cured. The appellant was then tried before a Summary
toutt Martial ptestd~d 6vr oy Mcijor sa:m tm. a:nd he
; ~as t6Wicted ari'd ~enfe'fi:ced ~Is' the'ilflo'fled ab6~e. The
~6nvtc~6'? afid ~ti~e~~e- vyiite ,ut:s~~~iy_ cot:t!{ik}.~'d-by
C:ofoil'dl Tirauntf<yr, <S61nffiaii<tr 6f ~i>t(tlitE<i'Si Qo"fit'nt<lnd.
. '' 'Bef6te t~6 c6.ur.t Maftia'l.~ffeman'~~~:ftia.~rft(P~ I)
~iid me riictiii witness for -we..
.J:ifosec:tttrori lti'ft~fil~fi: Jivfya
Tiiri A~'ri.g (PW 2') sa:id tb:~f flrey., tilought t1ie sh'6'odfrt was
th~ r~ult of an a:tddent as Rij~~~n Mya- fh~ung .~1 the
.appel,l~nt were tne best of frie'ndS'and excliaiige of aBuses'
between- tn:em on. the occasi:o~ of ~e aslci:ngfor ':ioan 'of
,,.,. . ' .. ' ' .. .. '
BURMA LAW REPORTS 1035
- '}'
th; ~old -chain was _thought to be J>y way of joke. c~~6f~
F.~~~~~e:~ vy_~rr~~ _?~~~. tn~l -(PW 3J stated t-h~t -~;;t<li
when iJie matfet was :r~pb'tted tO' h1m by l~ifle~ '!'4y.a SAN- AUNG
i'iiaul!ig (P-W f-) ;rvtya: Tnaung- said, jhat, the,.slioo!iflti ~ 'rlJi...'ttm~~
accidental. oF Bpi\MA.
Nevertheless, ~e are of the opinion that the Summary
Ge~ral Court Martial was not wrong in coming to the
conclusion that the sl\ooting of Rifleman Mya Thaung by, ~
th~ appellant Rifleman San Aung was intentionat. .The,.cir-
cumstances belie the words of both Mya ThalJng (PW r)
ani. the main witness Rifleman Mya Tun Aung (PW 2).
In the first place there was admittedly an exchange of
abuses between R;fleman Mya Thaung and the ap1:lellant
Rifleman San Aung when the former asked for a lo~~of -
the gold chain belonging to the latter. The rifle belonging
to Rifleman Mya Tun Aung was not loaded as the 5 car-
tridges were only in the magazine. Any trained rifleman
must be. expected to know that working the bolt of a rifle
will result in the rifle being loaded. If in spite of that
knowledge the appellant Rifleman_San Am:1g did W5JF.J.< t}J.e
bolt, he must be presumed to have done so with the in-.
tention of shooting the injured persofl. I~ is a well known
principle of law that a person must be presumed to 1ntend
the nafuial and pmbable consequences of his act. Accord-
ingly, the action of the appellant Rifleman San Aung in
taking hold of the rifle which was kept at the head of
Rifleman Mya Tun Aung's bed and in loading it with a
cartridge must be considered to be With the intention of
~hooting with tke rifle.
In .these circumstances, we are unable to hold that
the shooting of the injured person by the appellant Rifle-
rna~ San Aung was anything but a deliberate act. _For
these rea-sons, we are unable to interfere with the convic-
tion of the appellant, The sentenc6 of 3 ~:sr:~s-,rig.orous
im:lrisonment is in ~cord.ance with sub-pagrapa (3}; of
..... . :""
. ,.,
,f.
.
.1036 . '
:eURMA LAW
,' .
REPORTS
~ : (~'. I' ~.
~c~~t~ ,P~l,'agta.ph. i .Qf .tlte'. Amn,esty., Qr<),~.~prpiiJ1g~ted on ~he
. .'. o' . , ,: :. . 't'
: ' MaTJN~ . I~f ~~~ril ':r63. ?Y '.the . t!~_airma-rr.o~.~:~
~e:olution<!-rY
SAN !,IAu;:c ~o~~t.Il~The_ ap\.eal., 9f Rifleman .s an Au~g ?.s. ~herefore
THE UNtoN disnnssed.
OF BunMA.
"C.f.-l\o. 94 H C.R. z796s-r.soo + 68\;~Mor.o-Lino (IX).
. .. ~
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